Congressional Control of the Military in a Multilateral Context

• Author: Richard Hartzman
• Pages: 02

CONGRESSIONAL CONTROL OF THE MILITARY IN A MULTILATERAL CONTEXT:

A CONSTITUTIONAL ANALYSIS OF CONGRESS'S POWER TO RESTRICT THE PRESIDENT'S AUTHORITY TO PLACE

UNITED STATES ARMED FORCES UNDER FOREIGN COMMANDERS IN UNITED NATIONS PEACE OPERATIONS

THE COMMITTEE ON MILITARY AFFAIRS AND JUSTICE

OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK1 RICHARD HARTZMAN, AUTHOR2

During the 1990s a number of legislative proposals were advanced to restrict the President's discretion to involve U.S. forces in United Nations (UN) peace operations. A key element of those proposals restricted the authority of the President to place U.S. forces under the tactical or operational control of UN commanders who were not officers in the U.S. armed forces. In the one instance in which such a proposal was passed by Congress, President Clinton exercised his veto on the ground that the restriction unconstitutionally encroached upon the President's power as commander in chief. This article examines the constitutional questions raised by those legislative proposals and concludes that they did not impermissibly encroach upon presidential power.

In the absence of legislative restriction the President has discretion, within the limits of his responsibilities as commander in chief, to determine the qualifications for selection of a commander charged with the tactical or operational control of U.S. armed forces serving in UN peace operations. However, this power is not exclusive. Congress may choose to enact its own selection criteria under its power to make rules for the government and regulation of the armed forces; and if it does so, that enactment takes precedence over and limits presidential discretion. Congress's rule-making power in matters of military administration is plenary. The kind of restriction contained in the legislative proposals is neither beyond Congress's power to legislate, nor does it constitute an unconstitutional encroachment upon the President's authority to direct military operations.

Moreover, such a restriction does not unconstitutionally infringe upon the President's power to conduct diplomacy and negotiate agreements. The President has exclusive power to conduct and control foreign diplomacy, negotiations, and communications. But the President is not the sole determiner of the content of that diplomacy. Congress has a role in determining foreign policy, particularly when that policy involves the disposition of military forces. The restriction in the legislative proposals, being a constitutionally valid exercise of Congress's power to make rules for the government and regulation of the armed forces, is also a constitutionally proper constraint on the President's power to conduct diplomacy and negotiate military agreements with the UN for the disposition of American forces in peace operations.

However, though constitutional, adopting such a legislative restriction would not reflect a wise policy choice. It would go counter to the fundamental need for flexibility in the conduct of foreign affairs. It would set up a double-standard in relation to other countries that would damage diplomatic efforts to obtain cooperation in establishing peace missions. Finally, passage of this type of blanket legislative restriction would likely have an undesirable effect on the relationship between the President and the Congress, undermining the comity and mutual respect between these co-equal branches of government in a field in which it is of paramount importance that the President and the Congress work together.

TABLE OF CONTENTS

1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

2. GENESIS, HISTORY, AND CONTENT OF THE LEGISLATION . . . . . . . . . . . 56

   A. Genesis and History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

   B. Proposed Restrictions in House Bill 3308 . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

3. CONSTITUTIONAL ANALYSIS OF THE LEGISLATION. . . . . . . . . . . . . . . . 66

   A. The President's Power as Commander in Chief . . . . . . . . . . . . . . . . . . . . . . . 69

1. Introduction

   There has been considerable national debate in recent years concerning the extent to which United States foreign policy objectives in the post-Cold War era should be pursued through multilateral organizations, and in particular through the UN. In the course of this debate, legislation was repeatedly proposed in Congress that would have significantly limited the President's authority to involve U.S. military forces in UN peace operations by prohibiting, as a general rule, U.S. military personnel from serving under non-U.S. commanders in UN operations. President Clinton opposed these legislative proposals as unconstitutional and vetoed the one version that was passed by Congress. Proposals to prevent U.S. troops from serving under foreign commanders in peace operations have continued to surface, most recently in the context of a March 1999 House resolution concerning North Atlantic Treaty Organization (NATO) peacekeeping operations in Kosovo.3 This confirms that the subject is one of continuing significance. Because these are important constitutional issues not yet addressed by scholars and commentators, the author, on behalf of the Committee on Military Affairs and Justice of the Association of the Bar of the City of New York, undertook this comprehensive review.4

   The questions considered in this article involve classic separation of powers issues: the dividing lines between the President's commander in chief and foreign affairs powers, on the one hand, and Congress's authority

   to "make rules" for the government and regulation of the armed forces, on the other hand. The constitutional issues can be characterized by a number of questions: Would a restriction on the President's authority to place U.S. forces under foreign commanders in UN peace operations impermissibly encroach upon the sphere of exclusive presidential powers to control the military or to conduct diplomacy and negotiate international agreements? Are decisions regarding whom should command U.S. troops in UN peace operations exclusively within the discretion of the President, or does Congress have power under the Constitution to enact rules to govern such decisions? If the restriction falls within an area of concurrent congressional and presidential power, does Congress or the President have primacy?5

   The question is not one of war powers-which concern, strictly speaking, the decision to go to war and to conduct a war-but rather the broader field of military powers.6 The failure to make this distinction may have been one source of confusion during congressional debates on the various legislative proposals. In the early stages of the debate, there was considerable confusion about the scope of the proposal. Many members of Congress believed that the proposed restrictions related to the authority of the President to commit American forces to UN peace operations. This view reflected the goal of the proponents of the legislation, which was effectively to end the involvement of the United States in UN peace operations, notwithstanding the inclusion of a waiver provision. Only later did it

   become clear that the restrictions, as a matter of constitutional law, did not concern the question of whether to participate in a peace operation, but rather, once a commitment to engage has been made, the authority of the President to determine the control of U.S. military personnel detailed to the operation.

   Were war powers the issue in the legislation, any number of additional constitutional questions would have come into play: Does the President have independent power to commit the nation to a military operation, even if that operation is "short of war"? Does the Constitution give the President independent authority to commit U.S. forces to UN peace operations without prior congressional approval? Does the War Powers Resolution bear on presidential decisions to involve U.S. forces in UN peace operations? These are all important questions, but they are not germane to a constitutional analysis of the legislation at issue in this article.7

   The analysis in the article focuses on the allocation of powers between the executive and legislative branches with regard to the administration and command of the armed forces, and with regard to the conduct of military and foreign affairs through diplomacy and the negotiation of agreements. On the one hand, Congress has the power to raise and support an army, and to make rules for regulating and governing the armed forces. Congress can set foreign policy through legislative enactments. Further, it has power to make laws necessary and proper to carry out its own powers as well as all other powers vested by the Constitution. On the other hand, the President is the commander in chief of those forces, and has the power

   to represent the nation in the conduct of diplomacy and the negotiation of agreements and treaties. After reviewing the background and provisions of one version of the proposed legislation in Part II, Part III of this article explores these constitutional powers in relation to the legislation, offering a number of ways of characterizing the proposed restriction as a means of answering the constitutional question.

   The postscript discusses some of the policy concerns, which are important in judging the wisdom of this type of legislative proposal. A number of questions are addressed: Is a blanket restriction such as that proposed in the legislation, even with a waiver provision, wise governance? Would it be more beneficial to leave such decisions to the President, acting on the advice of his senior military advisors, based on developing military doctrines of joint and coalition operations, and upon the tradition of "lessons learned"? Is such legislation an appropriate method for handling the institutional...