PRESIDENTIAL WAR POWERS

The power of the President to initiate unilaterally military operations widened substantially under Presidents george h. w. bush and william j. clinton. In December 1989, with Congress out of session, Bush ordered 11,000 troops into Panama to join up with 13,000 American troops already in the Canal Zone. He cited a number of justifications: protecting Americans in Panama who were in "imminent danger," bringing Panamanian General Manuel Noriega to justice in the United States, defending democracy, combating drug trafficking, and protecting the integrity of the Panama Canal treaty. Scholars of international law generally dismissed those arguments, but Bush on his own had used military force to invade another country without ever seeking authorization from Congress.

After Iraq, under the leadership of Saddam Hussein, invaded Kuwait on August 2, 1990, Bush began deploying U.S. forces to Saudi Arabia and elsewhere in the Middle East. At that point the operation was purely defensive—to deter further Iraqi aggression—but the doubling of U.S. forces by November gave Bush the capacity to wage offensive war. He made no effort to seek authority from Congress. Instead, he sought support from other nations and encouraged the united nations Security Council to authorize the use of force, which it did on November 29. Only at the eleventh hour, in January 1991, did Bush seek support (but not authority) from Congress. A legal crisis was avoided on January 12 when Congress authorized offensive action against Iraq.

In his first six years in office, Clinton repeatedly used military force without ever coming to Congress for authority. On June 26, 1993, he ordered air strikes against Iraq as a response to the attempted assassination of former President Bush during a visit to Kuwait. Sixteen suspects, including two Iraqi nationals, had been arrested but the trial had not been completed. Clinton justified the attack as one of self-defense, but constitutional lawyers found that quite a stretch.

In September 1996, Clinton ordered the launching of cruise missiles against Iraq in response to an attack by Iraqi forces against the Kurdish-controlled city of Irbil in northern Iraq. Cruise missiles also struck air defense capabilities in southern Iraq. There was no claim here of self-defense or the need to protect the lives of Americans. Toward the end of January 1998, Clinton threatened once again to bomb Iraq, this time because Hussein had refused to give UN inspectors full access to examine Iraqi sites. The attack was postponed when UN Secretary General Kofi Annan visited Baghdad in February and negotiated a settlement with Iraq. In that same month, U.S. Secretary of State Madeleine Albright was asked how Clinton could order military action against Iraq after opposing American policy in Vietnam. Her response: "We are talking about using military force, but we are not talking about a war. That is an important distinction." How many people in the country, or in the administration, understood such distinctions? Did the President's need to obtain prior congressional authority arise only in "time of war" but not with military force? In December 1998, Clinton ordered four days of heavy bombing in Iraq and continued in 1999 with repeated air strikes.

Further military action occurred in Somalia, where an initial humanitarian effort turned bloody in June 1993 when twenty-three Pakistani peacekeepers were killed. U.S. warplanes launched a retaliatory attack. In August, four U.S. soldiers were killed when a land mine blasted apart their Humvee vehicle. As the situation deteriorated, Congress passed legislation to remove U.S. armed forces from Somalia by March 31, 1994.

On September 15, 1994, Clinton told the American public that he was prepared to invade Haiti to reinstate Jean-Bertrand Aristide as President. The UN Security Council had passed a resolution "inviting" the use of force to remove the military leaders from that island. An invasion became unnecessary when former President jimmy carter negotiated an agreement in which the military leaders agreed to step down to permit Aristide's return.

Clinton ordered air strikes in Bosnia beginning in 1994. At the end of 1995 he dispatched 20,000 U.S. troops to that region for peace-keeping purposes. For authority, he cited a number of North Atlantic Treaty Organization (NATO) decisions and UN resolutions. Beginning on March 24, 1999, and operating solely through NATO, Clinton began bombing in Serbia and Kosovo. He also considered sending in U.S. armed forces as part of a multinational effort to protect refugees returning to Kosovo. At no time did Congress authorize his actions, although Clinton sent American troops into Kosovo as part of a NATO peace-keeping force upon cessation of the bombing compaign.

In August 1998, Clinton sent cruise missiles into Afghanistan to attack paramilitary camps and into Sudan to destroy a pharmaceutical factory. He justified the use of military force as a retaliation for bombings earlier in the month against U.S. embassies in Nairobi and Dar es Salaam. The administration claimed Osama bin Laden was behind the embassy attacks, that he used the training complex in Afghanistan, and that he was somehow related to the pharmaceutical plant. Questions were raised as to whether the plant was producing a precursor chemical for a nerve gas, as the administration alleged, or an agricultural pesticide. A Saudi businessman who owned the plant went to court to force the administration to release millions of dollars in assets frozen by U.S. officials on the ground that he was linked to bin Laden. The administration released $24 million of his assets but refused to clear his name.

The pattern during the Bush and Clinton years was clear: Presidents would seek authority to use military force not from Congress but from international and regional institutions. Members of Congress voted repeatedly on amendments to restrict the President's capacity to make war. With the exception of the funding restriction on Somalia, these amendments were never enacted into law.

Louis Fisher
(2000)

Bibliography

Adler, David Gray and George, Larry N. 1996 The Constitution and the Conduct of American Foreign Policy. Lawrence: University Press of Kansas.

Ely, John Hart 1993 War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath. Princeton, N.J.: Princeton University Press.

Fisher, Louis 1995 Presidential War Power. Lawrence: University Press of Kansas.

Stern, Gary M. and Halperin, Morton H. 1994 The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives. Westport, Conn.: Greenwood Press.