Interested Persons Memo on War Powers and the President's Authority to Launch Military Operations Against Iraq

MEMORANDUM

To: Interested Persons
From: Timothy H. Edgar, ACLU Legislative Counsel
Date: September 13, 2002
Re: War Powers and the President's Authority to Launch Military Operations Against Iraq

In the past few months, there has been public discussion and Congressional interest in whether the United States should attack Iraq to force the overthrow of the government of Saddam Hussein. White House Counsel Alberto Gonzalez has said the President need not obtain any prior authorization from Congress to attack Iraq.[1] The President now says he will seek approval from Congress and welcomes a debate, but still asserts unilateral authority to decide whether to go to war.

These assertions of unilateral authority cannot and should not go unchallenged. The decision whether to go to war does not lie with the President, but with Congress. The President lacks authority to launch a preemptive strike against Iraq without further action by Congress.

• In the absence of an imminent armed attack by Iraq on the United States, the President does not have such authority under the Constitution itself.
• The President currently lacks the authority of a declaration of war or a joint resolution under the War Powers Act to initiate large-scale hostilities against Iraq. United Nations resolutions are no substitute for Congressional authorization.
• The resolution adopted last year to respond to the September 11, 2001 attacks does not authorize the use of force, at least in the absence of clear
  evidence of Iraqi complicity in those attacks.
• The resolution that Congress adopted to authorize the Gulf War of 1991 cannot reasonably be interpreted to permit the President to initiate a new war against Iraq without Congressional approval.

In sum, the President does not have authority under the Constitution, or under the War Powers Act, to initiate hostilities against Iraq without prior Congressional approval. Congress has not approved military action against Iraq. As a result, the President must obtain Congressional approval before attacking Iraq.

I. The Constitution Requires the President to Obtain Congress's Approval for Military Operations Against Iraq.

Congress's power over decisions involving the use of military force derives from the Constitution. Article 1, Section 8 provides that only Congress has the power ""To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,"" among other war powers.

The Congress's preeminent role in war powers matters was relatively uncontroversial until the latter half of the Twentieth Century. The structure of the Constitution reflects the framers' traditional mistrust of concentrations of power and their consequent separation of those powers into the three branches of our government. The framers well understood the danger of combining powers into the hands of a single person, even one who is elected, particularly a person given command of the armed forces.

In order to prevent such an accumulation in times of war or emergency, the framers split the war powers between the Executive and Legislative branches, giving Congress the power to declare war, i.e., make the decision whether to initiate hostilities, while putting the armed forces under the command of the President.

In giving the war power to Congress, the framers explicitly rejected the model of the British monarch, saying that the President's powers as Commander in Chief, while ""nominally the same [as] that of the king of Great Britain . . . in substance [is] much inferior to it.""[2] As Alexander Hamilton explained, the power of Commander in Chief ""would amount to nothing more than the supreme command and direction of the military and naval forces; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all of which, by the Constitution under consideration, would appertain to the legislature.""[3]

Chief Justice Marshall made clear, as early as 1801, that the Executive Branch did not have free-floating war powers. In a series of cases involving the seizure of vessels during an undeclared naval war with France, the Supreme Court made clear that Congress, not the President, was the ultimate repository of the power to authorize military force. See Little v. Barreme, 6 U.S. 170 (1804), Talbot v. Seeman, 5 U.S. 1, 28 (1801); Bas v. Tingy, 4 U.S. 37 (1800). As Marshall made clear, ""The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry."" Talbot, 5 U.S. at 28 (1801).

In The Prize Cases, 67 U.S. 635 (1863), the Supreme Court found that a ""state of war"" may exist without a declaration of war. But the peculiar context of the Civil War explains those cases. Indeed, the Court reaffirmed that, in contrast to the President's power to suppress insurrections, ""By the Constitution, Congress alone has the power to declare a national or foreign war."" Id. at 668.

In the years following World War II, successive Presidents undertook military actions in Korea, Vietnam, Cambodia and elsewhere without any formal declaration of war and with varying degrees of Congressional authority. Apologists for unlimited Presidential war making power began to argue that the President, as Commander in Chief, has the ability to use military force whenever he deems it necessary in the ""national interest"" and need not obtain either a declaration of war or Congressional approval unless he determines it would be helpful.[4]

This view is based on a misreading of history. Proponents of this view make much of the fact that the drafters of the Constitution had considered giving Congress the sole power to ""make War,"" but in the end decided its power would be to ""declare War."" Apologists for Executive power claim this means the President has the power to make war regardless whether Congress has acted. James Madison explained, however, that this change was made simply to leave ""to the Executive the power to repel sudden attacks."" According to Alexander Hamilton, ""anything beyond"" such use of military force ""must fall under the idea of reprisals and requires the sanction of that Department [i.e., the Congress] which is to declare or make war.""

As this history makes clear, the correct view, and the unbroken view of Congress, has been that the President's power to engage in large-scale military operations without Congressional approval is limited to the power to ""repel sudden attacks."" Any other use of military force requires a declaration of war or other Congressional authorization.

In seeking to rally support for forceful action, including possible military action, against states which may seek to acquire weapons of mass destruction, President Bush has articulated a doctrine of preemptive attack. The ACLU takes no position on whether or not such a doctrine represents sound policy, but it is clear that a policy of preemptive strikes requires, under the Constitution, prior Congressional authorization. In the absence of an attack by Iraq on the United States, or a threat of such an attack so imminent that Congress cannot act, the President lacks constitutional power to order such an attack.

If the President believes the requirement to obtain Congressional approval is outdated or impractical in dealing with modern threats involving weapons of mass destruction, he should seek a constitutional amendment. The framers intended to commit the decision whether to go to war to the people's representatives. As Thomas Jefferson noted, this allocation of power provides an ""effectual check to the Dog of war"" by ""transferring the power of letting him loose from the Executive to the Legislative body . . . .""[5] In the absence of such an amendment, the President clearly does not possess the authority to unleash the dog of war simply by virtue of his authority as Commander in Chief.

II. The War Powers Act Requires the President To Obtain Congress's Approval for Military Operations Against Iraq

The War Powers Act, enacted in 1973, was intended to fulfill the framers' vision by restoring Congress to its rightful place in the constitutional scheme. See 50 U.S.C. §§ 1541-48. It contains three basic requirements.

First, it requires regular consultation with Congress whenever military action is contemplated. 50 U.S.C. §1542. The President has agreed to engage in such consultations.

Second, the Act requires the President to file a report within 48 hours of when armed forces are introduced ""into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."" 50 U.S.C. § 1543(1). The report must outline, among other things, ""the estimated scope and duration of the hostilities or involvement,"" 50 U.S.C. § 1544(a).

Finally, the Act bars the continued deployment of American troops unless Congress gives its consent, either through a declaration of war or ""specific statutory authorization,"" such as a joint resolution that references the Act. If Congress does not consent within 60 days of the time the report is, or should have been filed, the President must withdraw American forces within 30 days. 50 U.S.C § 1544(b).

President Nixon vetoed the War Powers Act, alleging that it unduly restricted the President's alleged power to use military force without Congress's approval, but Congress overrode his veto. Since then, while Presidents have maintained they are not bound by War Powers Act requirements, they have generally acquiesced in obeying them.

More importantly, Congress has always insisted on its prerogatives under the War Powers Act, affirming its continued vitality in resolutions authorizing the use of force. Indeed, Congress specifically reaffirmed the War Powers Act in the most recent resolution authorizing force in the wake of the September 11, 2001 attacks. See Pub. L. No. 107-40, at § 2(b).

III. Congress Has Not Approved the Use of Force Against Iraq.

The White House argues that, even if approval is needed for large-scale military operations, such approval has already been granted. President Bush might point to three possible sources of authority for an attack on Iraq. These are: (1) United Nations Security Council resolutions requiring Iraq to submit to weapons inspections, (2) Congress's 2001 resolution authorizing force against those determined to be responsible for the September 11 attacks, and (3) Congress's 1991 resolution authorizing force against Iraq during the Gulf War. None of these resolutions can substitute for clear Congressional approval of a new war against Iraq.

Security Council Resolutions. The United Nations Security Council has adopted a number of resolutions requiring Iraq to submit to UN inspectors to verify its compliance with commitments to destroy its weapons of mass destruction and to refrain from developing such weapons in the future. These UN resolutions may or may not be sufficient to permit the use of force under international law. They do not, however, constitute Congressional approval of the use of force and therefore provide no authority for the use of force under American constitutional law.

The Security Council is established pursuant to the United Nations Charter, a treaty to which the United States is a party. Section 8(a) of the War Powers Act specifically rejects the notion that power to commit troops may be ""inferred . . . from any treaty heretofor or hereafter ratified"" without separate Congressional authorization.

September 18, 2001 Resolution. This measure approves the use of military force in response to terrorist attacks against the World Trade Center and the Pentagon on September 11, 2001. Pub. L. No. 107-40. It does not (and could not under the Constitution) authorize wide-ranging Presidential war making in the name of the war on terrorism.

By its express terms, the joint resolution authorizes the President to use force only:

against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

During the past year, United States military forces in Afghanistan, acting with other nations and pursuant to the joint resolution, have destroyed or captured fighters for Al Qaeda, the organization the President has determined were responsible for the attacks of September 11, and toppled the Taliban, the regime which harbored them.

The September 18, 2001 resolution cannot and should not be construed by either the President or Congress as a carte blanche. It does not authorize force whenever the objective has something to do with terrorism. It does not authorize military force against targets which were not involved in the attacks on September 11, or for objectives other than preventing acts of terrorism by those who perpetrated the September 11 attacks. The use of military force in such instances should require additional congressional authorization, and should be considered on their own merits.

While there has been much speculation about a possible link between Iraqi intelligence and the September 11 hijackers, no clear evidence has yet emerged showing Iraqi involvement in those attacks, and the Administration has made clear it does not rely on any such alleged link.[6]

The language Congress enacted in the September 18, 2001 resolution does not name the ""nations, organizations or persons"" against whom force is authorized to be used. However, such language reflected the uncertainty that at the time concerning the identity of the perpetrators of the attacks on the World Trade Center and the Pentagon. During the Vietnam War, Presidents Johnson and Nixon relied on the vague wording of the Gulf of Tonkin resolution, adopted in 1964, to support increasingly controversial actions to widen the war. The nation cannot afford to repeat that mistake.

Gulf War Resolution. Finally, White House Counsel Alberto Gonzalez has claimed that Congress's authorization of the original Gulf War would permit the use of force against Iraq today. Under this theory, if the President determines that Iraq is in ""material breach"" of the commitments it made as part of the ceasefire agreement, he could order a resumption of the war without the need for further Congressional action.

The 1991 Gulf War resolution gave the President express authority to use force pursuant to UN Security Council Resolution 678 to implement relevant UN resolutions requiring Iraq to withdraw its forces from Kuwait. See Pub. L. No. 102-1 (Jan. 14, 1991). Resolution 678 authorized the use of ""all necessary means"" to implement resolutions demanding a withdrawal of Iraqi forces from Kuwait and ""to restore international peace and security in the area.""

Significantly, neither this resolution nor any of the other UN resolutions referred to by Congress required Iraq to submit to weapons inspections or disarm - these were conditions imposed after the Gulf War ended. See UN Security Council Res. 687 (Apr. 3, 1991). Congress did not -- and has not -- adopted a resolution authorizing military operations to implement Resolution 687 or other subsequent resolutions concerning Iraq.

While, under traditional international law, a serious violation of an armistice agreement is considered a material breach that permits the aggrieved party to resume the conflict,[7] the existence of sufficient cause to use force in international law does not permit the President to bypass Congress. The question under the Constitution and the War Powers Act is not whether cause exists, but who decides whether to use force. Certainly no one would have suggested in 1941 that President Roosevelt need not have sought a declaration of war against Germany because it was in ""material breach"" of its commitments made at the end of World War I.

IV. Conclusion

The President does not currently have constitutional or statutory authority to initiate hostilities with Iraq. Consultations may be useful, but they cannot substitute for Congressional approval in our republican system of government.

In this time of continued danger from terrorism and weapons of mass destruction, the country will be faced with a series of critical decisions regarding the scope and duration of our military commitment. Under both the Constitution and the War Powers Act, those decisions must be made with the concurrence of the people's representatives and not by the President acting alone.

ENDNOTES

[1] Mike Allen & Juliet Eilperin, Bush Aides Say Iraq War Needs No Hill Vote, Washington Post, Aug. 26, 2002

[2] THE FEDERALIST No. 69 (Alexander Hamilton).

[3] Id.

[4] See, e.g., Applying the War Powers Resolution to the War on Terrorism: Hearing Before the Constitution Subcomm. of the Senate Comm. on the Judiciary, April 17, 2002 (Statement of Douglas Kmiec).

[5] 1789 Letter from Jefferson to Madison, quoted in Thomas M. Frank & Michael J. Glennon, Foreign Relations and National Security Law580 (1987).

[6] See Dana Priest, U.S. Not Claiming Iraqi Link to Terror, Washington Post, Sept. 10, 2002, at A1.

[7] See Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 Am. J. Int'l L. 124, 144 (1999).