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The Constitutional Responsibility of Congress for Military Engagements

Published online by Cambridge University Press:  27 February 2017

Lori Fisler Damrosch
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Extract

The U.S.-led military operation in Haiti has unfolded with minimal violence and few casualties so far. That factual proposition—which is necessarily subject to revision—has important ramifications under both U.S. constitutional law and international law. On the constitutional level, the avoidance of hostilities defused what was poised to become a serious confrontation between the President and the Congress. On the international level, doubts in some quarters about the legitimacy of a forcible intervention, although not entirely allayed, were somewhat quieted with the achievement of a negotiated solution, which enabled U.S. troops to bring about the return to power of President Aristide without having to shoot their way into Haiti.

Type
Agora: The 1994 U.S. Action in Haiti
Information
American Journal of International Law , Volume 89 , Issue 1 , January 1995 , pp. 58 - 70
Copyright
Copyright © American Society of International Law 1995

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References

1 SC Res. 940 (July 31, 1994).

2 The emissaries were former President Carter, Senator Sam Nunn, and General Colin Powell. For the text, see Text of Haiti Agreement, N.Y. Times, Sept. 19, 1994, at A1, A9 [hereinafter Carter-Cedras Agreement].

3 See U.S. Hopes Talk of War Forces Out Haiti Army, N.Y. Times, Sept. 10, 1994, at A4; see also Top U.S. Officials Outline Strategy for Haiti Invasion, N.Y. Times, Sept. 14, 1994, at A1.

4 See Pentagon Estimates It Will Cost $427 Million To Invade Haiti, N.Y. Times, Sept. 2, 1994, at A9.

5 Report of President Clinton to Congress under section 8147 of the Defense Appropriations Act of 1994 (Sept. 18, 1994), 30 Weekly Comp. Pres. Doc. 1801 (Sept. 18, 1994). The Act is discussed in the text at note 22 infra.

6 It was noted that Haiti’s army consisted of only about seven thousand ill-disciplined men, and that many months of international sanctions had taken their toll on its fighting capabilities. See Haiti’s Forces: Poorly Armed and Seasoned Only in Terror, N.Y. Times, Sept. 14, 1994, at A1.

7 See generally Lori Fisler Damrosch, Epilogue to Enforcing Restraint: Collective Intervention in Internal Conflicts 376 (Lori Fisler Damrosch ed., 1993). The most recent acts of terror in Haiti took place days before the U.S. intervention.

8 See Preaching to Skeptics: Clinton Gives His Rationale for Invasion But the Message Faces a Tough Audience, N.Y. Times, Sept. 16, 1994, at Al; Invasion of Haiti Would Be Limited, Clinton Aides Say, N.Y. Times, Sept. 13, 1994, at A13.

9 See, e.g., Congress Must Vote on Haiti, N.Y. Times, Sept. 13, 1994, at A22 (Editorial); Anthony Lewis, ‘Not in a Single Man,’ N.Y. Times, Sept. 12, 1994, at A15.

10 Presidential News Conference, N.Y. Times, Aug. 4, 1994, at A16.

11 See Clinton Has Authority He Needs to Invade Haiti, Top Aides Say, N.Y. Times, Sept. 12, 1994, at A1; Some Lawmakers Say Clinton Can Order Haiti Invasion, N.Y. Times, Sept. 9, 1994, at A8.

12 Letter from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, to Senators Robert Dole, Alan K. Simpson, Strom Thurmond & William S. Cohen (Sept. 27, 1994), reprinted infra at p. 122 [hereinafter Dellinger letter].

13 Letter from Bruce Ackerman (Yale), Abram Chayes (Harvard), Lori Damrosch* (Columbia), John Hart Ely (Stanford), Gerald Gunther (Stanford), Louis Henkin* (Columbia), Harold Hongju Koh* (Yale), Philip B. Kurland (Chicago), Laurence H. Tribe (Harvard) & William Van Alstyne (Duke) [asterisk indicates a member of the AJIL Board of Editors], to President William J. Clinton (Aug. 31, 1994), reprinted infra at p. 127 [hereinafter August letter].

14 Brief of Amid Curiae Ackerman et al., Dellums v. Bush, 752 F.Supp. 1141 (D.D.C. 1990) (No. 90-2866), reprinted in 27 Stan. J. Int’l L. 257 (1991).

15 Supra note 1.

16 752 F.Supp. at 1145. Our letter, after referring to the Dellums amicus brief and the passage from Judge Greene’s opinion quoted in the text, went on to say that the Security Council resolution “expressly leaves each member nation, according to its own constitutional processes, to decide whether warmaking is ‘a necessary means’ to carry out its international obligations,” and we urged the President to seek congressional approval before engaging in war making. August letter, supra note 13, at p. 127 infra.

17 The War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (50 U.S.C. §§1541-1548) (1988) [hereinafter WPR], is discussed in the text at notes 28–36 infra.

18 Pub. L. No. 102-1, 105 Stat. 3 (1991).

19 Letter (Oct. 14, 1994) signed by the 10 professors referred to in note 13 supra, responding to Dellinger letter, supra note 12, reprinted infra at p. 128 [hereinafter Amicus response].

20 See Amicus response, supra note 19, at p. 128 n.1 infra.

21 President Clinton ordered 61 planes to take off from the United States for Haiti while the Carter mission was still in Haiti. See Haiti’s Military Leaders Agree to Resign: Clinton Halts Assault, Recalls 61 Planes, N.Y. Times, Sept. 19, 1994, at A1.

22 Pub. L. No. 103-139, 107 Stat. 1418 (1993).

23 For the Governors Island Agreement, see The Situation of Democracy and Human Rights in Haiti: Report of the Secretary-General, UN Doc. A/47/975–S/26063 (1993).

24 See generally Epilogue, supra note 7, at 376, 387 n.32.

25 With respect to section 8147, the Amicus response, supra note 19, at p. 128 infra, notes:

[O]n its face, that statute provides no affirmative legislative authorization for the planned military invasion of Haiti. …

At best, the President’s transmittal of a report under §8147(c) negates the inference of congressional disapproval that would otherwise arise from this statute if the President obligated or expended funds for military operations in Haiti before September 30, 1994. The provision was introduced ten days before the original October 30, 1993 deadline for President Jean-Bertrand Aristide’s return to Haiti pursuant to the Governors Island Accord and was enacted shortly thereafter. Nothing in that law affirmatively authorized the President to invade Haiti nearly one year later under quite different factual circumstances, or altered the President’s constitutional obligation to seek congressional approval before launching such an invasion.

See further infra pp. 128–29.

26 The previous measure was referred to, inter alia, in 140 Cong. Rec. S10,675 (daily ed. Aug. 5, 1994) as having expressed the sense of the Senate against invasion; see also id. at S10.663.

27 Point (2) of the Report, supra note 5.

28 WPR, supra note 17, §2(c).

29 See, e.g., John Hart Ely, War and Responsibility 65, 127–28 (1993).

30 Section 8(d)(2) of the WPR, supra note 17, states that nothing in the resolution “shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities … which authority he would not have had in the absence of this joint resolution.”

31 The Amicus response denies Dellinger’s assertion that the War Powers Resolution “assumes” that the President has independent authority to introduce troops into hostilities:

But the Constitution itself makes no such assumption. As we noted in our Heliums memorandum, “the structure and history of the Constitution … require that the President meaningfully consult with Congress and receive its affirmative authorization—not merely present it with faits accomplis—before engaging in war.” Nothing in the War Powers Resolution authorizes the President to commit armed forces overseas into actual or imminent hostilities in a situation where he could have gotten advance authorization, but failed to do so.

Amicus response, supra note 19, at p. 129 infra (citation omitted).

32 See, e.g., President Bush’s War Powers Report on Somalia, 28 Weekly Comp. Pres. Doc. 2338 (Dec. 10, 1992).

33 WPR, supra note 17, §4(a)(2) or (3).

34 That is, from 14(a)(2) to §4(a)(1) of the WPR.

35 WPR §5(b). It is not easy to ascertain exactly when “hostilities” within the meaning of the WPR actually began in Somalia (or whether they were intermittent in a way that could have interrupted the running of the periods); congressional activity in the first 10 months of 1993 did not effectively clarify the situation. After the October 1993 attack, Congress enacted a measure restricting the use of appropriated funds for the Somalian military operation after March 31, 1994. See Department of Defense Appropriations Act, 1994, note 22 supra, §8151(b).

36 The President’s report, like many under the WPR, does not cite or even refer to a particular section of the WPR. See generally Michael J. Glennon, The War Powers Resolution Ten Years Later: More Politics Than Law, 78 AJIL 571 (1984). Because the troops were introduced into Haiti “equipped for combat” but not actually fighting or expected to fight, the situation properly falls under section 4(a)(2).

37 My amicus colleagues did not address the point raised in this sentence in the text (see the footnote in the Amicus response cited in note 20 supra) and thus cannot be assumed to concur with my view.

38 Dellinger letter, supra note 12, at p. 126 infra.

39 As the Amicus response put it, “Presumably, at the outset of World War II, General de Gaulle could not have nullified the Constitution’s requirement of congressional approval by ‘inviting’ the United States to invade occupied France.” A footnote to this passage states: “We express no view on whether President Aristide in fact ‘invited’ the invasion that was contemplated, but not executed. … We note, however, that [the Dellinger] letter grants legal significance to President Aristide’s actions, not to the Carter-Cedras agreement of September 18, which in fact averted the invasion.” Amicus response, supra note 19, at pp. 129–30 & n.3 infra.

40 See note 16 supra.

41 The Amicus response, supra note 19, at p. 130 infra, explains: “Article I, §8, cl. 11 of the Constitution grants Congress power not simply ‘to declare War,’ but also to address hostilities in situations short of war ….” We expressed the view that “the totality of Congress' Article I, §8 powers reserves to Congress alone the prerogative and duty to authorize initiation of hostilities.”

42 Some have found in the Marque and Reprisal Clause explicit articulation of Congress’s prerogatives with respect to hostilities short of war. Although that particular text may be helpful in establishing the Framers' expectations, I prefer an approach that takes account of the totality of congressional powers in Article I, §8, els. 10–16, and the Necessary and Proper Clause (cl. 18), as well as the power of the purse, and the structure of democratic accountability, which remains the best safeguard of the legitimacy of military engagements.

43 See generally W. Taylor Reveley, War Powers of the President and the Congress 51–115 (1981).

44 See, e.g., Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804).

45 See Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins 145–47, 161–66 (1976).

46 Thus, I disagree with Professor Trimble in his contribution to this Agora, The President’s Constitutional Authority to Use Limited Military Force, infra p. 84. Under his interpretation, Congress can only exercise its constitutional function by acting to block the President; and unless it does so, the President is free to act. As many have observed, this interpretation turns the constitutional structure inside out and effectively denies any meaningful predecisional role to Congress.

47 E.g., in §§2(a), 2(c), 5(b), 8(a), and 8(d) of the WPR, supra note 17.

48 Compare Thomas M. Franck & Faiza Patel, UN Police Action in Lieu of War: “The Old Order Changeth,” 85 AJIL 63 (1991) with Michael J. Glennon, The Constitution and Chapter VII of the United Nations Charter, id. at 74.

49 See note 18 supra.

50 See 140 Cong. Rec. S10.415, 10,433 (daily ed. Aug. 3, 1994).

51 See Sofaer, supra note 45, at 256 n.**.

52 SC Res. 841 (June 16, 1993), reprinted in 32 ILM 1206 (1993).

53 The quoted language was reiterated at the meeting at which the Council adopted Resolution 841 applying compulsory economic sanctions to Haiti. See, e.g., UN Doc. S/PV.3238, at 9 (1993) (President of Council stating after vote: “Members of the Council have asked me to say that the adoption of this resolution is warranted by the unique and exceptional situation in Haiti and should not be regarded as constituting a precedent.”). Similar language was used by some delegates at the time of Resolution 940 authorizing a multinational force in Haiti. See S/PV.3413, at 11, 19–20 (July 31, 1994).

54 In the international law literature, an important contribution is Romana Sadurska, Threats of Force, 82 AJIL 239 (1988).

55 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14 (June 27).

56 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 52, 1155 UNTS 331.

57 See Louis Henkin, Richard C. Pugh, Oscar Schachter & Hans Smit, International Law 492–96 (3d ed. 1993).

58 Sadurska examines this argument in her article cited in note 54 supra.