[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.
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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.
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