Kosovo, war powers, and the multilateral future.

• Author: Yoo, John C.

INTRODUCTION

Aside from getting himself impeached but not removed, President William J. Clinton's most noteworthy impact on the Constitution has been in the area of war powers. In March 1999, President Clinton ordered 31,000 American servicemen and women to engage in air operations against Serbia, the largest and most powerful province of the former Yugoslavia, to prevent the "ethnic cleansing" of Albanians living in Kosovo. As part of an operation sponsored by the North Atlantic Treaty Organization ("NATO"), 7000 American ground troops then entered Kosovo on June 10, 1999, after NATO bombing had forced Serbia to withdraw its forces. It is unclear how long American troops will remain, as NATO's goals include not just ending war but building a new nation in Kosovo.

While broader in scale and destructiveness, President Clinton's Kosovo operation followed a pattern set by similar military interventions over the last eight years. In 1993, President Clinton expanded the goals of the 28,000 American troops in Somalia, originally deployed by President Bush for humanitarian reasons, but then withdrew them after the deaths of soldiers in combat. Then, in 1994, President Clinton sent 16,000 American troops to Haiti, under the auspices of the U.N., to oversee its transition to democratic government. Since December 1995, as many as 20,000 American troops have implemented a U.N.-brokered peace plan in Bosnia, another province of the former Yugoslavia. American war planes continue to enforce a no-fly zone in Iraq, and on occasion American cruise missiles and bombs have attacked Iraqi military assets. In the summer of 1998, President Clinton again used cruise missiles, this time to hit suspected terrorist targets in Sudan and Afghanistan. On President Clinton's watch, American troops also have participated in U.N. peacekeeping missions in dangerous places such as Macedonia and Rwanda.

The Clinton administration did not receive congressional authorization for its decisions to use force abroad in any of these cases. To the contrary, the President has justified his military interventions more often on the need to uphold our obligations to the United Nations or NATO, than upon congressional approval. Although on several occasions Congress refused to authorize the use of force, President Clinton argued that he had the sole constitutional power as commander-in-chief to send American servicemen and women into harm's way. While he often signaled that he would welcome congressional support, he also made clear that he would implement his military plans without it. President Clinton further refused to acknowledge that the War Powers Resolution bound his discretion to act. The Clinton administration has rendered the War Powers Resolution a dead letter.

This Article discusses the constitutional implications of the Clinton administration's war power activities. Part I explains that President Clinton's claim of unilateral executive war power, while at times rhetorically overbroad, is supported by the Constitution's text and original understanding. In creating a flexible system of war powers, the Constitution allows the President to exercise significant initiative in war matters, while providing Congress with ample authority to check presidential adventurism by refusing to fund military operations. Congress had a full opportunity to prevent President Clinton from deploying the armed forces in Kosovo. It simply chose, as a political matter, not to.

Part II considers whether the administration's unilateral decisions to use force can find support in the Constitution, and responds to scholarly criticism of recent executive warmaking. Events have shown again that international law scholars, the vast majority of whom believe that Congress must authorize all offensive uses of force,(1) have failed to describe reality or to remain consistent in their criticism of executive warmaking.(2)

This Article also examines the constitutional implications of the increasingly multilateral nature of the American use of force. Kosovo and other Clinton-era operations, in which the American military participates as part of multinational forces under international mandate, may prove to be the model for the future. Part III addresses whether the Constitution imposes any limitations on the President's ability to send American troops to serve under international command. It then turns to two other questions raised by Kosovo involving the relationship between international law and presidential power: whether the President gains any constitutional authority vis-a-vis Congress when using force pursuant to treaty, and whether the President may violate international law in the course of ordering the military to intervene abroad. Kosovo is a demonstration of the President's freedom to pursue the goals of multilateral organizations, even to the point of waging war either without congressional authorization or in violation of international law. Nonetheless, the Constitution places limits on the federal government's ability to cooperate with international organizations, particularly in its restrictions on delegating authority under federal law to non-U.S. officers, and in Congress's discretion to use the legislative power to block presidential foreign policy. Thus, Kosovo provides only an uncertain precedent for the future. On the one hand, it reaffirms the President's unilateral authority to use force, but on the other hand, it does not justify the further internationalization of American military intervention.

1. AMERICAN INTERVENTION IN KOSOVO

   This Part discusses the constitutional issues that have surrounded the Clinton administration's use of force abroad. It begins by briefly sketching out the constitutional allocation of powers and recent practice by the three branches of government. As events in Kosovo may set the paradigm for future multilateral military interventions, I focus my comments on its details.

   1. War Powers in Practice

      While the constitutional text divides the warmaking power between the President and Congress, it does not explicitly declare which branch must act first to initiate hostilities. Article II vests in the President the commander-in-chief power, the power to send and receive ambassadors, and all of the other executive powers of the United States.(3) Article I grants Congress the authority "to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water," to raise and fund the military, and to organize the military.(4) Congress also enjoys other foreign affairs powers, such as the authority to regulate international commerce, to enact immigration laws, and to pass laws to punish piracy.(5) The federal courts have no special role in warmaking, aside from their jurisdiction over cases arising under the Constitution, treaties, and federal laws, and controversies involving ambassadors, admiralty, and maritime law, and diversity suits with foreign states or citizens.(6) Finally, Article I, Section 10 of the Constitution wholly excludes the states from matters involving war, unless they receive congressional permission or are threatened with invasion.(7)

      A modern system of warmaking has evolved around this formal distribution of constitutional powers that allows presidents to take the initiative in military hostilities.(8) Pro-Congress scholars claim that unilateral presidential warmaking violates Congress's sole possession of the power to declare war. Congress, however, has used that authority only five times in the nation's history. Meanwhile, presidents have committed forces to combat at least 125 times in the Republic's 210 year history, although most of these interventions were either small in scale or had received legislative support.(9) Since World War II, presidents have expanded upon this practice by sending the armed forces into several major conflicts without congressional authorization. In the Korean War, President Truman consciously chose to rely upon his commander-in-chief and executive powers to send troops, rather than seek legislative permission.(10) Likewise, in Vietnam, President Johnson only received the at best ambiguous Tonkin Gulf Resolution(11) as a sign of congressional support, which was declaration of war.(12)

      Post-Vietnam efforts by Congress to control presidential warmaking by statute have met with little success. In 1973, Congress enacted the War Powers Resolution ("WPR"), which prohibits the president from introducing the American military into hostilities, whether actual or imminent, without either a declaration of war, specific statutory authorization, or an attack on the United States or its forces.(13) The WPR requires a president to "consult with Congress" before sending the armed forces into hostilities and to report to Congress within forty-eight hours of sending the military into hostilities.(14) Sixty days after the report, the President must terminate the intervention.(15)

      Presidents have never acknowledged the WPR's constitutionality, and their recent actions have ignored its terms. Presidents Ford and Carter never expressly recognized the Resolution's binding force, and President Reagan refused to comply with the Resolution when he ordered the use of force in Lebanon, Grenada, Libya, and the Persian Gulf.(16) Like the presidents before him, President Bush sent messages notifying Congress of military interventions in Panama and the Persian Gulf that were "consistent with" the Resolution, but that did not obey it. During the Gulf War, President Bush dispatched troops to the Middle East for well longer than permitted by the WPR's sixty day clock.(17) Even as he asked for a congressional sign of support, President Bush argued that he already had the constitutional authority to implement U.N. Security Council Resolution 678, which asked member states to use "all necessary means" to force Iraqi troops out of Kuwait.(18)

      Use of force under the Clinton...