[House Report 105-442]
[From the U.S. Government Publishing Office]
105th Congress Report
2d Session HOUSE OF REPRESENTATIVES 105-442
_______________________________________________________________________
DIRECTING THE PRESIDENT PURSUANT TO SECTION 5(c) OF THE WAR POWERS
RESOLUTION TO REMOVE UNITED STATES ARMED FORCES FROM THE REPUBLIC OF
BOSNIA AND HERZEGOVINA
_______
March 13, 1998.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Gilman, from the Committee on International Relations, submitted
the following
ADVERSE REPORT
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H. Con. Res. 227]
The Committee on International Relations, to whom was
referred the concurrent resolution (H. Con. Res. 227) directing
the President pursuant to section 5(c) of the War Powers
Resolution to remove United States Armed Forces from the
Republic of Bosnia and Herzegovina, having considered the same,
report unfavorably thereon and recommend that the concurrent
resolution not be agreed to.
BACKGROUND AND PURPOSE
On February 20, 1998, the North Atlantic Council--the
decision-making body of the North Atlantic Treaty Organization
(NATO)--decided to keep the existing Stabilization Force (SFOR)
in Bosnia after its current mandate expires on June 30, 1998.
SFOR will be maintained at approximately its current level of
34,000 troops, and the U.S. contingent will number 6,900--a
slight reduction from the present level of 8,000 troops. The
mandate for this extended SFOR mission will be to continue to
support implementation of the Dayton Peace Agreement (DPA).
On March 4, 1998, pursuant to section 1203 of the National
Defense Authorization Act for Fiscal Year 1998 (Public Law 105-
85) and section 8132 of the National Defense Appropriations Act
for Fiscal Year 1998 (Public Law 105-56) President Clinton
submitted to Congress a report (House Document 105-223) which
concluded that the United States has major national interests
in peace in Bosnia. The President also asserts in his report
that we have a broad interest in ensuring the viability of the
NATO alliance and of a democratic, undivided, and peaceful
Europe. The President further states that U.S. leadership is
essential to sustaining progress in implementing the DPA and
that without U.S. participation in the international military
force in Bosnia, the effort to bring peace to Bosnia might
falter. In his report, the President declines to set an end-
date for the deployment, instead stating that withdrawal of
U.S. forces will be based on establishing conditions under
which Dayton implementation can continue without the support of
a large NATO-led military force.
H. Con. Res. 227, introduced by Congressman Campbell on
February 26, 1998, is a concurrent resolution that directs the
President, pursuant to section 5(c) of the War Powers
Resolution (Public Law 93-148, 50 U.S.C. 1541-1548), to remove
United States Armed Forces from Bosnia by June 30, 1998, unless
the President requests and Congress authorizes a later date.
Section 5(c) of the War Powers Resolution provides that:
. . . at any time that United States Armed Forces are
engaged in hostilities outside the territory of the
United States, its possessions and territories without
a declaration of war or specific statutory
authorization, such forces shall be removed by the
President if the Congress so directs by concurrent
resolution.
Section 7 of the War Powers Resolution provides expedited
procedures to govern the consideration of concurrent
resolutions introduced pursuant to section 5(c).
Concurrent resolutions are resolutions passed by both
houses of Congress but not sent to the President for signature
into law. When the War Powers Resolution was enacted in 1973,
it was widely believed that Congress could require the
President to act in response to the passage of concurrent
resolutions. In 1983, however, the Supreme Court ruled in INS
v. Chadha that provisions of law purporting to require the
President to act in response to the passage of concurrent
resolutions are unconstitutional because they deny the
President his right to veto legislation to which he objects. It
is generally accepted that section 5(c) of the War Powers
Resolution was among the concurrent resolution provisions
rendered ineffective by the Chadha decision.
The fact that a concurrent resolution passed pursuant to
section 5(c) cannot legally require the President to withdraw
United States Armed Forces from a foreign country does not mean
that section 5(c)--and the associated expedited procedures of
section 7--effectively have been repealed. Rather, the import
of the Chadha decision is that any concurrent resolution passed
pursuant to section 5(c) would not be binding.
In addition, because the Chadha decision does not address
congressional procedures, the expedited procedures of section 7
remain available with respect to concurrent resolutions
introduced under section 5(c). Under section 7, the Committee
is required to report the resolution within 15 calendar days,
or by Friday, March 13, 1998. The resolution ``shall become the
pending business of the House in question . . . and shall be
voted on within three calendar days thereafter, . . . .'' or by
Monday, March 16, 1998. These dates can be modified only by
action of the House (either by unanimous consent or pursuant to
a rule reported by the Committee on Rules).
Although section 1(c) of H. Con. Res. 227 contains a
declaration of policy stating that the requirement to withdraw
U.S. Armed Forces from Bosnia does not necessarily reflect any
disagreement with the purposes or accomplishments of such Armed
Forces, the Committee strongly believes that the linkage
between the effect of the resolution and present U.S. policy in
Bosnia was inescapable. Moreover, the policy implications of
the measure would be easily comprehended by observers in
Europe--especially in Bosnia itself--and elsewhere, whereas the
legal issues may not.
U.S. troops in Bosnia have been the heart of a NATO force
under U.S. command that has successfully put a stop to a
conflict in the center of Europe that killed hundreds of
thousands and led to more than two million refugees. In the
past few months the glimmerings of success in regenerating a
stable civil society in all of Bosnia have manifested
themselves, as demonstrated by the replacement through free and
fair elections of extremists with moderate political forces.
Moreover, the U.S. has expended in excess of 7 billion dollars
to implement the Dayton Peace Agreement in Bosnia. The
Committee believes that withdrawal now would place that
considerable investment at risk, with no guarantee that the
U.S. would not be called upon in the future to again introduce
forces if the conflict reignites. A unilateral withdrawal by
U.S. troops in Bosnia would also undermine the necessary unity
and credibility of the NATO alliance.
The Committee was generally sympathetic to the intent of
the sponsor of the resolution to reassert the war-making
authority vested in the Congress by the Constitution of the
United States. The current circumstances in Bosnia, however,
present a poor test case. The Committee believes that the
Congress essentially acquiesced in the Bosnia deployment when
it agreed to the Conference report on the National Defense
Appropriations Act for Fiscal Year 1998 that adopted a Senate-
authored sense of Congress provision that funds should be
terminated as of July 1, 1998, but allowed the President to
waive this provision, with the full knowledge that he would
utilize this waiver. Last year's vote on the Conference report
for Defense Appropriations was not just a simple appropriation
of funds, it was anaffirmative action of the Congress to grant
the Executive branch latitude in continuing the Bosnia deployment.
It would be contradictory, having acquiesced in the troops
remaining in Bosnia through the waiver provision, to now adopt
a resolution calling for the withdrawal of the very forces the
Congress last year gave the President latitude to deploy. Such
an action would undermine the credibility of United States
leadership. Such credibility is crucial to the ability of the
United States to gain a wide variety of foreign policy
objectives, no matter who is President and what party controls
the Congress.
COMMITTEE ACTION
H. Con. Res. 227 was introduced by Rep. Campbell on
February 26, 1998. The Full Committee marked up the bill in
open session, pursuant to notice, on March 10, 1998, and March
11, 1998. On March 11, 1998, with a quorum being present, the
Committee by a rollcall vote of 22 yeas to 16 nays ordered the
bill adversely reported to the House.
On November 7, 1997, the Full Committee held a hearing on
the U.S. role in Bosnia. Ambassador Robert Gelbard, Special
Representative of the President and the Secretary of State for
Implementation of the Dayton Peace Accords was the witness.
Issues surrounding Bosnia and the U.S. role there have been
raised at numerous other Committee hearings since U.S. Armed
Forces were deployed there, including hearings at which the
Secretary of State and the Secretary of Defense have testified.
ROLLCALL VOTES ON AMENDMENTS
In compliance with clause (2)(l)(2)(B) of rule XI of the
Rules of the House of Representatives, the record of committee
rollcall votes on final passage or amendments during the
committee's consideration of H. Con. Res. 227 is set out below:
Votes during markup of H. Con. Res. 227--March 11
Vote #1 (11:08 a.m.)--Campbell amendment to change the date
that U.S. Armed Forces must be removed from the region from
June 30, 1998 to ``not later than 60 days after the date on
which a final judgment is entered by a court of competent
jurisdiction determining the constitutional validity of this
concurrent resolution, unless a declaration of war or specific
authorization for such use of United States Armed Forces has
been enacted.''
Voting yes: Goodling, Hyde, Ballenger, Rohrabacher,
Manzullo, Royce, Kim, Chabot, Sanford, Salmon, Campbell,
Graham, and Blunt.
Voting no: Gilman, Bereuter, Smith, King, Houghton, Fox,
Hamilton, Gejdenson, Berman, Ackerman, Martinez, Payne,
Menendez, Brown, Hastings, Danner, Hilliard, Sherman, Wexler,
Clement, Luther, and Davis.
Failed 13-22.
Vote #2 (11:20 a.m.)--Motion to order the bill adversely
reported to the House.
Voting yes: Gilman, Bereuter, Smith, King, Houghton, Fox,
Hamilton, Gejdenson, Berman, Ackerman, Martinez, Payne,
Menendez, Brown, Hastings, Danner, Hilliard, Sherman, Wexler,
Clement, Luther, and Davis.
Voting no: Goodling, Hyde, Burton, Gallegly, Ros-Lehtinen,
Ballenger, Rohrabacher, Manzullo, Royce, Kim, Chabot, Sanford,
Salmon, Campbell, Graham, and Blunt.
Passed 22-16.
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
the findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
Section-by-Section Analysis
The Resolution consists of a single Section: ``Removal of
United States Armed Forces From the Republic of Bosnia and
Herzegovina.''
Subsection (a) provides:
(1) The Congress has the sole power to declare war under
article I, section 8, of the Constitution;
(2) A state of war has not been declared with respect to
Bosnia and Herzegovina;
(3) A specific authorization for the use of U.S. Armed
Forces in Bosnia and Herzegovina has not been enacted; and
(4) Within the meaning of section 4(a)(1) of the War Powers
Resolution (50 U.S.C. 1543(a)(1)), the situation in Bosnia and
Herzegovina constitutes either hostilities or a situation where
imminent involvement in hostilities is clearly indicated.
Subsection (b) ``Removal of Armed Forces'' requires the
President, by direction of the Congress, to remove U.S. Armed
Forces from Bosnia and Herzegovina by June 30,1998 unless the
President requests and the Congress authorizes a later date, except for
a limited number of members of the Armed Forces sufficient only to
protect U.S. diplomatic facilities and citizens, and noncombatant
personnel to advise the North Atlantic Treaty Organization (NATO)
Commander in Bosnia and Herzegovina, and unless and until a declaration
of war or specific authorization has been enacted.
Subsection (c) ``Declaration of Policy'' stipulates that
the requirement to remove U.S. Armed Forces from Bosnia and
Herzegovina does not necessarily reflect any disagreement with
the purposes or accomplishments of such Armed Forces, nor does
it constitute any judgement of how the Congress would vote on
either a declaration of war or a specific authorization for the
use of such armed forces.
APPENDIX
For the interest of Members, the text of the War Powers
Resolution is set out below:
[Public Law 93-148, 93d Congress, H.J. Res. 542, November 7, 1973]
Joint Resolution
Concerning the war powers of Congress and the President.
Resolved by the Senate and the House of Representatives of
the United States of America in Congress assembled,
SHORT TITLE
Section 1. This joint resolution may be cited as the ``War
Powers Resolution''.
PURPOSE AND POLICY
Sec. 2. (a) It is the purpose of this joint resolution to
fulfill the intent of the framers of the Constitution of the
United States and insure that the collective judgement of both
the Congress and the President will apply to the introduction
of United States Armed Forces into hostilities, or into
situations where imminent involvement in hostilities is clearly
indicated by the circumstances, and to the continued use of
such forces in hostilities or in such situations.
(b) Under article I, section 8, of the Constitution, it is
specifically provided that the Congress shall have the power to
make all laws necessary and proper for carrying into execution,
not only its own powers but also all other powers vested by the
Constitution in the Government of the United States, or in any
department or officer thereof.
(c) The constitutional powers of the President as
Commander-in-Chief to introduce United States Armed Forces into
hostilities, or into situations where imminent involvement in
hostilities is clearly indicated by the circumstances, are
exercised only pursuant to (1) a declaration of war, (2)
specific statutory authorization, or (3) a national emergency
created by attack upon the United States, its territories or
possessions, or its armed forces.
CONSULTATION
Sec. 3. The President in every possible instance shall
consult with Congress before introducing United States Armed
Forces into hostilities or into situations where imminent
involvement in hostilities is clearly indicated by the
circumstances, and after every such introduction shall consult
regularly with the Congress until United States Armed Forces
are no longer engaged in hostilities or have been removed from
such situations.
REPORTING
Sec. 4. (a) In the absence of a declaration of war, in any
case in which United States Armed Forces are introduced--
(1) into hostilities or into situations where
imminent involvement in hostilities is clearly
indicated by the circumstances;
(2) into the territory, airspace or waters of a
foreign nation, while equipped for combat, except for
deployments which relate solely to supply, replacement,
repair, or training of such forces; or
(3) in numbers which substantially enlarge United
States Armed Forces equipped for combat already located
in a foreign nation; the President shall submit within
48 hours to the Speaker of the House of Representatives
and to the President pro tempore of the Senate a
report, in writing, setting forth--
(A) the circumstances necessitating the
introduction of United States Armed Forces;
(B) the constitutional and legislative
authority under which such introduction took
place; and
(C) the estimated scope and duration of the
hostilities or involvement.
(b) The President shall provide such other information as
the Congress may request in the fulfillment of its
constitutional responsibilities with respect to committing the
Nation to war and to the use of United States Armed Forces
abroad.
(c) Whenever United States Armed Forces are introduced into
hostilities or into any situation described in subsection (a)
of this section, the President shall, so long as such armed
forces continue to be engaged in such hostilities or situation,
report to the Congress periodically on the status of such
hostilities or situation as well as on the scope and duration
of such hostilities or situation, but in no event shall he
report to the Congress less often than once every six months.
CONGRESSIONAL ACTION
Sec. 5. (a) Each report submitted pursuant to section
4(a)(1) shall be transmitted to the Speaker of the House of
Representatives and to the President pro tempore of the Senate
on the same calendar day. Each report so transmitted shall be
referred to the Committee on Foreign Affairs of the House of
Representatives and to the Committee on Foreign Relations of
the Senate for appropriate action. If, when the report is
transmitted, the Congress has adjourned sine die or has
adjourned for any period in excess of three calendar days, the
Speaker of the House of Representatives and the President pro
tempore of the Senate, if they deem it advisable (or if
petitioned by at least 30 percent of the membership of their
respective Houses) shall jointly request the President to
convene Congress in order that it may consider the report and
take appropriate action pursuant to this section.
(b) Within sixty calendar days after a report is submitted
or is required to be submitted pursuant to section 4(a)(1),
whichever is earlier, the President shall terminate any use of
United States Armed Forces with respect to which such report
was submitted (or required to be submitted), unless the
Congress (1) has declared war or has enacted a specific
authorization for such use of United States Armed Forces, (2)
has extended by law such sixty-day period, or (3) is physically
unable to meet as a result of an armed attack upon the United
States. Such sixty-day period shall be extended for not more
than an additional thirty days if the President determines and
certifies to the Congress in writing that unavoidable military
necessity respecting the safety of United States Armed Forces
requires the continued use of such armed forces in the course
of bringing about a prompt removal of such forces.
(c) Notwithstanding subsection (b), at any time that United
States Armed Forces are engaged in hostilities outside the
territory of the United States, its possessions and territories
without a declaration of war or specific statutory
authorization, such forces shall be removed by the President if
the Congress so directs by concurrent resolution.
CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR BILL
Sec. 6. (a) Any joint resolution or bill introduced
pursuant to section 5(b) at least thirty calendar days before
the expiration of the sixty-day period specified in such
section shall be referred to the Committee on Foreign Affairs
of the House of Representatives or the Committee on Foreign
Relations of the Senate, as the case may be, and such committee
shall report one such joint resolution or bill, together with
its recommendations, not later than twenty-four calendar days
before the expiration of the sixty-day period specified in such
section, unless such House shall otherwise determine by the
yeas and nays.
(b) Any joint resolution or bill so reported shall become
the pending business of the House in question (in the case of
the Senate the time for debate shall be equally divided between
the proponents and the opponents), and shall be voted on within
three calendar days thereafter, unless such House shall
otherwise determine by yeas and nays.
(c) Such a joint resolution or bill passed by one House
shall be referred to the committee of the other House named in
subsection (a) and shall be reported out not later than
fourteen calendar days before the expiration of the sixty-day
period specified in section 5(b). The joint resolution or bill
so reported shall become the pending business of the House in
question and shall be voted on within three calendar days after
it has been reported, unless such House shall otherwise
determine by yeas and nays.
(d) In the case of any disagreement between the two Houses
of Congress with respect to a joint resolution or bill passed
by both Houses, conferees shall be promptly appointed and the
committee of conference shall make and file a report with
respect to such resolution or bill not later than four calendar
days before the expiration of the sixty-day period specified in
section 5(b). In the event the conferees are unable to agree
within 48 hours, they shall report back to their respective
Houses in disagreement. Notwithstanding any rule in either
House concerning the printing of conference reports in the
Record or concerning any delay in the consideration of such
reports, such report shall be acted on by both Houses not later
than the expiration of such sixty-day period.
CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT RESOLUTION
Sec. 7. (a) Any concurrent resolution introduced pursuant
to section 5(b) at least thirty calendar days before the
expiration of the sixty-day periodspecified in such section
shall be referred to the Committee on Foreign Affairs of the House of
Representatives or the Committee on Foreign Relations of the Senate, as
the case may be, and one such concurrent resolution shall be reported
out by such committee together with its recommendations within fifteen
calendar days, unless such House shall otherwise determine by the yeas
and nays.
(b) Any concurrent resolution so reported shall become the
pending business of the House in question (in the case of the
Senate the time for debate shall be equally divided between the
proponents and the opponents), and shall be voted on within
three calendar days thereafter, unless such House shall
otherwise determine by yeas and nays.
(c) Such a concurrent resolution passed by one House shall
be referred to the committee of the other House named in
subsection (a) and shall be reported out by such committee
together with its recommendations within fifteen calendar days
and shall thereupon become the pending business of such House
and shall be voted on within three calendar days after it has
been reported, unless such House shall otherwise determine by
yeas and nays.
(d) In the case of any disagreement between the two Houses
of Congress with respect to a concurrent resolution passed by
both Houses, conferees shall be promptly appointed and the
committee of conference shall make and file a report with
respect to such concurrent resolution within six calendar days
after the legislation is referred to the committee of
conference. Notwithstanding any rule in either House concerning
the printing of conference reports in the Record or concerning
any delay in the consideration of such reports, such report
shall be acted on by both Houses not later than six calendar
days after the conference report is filed. In the event the
conferees are unable to agree within 48 hours, they shall
report back to their respective Houses in disagreement.
INTERPRETATION OF JOINT RESOLUTION
Sec. 8. (a) Authority to introduce United States Armed
Forces into hostilities or into situations wherein involvement
in hostilities is clearly indicated by the circumstances shall
not be inferred--
(1) from any provision of law (whether or not in
effect before the date of the enactment of this joint
resolution), including any provision contained in any
appropriation Act, unless such provision specifically
authorizes the introduction of United States Armed
Forces into hostilities or into such situations and
stating that it is intended to constitute specific
statutory authorization within the meaning of this
joint resolution; or
(2) from any treaty heretofore or hereafter ratified
unless such treaty is implemented by legislation
specifically authorizing the introduction of United
States Armed Forces into hostilities or into such
situations and stating that it is intended to
constitute specific statutory authorization within the
meaning of this joint resolution.
(b) Nothing in this joint resolution shall be construed to
require any further specific statutory authorization to permit
members of United States Armed Forces to participate jointly
with members of the armed forces of one or more foreign
countries in the headquarters operations of high-level military
commands which were established prior to the date of enactment
of this joint resolution and pursuant to the United Nations
Charter or any treaty ratified by the United States prior to
such date.
(c) For purposes of this joint resolution, the term
``introduction of United States Armed Forces'' includes the
assignment of member of such armed forces to command,
coordinate, participate in the movement of, or accompany the
regular or irregular military forces of any foreign country or
government when such military forces are engaged, or there
exists an imminent threat that such forces will become engaged,
in hostilities.
(d) Nothing in this joint resolution--
(1) is intended to alter the constitutional authority
of the Congress or of the President, or the provision
of existing treaties; or
(2) shall be construed as granting any authority to
the President with respect to the introduction of
United States Armed Forces into hostilities or into
situations wherein involvement in hostilities is
clearly indicated by the circumstances which authority
he would not have had in the absence of this joint
resolution.
SEPARABILITY CLAUSE
Sec. 9. If any provision of this joint resolution or the
application thereof to any person or circumstance is held
invalid, the remainder of the joint resolution and the
application of such provision to any other person or
circumstance shall not be affected thereby.
EFFECTIVE DATE
Sec. 10. This joint resolution shall take effect on the
date of its enactment.
Carl Albert,
Speaker of the House of Representatives.
James O. Eastland,
President of the Senate pro tempore.
------
In the House of Representatives, U.S.,
November 7, 1973.
The House of Representatives having proceeded to reconsider
the resolution (H.J. Res. 542) entitled ``Joint resolution
concerning the war powers of Congress and the President'',
returned by the President of the United States with his
objections, to the House of Representatives, in which it
originated, it was
Resolved, That the said resolution pass, two-thirds of the
House of Representatives agreeing to pass the same.
Attest:
W. Pat Jennings,
Clerk.
I certify that this Joint Resolution originated in the
House of Representatives.
W. Pat Jennings,
Clerk.
------
In the Senate of the United States,
November 7, 1973.
The Senate having proceeded to reconsider the joint
resolution (H.J. Res. 542) entitled ``Joint resolution
concerning the war powers of Congress and the President'',
returned by the President of the United States with his
objections to the House of Representatives, in which it
originate, it was
Resolved, That the said joint resolution pass, two-thirds
of the Senators present having voted in the affirmative.
Attest:
Francis R. Valeo,
Secretary.
ADDITIONAL VIEWS
We oppose House Concurrent Resolution 227 for both reasons
of policy and law.
The author of this concurrent resolution, Mr. Campbell,
says he has two goals: To have a vote in Congress to determine
whether our troops should be in Bosnia, and to find out
whether, and to what extent, the War Powers resolution is
constitutional. In addition, Mr. Campbell makes clear that he
opposes U.S. troops in Bosnia: ``I do not hide my position on
the policy. I do not think they should be there.''
We believe this resolution to direct the withdrawal of U.S.
forces from Bosnia has highly negative consequences for U.S.
policy and peace in Bosnia. We do not believe this resolution
provides the legal clarity on the constitutionality of the War
Powers Resolution that its author seeks.
i. policy
This resolution harms U.S. policy in several ways.
First, this resolution is not just a sense of the Congress.
It directs the President to remove U.S. forces from Bosnia.
Many questions have been raised about the constitutionality
of a concurrent resolution directing presidential action under
section 59(c) of the War Powers resolution, but the author of
H. Con. Res. 227 believes such a resolution is constitutional.
For this reason, he wants to move this resolution out of
Congress and into the Courts. If his argument were to prevail
in the Courts, this resolution would be binding on the
President, and require the withdrawal of U.S. forces from
Bosnia.
Second, passage of this resolution would send a strong
political signal and undermine the President's ability to keep
U.S. troops in Bosnia.
U.S. participation in the NATO Stabilization Force (SFOR)
is vital to the continuation of peace and stability in Bosnia.
The United States is the acknowledged leader of the
peacekeeping effort, and the backbone of the NATO force in
Bosnia. If U.S. troops leave Bosnia, our allies will leave.
There will be no NATO force in Bosnia without the United
States.
Third, this resolution hurts the peace process in Bosnia
and risks the resumption of war.
This resolution sends exactly the wrong signal at exactly
the wrong time both to our allies and the parties in Bosnia
opposed to peace, who are only waiting for us to leave.
A U.S. troop withdrawal would put at risk the impressive
accomplishments in Bosnia since December 1995: an end to the
fighting; the demobilization of armies on all sides; the
election of local governments and the formation of multi-ethnic
governments; progress in the formation of all-Bosnian
institutions; restructuring and retraining of local police;
progress in arresting war criminals; and, for the first time,
the emergence of a Bosnian Serb leadership that supports the
Dayton peace process.
This resolution gives the confusing and unfortunate message
that the United States lacks the resolve to stick with the
peace process in Bosnia. Passage of this resolution, just as we
are beginning to see progress in Bosnia, would have a
devastating impact, and risk a resumption of war.
Finally, the participation of U.S. forces in the peace
process in Bosnia has always been about more than just Bosnia.
It is also about the future of NATO and stability in Europe.
The NATO-led operation in Bosnia is the largest, most complex
military mission ever undertaken by NATO. Our allies and the
people of Bosnia have looked to us for leadership--and we have
supplied it.
This resolution undermines the credibility of U.S.
leadership in the NATO alliance, and casts doubt on the ability
of the United States to keep its commitments.
ii. law
The author of H. Con. Res 227 wants to force the courts to
examine the constitutionality of the War Powers Resolution, but
we doubt that this concurrent resolution will provide the legal
clarity he seeks.
No President has accepted the constitutionality of the War
Powers Resolution, while many, if not most, Members of Congress
have maintained the opposite.
Presidents have avoided a direct confrontation on this
issue by reporting and consulting ``consistent with'' the War
Powers Resolution, but not pursuant to it.
Congress has also sidestepped the issue. Congress has been
reluctant to take responsibility by voting for an
authorization, or to directly challenge deployments of U.S.
forces in the absence of such authorization or a declaration of
war.
The lack of legal clarity on the War Powers Resolution is
frustrating, but we seriously doubt H. Con. Res. 227 would
resolve this question. It is our belief that this concurrent
resolution, if it were to go to the courts, would be judged on
very narrow grounds.
First, after the Supreme Court's Chadha decision of 1983,
it has been widely accepted that a concurrent resolution that
mandates Presidential action--but does not go to the President
for his signature or require a two-thirds vote to override a
Presidential veto--would violate the Constitution.
Second, we do not believe any Court would rule that
circumstances in Bosnia meet the test of ``hostilities'' under
the War Powers Resolution, which would trigger paragraph 5(c)
and the ability of Congress to direct a withdrawal of U.S.
forces by concurrent resolution.
Courts are always very reluctant to make such a call
because it is a political and foreign policy judgment. Bosnia
presents a poor test case for such a judgment, so courts would
be even less likely to consider it. U.S. forces have been in
Bosnia for over two years, pursuant to a peace treaty. There
have been no U.S. casualties from hostile action. The
Administration has stated on the record that ``hostilities''
are not present.
We believe that if Congress were to pass a concurrent
resolution to remove U.S. troops from Bosnia pursuant to
section 5(c) of the War Powers Resolution, a court--if it were
to rule at all--would likely base its decision on these narrow
grounds, without resolving the larger question of war powers
authority.
III. Mr. Campbell's Amended Resolution
Mr. Campbell also offered an amendment to his resolution,
which failed in Committee. We mention it here because Mr.
Campbell received consent to offer his amended resolution on
the House floor.
Mr. Campbell's amended resolution would direct the
President to remove troops sixty days after a ``final judgment
by a court determining the constitutional validity of this
concurrent resolution.''
First, this amended resolution is as harmful on policy
grounds as Mr. Campbell's original resolution. It would require
that U.S. troops be withdrawn without any further consultation
with the Commander-in-Chief, or the commander of U.S. forces on
the ground. It would require a withdrawal without due attention
to the safety and security of U.S. forces.
Second, this amended resolution is worse than the original
resolution on legal grounds.
This amended resolution would hand over U.S. foreign policy
to the courts. It would be up to the courts to make a judgment,
at a time of their own choosing, as to whether U.S. forces
could remain in Bosnia. That judgment could come in a matter of
days or weeks, or it could stretch out over a period of years
because of the appeals process. Up until the time of a final
judgment by the courts, a sword of Damocles would hang over the
U.S. troop presence in Bosnia. This period of uncertainty--
potentially very long--would have a devastating impact on U.S.
policy in Bosnia, and a devastating impact on the peace process
in Bosnia. For the foreign policy of the United States to be
held up on a critical issue until a court's ``final judgment''
places the nation's national security interests in a totally
unacceptable bind.
Furthermore, we believe this amended resolution is even
less likely than the original resolution to get a judicial
review on the merits of war powers authority. As long as the
courts do not issue a judgment under this resolution, the
President is not violating a Congressional mandate. There is no
justiciable controversy. This amended resolution would require
the courts to act in order to make the case ripe for court
consideration, but courts have been reluctant to get involved
in foreign policy disputes between the executive and
legislative branches. We believe the courts, put squarely in
the middle, would be highly unlikely to rule.
IV. Conclusion
We believe this resolution, both in its original form and
as amended for floor consideration, will harm U.S. policy in
Bosnia-- risking all the achievements of the past two years,
risking all the efforts of U.S. troops and our $7 billion
investment, and risking the resumption of war.
We believe this resolution, in neither its original form
nor as amended for floor consideration, will achieve the
author's purpose in clarifying the constitutionality of the War
Powers Resolution.
Lee H. Hamilton.
Gary L. Ackerman.
Eni F.H. Faleomavaega.
Alcee L. Hastings.
Bob Clement.
Sam Gejdenson.
Robert Wexler.
Jim Davis.
Bill Luther.
Matthew G. Martinez.
DISSENTING VIEW ON THE UNFAVORABLE RECOMMENDATION OF THE HOUSE
INTERNATIONAL RELATIONS COMMITTEE ON H. CON. RES. 227
Introduction
H. Con. Res. 227 was introduced on February 26, 1998.
Because it is a concurrent resolution brought under section 7
of the War Powers Resolution of 1973, it must be heard in the
International Relations Committee within 15 calendar days of
introduction, and within 3 calendar days thereafter on the
House floor, unless a different schedule is agreed to by the
yeas and nays. No rule is required for the concurrent
resolution to be heard on the House floor, and the matter must
be voted on there whether or not the International Relations
Committee concurs with the concurrent resolution.
The purpose of H. Con. Res. 227 is to compel a vote in
Congress on whether U.S. armed forces should be in Bosnia. The
concurrent resolution itself is neutral as to whether those
armed forces should be so employed. The concurrent resolution
is emphatically not neutral on the point that it is for
Congress to make this decision, however.
A secondary purpose of H. Con. Res. 227 is to create a test
case on the constitutionality of the War Powers Resolution, and
on the division of responsibility between the President and the
Congress regarding the use of American forces overseas--a test
case that will survive the obstacles that have heretofore been
found by courts in choosing not to rule on this issue.
a. hostilities exist in bosnia
The War Powers Resolution, section 5(b), requires the
President to withdraw U.S. armed forces sixty days after they
have been introduced,
into hostilities or into situations where imminent
involvement in hostilities is clearly indicated by the
circumstances
unless Congress has granted approval. (This 60-day period can
be extended for an additional 30 days if the President
certifies that ``unavoidable military necessity'' requires it.)
1. The word ``hostilities''
The House Committee Report on the War Powers Resolution
when it was passed in 1973 stated:
The word hostilities was substituted for the phrase
armed conflict during the subcommittee drafting process
because it was considered to be somewhat broader in
scope. In addition to a situation in which fighting
actually has begun, hostilities also encompasses a
state of confrontation in which no shots have been
fired but where there is a clear and present danger of
armed conflict. ``Imminent hostilities'' denotes a
situation in which there is a clear potential either
for such a state of confrontation or for actual armed
conflict.
H.R. Rep. No. 287, 93rd Cong., 1st Sess. 7 (1973). (A ``clear
potential'' for armed conflict, therefore, appears to satisfy
the definition.)
Whereas H. Con. Res. 227 is based on an act of Congress,
and not on the Constitution directly, early Supreme Court
precedent supports the conclusion that the insertion of U.S.
forces into even small conflicts required the approval of
Congress. The famous action against the Barbary Pirates during
the presidency of Thomas Jefferson, for example, was authorized
by Congress; so also were U.S. actions during the Napoleonic
wars.1
---------------------------------------------------------------------------
\1\ ``The power to declare war was constitutionally vested in
Congress. The debates, and early practice, establish that this meant
that all wars, big or small, `declared' in so many words or not--most
weren't, even then--had to be legislatively authorized.'' J.H. Ely,
``War and Responsibility.''
---------------------------------------------------------------------------
2. Hostilities since December 1995
On February 29, 1996, two months after the introduction of
U.S. armed forces into Bosnia, Chairman Benjamin Gilman of the
House International Relations Committee sent a letter to the
President outlining the following hostilities in Bosnia:
1. Jan. 28, 1996, Lt. Shawn W. Watts of the 66th Military
Intelligence Group based at Augsburg, Germany, was wounded by a
sniper in Ilidza, Bonsia.
2. NATO spokesman Lt. Col. Brian Hoey was quoted the next
day: ``unfortunately, this shooting is not an isolated
incident. . . . In a city like this, it would be difficult to
establish trends, but this is one of a series of recent
incidents that have put soldiers at risk.''
3. Jan. 31, 1996--U.S. Humvee struck by sniper fire.
4. Jan. 31, 1996--Two U.S. A-10 attack aircraft called in
to support threatened Spanish troops near Mostar.
5. Feb. 17, 1996--U.S. A-10 and Kiowa attack helicopters
were flown as part of 44 NATO sorties in Han Pojesak and Han
Kram, areas controlled by the Bosnian Serbs.
Since Chairman Gilman's letter, the following additional
hostilities have occurred.
6. March 15, 1996--U.S. soldier, Spec. Shawn Austin, 21, of
Tacoma, Washington, was shot and wounded in northeastern Bosnia
when he confronted an intruder at U.S. base Camp Linda near
Olova, and U.S. General George Joulwan, Supreme Commander of
NATO, told the press, ``I think we've been expecting this (sort
of) thing all along.''
7. March 22, 1996--U.S. soldier Private First Class Floyd
E. Bright, was killed and another U.S. soldier was injured when
their vehicle struck a land mine.
8. June 4, 1996--French troops in three armored vehicles
rescued an American patrol surrounded in a Serb-run police
station by a crowd of 200 Bosnian Serbs who threatened them
because they were angered by the earlier arrest of an armed
Serbian man in the Serb-held Kula suburb. Forty French soldiers
used force to clear the area, allowing the Americans to return
safely to base.
9. November 12, 1996--U.S. and Russian troops used tanks,
Bradley fighting vehicles and attack helicopters to break up a
firefight in Gajevi between Serb and Muslim-Croat federation
forces. A U.N. spokesman reported multiple explosions and
sporadic fire continuing throughout the day leading U.S. and
Russian troops to take up positions between the two sides to
impose order, and disarm Serb police illegally carrying AK-47
rifles.
3. Inference of hostilities by casualties to non-U.S. NATO troops
Section 8(c) of the War Powers Resolution provides:
For purposes of this joint resolution, the term
`introduction of United States Armed Forces' includes
the assignment of members of such armed forces to
command, coordinate, participate in the movement of, or
accompany the regular or irregular military forces of
any foreign country or government when such military
forces are engaged, or there exists an imminent threat
that such forces will become engaged, in hostilities.
Accordingly, the War Power Resolution requires the taking
into account the hostilities in which other NATO, IFOR, or SFOR
troops have been involved in Bosnia, in order to evaluate
whether the War Powers Resolution has been triggered.
Chairman Gilman's letter of February 29, 1996, sets forth:
1. Jan. 30, 1996--Two British Land Rovers were fired upon
by snipers, one driver was wounded.
2. Feb. 1, 1996--French troops were threatened, in response
to which, they killed one sniper and captured another.
3. Feb. 3, 1996--Two British soldiers were wounded by
sniper fire.
4. Feb. 12, 1996--A NATO vehicle was hit by sniper fire,
one occupant wounded.
Since Chairman Gilman's letter, the following additional
hostilities against NATO, IFOR, or SFOR troops have been
reported.
5. April 17, 1996--Two NATO soldiers were killed and two
injured when their vehicle, which was part of a convoy
traveling on a gravel road about 12 miles southeast of Doboj,
hit an anti-tank land mine.
6. July 16, 1996--Czech peacekeeping soldiers on night
patrol were directly fired upon with automatic weapons from a
Muslim home as they drove their armored combat vehicle in a
zone of separation between Muslim and Serb territories near the
village of Memici in northwest Bosnia.
7. September 8, 1996--a Ukrainian NATO peacekeeper was shot
dead when three unidentified gunmen opened fire on troops
guarding an OSCE warehouse in Sarajevo that contained voting
material for the upcoming Bosnian national elections.
4. The inference of hostilities from combat pay
Professor Bonner has pointed out the usefulness of
``following the money'' in determining whether there are
hostilities.
[T]he specific reason that the administration decided
not to designate El Salvador as a hostile fire zone was
that to have done so would have triggered the
provisions of the War Powers Act. . . . Even if a
country is not so designated, a soldier is entitled to
the extra $65 if he is in fact fired upon. The GAO
auditors found that the U.S. military personnel in El
Salvador, from early 1981 until mid-1982, were
receiving hostile fire pay for 97 percent of the
person-months involved. . . . R. Bonner, ``Weakness and
Deceit; U.S. Policy and El Salvador'' (1984) pp. 274-
275.
In Bosnia, U.S. armed forces are receiving ``Imminent
Danger/Hostile Fire Pay''.
According to the Department of the Army's Personal
Financial Readiness and Deployability Handbook (TC 21-7),
``Imminent Danger/Hostile Fire Pay'' is defined on page 9 as:
Soldiers who are deployed from their unit of
assignment and serve on land, aboard a ship, or in an
aircraft within an area officially declared by the
Secretary of Defense as a ``hostile fire zone'' or
``imminent danger area'' are eligible for hostile fire
pay, which is an extra $150 a month.
The Office of Assistant Secretary of the Army's Contingency
Operations Branch, Management Control Directorate reports that
the Army paid Imminent Danger/Hostile Fire Pay to U.S. troops
during their deployment to Bosnia in December of 1995, and
every year since. Specifically, the Army expended $25.7 million
in hostile fire pay in FY '97, and $18 million is budgeted for
FY '98.
5. Hostilities as of the time of introduction of U.S. troops
Even if U.S. armed forces have not been subject to
hostilities or a situation where imminent involvement in
hostilities is clearly indicated by the circumstances since the
time of their introduction in December, 1995, the War Powers
Resolution requires the President to receive the approval of
Congress as of the time he introduces troops.
As of December, 1995, such a situation did exist precisely
for the reason that the U.S. troops were introduced. The
President believed, and Administration officials stated
clearly, that, but for the introduction of U.S. armed forces,
the killing would continue.
It is absurd to maintain on the one hand that the
introduction of U.S. armed forces was absolutely necessary to
prevent massive killings in a civil war, and on the other hand
to maintain that the exact same U.S. troops were not being
introduced into a situation where imminent involvement in
hostilities was clearly indicated by the circumstances at that
time.\2\
---------------------------------------------------------------------------
\2\ President Bush attempted such a circumlocution in 1990, while
building up troops in Saudi Arabia prior to Desert Storm, and prior to
his changing his mind and requesting the approval of the U.S. Congress.
``For some time, despite our deployment of 200,000 troops and
concomitant number of ships, planes, and tanks on or near the Saudi-
Kuwaiti border, the administration took the position that hostilities
were not imminent because the Iraqis were likely to be deterred by our
presence.'' Ely, ``War and Responsibility, Constitutional Lessons of
Vietnam and Its Aftermath'' (1993) at p. 123. It was at this time that
our former colleague, Cong. Ron Dellums, commenced his lawsuit that led
to the decision in Dellums v. Bush 752 F. Supp. 1141 (D.D.C., 1990), to
be discussed below.
---------------------------------------------------------------------------
Under Secretary of Defense Slocombe, in response to an
inquiry posed to Secretary Cohen in his testimony before the
International Relations Committee, responded on August 7, 1997,
that he did not consider it likely that hostilities would
resume in Bosnia.
Despite the continuing political tensions in Bosnia
and the difficulties with implementation of the
civilian aspects of the Dayton Accords, a resumption of
military hostilities in the near term appears unlikely.
(Complete letter follows this section.)
The phrase, ``resumption of military hostilities'' says it
all. At one time, there were ``military hostilities.''
Otherwise, it would be illogical to refer to their being
resumed.
Except for one logical possibility, the Under Secretary's
letter constitutes an admission by the Administration that
``hostilities'' existed in Bosnia at a time relevant to the
present discussion.
The only remaining other logical possibility is that the
Under Secretary meant to say military hostilities had, indeed,
existed in Bosnia, but that they terminated sometime (perhaps
an instant) BEFORE American troops were introduced.
If so, then why were our troops introduced? If hostilities
were over, why introduce U.S. troops? The answer must be
because it was feared that hostilities would otherwise soon
resume. But that condition is picked up by the alternative
phrase in the War Powers Resolution, where ``imminent
involvement in hostilities is clearly indicated by the
circumstances.''
6. The perversity of waiting for U.S. troops to be killed in large
numbers
There is another approach to all this. One could argue that
hostilities do not exist under the circumstances in Bosnia. If
one pursues this route, then one should be prepared to answer
when hostilities would be held to be present.
Herein lies a great danger. If hostilities are measured in
terms of the number of Americans killed, then there is a
perverse incentive for the foes of America, hopeful that the
Congress will vote against the use of force if given the chance
to do so, would then set about killing the requisite number of
Americans in order to end the involvement of U.S. armed forces.
There is already some incentive of this nature from the
history of U.S. troop involvement in Lebanon and in Somalia. In
each case, armed forces were withdrawn when casualties were
sustained. However this happened, it was not as a result of a
guarantee that the killing of a certain number of Americans
would trigger a systemic step in the U.S. constitutional
process.
There are two ways to prevent this. The first is simply to
cut the Congress out entirely. Such an approach would argue
that there is no longer a role for Congress under its
constitutional war declaration or other international affairs
authority.
The second way to prevent this result is to require the
involvement of the U.S. Congress at the start of the
introduction of U.S. armed forces into a situation where
hostilities appear imminent. Such a decision made at that time
is then not subject to an automatic vote on reversing policy
when things get rough. There is a good policy reason to favor
this latter course. The strength of the U.S. commitment, and
the likely duration of it, would be greatly bolstered by an
affirmative vote of Congress at the outset.
B. Other Authorizations for Use of Force
If the War Powers Resolution is constitutional (see next
section), then it becomes the sole route for Congress to
authorize the use of U.S. armed forces, absent a declaration of
war, in conflict overseas.
Because of all the many prevarications and circumlocutions
surrounding the role of Presidents in waging war without
Congress' approval, the drafters of the War Powers Resolution
were explicit that one could not infer approval in the future
by reference to an appropriation, or to a treaty, unless the
War Powers Resolution was specifically mentioned.
Authority to introduce United States Armed Forces
into hostilities or into situations wherein involvement
in hostilities is clearly indicated by the
circumstances shall not be inferred (1) from any
provision of law (whether or not in effect before the
date of the enactment of this joint resolution)
including any provision contained in any appropriation
Act, unless such provision specifically authorizes the
introduction of United States Armed Forces into
hostilities or into such situations and states that it
is intended to constitute specific statutory
authorization within the meaning of this joint
resolution; or (2) from any treaty heretofore or
hereafter ratified unless such treaty is implemented by
legislation specifically authorizing the introduction
of United States Armed Forces into hostilities or into
such situations and stating that it is intended to
constitute specific statutory authorization within the
meaning of this joint resolution.
Section 8(a). There has been no such explicit language,
referencing the War Powers Resolution, in any appropriation
bill approved by Congress regarding Bosnia. Regarding a treaty,
there have been no new treaties approved by the Senate
regarding Bosnia since our recent involvement there. And as for
the United Nations Charter, under which the IFOR and SFOR have
purportedly been acting, the United Nations Participation Act
of 1945 prevents any such authority for U.S. troops without a
separate act of Congress.
`[E]xcept as authorized in section 287d-1 of this
title, nothing herein contained shall be construed as
an authorization to the President by the Congress to
make available to the Security Council for such purpose
armed forces, facilities, or assistance in addition to
the forces, facilities, and assistance provided for in
such special agreement or agreements.' 22 U.S.C. sec.
287d (1988). . . . (Section 287d-1 deals only with non-
combatant assistance `not involving the employment of
armed forces contemplated by chapter VII' of the
Charter; Articles 42 and 43 are both parts of Chapter
VII.)'' J.H. Ely, ``War and Responsibility'' (1993) p.
152, n. 60.
To summarize: there has been no Congressional authorization
of U.S. armed forces in Bosnia, through statute, appropriation,
treaty, or resolution, that satisfies the requirements of the
War Powers Resolution. Hence, that resolution itself has not
been satisfied and, unless there is no role for Congress in
connection with the use of force overseas, permission must be
obtained from Congress to continue the U.S. armed forces'
involvement in Bosnia.\3\
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\3\ Whereas there are concerns about the constitutionality of other
parts of the War Powers Resolution, there are no such concerns about
Congress' ability in section 8(a) to say what it intends to construe of
its own actions in appropriations matters and future treaty
ratifications. The War Powers Resolution contains a separability
clause, section 9, so that, should other provisions of the Resolution
eventually be struck down, the parts not held to be unconstitutional,
such as 8(a), remain.
---------------------------------------------------------------------------
C. The Constitutionality of the War Powers Resolution
The fundamental purpose of H. Con. Res. 227 is to require a
vote on the House and Senate floor on the involvement of U.S.
armed forces overseas in Bosnia. However, it is reasonable to
anticipate that the Administration and others may wish to
contest the constitutionality of Congress exercising such a
role. Accordingly, this concurrent resolution has been drafted
in such a way as to provide the best possible vehicle for
resolution of the important constitutional issues of the
separation of power between Congress and the President on
issues of war and the use of armed forces overseas.
1. The position of the Administration
``Question: `Does the Administration fail to follow the War
Powers Resolution because it believes it to be
unconstitutional?'
``Answer: `. . . While every Administration since the
enactment of the Resolution has raised questions about the
constitutionality and wisdom of certain of its provisions
(including the withdrawal provisions to which you allude), the
Clinton Administration recognizes that as a practical matter
the Executive and Legislative branches must continue to consult
and cooperate in decisions relating to the deployment of U.S.
armed forces, and has acted in a manner consistent with the
consultation and reporting provisions of the Resolution.' ''
Questions for the Record Submitted by Representative
Campbell to Secretary of State Madeleine Albright, House
International Relations Committee, February 11, 1997.
So, the Administration refuses to take a position on
whether the War Powers Resolution is, in fact,
unconstitutional. Gratefully, we do not need the Administration
to reach a position to constitute a ``case or controversy''
appropriate for judicial resolution.
2. The requirements for a lawsuit
Under the War Powers Resolution, the President is obliged
to withdraw troops, on his own, without any need for Congress
to act, a maximum of 90 days after he submitted, or should have
submitted, a report that they were being introduced into
hostilities or a situation where imminent involvement in
hostilities is clearly indicated by the circumstances. Section
5(b).
A lawsuit might seek an injunction upon the President to do
so in Bosnia.
However, when our former colleague, Congressman Ron
Dellums, went to Court in 1990 over the build-up of troops in
Saudi Arabia, he was prevented from proceeding to the merits
because he had not obtained a resolution from Congress.
Judge Harold Greene explicitly found:
(a) that the Constitution places unambiguously in the
legislative process authority to decide whether the
nation goes to war;
(b) that whether the required congressional
authorization has been obtained is not a ``political
question'' that courts should refuse to decide; and
(c) that the congressional plaintiffs had standing to
bring the challenge.
The lawsuit ran aground, however, on a fourth finding
by Judge Greene, that unless and until the plaintiffs
could get a majority of their colleagues to join their
challenge, the case was not ``ripe'' for decision. J.H.
Ely, ``War and Responsibility'' (1993) p. 58.
The only way to avoid this pitfall in the present
situation, therefore, is to seek a resolution by Congress. And
only a concurrent resolution under section 5(c) of the War
Powers Resolution provides an automatic vote in Committee and
on the floor, through Section 7.
Once in court, Congress should rely on section 5(b) as well
as section 5(c). Section 5(b) requires the President to
withdraw troops lacking an authorization; section 5(c) gives
Congress the power to withdraw the troops upon the passage of a
concurrent resolution. Section 5(c) will undoubtedly be
challenged as a legislative veto under the precedent of INS v.
Chadha, 462 U.S. 919 (1983).4 Section 5(b), however,
will not be open to that challenge.
---------------------------------------------------------------------------
\4\ There is, nevertheless, a good argument that Chadha does not
invalidate section 5(c). See Ely, op cit., at 119-120 and n. 21.
---------------------------------------------------------------------------
A declaration of Congressional intent through a concurrent
resolution should satisfy Judge Greene's standing requirement
whether it is brought under 5(c) or 5(b); so, to take advantage
of the War Powers Resolution's streamlined Congressional
procedure provisions, H. Con. Res. 227 refers to section 5(c).
3. Neutrality on Bosnia policy
The style of section 5(c) requires that the concurrent
resolution call for the removal of troops. If it did not do
that, it couldn't be called a 5(c) concurrent resolution.
However, H. Con. Res. 227 is otherwise entirely neutral on
whether the policy of the United States should be to have armed
forces in Bosnia under the present circumstances or not.
The final section of H. Con. Res. 227 states:
The requirement to remove United States Armed Forces
from the Republic of Bosnia and Herzegovina under
subsection (b) does not necessarily reflect any
disagreement with the purposes or accomplishments of
such Armed Forces, nor does it constitute any judgment
of how the Congress would vote, if given the
opportunity to do so, on either a declaration of war or
a specific authorization for the use of such Armed
Forces.
Indeed, even the 5(c) triggering language of the War Powers
Resolution itself says that the President is to withdraw the
troops--but only if he has not obtained the approval of
Congress required by the War Powers Resolution. It implies no
judgment on the merits.
In response to the passage of H. Con. Res. 227, the
President might seek that approval. Or he can choose to ignore
this concurrent resolution.
4. Consequences of the President's refusal to honor H. Con. Res. 227
Serious constitutional issues remain to be resolved
concerning the War Powers Resolution. Some parts may be
unconstitutional. Other parts are quite clearly constitutional,
however, and there is a ``severability clause'' in the War
Powers Resolution so that the constitutional parts may continue
in force even should some of the Resolution be struck down as
unconstitutional. At the very least, the Congressional
procedure provisions are not in any constitutional doubt.
Accordingly, there should be no hesitation on constitutional
grounds for H. Con. Res. 227 to be considered in an expedited
fashion by Members of Congress in the International Relations
Committee and on the floor.
The concurrent resolution anticipates that the President
may well resist, and that a lawsuit will have to be commenced.
In the fullest possible deference to the President, the
resolution, as amended, therefore does not compel the
withdrawal of troops until after a final judgment has been
entered in such litigation. Thirty days after losing such a
case, the President must have obtained Congressional approval,
or he must withdraw the troops. If he still refuses, then he
will, indeed, have precipitated a constitutional crisis.
When the litigation is over, some, if not all, of the War
Powers Resolution will be left standing. Congress can then
legislate anew on what system might work to accommodate
properly the President's powers as Commander-in-Chief and the
Congress' sole authority to declare war, and other related
international relations powers, under the Constitution.
But if H. Con. Res. 227 is not passed, that litigation will
never happen, and Congress and the President will continue in a
world of uncertain divided responsibility over the single most
important authority delegated by the people to their
government: the power to go to war.
D. Conclusion
There is no other way to test the constitutionality of the
War Powers Resolution than to invoke it.
There is no other way to overcome ripeness objections to a
lawsuit enforcing the War Powers Resolution than to pass a
concurrent resolution of Congress to apply it. We know from
experience that individual Members of Congress will not be
allowed to proceed in court without such a concurrent
resolution.
This concurrent resolution itself is scrupulously neutral
on the advisability of being in Bosnia.
This concurrent resolution is honest with the facts. There
are hostilities in Bosnia. There were hostilities at the time
our troops were introduced. To say anything else is sophistry.
To play with words is unconscionable where American servicemen
and women's lives are at stake. Bosnia does present a situation
for which the War Powers Resolution was intended.
To use circumlocution and clever verbal distinctions to
allow Congress to escape from its responsibility to decide when
American troops are to be committed overseas is to surrender
our Constitutional right, and our Constitutional obligation.
Author's note: This memorandum was prepared personally by
me. I acknowledge an intellectual debt of enormous proportion
to Professor John Hart Ely, from whose book, ``War and
Responsibility'' (Princeton Univ. Press, 1993), I have not only
explicitly quoted, but from which source I have also obtained a
great deal of the other material cited in this memorandum. I
would also like to thank Joel Starr of my staff for his
assistance.
Tom Campbell.
William F. Goodling.
Henry J. Hyde.
Dan Burton.
Elton Gallegly.
Dana Rohrabacher.
Donald A. Manzullo.
Jay Kim.
Steven J. Chabot.
Marshall ``Mark'' Sanford.
Lindsey Graham.
Roy Blunt.
Amendment in the Nature of a Substitute to H. Con. Res. 227, as
Reported Offered by Mr. Campbell of California
Strike all after the resolving clause and insert the
following:
SECTION 1. REMOVAL OF UNITED STATES ARMED FORCES FROM THE REPUBLIC OF
BOSNIA AND HERZEGOVINA.
(a) Findings.--The Congress finds the following:
(1) The Congress has the sole power to declare war
under article I, section 8, of the Constitution.
(2) A state of war has not been declared to exist
with respect to the situation in the Republic of Bosnia
and Herzegovina.
(3) A specific authorization for the use of United
States Armed Forces with respect to the situation in
the Republic of Bosnia and Herzegovina has not been
enacted.
(4) The situation in the Republic of Bosnia and
Herzegovina constitutes, within the meaning of section
4(a)(1) of the War Powers Resolution (50 U.S.C.
1543(a)(1)), either hostilities or a situation where
imminent involvement in hostilities is clearly
indicated by the circumstances into which United States
Armed Forces have been introduced.
(b) Removal of Armed Forces.--
(1) In general.--Pursuant to section 5(c) of the War
Powers Resolution (50 U.S.C. 1544(c)), the Congress
hereby directs the President to remove United States
Armed Forces from the Republic of Bosnia and
Herzegovina not later than 60 days after the date on
which a final judgment is entered by a court of
competent jurisdiction determining the constitutional
validity of this concurrent resolution, unless a
declaration of war or specific authorization for such
use of United States Armed Forces has been enacted.
(2) Exception.--The requirement to remove United
States Armed Forces from the Republic of Bosnia and
Herzegovina under paragraph (1) shall not apply with
respect to--
(A) a limited number of members of the Armed
Forces sufficient only to protect United States
diplomatic facilities and citizens; or
(B) noncombatant personnel to advise the
North Atlantic Treaty Organization (NATO)
Commander in the Republic of Bosnia and
Herzegovina.
(c) Declaration of Policy.--The requirement to remove United
States Armed Forces from the Republic of Bosnia and Herzegovina
under subsection (b) does not necessarily reflect any
disagreement with the purposes or accomplishments of such Armed
Forces, nor does it constitute any judgment of how the Congress
would vote, if given the opportunity to do so, on either a
declaration of war or a specific authorization for the use of
such Armed Forces.