[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\
---------------------------------------------------------------------------
    \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.

                                
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