EDWIN D.
WILLIAMSON*
*Sullivan & Cromwell LLP: Partner, 1971-1990 and 1993-2006, and Senior Counsel, 2007 – present; U.S. State Department Legal Adviser, 1990-1993.
In 2004-2005, I participated in a War Powers Initiative under the auspices of the Constitution Project.[1] The Initiative was charged “with analyzing and prescribing how the U.S. government should constitutionally and prudently make the decision to use armed force abroad”. Our Committee was chaired by two former members of this body – Mickey Edwards and David Skaggs. Most of its active members had served on Congressional staffs or were academics who are strongly on record as supporting more, rather than less, Congressional participation in decisions to use force. I was the only member of the Committee who had actually advised a part of the Executive Branch in a legal capacity on the President’s use of force powers.
Notwithstanding the strongly pro-Congress bent of our Committee, it reached the following conclusion with respect to the War Powers Resolution (“the “WPR”):
The WPR, as implemented, has neither fulfilled the original intent nor facilitated the collective judgment of the political branches. Its heart is the “sixty-day clock”: a provision (intended to be self-executing) requiring a President to withdraw the armed forces within sixty days (or ninety if he or she deems it militarily necessary) after deployment unless the President has obtained congressional authorization by declaration or specific use-of-force legislation. The WPR has failed for multiple reasons. It defines the President’s defensive war powers too narrowly; . . . ;[2] its never-used provision for two-house veto of a use of force is probably unconstitutional after the Supreme Court’s 1983 decision striking down a one-house veto; and the sixty-day clock at its heart has been misconstrued to give the President a sixty-day “free pass” to use force without congressional authorization[3] and to allow Congress to do nothing . . . . (Report at 31-32)
The fundamental principle enunciated by our Committee was that Congress should be given the opportunity to approve the use of force (and in so doing, Congress should act deliberately and transparently). I agree with that principle. I disagreed, however, with the Committee’s reasoning underlying it. In the Committee’s view, this participation is a legal requirement, mandated by the Constitution. In my view, this participation is a recommendation -- as a political matter, it is prudent for the President to make sure that Congress is committed politically before he/she commences a use of force. In other words, the President is not required to get Congress’ approval before using force for the purpose of defending against threats to our vital national interests, but history has shown that it has been wise for the President to have obtained the political support of Congress for major uses of force.
Since the early days of our Republic, there has been general agreement that there are at least three bases on which the President could act unilaterally to use our armed forces: to put down an insurrection; to protect our citizens; and to defend against a direct or imminent attack on our territory. On these bases, the President has used force outside the U.S., without prior Congressional approval, over 200 times.
Obviously, these traditional justifications need to be looked at in the light of modern conditions. Take, for example, the defense against an armed invasion of U.S. territory. What would in 1789 have been a threat to the national security of the United States constituting a life-threatening emergency to a relatively geographically isolated, newly created nation may be quite different from a threat today to the national security of the United States, a mature country with vital interests worldwide. Therefore, in the Persian Gulf conflict in the early 1990’s, we urged the first President Bush to use a broader term to define what the President can use armed forces to defend -- he can defend vital national interests.
Our Committee did a good job of outlining the changes in the nature of the threats against the United States, from the time of the writing of the Constitution to today. Its brief outline demonstrates that what constitutes a “sudden attack” on the United States (see the discussion in the Report at 5-7) has changed. In other words, the Constitutional principle is not changing, but the facts to which it is applied are.[4]
On the President’s authority to use force without Congressional action, our Committee reached a conclusion essentially similar to mine: that “congressional authorization is required before the President initiates the use of force abroad except when that force is used defensively: to defend against actual attack on the United States or its armed forces, to forestall a reasonably imminent attack, to protect or rescue Americans abroad, and, in exceptional circumstances, to defend against urgent and severe threats to the United States when time does not permit obtaining advance congressional authorization”. (Report at 1-2). In my view, the Committee’s conclusion too narrowly states the President’s Chief Executive and Commander-in-Chief authorities and would be disputed, I believe, by the Executive branch of our government, regardless of which political party were in power. Instead, as indicated earlier, I believe that the President can use force to defend against any threat to the vital national interests of the United States. The President does not have to seek authority from Congress in the absence of an actual or imminent attack when he is acting defensively against such a threat. Furthermore, the Commander-in-Chief authority of the President goes beyond deciding about “day-to-day tactics”. It includes making broad strategic decisions about whether to use force, provided that use is for such defensive purposes.
Let me turn to another aspect of the discussion of the use of force that I find troublesome – an attempt to define war in a quantitative sense. In his Haiti opinion, then Assistant Attorney General Dellinger argued that whether the President has authority to use force turns on whether an armed conflict constitutes a “war”. In other words, whether the President has the authority to deploy forces to engage in the conflict is a quantitative question. According to Professor Dellinger:
In deciding whether prior Congressional authorization for the Haitian deployment was constitutionally necessary, the President was entitled to take into account the anticipated nature, scope and duration of the planned deployment, and in particular the limited antecedent risk that United States forces would encounter significant armed resistance or suffer or inflict substantial casualties as a result of the deployment. Indeed, it was the President’s hope, since vindicated by the event, that the Haitian military leadership would agree to step down before exchanges of fire occurred. Moreover, . . . the fact that it would not involve extreme use of force, as for example preparatory bombardment, [was] . . . also relevant to the judgment that it was not a war.” (Dellinger Opinion at .) [Emphasis added.]
Recognizing, I assume, the inherent risks of imposing a quantitative limit on the size of a deployment, Professor Dellinger appended a footnote to the first sentence of the quotation that contains a disclaimer to the effect that the size of the Haitian troop deployment was “not in itself dispositive on the question whether the operation was a ‘war’ in the constitutional sense, since the very size of the force was designed to reduce or eliminate the likelihood of armed resistance.”[5]
The danger in this quantitative concept of “war” is that it will lead exactly to what got us into trouble in Vietnam -- a gradual buildup of forces, with a constant concern of overstepping that line that may, to use Professor Dellinger’s phrase, “rise to the level of ‘war’“. It simply makes no sense to limit the President’s powers in this way. If the President has the authority to deploy troops in the first place, as Commander-In-Chief he clearly has the authority to determine what forces are needed to be successful.
I would also caution this Committee to avoid turning to the judicial branch to settle essentially political differences between the two political branches of our Government. I believe strongly that whether a use of force is constitutionally authorized is a political question beyond the judicial power. Those who purport to find an historical role of the courts in war powers decision-making generally mistakenly rely on the French Naval War cases.[6]
Our War Initiative Committee set forth a list of factors that affect the determination of the President’s power to use force without Congressional authorization.[7] I certainly agree that the President, in making his decision, should consider those factors, but one must recognize that these factors are not always going to be crystal clear and there may be limits (national security as well as practical) on what the President can say, predict or promise. In questions of doubt, I believe that the President must be free to act.
Our Committee’s criticism of my understanding of the allocation of constitutional war powers focused on two concerns: leaving the decision-making for such an important issue to one person and the lack of a standard for deciding whether the Presidential assessment of a threat is correct. As to the first concern, I would argue that the single decision-maker (who is, after all, an elected official) issue has long been ceded. The Constitutional Convention debate may be inconclusive on some points, but all agree that in changing Congress’ power from “making” war to “declaring” war, the President was given the authority to initiate the use of force in at least some defensive cases (what the Committee and I disagreed about was what those cases are).
As to the concern that my understanding lacks a standard for deciding whether a Presidential assessment is correct, I would argue that that has not been a problem, at least recently. In three of the last four major uses of force (the Persian Gulf in 1991, Afghanistan in 2001 and Iraq in 2003), while the President in fact sought (and obtained) specific authority from Congress for the use of force, he made it clear in his signing statement that such authority was not necessary and laid out the basis for that position – the defense of vital U.S. interests. In the fourth (Kosovo), the President did not seek authority from Congress to conduct an extensive air campaign against the former Yugoslavia – incidentally the only use of force not authorized by Congress that has exceeded the 60-day period provided in the War Powers Resolution.[8] According to the Report, “[w]hile one can disagree with President Clinton’s assessment of the threat to our national security posed by the war in the Balkans, there is no standard for deciding between the President’s assessment and the dissenter’s contrary assessment, and therefore no basis under the dissenting view for determining when the President’s unilateral use of force is authorized”. (Report at 12) I do not believe the Kosovo example supports the Report’s conclusion, for the simple reason that President Clinton did not claim that the United States’ vital interests were in any way threatened, and no arguments were put forward in the United Nations Security Council or NATO to justify the use of force on defensive grounds.[9] President Clinton’s justifications for the air campaign (see Report at 12) should be compared not only with what the Presidents Bush said about what was at stake in the two Iraq crises and the terrorism threat, but also with what those on the other side of the political aisle said (e.g., Senator Mitchell in 1987: “The United States must maintain a military presence to defend our interests in the [Persian Gulf] region . . . . [T]wo facts are indisputable: the United States has vital interests at stake in the Gulf, and our troops are already there.”).[10] Had President Clinton made a defensive claim to justify the air campaign, then the Report’s contention could have been tested, but he did not.
[1] A copy of the Committee’s Report (the “Report”), Deciding to Use Force Abroad: War Powers in a System of Checks and Balances”, has been submitted with my testimony.
[2] The Committee also complained that the WPR’s “consultation and reporting provisions leave loopholes that presidents have exploited”. I do not agree with this assessment. While all Presidents (except perhaps President Carter) have reported to Congress the introduction of U.S. armed forces into hostilities “consistent with” (as opposed to “pursuant to”) the WPR, I believe this language has been used in order to protect Presidential prerogatives and not in order to delay or avoid the start of the WPR 60/90-day clock.
[3] I read this as a criticism of the conclusion reached by Assistant Attorney General Walter Dellinger, in his opinion on the proposed use of force in Haiti in 1994 ([cite])(“Dellinger Opinion”), that the WPR authorizes the President to commit troops to hostilities -- at least for 60 days – without any Congressional action. Although Professor acknowledged the existence of a provision in the WPR that explicitly warns against any such inference, he also relied on another provision that says that the WPR does not alter the President's Constitutional authority, which leads one to the conclusion that somewhere in the Constitution the President is given authority to use our armed forces, at least for 60 days, for whatever purpose he wishes, a position which I disagree with.
[4] As our Committee put it, “[t]he modern overlapping threats of terrorism and the proliferation of weapons of mass destruction (WMD) pose a challenge to our understanding of constitutional war powers because of the nature and sources of these threats”. (Report at 16). For examples of what I believe to be the modern day equivalent of a “sudden attack”, I would refer the reader to President George W. Bush’s National Security Strategy (September 2002), his second inaugural address and the report of the 9/11 Commission.
[5] Up to the insertion of the footnote, Professor Dellinger could at least have found some support in Judge Harold Green's decision in the suit brought by 54 Congressmen to enjoin the first President Bush's use of force in the Persian Gulf without Congressional approval. See Dellums v. Bush, F.Supp. 2d (1990).
[6] For an excellent discussion of these cases, see J. Gregory Sidak, The Quasi War Cases, 28 Harvard Journal of Law & Public Policy 465 (volume 2, Spring 2005). The author concludes that these cases, which involved the interpretation of statutes passed by Congress, “established no significant interpretation of the constitutional allocation of the war powers among Congress and the President”. Id. at 483. The author also interestingly contrasts Chief Justice Marshall’s much quoted dictum in Talbot v. Seaman, quoted in the Report at footnote 30, with Marshall’s “equally sweeping, yet inaccurate, statements” (Id. At 489), such as his statement in a speech in the House only a year before writing the opinion in Talbot, in which he described the President as “the sole organ of the nation in its external relations”, which was quoted in U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).
[7] Report at 17-18.
[8] The fact that the traditional supporters of the War Powers Resolution did not voice any significant criticism of President Clinton’s running out the WPR’s “60-day clock” indicates to me that that most of them must now agree with the traditional critics of the WPR that that portion of the WPR is a dead letter.
[9] I believe that the air campaign required Congressional approval and, in the absence of Security Council approval, violated both the U.N. Charter and the NATO Treaty, unless justified on defensive grounds. In December 2000, the Justice Department’s Office of Legal Counsel finally got around to committing to writing its oral legal opinion upholding the President’s spring of 1999 use of force. Authorization for Continuing Hostilities in Kosovo, Memorandum for the Attorney General, U. S. Department of Justice, Office of Legal Counsel (December 19, 2000). The opinion found that Congress’s emergency appropriation of funds for the air campaign constituted authorization for it. The opinion concluded that the WPR’s stricture against inferring authorization of the use of force from such a Congressional activity that did not “state that it is intended to constitute specific statutory authorization with the meaning” of the WPR was not a bar to Congress’ doing just that – authorizing a use of force without such a statement.
[10] 133 Cong. Rec. S13327 (1987) (Statement of Sen. Mitchell).