Senate Minority Leader Mitch McConnell argued last week that Congress has just one option to influence the President’s conduct of the Iraq war. McConnell said:
“If the Senate doesn’t support the mission in Iraq, it has only one option, and that’s to decide whether or not to fund that mission. That’s our constitutional role, and we shouldn’t drag this into the morass of Democratic presidential primary politics.”[1]
The issue here, however, is not just a political one, but a question of the constitutional roles and responsibilities of Congress and the Executive branch on a vitally important issue: the conduct of war.
Just eight years ago, Sen. McConnell (R-KY) teamed up with Sen. Joseph Biden (D-DE) and others on legislation to authorize the deployment of U.S. forces for airstrikes (but not ground forces) in Kosovo. McConnell also sought to arm, train and fund the Kosovo Liberation Army—even while U.S. forces were engaged in combat in the Balkans.
The Congress at that time understood the precedents, among them, those set 25 years ago when President Reagan negotiated carefully with a Republican majority Senate and a Democratic majority House over two separate sequential authorizations related to troop deployments for Lebanon. Both authorizations moved through Congress well after he had sent U.S. forces into the country. The second war powers authorization included an 18-month time limit on its duration. It was enacted two weeks before the suicide bombing in which 241 U.S. service members in Beirut were killed.
These are but two examples of many where Congress sought to enact limitations on a president’s war power, using funding limitations, limitations on the scope and duration of authorization for the use of military force, and by prescribing in annual appropriation and authorization laws the circumstances in which U.S. personnel can engage in hostilities. These legislative actions—examined in detail in a previously released document by the Center for American Progress—were enacted by majority Republican and Democratic Congresses and imposed on presidents of both parties. The legislation demonstrates that Congress has a variety of available powers, including but not limited to the power of the purse, to ensure its voice is heard and views consulted as the nation carries out its war powers.
Particularly germane to the current debate over congressional war powers, however, are two contemporary cases: a Republican Congress interacting with a Democratic president in relation to Kosovo; and a divided Congress interacting with a Republican president in relation to Lebanon. Both times Congress chose not to consider directly the power of the purse as it attempted to oppose, influence or shape the president’s conduct of war, turning instead to other tools to influence the president’s conduct of war.
Too many commentators and members of Congress have forgotten these precedents. The current debate over war powers queries whether the role and responsibilities of Congress are diminished or changed once a conflict starts. Several members of Congress and commentators claim that Congress cannot alter or adjust an existing authorization or seek to influence the conduct of an ongoing war.[2] They assert two new and related claims:
- That once Congress has authorized the use of force, it cannot go back and rescind or amend that authorization
- That once Congress has authorized the use of force, its sole power is to choose to either fund or de-fund an ongoing conflict
To assert that Congress has only one choice in how it reacts legislatively to the war in Iraq profoundly understates Congressional responsibilities in times of war. Such a narrow reading of the Constitution and the competing powers on national security granted to the Congress and the executive branch is not supported by a range of Constitutional scholars, including conservative legal scholar and former Justice Department Office of Legal Counsel lawyer John Yoo.[3]
To suggest that Congress has only one tool—funding—at its disposal renders the troops already deployed in the field and in need of that assistance mere pawns in the ongoing debate between two co-equal branches of government. For many Members of Congress, the most difficult votes they cast are those that involve a decision to send or keep America’s troops in combat overseas. Thus the institutional responsibilities of the Congress with respect to war powers have been hard-fought over the years, and an ample record developed on the many routes by which Congress can have multiple roles and many options for using its war powers.
Keep this record close at hand as the Senate prepares to debate a proposal to modify the mission initially authorized in the 2002 Resolution Authorizing the Use of Force in Iraq.[4] First, we will examine the details of the authorization to go to war in Iraq and then how this decision relates to previous war powers authorization debates for Kosovo and Lebanon.
Authorizations Not a Declaration by Another Name
On September 19, 2002, President Bush submitted a proposed resolution to authorize the use of force against Iraq to Congress and stated that he “look[s] forward to working with” Congress on it. The president did not request and the Congress did not enact a Declaration of War against Iraq. The White House can explain why it chose not to seek a declaration of war. But an authorization for the use of force is a legislative structure that is inherently adaptable.
As with any other authorization, it is available to further amend at a later date. There is nothing inherent in an authorization to use force that precludes it from amendment or adjustment to changed circumstance to the same degree such options would be available for other legislative measures. In contrast, a Declaration of War, by its very nomenclature, comes to closure with a declaration of victory.
As we have witnessed all too clearly, our current Iraq authorization was nowhere near closure with the president’s assertion of “Mission Accomplished.” And the American people and the Congress have been presented with an ever-changing set of facts on the ground in Iraq and the region since that time.
At the same time, a resolution authorizing the use of force—which in the case of Iraq the president himself sought—is more flexible and envisions an ongoing role for Congress. Opponents of a Congressional debate about whether the existing authorization for the use of force in Iraq needs to be updated suggest that once Congress has authorized the use of force, it is then reduced to either providing the money the president requests to fight the war, or withholding it.
Precedent, however, demonstrates the opposite. As discussed in the Center for American Progress’s earlier document about the role of Congress in national security policy, numerous Congresses have enacted or sought to enact limitations on the president that vary widely in their relationship to issues of funding.
Moreover, there is no evidence that any previous Congress considered its initial authorization vote its last word on policy decisions related to war and national security. Consider the opening of the War Powers Act, which Congress cited as the basis for the 2002 Authorization for the Use of Force in Iraq and which was passed into law over the veto of President Nixon in 1973. It reads, “It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”[5]
If Congress’ role as a partner in the decision to authorize force is to have meaning, and if the president consults meaningfully with Congress once forces are deployed (as he is required to do[6]) then it is only logical that Congress may seek to adjust policy it views as headed off course by using the full range of tools at its disposal. Those options include investigations, reports, and hearings of oversight to legislative mechanisms such as troop caps, or funding limitations, or authorization restrictions or prescriptions.
Telling Precedents: Lebanon and Kosovo
Two precedents are worth reviewing.
Lebanon—1982-1984. Background: Republican president, Democratic majority House, Republican majority Senate; troops initially deployed to Lebanon without authorization; president then signs into law two different binding authorizations; ultimately withdraws troops prior to termination of authorization.
In September 1982 President Ronald Reagan agreed to a request from the Government of Lebanon to contribute U.S. troops, to serve as part of a Multinational Force, with troops from France and Italy, “to facilitate the restoration of Lebanese Government sovereignty and authority” and help “bring to an end” the recurring violence.[7] He sent approximately 1,200 Marines that September, and informed Congress that under the terms of their deployment there was no intention or expectation that the troops would be involved in hostilities.[8]
In early 1983, President Reagan then requested emergency funds from Congress to provide economic and military assistance to Lebanon. Congress provided the funds but clearly sought to register a warning to the president with respect “to any substantial expansion in the number or role in Lebanon of U.S. Armed Forces.”[9] For any such expansion, Congress legislated, “the President shall obtain statutory authorization from the Congress[.]”[10] Clearly, the president (or his White House counsel) were sufficiently concerned about this “poison pill” contained with the emergency assistance package that when he signed the bill into law, he included with it a signing statement which read:
“Section 4(a) of the act confirms this administration’s announced intention with respect to congressional authorization concerning any future substantial expansion in the number or role of U.S. forces in Lebanon. As indicated in its legislative history, that section does not prevent the initiation of such actions, if circumstances require it, while Congress is considering a request for statutory authorization; nor, of course, is it intended to infringe upon the constitutional authority of the President as Commander in Chief, particularly with respect to contingencies not expected in the context of the multinational effort to strengthen the sovereignty and independence of Lebanon.”[11]
President Reagan reported to the Congress on August 30, 1983 that the U.S. troops deployed in Lebanon had come under mortar, rocket, and small-arms fire, and that two Marines had been killed and 14 wounded. Congress meanwhile started to work on a specific war powers authorization for the U.S. troops already in Lebanon.
That authorization included a specific 18-month time limit on its duration; it would require further congressional action to be extended, unless terminated sooner for a specified set of reasons.[12] It also specified that “nothing in this joint resolution shall preclude the President from withdrawing United States Armed Forces…if circumstances warrant, and nothing in this joint resolution shall preclude the Congress by joint resolution from directing such withdrawal.”[13]
Again, as with the president’s signing statement on the Lebanon emergency assistance package, the legislative history reveals a carefully negotiated duet. President Reagan wrote to House Foreign Affairs Committee Chairman Clement Zablocki on September 27, 1983, following successful reporting of the Lebanon war powers authorization (with the above quoted text) from both the House Foreign Affairs and Senate Foreign Relations Committees. President Reagan expressed appreciation for Zablocki’s show of bipartisanship in moving forward the authorization, committed to seeking congressional authorization if the number or role of U.S. forces in Lebanon expanded substantially, and then noted, with respect to the 18-month limitation on the authorization, “I can assure you that if our forces are needed in Lebanon beyond the 18-month period, it would be my intention to work together with the Congress with a view toward taking action on mutually agreeable terms.”[14]
Congress approved the Lebanon war powers authorization and it was signed into law on October 12, 1983. Tragically, less than two weeks later, on October 23, 1983, the U.S. Marine barracks in Beirut was attacked by a suicide bomber and 241 American service members (220 Marines, 18 Navy personnel, and 3 Army soldiers) were killed. Sixty other Americans were injured.
Initially, President Reagan and Secretary of Defense Caspar Weinberger vigorously asserted no change in U.S. military presence in Lebanon. The president’s first report to Congress under the Lebanon authorization, sent on December 12, 1983, references U.S. foreign policy interests served by U.S. participation in the Multinational Force, describes the situation in Lebanon in terms of levels of fighting and shaky status of the ceasefire, discusses efforts to reduce the Multinational Force, progress in training Lebanese armed forces, progress toward national reconciliation, and progress in negotiations toward political settlement.
In this regard, the report notes that, “Ambassador Rumsfeld, the President’s new personal representative for Middle East negotiations, departed for the area on December 6 for intensified discussions on issues related to a political settlement.”[15] Yet, when President Reagan reported two months later, all remaining U.S. Marines, other than those guarding U.S. diplomatic personnel, had moved offshore.[16] By the end March 1984, President Reagan informed Congress that the U.S. had terminated entirely its participation in the Multinational Force in Lebanon.[17]
In the instance of the deployment to Lebanon, Congress chose not once but twice to exercise its war powers—after U.S. Marines were already deployed and in the midst of hostilities. In exercising its war power in this fashion, the Congress (with the House controlled by Democrats, the Senate by Republicans) revisited an existing authorization and inserted a binding time limitation on the length of the deployment where before there was none.
Judging from the intricate web of interactions between the Executive and Legislative branches at this time, it is also clear that the Executive understood that Congress had a range of tools at its disposal to affect the conduct of the deployment to Lebanon. Not only did the Reagan administration recognize that fact, but it also sought to negotiate a mutually agreeable understanding with the Congress.
Kosovo—March-June, 1999. Background: Democratic president, Republican majorities in House and Senate; President commences U..S. military action with airstrikes against Serbia with no Congressional authorization; no subsequent binding Congressional legislation but differing authorizing votes in each chamber, in Senate supporting president’s actions, in House, opposing.
On March 23, 1999, the Senate began to debate a Biden-McConnell resolution, S. Con Res. 21, authorizing the president of the United States to conduct military air operations and missile strikes against the Federal Republic of Yugoslavia (Serbia and Montenegro).[18] The resolution was subsequently approved in the Senate that same day in a vote of 58-to-41.[19] But at the same time, Sen. McConnell noted he was not satisfied with President Clinton’s war strategy. As a result, he sought to fund the Kosovo Liberation Army, or KLA, while also asserting his opposition to the deployment of any U.S. troops on the ground.[20]
The Senate did not put Senator McConnell’s words of opposition to ground forces into an authorization, but the House did. On April 28, 1999, with U.S. troops already in combat, the House approved, 249-to-180, a bill to prohibit funds from being used for the deployment of U.S. ground forces in the Federal Republic of Yugoslavia unless that deployment was specifically authorized by law.[21]
The House then went a step further still on the same day, April 28, 1999. After voting to prohibit future funds in the event that the President sought to deploy ground troops without Congressional approval, the House then defeated, by a 213-to-213 vote, a version of the Biden-McConnell resolution, simply authorizing the air strikes the United States already was conducting in Kosovo. In so doing, the House registered in the starkest possible terms its disapproval of the president’s role as Commander in Chief in an ongoing military action involving U.S. troops overseas.
Speaking on the House floor, then-House Majority Whip Tom Delay (R-TX) criticized President Clinton’s decision to bomb in Kosovo. “Normally, and I still do, support our military and the fine work that they are doing.” Delay said. “But before we get deeper embroiled into this Balkan quagmire, I think that an assessment has to be made of the Kosovo policy so far. Was it worth it to stay in Vietnam to save face? What good has been accomplished so far? Absolutely nothing.”[22]
In the same statement, Delay went on to suggest that it would be appropriate for Congress to act to reverse the actions the president had thus far taken. “Instead of sending in ground troops, we should pull out the forces we now have in the region,” he argued. “Mr. Speaker, I do not think we should send ground troops to Kosovo and I do not think we should be bombing in the Balkans, and I do not think that NATO should be destroyed by changing its mission into a humanitarian invasion force.”[23]
As with Lebanon, the Kosovo debate underscores that Congress has a range of legislative options at its disposal when considering the president’s exercise of his war power. In this instance, a Republican-controlled Senate authorized the air campaign that was to begin the following day. The House, however, chose not to authorize—even as it was underway—the effort in Kosovo and Serbia. Instead, the House attempted to tie the president’s hands in the midst of an ongoing military campaign by requiring him to return to the Congress to get specific authorization before deploying ground troops in a military campaign that at the time of the vote had already been underway for about a month.
The debates regarding Lebanon and Kosovo prove that Congress has many tools at its disposal to influence the conduct of war policy. The question on Congress and Iraq is not, therefore, whether Congress can act to influence the conduct of the war in Iraq, but how it will choose to do so. The record is full of options. The power of the purse is but one. To choose not to act is making a choice. It is making a choice to forego Congress’s significant Constitutional obligations in the conduct of war—and in this case a war that everyone, even the president, agrees the United States is not winning.
Mara Rudman serves concurrently as a senior fellow at Center for American Progress and the president of Quorum Strategies, LLC. Between 1997 and 2001, she served as Deputy Assistant to the President for National Security Affairs and Chief of Staff for the National Security Council, and in an earlier position, as NSC Senior Director for Legislative Affairs. In those capacities, among other responsibilities, Ms. Rudman advised the President and the National Security Advisor on dealing with Congress on war powers issues related to the Balkans, Iraq, Sudan, and Afghanistan. From 1993-1997, Ms. Rudman was majority and then minority chief counsel to the House Foreign Affairs Committee, where she managed war powers authorization legislative debate on Somalia, Bosnia, Iraq, Haiti, and Kosovo.
Denis McDonough serves as a Senior Fellow at the Center for American Progress. Between 2000 and 2005, he served as Foreign Policy Advisor to Senate Democratic Leader Tom Daschle, a capacity in which he worked extensively on P.L. 107-40 and P.L. 107-243, the use of force authorizations against those repsonsible for the attacks of 9-11 and the Iraq invasion, respectively. From 1996 to 1999, he was a Professional Staff Member of the House International Relations Committee, a capacity in which he worked on the debate regarding the use of force in the Republic of Serbia and Kosovo.
[1] Senator Mitch McConnell as reported in The Washington Post, February 24, 2007.
[2] The most recent manifestation of this argument came in the form of an opinion piece by Jeff Rosen in The New York Times, “In Wartime, Who Has the Power?”
[3] Lynn Chu and John Yoo, “Why Are the Pacifists So Passive,” The New York Times, February 12, 2007.
[4] The initial authorization for the use of force in Iraq is P.L. 107-243; 116 Stat. 1498.
[5] P.L. 93-148
[6] For example, Section 3(c) of the Resolution to Authorize the Use of Force Against Iraq (P.L. 107-243) makes clear “this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution. Section 3 of the War Powers Act (P.L. 93-148) reads, “The president in every possible instance shall consult with Congress…until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.”
[7] Report dated September 29, 1982 from President Ronald Reagan to Hon. Thomas P. O’Neill, Jr., Speaker of the House of Representatives, Consistent with Section 4(a)(2) of the War Powers Resolution, Relative to the Use of U.S. Forces in Lebanon. The War Powers Resolution: Relevant Documents, Reports, Correspondence, 103rd Congress, 2d Sess., Committee Print, at 78. (US GPO, May 1994)
[8] Ibid.
[9] Section 4(a) of Public Law 98-43, the Lebanon Emergency Assistance Act of 1983 (Signed into law June 27, 1983.)
[10] Ibid.
[11] Statement on Signing the Lebanon Emergency Assistance Act of 1983, June 27, 1983.
[12] Public Law 98-119, the Multinational Force in Lebanon Resolution, at Section 6, approved October 12, 1983.
[13] Ibid. at Section 7.
[14] Letter of September 27, 1983 to Hon. Clement J. Zablocki , Chairman, Committee on Foreign Affairs, from President Ronald Reagan, Concerning U.S. Forces in Lebanon. The War Powers Resolution: Relevant Documents, Reports, Correspondence, 103rd Congress, 2d Sess., Committee Print, at 83. (US GPO, May 1994)
[15] Report dated December 14, 1983 from President Ronald Reagan to the Hon. Thomas P. O’Neill, Jr., Speaker of the House of Representatives, Consistent with Section 4 of the Multinational Forces in Lebanon Resolution [and Consistent with Section 4(c) of the War Powers Resolution] and in Further Reference to the Use of United States Armed Forces in Lebanon.
[16] Report dated February 14, 1984, From President Ronald Reagan to the Hon. Thomas P. O’Neill, Jr., Speaker of the House of Representatives, Consistent with Section 4 of the Multinational Forces in Lebanon Resolution [and Consistent with Section 4(c) of the War Powers Resolution] and in Further Reference to the Use of United States Armed Forces in Lebanon.
[17] Report dated March 30, 1984, From President Ronald Reagan to the Hon. Thomas P. O’Neill, Jr., Speaker of the House of Representatives, Consistent with Section 4 of the Multinational Forces in Lebanon Resolution [and Consistent with Section 4(c) of the War Powers Resolution] and in Further Reference to the Use of United States Armed Forces in Lebanon.
[18] http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_bills&docid=f:sc21ats.txt.pdf
[19] Senate Record Vote #57, 1st Session, 106th Congress http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=106&session=1&vote=00057
[20] “I don’t think we can put American troops on the ground in there to fight the war for someone else. If the bombing doesn’t bring Milosevic to the table, to sign the agreement that the Kosovars have already agreed to, which, by the way, would have disarmed the Kosovars — the Kosovars were willing to give up their arms in return for this agreement. It’s Milosevic who didn’t sign it. It’s Milosevic who has been the principal problem, not that people haven’t been killed on both sides — and if this doesn’t work, we ought to give the Kosovars a chance to defend themselves. I mean you have refugees when people are afraid and can’t defend themselves; that’s when they run; that’s when go across the borders into Macedonia or other places. These people will stay, if they think they have a chance to defend their homes and defend their families.” Senator Mitch McConnell, CNN TALKBACK LIVE 15:00 pm ET, March 25, 1999. Later in the fall, Senator McConnell introduced a bill, S. 846, to authorize $25 million in assistance for the “self defense of Kosova.”
[21] H.R. 1569, introduced by Representatives Goodling and Fowler.
[22] Floor Statement of Majority Whip Tom Delay, Congressional Record, “Removal of United States Armed Forces from the Federal Republic of Yugoslavia,” April 28, 1999.
[23] Ibid.