What is the War Powers Act?

On November 7th, 1973, Congress passed the War Powers Resolution putting a check on the president’s power to commit the United States to an armed conflict without the consent of U.S. congress. The law was passed by two-thirds of congress, overriding Nixon’s presidential veto and intended to fulfill the intent of the framers to apply collective judgment of Congress and the President when introducing the United States Armed Forces into hostilities. It further defined the war powers of Article 1, Section 8 and the constitutional power of president to wage war as commander in chief, as it applies to the ‘declaration of war’, ‘authorization’, and ‘national emergencies’. The law set rules on what the President was required to report to Congress, and what actions required specific Congressional authorization.

Reporting to Congress (Section 4)

Whenever the United States Armed Forces are introduced into hostilities, the President shall report it within 48 hours and continue to report to Congress periodically on the status (no less than once every six months)

Requires Congressional Action (Section 5)

Within 60 days after reporting the use of United States Armed Forces, the president shall terminate any actions unless Congress specifically authorizes it. Any use of the Armed Forces outside of the United States territory must be terminated without a declaration of war or statutory authorization.

 

Quotes from Past Presidents

“House Joint Resolution 542 would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years. One of its provisions would automatically cut off certain authorities after sixty days unless the Congress extended them. Another would allow the Congress to eliminate certain authorities merely by the passage of a concurrent resolution–an action which does not normally have the force of law, since it denies the President his constitutional role in approving legislation. I believe that both these provisions are unconstitutional. The only way in which the constitutional powers of a branch of the Government can be altered is by amending the Constitution–and any attempt to make such alterations by legislation alone is clearly without force.” Richard Nixon 1973 (Nixon’s Veto message)

“There can be only one Commander in Chief. In these times crises cannot be managed and wars cannot be waged by committee, nor can peace be pursued solely by parliamentary debate.” Gerald Ford 1977

“We must have the courage to give peace a chance. And we must not be driven from our objectives for peace in Lebanon by state-sponsored terrorism.” Ronald Reagan 1984

Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.” George Bush 2002

“We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war — a war waged proportionally, in last resort, and in self-defense.” Barack Obama 2013

“the American people should know that with or without congressional action, ISIL will learn the same lessons as terrorists before them. If you doubt America’s commitment—or mine—to see that justice is done, just ask Usama bin Laden” Barrack Obama 2016

 

1970. It begins with Cambodia

On April 28, 1970 President Nixon gave formal authorization to commit U.S. incursion of combat troops into Cambodia and attack communist troop sanctuaries. Nixon believed the operation was a necessary preemptive strike to avert North Vietnamese attacks on South Vietnam from Cambodia. When Nixon announced the Cambodian incursion two days later it was perceived as an invasion of Cambodia and an illegal widening of the war. At major universities, a wave of antiwar demonstrations broke out. Four Army National Guard troops were killed at Kent State University, along with 2 student deaths, and 12 wounded at Jackson State College. Many members of congress also opposed he war and accused the Nixon of a power grab. Congress began proposing a series of congressional resolutions and legislative initiatives to limit the executive power of the president. The culmination of these efforts was the War Powers Resolution of 1973.

 

1978. President Ford speaks out against the War Powers Resolution

On February 20, 1978 Ford presented to the student body at Kansas State University and the nation what would become known as his “War Powers Resolution” speech. In this speech, Ford attacked congress for claiming what he called “unprecedented power in the conduct of foreign policy”. President Ford accused the War Powers Act as destroying the constitutional checks and balances, mandating that the president consult with congressional leaders in military emergencies. “But can it be mandated by law, and if so, what does it mean as a practical matter? “, Ford continued, “What if the president and the Congress disagree? Which of these separate but equal powers would prevail in such a confrontation?”. Later in this speech, Ford also attacked the War Powers Resolution of being impractical. He explained that is impractical to try and assemble members of congress during an emergency before taking action. Emergencies can occur at the worst time. Congress may not be in session, and members may be difficult to reach. Ford told a story that occurred during the tragic civil war in Lebanon. Evacuation of American citizens began while congress was in recess, and one member of Congress could not be reached by phone, so the white house operators had to rely on local police to leave a note on the congressman’s door, “please call the White House”.

 

1983. Congress applies War Powers Resolution to the Beirut barracks bombings

In 1983, a horrendous attack on U.S. marines in Lebanon set up a showdown between President Reagan and Congress over the War Powers Act. In 1982, when a ceasefire between Israel and the Palatine Liberation Organization failed, Israel attacked Beirut, cutting off all food, water and electricity supplies, putting the lives of thousands of civilians who lived along side the PLO guerilla fighters in jeopardy. After seven seeks, the besieged PLO agreed to with draw their forces from Lebanon. As part of the agreement, a Multinational Force was setup in Lebanon to oversee the peaceful withdrawal of the PLO from Lebanon. The United States, France, Italy and the United Kingdom all contributed to the peacekeeping operations in Lebanon. But then tragedy struck. On August 29, two truck bombs struck separate buildings housing the peacekeepers, killing 241 U.S. and 58 French peace keepers. These terrorist attacks, remembered as the 1983 Beirut barracks bombings sent shock waves throughout the United States. President Ronald Reagan called the attack a “despicable act”, and pledged to keep the military forces in Lebanon. President Reagan assembled his security team to plan an attack on the Baalbek, Lebanon where the Iranian Revolutionary Guards were.

Congress reacted harshly, and looked for ways to tie down the hands of the President, and inject their own authority. Congress for the first time successfully invoked the War Powers act, specifically section 5c which stated that if at any time US Armed forces are engaged in hostilities outside the territory of the United States, such forces should be removed by the President unless directly authorized by Congress. On October 12, 1983 President Reagan signed S.J. Res. 159, a resolution on the Multinational Force in Lebanon in which Congress authorized the continued participation by U.S. armed forces in the Multinational Force in Lebanon. The resolution required that the President report to Congress at least every three months on the situation and limited the participation for 18 months unless extended longer by Congress. President Reagan signed the resolution, but he stood firm in his conviction that giving Congress the authority to “[impose] such arbitrary and inflexible deadlines [create] unwise limitations on Presidential authority to deploy United States Forces in the interests of United States national security”. In his statement on the signing of this agreement, President Reagan wanted to make it clear that while he agreed with the resolution to authorize force, he could not “cede any of the authority vested in me under the Constitution as President and as Commander in Chief of United States Armed Forces”. Disagreements on section 4(a)(1) defining the existence of hostilities was something that could be tolerated, but section 5b regarding the inflexible 60 day deadline to pull US Armed Forces out of imminent hostilities unless authorized by Congress was not. Reagan suggested that to require such an imposition was not only unwise, but it could undermine foreign policy judgments, hindering our ability to deploy armed forces and encourage our adversaries to maximize hostilities towards existing deployments. In his 1984 State of the Union, Reagan concluded that “We must have the courage to give peace a chance. And we must not be driven from our objectives for peace in Lebanon by state-sponsored terrorism.”

 

1999. The Bombing of Kosovo leads to a showdown on the War Powers Resolution

In 1999, U.S. participation in the Kosovo bombing led to another showdown between some members of Congress and the President over the legality of the War Powers Act. In this case, the air strikes had extended passed the allowed 60 day period without explicit authority from both houses of Congress.
On March 23, 1999 the Senate, but not the House authorized the President to “to conduct military air operations and missile strikes against the Federal Republic of Yugoslavia” The Senate resolution was sponsored by Senator Joe Biden to address the inter-ethnic tensions which were worsening in Kosovo under the Serbian president Slobodan Milošević. Thus US participated in a series of NATO sponsored air strikes code named Operation Allied Force which lasted from March 24, 1999 to June 10th 1999. During the 78-day operation, more than 38,000 sorties were flown with no American casualties.
Once the operation reached beyond the 60 day mark, 26 members of Congress led by Rep. Tom Campbell (R-CA) filed a law suit demanding that Clinton immediately seek congressional approval to continue U.S. involvement in the air strikes. Clinton did not, and the case went to the U.S. District court where it was dismissed by a federal judge dismissed. In the case, the judge pointed out that Congress had sent seemingly contradictory messages by passing an emergency bill to help pay for the U.S. role in the air strikes, and by defeating a resolution calling upon President Clinton to remove troops from Kosovo. It was one of the first legal blows to the War Powers Act, arguing that Congress already had the power to express it’s displeasure about a war by cutting off it’s funds. If funds are not cut off, then it serves as an implicit approval overriding the War Powers Act.
Aside from the implicit approval, the court found that the question was one of politics not justice because, the operation ended within 90 days. The War Powers act allowed for extensions up to thirty days if the President certified in writing that removal of forces would result in “unavoidable military necessity respecting the safety of United States Armed Forces”.

 

2002. Congress extends the War Powers Resolution to fight the War on Terror

Immediately after the attacks on 9/11, President Bush vowed to “hunt down and punish those responsible for these cowardly acts”. Later that evening, President Bush addressed the nation, saying “the U.S. government will make no distinction between the terrorists who committed the acts and those who harbor them.” Just one week later on September 18, 2001 Congress passed a Joint resolution authorizing the President to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorists attacks”. The bill passed 420-1 in the house, and 98-0 in the Senate with the goal to prevent any future attacks and included any who “harbored such organizations or persons” (Public Law 107–40).

When the Taliban refused to hand over Osama bin Laden or any other members of AL-Qaeda without concrete evidence of bin Laden’s involvement in the attacks, the United States dismissed the request as nothing more than an attempt to buy time. On October 7th, 2001 the United States and the United Kingdom launched Operation Enduring Freedom to destroy the terrorist training camps and infrastructure in Afghanistan and capture of AL-Qaeda leaders.
In 2001, few questioned the resolve of the President and Congress to seek justice for the treacherous acts done to the United States and it’s citizens. Congress acted quickly to give the President the power to authorize military action, but in doing so they expanded the War Powers Resolution of 1973 to include “organizations and persons”, not just other nations. The Joint resolution defined by Congress specifically stated that section 5b of the War Powers Resolution was being used to give the President the authority to “use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001”. These few words declared that the U.S. was at war with organizations and persons not a country. It authorized military action against AL-Qaida and the Taliban. Fifteen years later, in 2016 the Obama administration argued that this authorization continued to apply not only to current U.S. military actions in Afghanistan, but also in Iraq and Syria. Earlier, in 2013 President Obama gave a speech where used this law to defend his policy on drone the use of drone strikes explaining that we are at war with an organization and that the actions were legal.

 

2016. ISIS in Mosul, Syria – Operation Inherent Resolve.

In 2016, President Obama used this legislation as authority for wider war on ISIS fighters in Syria and Iraq in what is known as Operation Inherent Resolve. When the Islamic State in Iraq and Syria (ISIS) fighters began a sweep across Greater Syria and Iraq, the largest prize they claimed was the city of Mosul. The Iraqi military and many of the residents fled the city, but 600,000 residents were left behind. Mosul was the largest population center that ISIS took control of and gave them a level of prestige and support for the claim of building a state. In March, the Iraqi government announced their intention to launch a military operation to retake Mosul but progress was very slow. The Iraqi military lacked the troops to launch a full-scale assault on the city. So, instead they committed their troops to a different campaign of retaking Fallujah, a city that lies closer to Baghdad. With success in Fallujah, Iraqi Prime Minister Haider AL-Abadi declared that Mosul was the next battle.
Meanwhile, President Obama was planning to take action to support the military operations in Iraq. In his final State of the Union Address (2016) President Obama reached out to Congress asking for authorization to use military force against ISIL or ISIS. He made it very clear though, that even if Congress did not take action, he would. And in September of 2016, President Obama went ahead and approved sending an additional 615 troops to Iraq bringing the total U.S. service members in Iraq to 5000. The troops went primarily to two air bases in Iraq including Qayyarah West Airfield, 25 miles South of Mosul. President Obama insisted that the American troops would not be involved in combat operations, but will help with “logistics and maintenance”. They would be assisting the troops, but would remain off the front lines. Yet, they were still clearly being deployed to hostile areas.
This action along with existing military operations in Syria and Iraq, raised constitutional objections. Article 1, Section 8 of the Constitution clearly stated that Congress “shall have the power to declare war”, and the War Powers Resolution of 1973 required the president to come to Congress for a force authorization within 60 days of introducing troops into hostile military operations. Without Congress approval, where did President Obama find justification for the troop increase and military operations? In fact, on May 4, 2016 a law suit by Captain Nathan Michael Smith of the U.S. Army claiming that he was injured in an illegal war issued by President Obama. President Obama defended his actions by citing the 2001 War on Terror authorizations as legal justification. The 2001 resolution authorized force against any groups who “planned authorized, committed, or aided terrorist attacks” after the 9/11 terrorist attacks.

 

2017. President Trump authorized Missile strikes on Syria without Congressional authorization.

In response to a chemical attack by the Bashar al-Assad regime on it’s own civilians, President Trump ordered a targeted military strike on the airfield from where the chemical attack was launched. The purpose was to prevent and deter the use of deadly chemical weapons. At 3:40 am local time, US warships launched 59 Tomahawk cruise missiles targeting aircraft, aircraft shelters, fuel storage, and defense systems. 58 of the 59 missiles “severely degraded or destroyed” the intended target.
On the next day, the New York Times posted an article questioning the legality of the airstrikes. Specifically, they questioned whether or not Donald Trump violated the War Powers Resolution which says that the president may only introduce forces into hostilities with congressional authorization or if the United States has been attacked. In fact, Senator Rand Paul tweeted “The President needs Congressional authorization for military action as required by the Constitution.”. But the actions and words of his predecessors gave the Trump administration the legal precedence needed. From Reagan’s use of military action in Beirut to the War on Terror, the War Powers Act seems to have lost it’s teeth.

Click here for Additional Reading on War Powers Act

 

Primary Sources
War Powers Resolution of 1973 Text
http://avalon.law.yale.edu/20th_century/warpower.asp

General Sources (other than wikipedia)

http://www.fordlibrarymuseum.gov/library/speeches/780220.asp
http://www.history.com/this-day-in-history/nixon-approves-cambodian-incursion
http://www.fordlibrarymuseum.gov/library/speeches/780220.asp
http://www.homeofheroes.com/valor/02_awards/silverstar/6_PostRVN/12_kosovo.html
http://edition.cnn.com/2001/US/09/11/chronology.attack/
http://www.history.com/topics/9-11-attacks
http://www.johnstonsarchive.net/terrorism/bush911c.html
https://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf
https://www.documentcloud.org/documents/2823282-Smith-Complaint-as-Filed.html

News Articles
http://www.npr.org/sections/parallels/2016/09/06/492857888/when-the-u-s-military-strikes-white-house-points-to-a-2001-measure
http://www.foxnews.com/us/2016/09/28/officials-us-to-send-more-troops-to-iraq-to-help-with-mosul.html
http://time.com/isis-mosul/
http://www.theamericanconservative.com/articles/why-hasnt-congress-authorized-force-against-isis/
http://www.washingtonpost.com/wp-srv/national/daily/june99/dismiss09.htm
http://www.politifact.com/truth-o-meter/statements/2013/sep/04/peter-king/rep-peter-king-says-bill-clinton-continued-kosovo-/
http://www.npr.org/2011/06/16/137222043/why-the-war-powers-act-doesnt-work
http://www.nytimes.com/2013/05/24/us/politics/transcript-of-obamas-speech-on-drone-policy.html
http://www.nytimes.com/1981/07/25/world/cease-fire-border-fighting-declared-israel-plo-us-sees-hope-for-wider-peace.html
http://www.nytimes.com/1988/04/19/world/war-powers-act-years-of-conflict-over-constitutionality.html
http://www.nytimes.com/1983/09/21/world/congress-and-reagan-back-compromise-on-war-powers-keeping-marines-in-lebanon.html
http://www.cnn.com/2017/04/06/politics/donald-trump-syria-military/
https://www.nytimes.com/2017/04/07/us/politics/military-force-presidential-power.html[/vc_column_text][/vc_column][/vc_row]