[Congressional Record Volume 144, Number 14 (Tuesday, February 24, 1998)]
[House]
[Pages H499-H501]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  WHETHER CONGRESSIONAL AUTHORIZATION OF FORCE IN THE PERSIAN GULF IN 
               1991 CONTINUES TO AUTHORIZE FORCE IN 1998

  Mr. SKAGGS. Mr. Speaker, I think we were all heartened by the 
developments over the weekend when the Secretary General of the United 
Nations was able to put together an agreement with Iraq concerning the 
current crisis there. It is certainly a promising development, and we 
all hope and pray that it will be the solution to the crisis.
  But given Saddam Hussein's history of broken promises, we all will 
remain skeptical and will wait to be shown that this time it is for 
real. It is understandable, therefore, that the President has stated 
that the United States forces currently deployed in the region will 
stay there for the foreseeable future, and again, given the history of 
broken promises, it is entirely possible that we may face again soon 
the question of the use of military force against Iraq.
  So, it is important, even though we have this moment to catch our 
breath, to remind ourselves of Congress' responsibility in this matter. 
In my opinion, and I think an opinion widely shared, the initiation of 
military action that is contemplated in Iraq clearly implicates 
Congress' responsibilities under the war-making clause of section 8, 
article 1, of the Constitution.
  The President's position, as I understand it, has been that he 
already has sufficient authority in this matter derived, in a way, from 
the Persian Gulf War resolution that this Congress passed back in 1991. 
The administration claims that it is appropriate to see that Persian 
Gulf War resolution as looking forward to the authorization of force 
not only to implement then existing Security Council resolutions, which 
at the time of course dealt with getting Iraq out of Kuwait, but also 
to contemplate future Security Council resolutions, including the one 
that after the war set up the United Nations commission and the 
inspection regime that is now at issue in going after Iraq's weapons of 
mass destruction.
  That Security Council resolution, number 687, of course was adopted 
after the Persian Gulf War, and unlike the ones that preceded the war, 
did not expressly contemplate or state that member states of the U.N. 
could use force, or ``all necessary means,'' to use the proper 
phraseology, to carry out its purposes.
  I do not believe those of us who were here in 1991 for the debate 
before the Persian Gulf War would say that the text of the resolution 
passed before the Persian Gulf War, and certainly not the debate that 
preceded passage of the resolution, support the idea that we were then 
granting authority for some future military action to force compliance 
with a weapons of mass destruction inspection regime that did not then 
exist.
  Over the weekend we have heard former Secretary of State Baker remind 
us all that the issue at the time that we went to war in 1991, the 
mandate at that time, was to get Iraq out of Kuwait.
  I have today released a report, a memorandum, done at my request by 
the Congressional Research Service on this issue. A copy has been sent 
to all Members' offices. I believe the analysis of these legal, but 
very important, considerations done by CRS reinforces the argument that 
this 105th Congress cannot rely on what the 102nd Congress did, and 
that we need to face up to our current constitutional responsibilities.
  The Constitution requires authority from Congress before this country 
initiates a major military attack for good reasons, both as a check 
against any precipitous action by a President, but also to be sure that 
the American people, acting through their representatives in Congress, 
have been consulted and do consent.

[[Page H500]]

  Should we face another major military confrontation with Iraq in the 
coming weeks or months, Congress must fulfill that responsibility and 
conduct the kind of debate, the thorough debate we did in 1991. I think 
we all remember that debate as one of Congress' finest moments, in 
which we were soberly engaged in a meaningful discussion of a critical 
issue. It helped to unify the country.
  We should welcome a debate and a vote again, as the President should. 
He needs to know that the country is behind him.
  It is troubling to look ahead to circumstances that might arise very 
quickly in the next weeks or months that might not enable us to have 
the kind of debate and vote that we should. Therefore, I hope my 
colleagues will unite in requesting that the leadership proceed while 
we enjoy this reprieve to have the kind of discussion that is warranted 
under the Constitution.
  Mr. Speaker, I include for the Record the memorandum from the 
Congressional Research Service.
  The memorandum is as follows:

                                   Congressional Research Service,


                                          Library of Congress,

                                Washington, DC, February 23, 1998.
     To: Honorable David Skaggs.
     From: American Law Division.
     Subject: Whether 1991 Congressional Authorization of Force in 
         the Persian Gulf Continues to Authorize Force in 1998.
       This memorandum is in response to your request that we 
     briefly evaluate an argument that has been presented in the 
     present debate over use of United States military forces in 
     and over Iraq, namely whether Congress can be said to have 
     authorized in its 1991 enactment the use of U.S. military 
     forces to carry out resolutions of the Security Council of 
     the United Nations adopted subsequent to the conflict in 1991 
     in the Persian Gulf.
       We here deal with a specific and limited, though important, 
     question. We do not consider what the Constitution, in its 
     authorization to Congress to declare war, requires of 
     Congress and the Executive Branch in the initiation and 
     carrying out of combat with Iraq. We do not consider what 
     restraints the War Powers Resolution imposes on the 
     President's use of force in and over Iraq in the absence of 
     some affirmative pre-action approval by Congress. We do not 
     consider what effect upon the ability of the United States to 
     act, within its constitutional structure, may be derived from 
     United Nations authorization(s). To be sure, these issues are 
     implicated in the response to the question with which we do 
     treat, but it is possible to assess a resolution of this 
     single question without also attempting to venture answers to 
     the other questions.
       Following the invasion of Kuwait and its occupation by 
     Iraq, the Security Council adopted Resolution 660, demanding 
     that Iraq withdraw from Kuwait. After adoption of a series of 
     other Resolutions, the Security Council in 1990 adopted 
     Resolution 678, which is considered the United Nation's 
     authorization for the carrying out of the military actions 
     that took place, by which member states were authorized to 
     use ``all necessary means to uphold and implement resolution 
     660 (1990) and all subsequent relevant resolutions and to 
     restore international peach and security in the area.''
       Although President Bush and his Administration took the 
     public position that no authorization by Congress was 
     necessary, at the last moment the President did seek 
     congressional approval, which was forthcoming by close 
     votes in both the House of Representatives and the Senate. 
     P.L. 102-1, 105 Stat. 3, 50 U.S.C. Sec. 1541 note. The 
     Joint Resolution became law January 14, 1991. The 
     pertinent part of the Joint Resolution provided: The 
     President is authorized, subject to subsection (b), to use 
     United States Armed Forces pursuant to United Nations 
     Security Council Resolution 678 (1990) in order to achieve 
     implementation of Security Council Resolutions 660, 661, 
     662, 664, 665, 666, 667, 679, 670, 674, and 677. 
     Sec. 2(a).
       After Iraq's military defeat, the Security Council on April 
     3, 1991, adopted Resolution 687, setting out conditions to 
     which Iraq had to agree in order for a cease fire to come 
     into effect. Among the obligations, Iraq had to accept the 
     neutralization under international supervision of its 
     chemical, biological, and medium- or long-range missile 
     capabilities. Furthermore, the Resolution stated, the matter 
     was to remain before the Council, which would ``take such 
     further steps as may be required for the implementation of 
     the present resolution and to secure peace and security in 
     the area.''
       On November 12, 1997, in response to various moves by the 
     Government of Iraq to disavow and to hinder the inspections 
     to which Iraq had agreed as a result of Resolution 687, the 
     Security Council adopted Resolution 1137, condemning Iraq for 
     its actions, demanding adherence to its agreement, and 
     specifically referencing Resolution 687. Resolution 1137 
     further stated ``the firm intention to take further measures 
     as may be required for the implementation of this 
     resolution.''
       One reading of the series of United Nations resolutions 
     from 660 (1990) through 678 (1990) and on to 687 (1990) and 
     1137 (1997) is that the Security Council has authorized its 
     member states to take enforcement action under Chapter VII of 
     the United Nations Charter against Iraq not only to force 
     Iraq from Kuwait, which has, of course, been achieved, but 
     additionally to require Iraq to comply fully with its 
     obligations to rid itself of its prescribed weapons and to 
     continue to accept UN inspections to assure its compliance 
     with the obligation to destroy the weapons. That is not the 
     only reading, other members of the Security Council being in 
     disagreement with the United States and the United Kingdom on 
     the proper interpretation. Indeed, while Resolution 678 did 
     specifically authorize member states to use ``all necessary 
     means,'' both Resolution 687 and Resolution 1137 appear only 
     to pledge that the Security Council will ``take such further 
     steps'' and ``to take further measures'' without in either 
     Resolution authorizing member states to act.
       In any event, the issue is not the correct interpretation 
     of the series of United Nations resolutions; rather, it is 
     what Congress may be understood to have authorized in P.L. 
     102-1. That is, did Congress authorize only the use of United 
     States military force to drive Iraq from Kuwait? Or, more 
     broadly, did Congress authorize open-endedly the use of 
     United States military forces to achieve whatever goals 
     subsequently adopted Security Council Resolutions may have 
     set out?
       Facially, P.L. 102-1 bears little indicia of the broader 
     reading. Its pertinent authorization paragraph, set out 
     above, references the use of force ``pursuant'' to Resolution 
     678 and the implementation of Resolutions 660-677, which have 
     to do with the unconditional withdrawal of Iraq from Kuwait. 
     As we have noted above, Resolution 678 authorized member 
     states to use ``all necessary means to uphold and implement 
     Resolution 660 (1990) and all subsequent resolutions and to 
     restore international peace and security in the area.'' The 
     phrase ``all subsequent relevant resolutions'' doubtlessly 
     refers to all the Resolutions following 660 and leading up to 
     Resolution 678. While it might be read to include Resolutions 
     adopted subsequently to 678, and the Security Council might 
     interpret it that way as well as its member states, the 
     pertinent point here is what the congressional enactment 
     comprehends.
       First, the authorization paragraph specifically references 
     Resolution 678 and expressly states that action pursuant to 
     that Resolution is ``in order to achieve implementation of'' 
     the specifically identified Resolutions from 660 to 677. The 
     express wording of this paragraph appears to target exactly 
     the United Nations goal of ending the Iraqi occupation of 
     Kuwait.
       Reference to the purpose clauses, the preamble, of P.L. 
     102-1, which has no legal force but does declare 
     congressional intention and is relevant to understanding the 
     meaning of the law that Congress has enacted, confirms this 
     reading of the authorization. That is, while the third 
     ``whereas'' clause states the danger to world peace of the 
     existence of Iraq's weapons of mass destruction, the other 
     clauses all relate to the termination of the occupation of 
     Kuwait. It is true that the same ambiguity noted above with 
     respect to the language of Resolution 678 may be discerned in 
     the sixth ``whereas'' clause, because of its referencing of 
     Resolution 678.
       Whereas, in the absence of full compliance by Iraq with its 
     resolutions, the United Nations Security Council in 
     Resolution 678 has authorized member states of the United 
     Nations to use all necessary means, after January 15, 1991, 
     to uphold and implement all relevant Security Council 
     resolutions and to restore international peace and security 
     in the area[.]
       Thus, the more likely reading of the authorization section 
     of P.L. 102-1 is that Congress specifically authorized the 
     use of United States military forces to drive Iraqi forces 
     from Kuwait. Congress would have taken the reference in 
     Resolution 678 to ``all subsequent relevant resolutions'' to 
     mean those Resolutions that preceded 677, those, that is, 
     referenced by number in 678. Congress further would have 
     understood the reference in Resolution 678 to the use of 
     force ``to restore international peace and security in the 
     Area'' to encompass the restoration of the status quo ante, 
     the withdrawal of Iraq from Kuwait. Certainly, there is 
     nothing in the authorization section of P.L. 102-1 that 
     requires or compels a reading that would be in effect an 
     open-ended authorization of the use of United States military 
     forces to achieve any subsequently adopted goals of the 
     United Nations.
       Nonetheless, sufficient ambiguity does exist to permit the 
     possible construction of the language of P.L. 102-1 as 
     authorizing United States military force to carry out 
     subsequently-adopted Resolutions setting forth an intention 
     to force Iraq, under threat of military force, to rid itself 
     of prescribed weapons and to permit United Nations 
     inspections to assure that the result has been achieved. It 
     is not clear, as noted above, that the Security Council has 
     adopted any authorization for its member states to use 
     military force to achieve these results, but we pass that 
     question by.
       The pertinent question is, given two possible 
     interpretations of congressional meaning, how do we resolve 
     the matter?
       Second, one must look at the textual object. Although two 
     meanings are possible, one is more likely to represent the 
     meaning to be ascribed to it by Congress. If, however, after 
     confronting the actual language to be interpreted and finding 
     a likely but not compelled interpretation, how do we then 
     infer or deduce meaning from context and surroundings? One 
     such method, favored by the

[[Page H501]]

     courts, including the United States Supreme Court, is under 
     some circumstances to adopt a default means of 
     interpretation. When, for example, the issue arises in the 
     context of a critical or critically important question of 
     constitutional meaning, courts impose a ``clear-statement'' 
     rule under which Congress, or some other entity, will not be 
     understood to have meant to say something having great 
     bearing on its powers or on the Constitution without saying 
     it clearly, perhaps expressly. For example, when the issue is 
     whether by the terms of a statute Congress has waived the 
     sovereign immunity of the United States, the Court will not 
     apply ordinary rules of statutory construction but will 
     require the clearest possible expression of congressional 
     intent; any waiver must be unequivocal. E.g., United States 
     Dept. of Energy v. Ohio, 503 U.S. 607 (1992); Library of 
     Congress v. Shaw, 461 U.S. 273 (1983). Of course, the 
     particular issue with which we deal is highly unlikely to 
     present itself as suitable for judicial resolution, but 
     subsequent Congresses and private parties may resort to such 
     rules of construal.
       Congress has been highly protective of its powers in this 
     area, especially of the use of United States military forces 
     abroad, since the great debate in this country with respect 
     to the undeclared war in Indochina, which eventuated in the 
     adoption, over a presidential veto, of the War Powers 
     Resolution. P. L. 93-148, 87 Stat. 555, 50 U.S.C. 
     Sec. Sec. 1541-1548. In view of the hesitancy of Congress to 
     act in respect of the Gulf War and of the close votes in both 
     Houses, how likely is it that Congress would have authorized 
     the President to use United States military forces to 
     effectuate a United Nations Resolution or a series of 
     Resolutions that were to be adopted sometime in the future? 
     It is, of course, possible for Congress to authorize 
     something on the basis of an occurrence not yet having 
     resulted. But with respect to the commitment of United States 
     forces abroad? Again, Congress might do so, but ought we to 
     conclude that it did so in 1991 on the basis of contestable 
     language susceptible to more than one interpretation? Might a 
     clear statement of Congress' intent to do so be required 
     before such a construction is adopted?
       In short, to conclude that P. L. 102-1 contains 
     authorization for the President to act militarily in 1998 
     requires the construction of an interpretational edifice 
     buttressed by several assumptions. We must conclude that 
     Congress in 1991 intended to base its authorization of United 
     States military action upon the future promulgation of United 
     Nations policy developed in the context of circumstances 
     unknown or at most highly speculative in 1991. We must 
     conclude that Resolution 687 did authorize member states to 
     act to implement its goals and not merely reserved to the 
     Security Council a future determination of what it might 
     authorize. We must conclude that Resolution 1137 did 
     authorize member states to act to end Iraqi recalcitrance and 
     not merely expressed the aspiration of the Security Council 
     to do something in the future. And we must conclude that 
     Congress in 1991 was so confident of United Nations policy in 
     the future that it would have authorized the future committal 
     of United States military forces to achieve what the Security 
     Council wished to achieve.
       We have examined legislation enacted later by Congress in 
     the same year that bears on Operation Desert Storm, in 
     particular P. L. 102-190, 105 Stat. 1290, and P. L. 102-25, 
     105 Stat. 75, and find nothing bearing on what Congress might 
     have thought it was doing in P. L. 102-1. Certainly, there is 
     nothing in those Acts to be construed as additional 
     authorizations.
       In the end, it is for the Congress to determine what the 
     102d Congress meant in adopting the joint resolution that 
     became P. L. 102-1. How, if Congress' interpretation is 
     different from that of the President, Congress is to give 
     effect to its determination presents another question 
     altogether.

                                            Johnny H. Killian,

                                       Senior Specialist, American
     Constitutional Law.

                          ____________________