The defense and foreign policies of the United States are shaped by domestic as well as international factors. The president has historically been predominant in decisions to use military force, with Congress and the courts playing lesser roles. The Constitution designates the president as the commander in chief of the armed forces but authorizes only Congress to declare war. Congress thus faces the predicament of allowing for presidential discretion while still asserting its own influence during times of international crisis.
Traditionally, the Supreme Court has tended to support presidential discretion over, any claims of Congress. In I860, the court confirmed the president’s authority to protect the lives and property of U. S. citizens on foreign soil and in 1863 held that the president is bound to meet force with force without waiting for legislative approval. Presidents have occasionally used this power, as when William McKinley sent troops to China to protect American lives during the Boxer Rebellion in 1900. Harry S Truman decided to use military force against Korea in 1950 and Dwight D. Eisenhower to involve the United States in Lebanon in 1958. Other examples include John F. Kennedy’s 1962 naval quarantine of Cuba and Lyndon B. Johnson’s decision to deploy marines to the Dominican Republic in 1965.
The War Powers Resolution of 1973 was the result of adverse reaction in Congress toward this power of presidential discretion. The resolution contains clauses which define the constitutional authority of the president as the commander in chief and establish the requirement for him to consult with Congress before introducing military force and to submit a report to Congress within 48 hours after the force is introduced. In addition, the resolution places a 60-day limitation on the deployment of military forces and provides for the removal of forces by concurrent resolution based on the collective judgment of Congress and the president. The resolution does not define “collective judgment;” nor does it explain how it can be implemented during an emergency.
It is not completely clear when the 60-day limit begins. However, the resolution does state that the president must end involvement of the armed forces within 60 calendar days after a written report is submitted, unless Congress has declared war or enacted specific authorization; extended the 60-day period by law; or been physically unable to meet because of an armed attack on the United States. Also, the 60-day period can be extended if the president states in writing to Congress that it is necessary to protect the safety of the forces while they are being removed. The period of extension under this condition can be no more than 30 days.
The president, as the commander in chief, is authorized to send forces when any of the following conditions exists: a congressional declaration of war; congressional authorization for troop involvement; or an attack upon the United States. These conditions simply restate the authority of the president to respond to a national emergency.
The focal point of much of the controversy surrounding the War Powers Resolution is the consultation clause. This clause maintains that the president shall consult Congress before ordering the armed forces into military conflicts, or situations in which military conflicts are likely to occur, and shall consult Congress from time to time until the forces are withdrawn.
The reporting provision requires the president to send a report to the speaker of the House of Representatives and the president pro tempore of the Senate within 48 hours of deployment of forces. This report must state the circumstances requiring the use of force, the constitutional and legal authority justifying the use of force, and an estimate of the scope and length of the hostilities or deployment. If the situation continues, the president must submit a new report justifying the action every six months. The problem with the reporting provision is that when the president submits a report, Congress passively accepts it. The president can deploy a great deal of force in 48 hours, a situation which cannot be altered by Congress merely reading a report.
Section 1544 of the War Powers Resolution aims at preventing presidential escalation of the kind seen in Vietnam by limiting a president’s power to use military force up to 60 calendar days after a written report is submitted. As a further measure to prevent escalation, the resolution includes a clause which allows Congress to direct the president to remove the armed forces.
One test of the War Powers Resolution, the Danang sealift, took place on 30 March 1975, while Congress was on its Easter recess. As the threat of military conflict between Vietnamese Communists and South Vietnamese refugees became clear. President Gerald R. Ford ordered U. S. naval vessels to evacuate refugees from the seaports, in response to the appeals of the government of the Republic of Vietnam. The military force included amphibious Task Group 76.8 with its 12 helicopters and approximately 700 marines. The Danang sealift raised the issue of the authority of the president to evacuate foreign nationals. This question is not answered by the War Powers Resolution and remains open to debate. The important point is that President Ford did not wait for an answer or debate; he evacuated foreign nationals as he saw fit.
The next test came in April 1975. By 11 April, the Khmer Communists had broken the defense lines of the Government of the Khmer Republic to the north, northwest, and east of Phnom Penh and were within mortar range of Pochentong Airfield and the outlying areas of Phnom Penh. President Ford held that the safety of the foreign nationals was inextricably related to the safety of the Americans in the region and ordered the armed forces, including 350 marines, 36 helicopters and various tactical and command and control elements to begin an evacuation to protect U. S. citizens. The last evacuees and marines left the area on 12 April. At the time of President Ford’s report, information indicated that 82 U. S. citizens, 159 Cambodians, and 35 third country nationals were evacuated. Some of the Cambodians were employees of the U. S. Government.
Once again, President Ford’s actions raised the question of presidential authority to evacuate foreign nationals. The issue was made even more complex by the fact that some of the Cambodians were U. S. Government employees.
The' third War Powers Resolution test came on 28 April 1975. On that day, President Ford informed congressional leaders that he was directing the final phase of the evacuation from Saigon, in accordance with his authority as commander in chief. This evacuation was directed to protect U. S. citizens who were exposed to the continued rocketing of Tan Son Nhut airfield. On 29 April, a force of 865 marines evacuated 1,375 U. S. citizens, 5,595 South Vietnamese, and 85 third country nationals. This example indicated the ambiguity of the consultation clause. Some members of Congress argued that informing congressional leaders constitutes consultation, while others argued that it does not. Congress could not challenge or examine presidential action if it could not agree on the meaning of its own requirements.
It can be argued that presidential authority to evacuate foreign nationals is derived from presidential authority to evacuate U. S. citizens. This is quite understandable in instances such as the evacuation of Phnom Penh, in which the Cambodians evacuated were employed by the U. S. Government. This view differs from that of those who argue that the president cannot evacuate anyone without congressional authorization. President Ford, however, did not hesitate to evacuate foreign nationals in the three 1975 cases; constitutional and legal uncertainty in the fields of defense and foreign policy resulted in presidential discretion.
On 12 May 1975, the U. S.-flag merchant ship Mayaguez, en route from Hong Kong to Thailand, was fired upon by a Cambodian torpedo boat. In response to the attack, Captain Charles Miller stopped the engines of the Mayaguez, and the ship was immediately boarded by the Cambodians. After Secretary of State Henry A. Kissinger was unable to obtain the release of the Mayaguez through the Washington diplomatic offices of the People’s Republic of China and the Cambodian embassy in Peking, President Ford issued orders to the armed forces at 1645 on 13 May. By 1714, an assault was under way, and at 1840 President Ford and members of the National Security Council briefed 17 congressional leaders on the operation. By 1900, the Cambodians announced over the radio in Bangkok that they planned to release the Mayaguez. but according to the Department of Defense report on the incident, information concerning the probable release of the Mayaguez did not reach the White House until after 2000. By this time the marine force had landed at Koh Tang Island under heavy fire. Even after the announcement of the plan to release the Mayaguez. a cease-fire was not called immediately. The delay was meant to ensure safety for the crew members and the marines on Koh Tang Island. At approximately 2100, marines from the USS Harold E. Holt (DE-1074) boarded and retook the Mayaguez. which was found to be empty. On 14 May, a small boat flying a white flag was reported by the USS Henry B. Wilson (DDG-7). The boat turned out to contain the entire Mayaguez crew, all of whom were returned to the Mayaguez within a few hours.
The Mayaguez incident emphasizes the War Powers Resolution’s major weakness, the consultation provision. President Ford issued orders for the armed forces to stop any boat attempting to move toward or away from Koh Tang Island, and informed key congressional leaders—not the entire Congress—of his decision hours later. Does this represent the collective judgment of the president and Congress? President Ford, acting almost entirely alone, shaped the U. S. response to the capture.
The problem of the language of the War Powers Resolution came up during a hearing on compliance with the resolutions held by the House subcommittee on international relations in June 1975. Representative John F. Seiberling, who voted for the resolution, observed that the president cannot always consult with 535 people during an emergency. He pointed out that ”... the genius of the resolution’s language was that he [the president] could pick the way he consulted with Congress and it would be up to the Chairman and the majority leader and so forth to then go on and pass that information to other members of Congress.”2 Under Seiberling’s definition, President Ford’s action can be interpreted as complying with the consultation provision, which does not state that Congress has to approve the means of consultation selected by the president. Others might argue that consultation means that the president may not reach a final decision until he considers the opinions of Congress. But does this mean the entire Congress or just the key congressional leaders? What happens when the president and the congressional leaders are in different parts of the world, as they were during the Da Nang sealift? The War Powers Resolution does not answer this question. A fast-breaking international crisis may not allow time for consultation and it certainly would not allow time to debate definitions. In 1977, former President Ford pointed out:
”... the resolution requires consultation with Congress in military emergencies. No President with common sense would dream of neglecting this aspect of his obligation. But can it be mandated by law? And what does it mean?”3 The consultation provision was intended as a means for Congress to advise the president prior to the introduction of the armed forces into hostilities or situations likely to result in hostilities. However, the test cases have shown the difficulty of using the War Powers Resolution as a tool for Congress to assert its influence in these decisions.
A more recent example, the Zaire incident of 1978, gives some insights into the future of the War Powers Resolution—which, unless some language is drastically changed, will not be much different from the past. On 12 May 1978, the town of Kolwezi, Zaire, was attacked by Angola-based ex-Katangan secessionists, bent on overthrowing the government of President Moboto Sese Seko. Although the coup was eventually thwarted, the safety of the American, Belgian, and French inhabitants was immediately threatened. The United States, under President Jimmy Carter’s orders, placed its 82nd Airborne Division on alert to evacuate the American citizens if necessary. On 17 May, 73 Americans were evacuated from a mine near Kolw'ezi by trucks, helicopters, and aircraft supplied by the mining company, and the 82nd Airborne Division was taken off alert. On 19 May, the United States began to supply transport aircraft to aid the Belgians in moving their munitions and fuel to Kamina and the French in transporting their vehicles and military personnel. The U. S. airlifts (11 for Belgium and 21 for France) were intended to provide only logistical support for the military operations, which were designed to avert another invasion of Zaire’s Shaba region, formerly known as the Katanga province.
The initial phase of logistical support was completed on 27 May, and additional support was provided in June to aid the withdrawal of the Belgians and the French. At the same time, the United States transported members of an African peacekeeping force to the area.
According to Herbert J. Hansell, legal advisor to the Department of State, the Departments of Defense and State should consult prior to the introduction of military forces, a procedure which was followed during the Zaire incident. President Carter determined that a report was not required, because the forces did not enter hostilities or immediate danger. Also, the U. S. forces were composed of unarmed transport Planes, and the crews were logistical support personnel. Furthermore, the Carter administration argues, the War Powers Resolution did not apply to the Zaire incident, because the foreign forces were not engaged in hostilities or imminent threat of hostilities when they were being transported by the United States.
On 10 August 1978, in response to the actions of the administration. Representative Paul Findley proposed a resolution expressing the view that the president was indeed required by the War Powers Resolution to submit a report to Congress concerning the use of U. S. armed forces in Zaire. Findley contended that the only information received by Congress was a memorandum from Hansell dated 16 June 1978. The memorandum, according to Findley, did not make it clear that U. S. planes were used to preserve order in addition to transporting French and Belgian troops into Zaire. He argues that the memorandum does not clearly state the extent to which U. S. forces were involved in Zaire. Finally, Findley states that prior consultation between the president and Congress was required because the events in Zaire did constitute imminent hostilities. Findley’s resolution, however, was rejected by the House subcommittee on International Scientific and Security Affairs.4
In the Zaire incident, as in the previous cases, the president took immediate action which Congress debated afterward. There is no evidence to suggest that the War Powers Resolution altered President Carter’s decision in any way. It appears, then, that if the main objective of the War Powers Resolution is to curtail presidential predominance, it will remain ineffective unless its language is more specific. The present state of the world proves the need for a decisive, unrestrained president, but drafters of future legislation must decide the price to be paid for this decisiveness.
The attempt to rescue the hostages in Iran seems to uphold the thesis that the War Powers Resolution is an ineffective means of curtailing presidential predominance in the field of defense and foreign policy. As in the earlier test cases Congress is divided as to whether or not the president complied with the War Powers Resolution. For example, according to the Senate Majority Leader, Senator Robert C. Byrd, there was no violation of the War Powers Resolution in spirit and intent as a result of the president’s decision to attempt a rescue of the hostages in Iran.5 Whereas Senator Frank Church and Senator Jacob K. Javitz sent a letter to Secretary of State Cyrus Vance suggesting that the consultation procedures of the War Powers Resolution be started one day prior to the actual rescue attempt.
In sum, the War Powers Resolution of 1973 remains ineffective. Once again, Congress cannot agree on the resolution’s applicability to a president’s decision to use military force. A legally restrained president unable to respond to a crisis may be more catastrophic than the other extreme, a despot who uses power without regard to the Constitution. Congress still faces the problem of asserting its influence while at the same time allowing for presidential discretion to use military force in international crises.
Custer’s Last Stand
After a clampdown on long hair had been instituted by the chief petty officers of a Naval command in the Washington, D. C., area, a disgruntled sailor with sideburns slipped a cartoon onto the desk of the commanding officer. It depicted two noncoms of yesteryear whispering in the presence of a long haired General Custer, with one noncom asking the other, “How come he gets to wear his hair so long?” The cartoon appeared shortly afterward on the bulletin board, accompanied by the CO’s penned in comment: “But look what the Indians did to Custer!” In quick response, an anonymous sailor scrawled: “It ain’t the Indians we’re afraid of, it’s the chiefs.”
Mrs. Uverlene Jones
1. United States Code, Section 154 I (a).
2. U. S. Congress, House of Representatives, Subcommittee on International Security and Scientific Affairs of the Committee’ on International Relations, War Powers: A Test of Compliance Relative to the Danang Sealift, the Evacuation of Phnom Penh, the Evacuation of Saigon, and the Mayaguez Incident (Washington, D.C.: U. S. Government Printing Office, 1975), pp. 60-61.
3. Gerald R. Ford, ’The War Powers Resolution Striking a Balance Between the Executive and Legislative Branches,” American Enterprise Institute Reprint, June 1977, p. 3.
4. 95th Congress, 2nd session. House of Representatives, Congressional Record. 31 July 1978 to 11 August 1978, pp. H8414-H8417.
5. Peter C. Stuart “Should Congress have been consulted? Not all say yes" The Christian Science Monitor. 28 April 1980, p. 6.