Declarations of war and authorizations for the use of military force: historical background and legal implications.
From the Washington Administration to the present, Congress and the President have enacted 11 separate formal declarations of war against foreign nations in five different wars. Each declaration has been preceded by a presidential request either in writing or in person before a joint session of Congress. The reasons cited in justification for the requests have included armed attacks on United States territory or its citizens and threats to United States rights or interests as a sovereign nation.
Congress and the President have also enacted authorizations for the use of force rather than formal declarations of war. Such measures have generally authorized the use of force against either a named country or unnamed hostile nations in a given region. In most cases, the President has requested the authority, but Congress has sometimes given the President less than what he asked for. Not all authorizations for the use of force have resulted in actual combat. Both declarations and authorizations require the signature of the President in order to become law.
In contrast to an authorization, a declaration of war in itself creates a state of war under international law and legitimates the killing of enemy combatants, the seizure of enemy property, and the apprehension of enemy aliens. While a formal declaration was once deemed a necessary legal prerequisite to war and was thought to terminate diplomatic and commercial relations and most treaties between the combatants, declarations have fallen into disuse since World War II. The laws of war, such as the Hague and Geneva Conventions, apply to circumstances of armed conflict whether or not a formal declaration or authorization was issued.
With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc. In contrast, no standby authorities appear to be triggered automatically by an authorization for the use of force, although the executive branch has argued, with varying success, that the authorization to use force in response to the terrorist attacks of 2001 provided a statutory exception to certain statutory prohibitions.
Most statutory standby authorities do not expressly require a declaration of war to be actualized but can be triggered by a declaration of national emergency or simply by the existence of a state of war; however, courts have sometimes construed the word "war" in a statute as implying a formal declaration, leading Congress to enact clarifying amendments in two cases. Declarations of war and authorizations for the use of force waive the time limitations otherwise applicable to the use of force imposed by the War Powers Resolution.
This report provides historical background on the enactment of declarations of war and authorizations for the use of force and analyzes their legal effects under international and domestic law. It also sets forth their texts in two appendices. The report includes an extensive listing and summary of statutes that are triggered by a declaration of war, a declaration of national emergency, and/or the existence of a state of war. The report concludes with a summary of the congressional procedures applicable to the enactment of a declaration of war or authorization for the use of force and to measures under the War Powers Resolution. The report will be updated as circumstances warrant.
Contents Introduction Previous Declarations of War Key Statutory Authorizations for the Use of Military Force France 1798 Tripoli 1802 Algeria 1815 Suppression of Piracy 1819-1823 Formosa 1955 Middle East 1957 Southeast Asia 1964 Lebanon 1983 Iraq 1991 Terrorist Attacks against the United States (World Trade Center and the Pentagon) 2001 Authorization for Use of Force Against Iraq 2002 Implications Under International Law Implications Under Domestic Law The War Powers Resolution Trading with the Enemy Act and the International Emergency Economic Powers Act Other Economic Authorities Alien Enemy Act Criminal Law Foreign Intelligence Surveillance Assassination The Defense Production Act of 1950 Insurance Contracts Military Personnel Itemization of Standby Statutory Authorities (1) Statutory Authorities Triggered by a Declaration of War Congressional Budget Act Agricultural Exports Armed Forces Coast Guard Small Business Administration Unilateral Trade Sanctions Armed Forces Retirement Home Statutes of Limitation Tort Claims Against the Federal Government Deferral of Civil Works Projects Nuclear Regulatory Commission Alien Enemy Act National Defense Stockpile National Security Agency (NSA) Personnel Security Chemical and Biological Warfare Agents National Emergencies Act Foreign Intelligence Surveillance Act (FISA) Selective Service Act (2) Statutory Authorities Triggered by the Existence of a State of War (and Thus Also by a Declaration of War) Administrative Procedure Federal Employees Aliens Armed Forces Reserves Trading with the Enemy Act Coast Guard Federal Energy Regulatory Commission Tennessee Valley Authority Criminal Prosecutions Imports Student Financial Aid Neutrality Miscellaneous Accounting and Contracts Contracts National Guard Armed Forces National Oceanic and Atmospheric Administration Ocean Dumping Patents Armed Forces Veterans' Care Reemployment Rights Sale of War Supplies to Foreign States Defense Structures in the District of Columbia Public Contracts Public Health Service Infectious Diseases Nuclear Energy Public Lands Natural Resources Destruction of Records Shipping Communications Railroads Procurement of Ships and Material During War Protection of Ships and Harbors Federal Emergency Management Agency Central Intelligence Agency (CIA) Retirement Plan International Emergency Economic Powers Trading with the Enemy Act Selective Service Act (3) Statutory Authorities Triggered by Declaration or Existence of National Emergency Federal Employees Agriculture Armed Services Fort McHenry Customs Service Barro Colorado Island Foreign Relations Federal Highways National Oceanographic and Atmospheric Administration Basic Pay of the Uniformed Services Veterans Affairs Davis-Bacon Act Real Property and Contracts Public Health Ryan White Comprehensive AIDS Resources Emergency Act of 1990 Prohibition of Compensation Relocation Resources Merchant Marine Airports Modification of Defense Contracts National Emergencies Act International Economic Emergency Powers Act Defense Production Act Congressional Procedures for Declaring War or Authorizing the Use of Force Regular Procedures World War I World War II Congressional Procedures Under The War Powers Resolution Tables Table 1. Key Dates and Actions Related to Formal U.S. Declarations Of War Appendixes Appendix A. Texts of Formal Declarations of War by the United States Appendix B. Texts of Key Authorizations of Use of Force Contacts Author Contact Information Acknowledgments
Article I, Section 8, of the Constitution vests in Congress the power "to declare War." Pursuant to that power, Congress has enacted 11 declarations of war during the course of American history relating to five different wars, the most recent being those that were adopted during World War II. In addition, Congress has adopted a number of authorizations for the use of military force, the most recent being the joint resolution enacted on October 16, 2002, authorizing the use of military force against Iraq. To buttress the nation's ability to prosecute a war or armed conflict, Congress has also enacted numerous statutes which confer standby authority on the President or the executive branch and are activated by the enactment of a declaration of war, the existence of a state of war, or the promulgation of a declaration of national emergency.
This report examines a number of topics related to declarations of war and authorizations for the use of military force by the United States. It (1) provides historical background on each of the declarations of war and on several major authorizations for the use of force that have been enacted; (2) analyzes the implications of declarations of war and authorizations for the use of force under both international law and domestic law; (3) lists and summarizes the more than 250 standby statutory authorities that can come into effect pursuant to a declaration of war, the existence of a state of war, and/or a declaration of national emergency; (4) describes the procedures in Congress governing the consideration of declarations of war and authorizations for the use of force, including the procedures under the War Powers Resolution; and (5) sets forth in two appendices the texts of all of the declarations of war and the major authorizations for the use of force that have been enacted. The report does not address the issue of the constitutionality of Presidential uses of military force absent a declaration of war or authorization for the use of force. The report will be updated as circumstances warrant.
Previous Declarations of War
From the Washington Administration to the present, there have been 11 separate formal declarations of war against foreign nations enacted by Congress and the President, encompassing five different wars--the War of 1812 with Great Britain, the War with Mexico in 1846, the War with Spain in 1898, the First World War, and the Second World War. (1) In each case the enactment of a formal declaration of war has been preceded by a presidential request to Congress for such an action, either in writing or in person before a joint session of Congress. In each such message requesting a war declaration, the President has cited what he deemed compelling reasons for doing so. These reasons have included armed attacks on United States territory or its citizens, and attacks on or direct threats to United States rights or interests as a sovereign nation. In the 19th century all declarations of war were passed by the Congress in the form of a bill. In the 20th century all declarations of war were passed by the Congress in the form of a joint resolution. In every instance the measures were adopted by majority vote in both the House and the Senate and were signed into law by the President. (2) The last formal declaration of war was enacted on June 5, 1942, against Rumania during World War II. (3)
The circumstances of President McKinley's request for a declaration of war against Spain in 1898 stand in singular contrast to all the others. McKinley's request for a declaration of war on April 25, 1898, was approved by a voice vote of both Houses of Congress on that date. His request was made after Spain had rejected a U.S. ultimatum that Spain relinquish its sovereignty over Cuba and permit Cuba to become an independent state. This ultimatum was supported by a joint resolution of Congress, signed into law on April 20, 1898, that among other things, declared Cuba to be independent, demanded that Spain withdraw its military forces from the island, and directed and authorized the President to use the U.S. Army, Navy and militia of the various states to achieve these ends. The war with Spain in 1898, in short, was not principally based on attacks on the United States but on a U.S. effort to end the Cuban insurrection against Spain, bring about Cuban independence, and restore a stable government and order on the island--outcomes that were believed by the United States to advance its interests. (4)
In the 20th century, without exception, presidential requests for formal declarations of war by Congress were based on findings by the President that U.S. territory or sovereign rights had been attacked or threatened by a foreign nation. Although President Wilson had tried to maintain U.S. neutrality after the outbreak of the First World War, he regarded the German decision on February 1, 1917, to engage in unrestricted submarine warfare against all naval vessels in the war zone, including those of neutral states, to be an unacceptable assault on U.S. sovereign rights which the German Government had previously pledged to respect. Wilson's request to Congress for a declaration of war against Germany on April 2, 1917, stated that war had been "thrust upon the United States" by Germany's actions. Congress passed a joint resolution declaring war which the President signed on April 6, 1917. Wilson delayed requesting a war declaration against Austria-Hungary until December 4, 1917. He did so then because that state, a German ally in the war, had become an active instrument of Germany against the United States. Congress quickly passed a joint resolution declaring war which the President signed on December 7, 1917.5
President Franklin D. Roosevelt requested a declaration of war against Japan on December 8, 1941, because of direct military attacks by that nation against U.S. territory, military personnel and citizens in Hawaii and other outposts in the Pacific area. The House and the Senate passed the requested declaration and the President signed it into law that same day. After Germany and Italy each declared war on the United States on December 11, 1941, President Roosevelt asked Congress to respond in kind by recognizing that a state of war existed between the United States and those two nations. Congress passed separate joint resolutions declaring war on both nations which the President signed on December 11, 1941. (6) On June 2, 1942, President Roosevelt asked that Congress declare war on Bulgaria, Hungary and Rumania, nations that were under the domination of Germany, were engaged in active military actions against the United States, and had themselves declared war on the United States. Congress passed separate joint resolutions declaring war on each of these nations. The President signed these resolutions on June 5, 1942. (7)
There is a striking similarity of language in the eight declarations of war passed by the Congress in the 20th century. They all declare that a "state of war" exists between the United States and the other nation. With the one exception of the declaration of war against Austria-Hungary on December 7, 1917, the other seven declarations characterize the state of war as having been "thrust upon the United States" by the other nation. All eight of these 20th century declarations of war state in identical language that the President is
authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against [the 'Government' of the particular nation]; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the United States.
The complete texts of the 11 declarations of war are set forth in Appendix A.
Key Statutory Authorizations for the Use of Military Force
From the Administration of President John Adams to the present, there have been various instances when legislation has been enacted authorizing the use of military force by the President instead of formally declaring war. In most cases such legislation has been preceded by a specific request by the President for such authority. During the Presidencies of John Adams and Thomas Jefferson, these Chief Executives noted in messages to Congress that congressional authorizations for use of force would be appropriate to enable the United States to protect its interests from predatory actions by foreign powers, in particular attacks on U.S. commercial vessels and persons on the high seas by France and by Tripoli. Congress responded with specific authorizations for the use of force under the President's direction in 1798 against France and in 1802 against Tripoli. In 1815 President James Madison formally requested that Congress declare war against the Regency of Algiers in response to its attacks on U.S. citizens and commerce in the Mediterranean. Congress responded with an act authorizing the President to utilize U.S. armed vessels to be used against Algerian naval attacks but did not declare war.
In the period following World War II, Presidential requests for authority to use military force, when made, have usually been for broad authority to use U.S. military force in a specific region of the world in order to defend U.S. interests or friendly states as the President deems appropriate. More recently, due to an expansive interpretation of the President's constitutional authority as Commander-in-Chief of the Armed Forces and of his inherent powers to use force without congressional authorization, the President has welcomed support from the Congress in the form of legislation authorizing him to utilize U.S. military forces in a foreign conflict or engagement in support of U.S. interests, but has not taken the view that he is required to obtain such authorization.
What follows is a brief overview of key legislative authorizations of the use of military force by the President from the Administration of John Adams to the present. (8) Appendix B provides the complete text of these specific authorizations.
The United States during the 1790s had remained neutral in the conflict in Europe between France and Great Britain and had only begun to develop a Navy. During the Administration of President John Adams, relations with France deteriorated as American commercial ships were frequently seized by French naval vessels. In response, in his message to Congress on May 16, 1797, President Adams argued that it would be prudent for the Congress to enact legislation that would address the actions of the French by authorizing, among other things, the use of U.S. naval vessels to defend against attacks on American shipping and citizens engaged in lawful commerce abroad. President Adams reiterated, in a message of March 19, 1798, his view of the necessity for congressional action on his recommendations for the adoption of measures to protect American seafaring citizens and commerce. (9)
Congress subsequently responded to the President's recommendations by passing legislation "more effectually to protect the Commerce and Coasts of the United States" authorizing the President to instruct commanders of U.S. armed vessels to act against any "armed vessel" found to have committed or attempting to commit "depredations on the vessels" belonging to United States citizens, and to retake any ship or vessel of United States citizens that may have been captured by non-U.S. armed vessels. (10) The legislation was signed into law on May 28, 1798, Congress passed additional legislation, signed into law on July 9, 1798, that authorized the President to instruct commanders of U.S. Navy warships to "subdue, seize and take any armed French vessel which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas ...." The President was further granted the authority to grant special commissions to "owners of private armed ships and vessels of the United States," to permit them to lawfully subdue, seize, and capture "any armed French vessel," and to recapture U.S. vessels, goods and effects of U.S. citizens with the same authority as U.S. Navy vessels, subject to instructions given by the President. (11)
President Thomas Jefferson, in response to attacks on U.S. commercial shipping in the Mediterranean Sea by vessels under the control of the Bey of Tripoli, noted in his message to Congress of December 8, 1801, that it would be prudent for Congress to authorize the use of U.S. Navy forces to protect U.S. shipping against Tripoli, including permitting them to take offensive action against Tripolitan vessels. (12) Congress responded by passing legislation, enacted on February 6, 1802, that authorized the President to "equip, officer, man, and employ such of the armed vessels of the United States as may be judged requisite by the President of the United States, for protecting effectually the commerce and seamen thereof on the Atlantic ocean, the Mediterranean and adjoining seas." The President was also authorized to utilize the U.S. Navy "to subdue, seize and make prize of all vessels, goods and effects belonging to the Bey of Tripoli, or his subjects ... and to cause to be done all such other acts of precaution or hostility as the state of war will justify, and may, in his opinion, require." The President was further granted the authority to grant special commissions to "owners of private armed vessels of the United States," to permit them to lawfully subdue and seize "any Tripolitan vessel, goods or effects" with the same authority as U.S. Navy vessels, subject to instructions given by the President. (13)
President James Madison, after the conclusion of a peace treaty with Great Britain ending the War of 1812, sought authority to use the U.S. Navy to take action against vessels of the ruler and Regency of Algeria that had been seizing U.S. commercial vessels in the Mediterranean area. Due to acts of "overt and direct warfare against the citizens of the United States," President Madison, on February 23, 1815, recommended that Congress declare the "existence of a state of war between the United States and the Dey and Regency of Algiers." (14) Congress did not declare war but did pass legislation, enacted on March 3, 1815, that authorized the President to use the U.S. Navy, "as judged requisite by the President" to protect the "commerce and seamen" of the United States on the "Atlantic Ocean, the Mediterranean and adjoining seas." The President was also authorized to utilize the U.S. Navy to seize "all vessels, goods and effects belonging to the Dey of Algiers, or to his subjects ... and to cause to be done all such other acts of precaution or hostility as the state of war will justify, and may, in his opinion, require." The President was further granted the discretionary authority to grant special commissions to "owners of private armed vessels of the United States," to permit them to lawfully subdue, seize, and capture "any Algerine vessel, goods or effects" with the same authority as U.S. Navy vessels, subject to instructions given by the President. (15)
Suppression of Piracy 1819-1823
During the years after the War of 1812, there was a notable increase in the number of attacks on U.S. commercial shipping vessels in and around the Caribbean and Latin American coastal waters. Some of this was stimulated by the chaotic conditions attendant to the struggles for independence by South American colonies of Spain. Pirates attacked not only Spanish vessels in the region, but vessels of other nations generally. In response to calls for action against these predatory attacks on their vessels, American shippers petitioned Congress for action to protect them from pirates. In response, on March 3, 1819, legislation was enacted "to protect the commerce of the United States, and punish the crime of piracy." This legislation authorized the President to employ "the public armed vessels" of the United States as he deemed necessary to protect "the merchant vessels of the United States and their crews from piratical aggressions and depredations." This legislation further authorized the President to instruct the commanders of the "public armed vessels of the United States" to take various actions to combat piracy, including attacking and seizing pirates and their vessels. The legislation also authorized U.S. vessels attacked by pirates to take actions against their aggressors and seize their ships. The legislation further established penalties for those that engaged in piracy. This 1819 statute was subsequently made permanent law on January 30, 1823. It has been amended, but the current text, found in Title 33 of the United States Code, contains substantially the same language as was enacted in March of 1819. (16)
In a message to Congress on January 24, 1955, President Dwight Eisenhower, detailed a series of "provocative political and military actions" by the Chinese Communist government that he believed established a "pattern of aggressive purpose." That purpose was the "conquest of Formosa." This situation, said Eisenhower, posed a "serious danger to the security of our country and of the entire Pacific area and indeed to the peace of the world." The President believed that the U.S. should not wait for the United Nations to take steps to deal with the situation but should be prepared to use its own armed forces "to assure the security of Formosa and the Pescadores." President Eisenhower stated that authority for "some of the actions which might be required would be inherent in the authority of the Commander-in-Chief." He noted that, pending congressional action, he "would not hesitate, so far as my Constitutional powers extend, to take whatever emergency action might be forced upon us to protect the rights and security of the United States." However, he stated that a "suitable Congressional resolution would clearly and publicly establish the authority of the President as Commander-in-Chief to employ" the U.S. armed forces "promptly and effectively" as he deemed necessary to deal with the circumstances. Such a resolution would "make clear the unified and serious intentions of our Government, our Congress and our people." (17)
In response to the President's request, Congress passed legislation on January 29, 1955, that authorized the President to "employ the Armed Forces of the United States as he deems necessary for the specific purpose of securing and protecting Formosa, and the Pescadores against armed attack. ..." The President was also authorized to take "such other measures as he judges to be required or appropriate in assuring the defense of Formosa and the Pescadores." The resolution stated that it would expire when the President determined and reported to Congress that the "peace and security of the area is reasonably assured. ..." (18) The resolution was subsequently repealed in 1974. (19)
Middle East 1957
In a special message to Congress on January 5, 1957, President Dwight D. Eisenhower requested congressional support for a program of military and economic cooperation with nations in the general area of the Middle East to "deal with the possibility of Communist aggression, direct or indirect" against nations in that region. As one component of this military and economic assistance program, President Eisenhower sought authority to employ the "armed forces of the United States to secure and protect the territorial integrity and political independence of such nations, requesting such aid, against overt armed aggression from any nation controlled by International Communism." The President emphasized that such authority would not be utilized by him "except at the desire of the nation attacked." (20)
In response, the Congress passed legislation, enacted on March 9, 1957, that, among other things, authorized the President "to undertake, in the general area of the Middle East, military assistance programs with any nation or group of nations of that area desiring such assistance." The joint resolution further provided that "if the President determines the necessity thereof, the United States is prepared to use armed forces to assist any such nation or group of such nations requesting assistance against armed aggression from any country controlled by international communism: Provided, that such employment shall be consonant with the treaty obligations of the United States and with the Constitution of the United States." The President was also to report to Congress on his action under the joint resolution between January and July of each year. The joint resolution further provided that it would expire when the President determined that the "peace and security of the nations in the general area of the Middle East" was "reasonably assured" or should Congress terminate it earlier by passage of a concurrent resolution.21 The resolution has not been formally repealed. (22)
Southeast Asia 1964
In the early 1960s the United States had been providing military assistance and support to the government of South Vietnam. Over time tensions, associated with the U.S. military presence in Southeast Asia and support for the South Vietnamese government, grew between the U.S. and the communist government of North Vietnam. On August 2, 1964, a U.S. destroyer, the U.S.S. Maddox, while in international waters off the coast of North Vietnam (the Gulf of Tonkin) was attacked by North Vietnamese torpedo boats. The attack was repulsed. The State Department protested to the North Vietnamese government and noted that grave consequences would follow additional offensive actions against U.S. forces. Subsequently, on August 4, further attacks by North Vietnamese vessels against U.S. destroyers were reported to Washington. President Lyndon Johnson responded on August 4 by sending U.S. military aircraft to bomb "gunboats and certain supporting facilities" in North Vietnam that had allegedly been used in the actions against U.S. naval vessels. After meeting with congressional leaders, President Johnson on August 5, 1964, formally requested a resolution of Congress that would "express the support of the Congress for all necessary action to protect our armed forces and to assist nations covered by the SEATO Treaty." (23)
Congress responded to President Johnson's request by passing a joint resolution to "promote the maintenance of international peace and security in southeast Asia." This legislation has come to be popularly known as the "Gulf of Tonkin resolution." This joint resolution, enacted on August 10, 1964, stated that "the Congress approves and supports the determination of the President, as Commander-in-Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression." The joint resolution further stated that "[c]onsonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom." The joint resolution stated that it would expire whenever the President determined that the "peace and security of the area is reasonably assured" or if Congress chose to terminate it earlier by concurrent resolution. (24) Congress repealed the resolution in 1971. (25)
On July 6, 1982, President Ronald Reagan announced he would send a small contingent of U.S. troops to participate in a multinational force for temporary peacekeeping in Lebanon. When the forces began to land on August 25, President Reagan reported this action to Congress but did not cite section 4(a)(1) of the War Powers Resolution, (26) and said the agreement with Lebanon ruled out any combat responsibilities. After overseeing the departure of the Palestine Liberation Organization force, the U.S. Marines in the first Multinational Force left Lebanon on September 10, 1982. The second dispatch of Marines to Lebanon began on September 20, 1982. President Reagan announced that the United States, France, and Italy had agreed to form a new multinational force to return to Lebanon for a limited period of time to help maintain order until the lawful authorities in Lebanon could discharge those duties. The action followed three events that took place after the withdrawal of the first group of U.S. Marines: the assassination of Lebanon President-elect Bashir Gemayel, the entry of Israeli forces into West Beirut, and the massacre of Palestinian civilians by Lebanese Christian militiamen.
On September 29, 1982, President Reagan submitted a report to Congress that 1,200 Marines had begun to arrive in Beirut, but again he did not cite section 4(a)(1), of the War Powers Resolution, stating that the American force would not engage in combat. As a result of incidents in which U.S. Marines were killed or wounded, there was controversy in Congress on whether the President's report should have been filed under section 4(a)(1). In mid-1983 Congress passed the Lebanon Emergency Assistance Act of 1983 requiring statutory authorization for any substantial expansion in the number or role of U.S. Armed Forces in Lebanon. It also included a section that stated:
Nothing in this section is intended to modify, limit, or suspend any of the standards and procedures prescribed by the War Powers Resolution of 1973. (27)
President Reagan reported on the Lebanon situation again on August 30, 1983, still not citing section 4(a)(1), after fighting broke out between various factions in Lebanon and two Marines were killed. The level of fighting heightened; and as the Marine casualties increased and the action enlarged, there were more calls in Congress for invocation of the War Powers Resolution. Several Members of Congress said the situation had changed since the President's first report and introduced legislation that took various approaches. Senator Charles Mathias introduced S.J. Res. 159 stating that the time limit specified in the War Powers Resolution had begun on August 31, 1983, and authorizing the forces to remain in Lebanon for a period of 120 days after the expiration of the 60-day period. Representative Thomas Downey introduced H.J. Res. 348 directing the President to report under section 4(a)(1) of the War Powers Resolution. Senator Robert Byrd introduced S.J. Res. 163 finding that section 4(a)(1) of the War Powers Resolution applied to the present circumstances in Lebanon. The House Appropriations Committee approved an amendment to the continuing resolution for FY1984 (H.J. Res. 367), sponsored by Representative Clarence Long, providing that after 60 days, funds could not be "obligated or expended for peacekeeping activities in Lebanon by United States Armed Forces," unless the President had submitted a report under section 4(a)(1) of the War Powers Resolution. A similar amendment was later rejected by the full body, but it reminded the Administration of possible congressional actions.
On September 20, 1983, congressional leaders and President Reagan agreed on a compromise resolution invoking section 4(a)(1) of the War Powers Resolution and authorizing the Marines to remain for 18 months. The Multinational Force in Lebanon Resolution became the first legislation to be handled under the expedited procedures of the War Powers Resolution. On September 28 the House passed H.J. Res. 364 by a vote of 270 to 161. On September 29 the Senate passed S.J. Res. 159 by a vote of 54 to 46. The House accepted the Senate bill by a vote of 253 to 156 later the same day. The President signed the joint resolution into law on October 12, 1983. As passed, the joint resolution contained four occurrences that would terminate the authorization before eighteen months: (1) the withdrawal of all foreign forces from Lebanon, unless the President certified continued U.S. participation was required to accomplish specified purposes; (2) the assumption by the United Nations or the Government of Lebanon of the responsibilities of the Multinational Force; (3) the implementation of other effective security arrangements; or (4) the withdrawal of all other countries from participation in the Multinational Force. Congress also determined in the joint resolution that the requirements of section 4(a)(1) of the War Powers Resolution became operative on August 29, 1983. (28)
In a statement made on signing S.J.Res. 159 on October 12, 1983, President Reagan expressed appreciation for the support for the U.S. presence and policies in Lebanon he believed were embodied in the legislation. He sharply differed, however, with various "findings, determinations, and assertions" by the Congress on certain matters. He stated his concerns about the practical problems associated with section 4(a)(1) of the War Powers Resolution, and the wisdom and constitutionality of section 5(b). President Reagan noted that in signing the Lebanon resolution it was important for him to state
that I do not and cannot cede any of the authority vested in me under the Constitution as President and as Commander in Chief of United States Armed Forces. Nor should my signing be viewed as any acknowledgment that the President's constitutional authority can be impermissibly infringed by statute, that congressional authorization would be required if and when the period specified in section 5(b) of the War Powers Resolution might be deemed to have been triggered and the period had expired, or that section 6 of the Multinational Force in Lebanon Resolution may be interpreted to revise the constitutional authority to deploy United States Armed Forces. (29)
On August 2, 1990, Iraqi troops under the direction of President Saddam Hussein invaded Kuwait, seized its oil fields, installed a new government in Kuwait City, and moved toward the border with Saudi Arabia. A week after the invasion, on August 9, President George H.W. Bush reported to Congress "consistent with the War Powers Resolution" that he had deployed U.S. armed forces to the region prepared to take action with others to deter further Iraqi aggression. He noted that he did not believe involvement in hostilities was imminent. Throughout the rest of 1990, President Bush continued to work to establish an international coalition opposed to Iraq's aggression, while continuing to deploy additional U.S. military reinforcements into Saudi Arabia and the Persian Gulf region. By the end of the year approximately 350,000 U.S. forces had been deployed to the area. (30)
As the prospect of a war without congressional authorization increased, on November 20, 1990, Representative Ron Dellums and 44 other Democratic Members of Congress sought a judicial order enjoining the President from offensive military operations in connection with Operation Desert Shield unless he consulted with and obtained an authorization from Congress. On December 13, Judge Harold Greene of the federal district court in Washington, D.C. denied the injunction, holding that the controversy was not ripe for judicial resolution because a majority of Congress had not sought relief and the executive branch had not shown sufficient commitment to a definitive course of action. (31)
By January, 1991, President Bush had secured the support of the United Nations and an international coalition to use force, if necessary, to free Kuwait from Iraqi occupation. U.N. Resolution 678 of November 29, 1990, authorized all U.N. member states "to use all necessary means" to implement various U.N. resolutions seeking to end Iraqi occupation of Kuwait. It set a January 15, 1991 deadline for Iraq to implement fully all relevant U.N. resolutions relating to its invasion of Kuwait. On January 8, 1991, President George H.W. Bush, in a letter to the congressional leaders, requested a congressional resolution supporting the use of all necessary means to implement U.N. Security Council Resolution 678. He stated that he was "determined to do whatever is necessary to protect America's security" and that he could "think of no better way than for Congress to express its support for the President at this critical time." It is noteworthy that the President's request for a resolution was a request for congressional "support" for his undertaking in the Persian Gulf, not for "authority" to engage in the military operation. In a press conference on January 9, 1991, President Bush reinforced this distinction in response to questions about the use of force resolution being debated in Congress. He was asked whether he thought he needed the resolution, and if he lost on it would he feel bound by that decision. President Bush in response stated: "I don't think I need it. ... I feel that I have the authority to fully implement the United Nations resolutions." He added that he felt that he had "the constitutional authority--many attorneys having so advised me." (32)
On January 12, 1991, both houses passed the "Authorization for Use of Military Force Against Iraq Resolution." Section 2(a) of that joint resolution authorized the President to use U.S. Armed Forces pursuant to U.N. Security Council Resolution 678 to achieve implementation of the earlier Security Council resolutions. Section 2(b) required as a precondition that the President would first have to report to Congress that the United States had used all appropriate diplomatic and other peaceful means to obtain compliance by Iraq with the Security Council resolution and that those efforts had not been successful. Section 2(c) stated that it constituted specific statutory authorization within the meaning of Section 5(b) of the War Powers Resolution. Section 3 required the President to report every 60 days on efforts to obtain compliance of Iraq with the U.N. Security Council resolution. (33)
On signing H.J.Res. 77 into law, President Bush said the following:
As I made clear to congressional leaders at the outset, my request for congressional support did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President's constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution.
He added that he was pleased that "differences on these issues between the President and many in the Congress have not prevented us from uniting in a common objective." (34) On January 16, 1991, President Bush made the determination required by P.L. 102-1 that diplomatic means had not and would not compel Iraq to withdraw from Kuwait. On January 18, he reported to Congress "consistent with the War Powers Resolution" that he had directed U.S. forces to commence combat operations on January 16. (35)
Terrorist Attacks against the United States (World Trade Center and the Pentagon) 2001
On September 11, 2001, terrorists hijacked four U.S. commercial airliners, crashing two into the twin towers of the World Trade Center in New York City, and another into the Pentagon building in Arlington, Virginia. The fourth plane crashed in Shanksville, Pennsylvania near Pittsburgh, after passengers struggled with the highjackers for control of the aircraft. The death toll from these incidents was nearly 3,000. President George W. Bush characterized these attacks as more than acts of terror. "They were acts of war," he said. He added that "freedom and democracy are under attack," and he asserted that the United States would use "all of our resources to conquer this enemy." (36)
In the days immediately after the September 11 attacks, the President consulted with the leaders of Congress on appropriate steps to take to deal with the situation confronting the United States. One of the things that emerged from discussions was the concept of a joint resolution of the Congress authorizing the President to take military steps to deal with the parties responsible for the attacks on the United States. Between September 13 and 14, draft language of such a resolution was discussed and negotiated by the President's representatives and the House and Senate leadership of both parties. Other members of both Houses suggested language for consideration. On Friday, September 14, 2001, the text of a joint resolution was introduced. It was first considered and passed by the Senate in the morning of September 14, as Senate Joint Resolution 23, by a vote of 98-0. The House of Representatives passed it later that evening, by a vote of 420-1, after tabling an identical resolution, H.J. Res. 64, and rejecting a motion to recommit by Representative John Tierney that would have had the effect, if passed and enacted, of requiring a report from the President on his actions under the resolution every 60 days. (37)
President Bush signed the measure into law on September 18, 2001. (38) The joint resolution authorizes the President
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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The joint resolution further states that Congress declares that this resolution is intended to "constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution." Finally, the joint resolution also states that "[n]othing in this resolution supersedes any requirement of the War Powers Resolution."
A notable feature of P.L. 107-40 is that, unlike all other major legislation authorizing the use of military force by the President, this joint resolution authorizes military force against not only nations but also organizations and persons linked to the September 11, 2001, attacks on the United States. This authorization of military action against organizations and persons is unprecedented in American history, with the scope of its reach yet to be determined. The authorization of use of force against unnamed nations is more consistent with some previous instances where authority was given to act against unnamed states as appropriate when they became aggressors or took military action against the United States or its citizens.
President George W. Bush in signing S.J. Res. 23 on September 18, 2001, stated that the Congress had acted "wisely, decisively, and in the finest traditions of our country." He thanked the "leadership of both Houses for their role in expeditiously passing this historic joint resolution." He noted that he had had the "benefit of meaningful consultations with members of the Congress" since the September 11 attacks and that he would "continue to consult closely with them as our Nation responds to this threat to our peace and security." President Bush also asserted that S.J. Res. 23 "recognized the authority of the President under the Constitution to take action to deter and prevent acts of terrorism against the United States." He also stated that "in signing this resolution, I maintain the longstanding position of the executive branch regarding the President's constitutional authority to use force, including the Armed Forces of the United States, and regarding the constitutionality of the War Powers Resolution." (39)
The Bush Administration interpreted P.L. 107-40 broadly, to confirm the President's authority as Commander-in-Chief to conduct antiterrorism operations anywhere in the world, including within the United States. (40) In 2004, the Supreme Court affirmed the President's powers to detain "enemy combatants" captured in Afghanistan as part of the necessary force authorized by Congress, but found that detainees could challenge their detention in federal court. (41) In light of the Supreme Court decisions, the Bush Administration interpreted the joint resolution to authorize any measures that can be characterized as fundamental incidents of the conduct of war, even where such measures are otherwise prohibited by statute (at least so long as the statute in question contemplates a statutory exception). Thus, the Administration cited the joint resolution to support the President's power to detain persons he has deemed to be "enemy combatants" (whether citizens or aliens and without regard to the location or circumstances of their capture) (42) and to conduct electronic surveillance of communications within the United States without following the procedures prescribed in FISA. (43) The Supreme Court in 2006 held that P.L. 107-40 does not override the Uniform Code of Military Justice (UCMJ) as it pertains to the trial of captured combatants for violations of the law of war. (44)
Authorization for Use of Force Against Iraq 2002
In the summer of 2002, the Bush Administration made public its views regarding what it deemed a significant threat to U.S. interests and security posed by the prospect that Iraq had or was acquiring weapons of mass destruction. Senior members of the Bush Administration cited a number of violations of U.N. Security Council resolutions by Iraq regarding the obligation imposed at the end of the Gulf War in 1991 to end its chemical, biological and nuclear weapons programs. On September 4, 2002, President Bush met with congressional leadership and stated that he would seek congressional support, in the near future, for action deemed necessary to deal with the threat posed to the United States by the regime of Saddam Hussein. The President also indicated that he would speak to the United Nations shortly and set out his concerns about Iraq.
On September 12, 2002, President Bush addressed the U.N. General Assembly, explaining U.S. concerns about Iraq's actions since the end of the 1991 Gulf War, including numerous instances when Iraq had violated various U.N. Security Council resolutions, including those related to disarmament. He stated that the United States would work with the U.N. Security Council to address the threat to international peace and security posed by Iraq. He emphasized, however, that if Iraq refused to fulfill its obligations to comply with U.N. Security Council resolutions, the United States would see that those resolutions were enforced. (45)
Subsequently, on September 19, 2002, the White House proposed legislation to authorize the use of military force against Iraq. This draft would have authorized the President to use military force not only against Iraq but "to restore international peace and security in the region." Subsequently introduced as S.J. Res. 45 on September 26, the Senate from October 3 to October 11 debated the desirability, necessity, and scope of the proposed legislation.
The President's proposal was not formally introduced in the House. Instead, Speaker of the House Dennis Hastert and Minority Leader Richard Gephardt introduced H.J.Res. 114 on October 2, 2002, which included generally accepted modifications to the President's proposal. The House International Relations Committee reported out a slightly amended version of the joint resolution on October 7, 2002 (H.Rept. 107-721). The House adopted the rule governing debate on the joint resolution (H.Res. 474) on October 8, 2002; and debated the measure until October 10, when it passed H.J.Res. 114 by a vote of 296-133. Subsequently, the Senate passed the House version of H.J.Res. 114 on October 11 by a vote of 77-23, and President Bush signed the Authorization for Use of Military Force against Iraq Resolution of 2002 into law on October 16, 2002. (46)
In signing H.J.Res. 114 into law, President Bush stated that by passing this legislation the Congress had demonstrated that "the United States speaks with one voice on the threat to international peace and security posed by Iraq." He added that the legislation carried an important message that "Iraq will either comply with all U.N. resolutions, rid itself of weapons of mass destruction, and ... its support for terrorists, or will be compelled to do so." While the President noted he had sought a "resolution of support" from Congress to use force against Iraq, and appreciated receiving that support, he also stated that "... my request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President's constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution."
President Bush went on to state that on the "important question of the threat posed by Iraq," his views and goals and those of the Congress were the same. He further observed that he had extensive consultations with the Congress in the past months, and that he looked forward to "continuing close consultation in the months ahead." He stated his intent to submit written reports to Congress every 60 days on matters "relevant to this resolution." (47)
The central element of P.L. 107-243 is the authorization for the President to use the armed forces of the United States "as he determines to be necessary and appropriate in order to--(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq."
As predicates for the use of force, the statute requires the President to communicate to Congress his determination that the use of diplomatic and other peaceful means will not "adequately protect the United States ... or ... lead to enforcement of all relevant United Nations Security Council resolutions" and that the use of force is "consistent" with the battle against terrorism. Like P.L. 102-1 and P.L. 107-40, the statute declares that it is "intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution." It also requires the President to make periodic reports to Congress "on matters relevant to this joint resolution." Finally, the statute expresses Congress's "support" for the efforts of the President to obtain "prompt and decisive action by the Security Council" to enforce Iraq's compliance with all relevant Security Council resolutions.
P.L. 107-243 clearly confers broad authority on the President to use force. In contrast to P.L. 1021, the authority granted is not limited to the implementation of previously adopted Security Council resolutions concerning Iraq but includes "all relevant ... resolutions." Thus, it appears to have incorporated resolutions concerning Iraq that were subsequently adopted by the Security Council at least up to the expiration of the UN mandate on December 31, 2008, as well as those resolutions adopted prior to the enactment of P.L. 107-243. The authority also appears to extend beyond compelling Iraq's disarmament to implementing the full range of concerns expressed in those resolutions. Unlike P.L. 107-40, the President's exercise of the authority granted is not dependent upon a finding that Iraq was associated in some direct way with the September 11, 2001, attacks on the United States. Moreover, the authority conferred can be used for the broad purpose of defending "the national security of the United States against the continuing threat posed by Iraq." Nevertheless, P.L. 107-243 is narrower than P.L. 107-40, as well as President Bush's originally proposed authorization, in that it limits the authorization for the use of force to Iraq. It also requires as a predicate for the use of force that the President determine that peaceful means cannot suffice and that the use of force against Iraq is consistent with the battle against terrorism. (48) P.L. 107-243 further limits the force used to that which the President determines is "necessary and appropriate." Finally, as with P.L. 107-40, the statutory authorization for use of force granted to the President in P.L. 107-243 is not dependent for its exercise upon prior authorization by the U.N. Security Council.
The Bush and Obama Administrations relied on P.L. 107-243's authorities to maintain the presence of U.S. armed forces and to conduct military operations in Iraq until the withdrawal of U.S. armed forces in December 2011. After initial invasion operations and the removal of the Saddam Hussein regime from power, U.S. military operations in Iraq continued under P.L. 107-243 authority. Both the Bush and Obama Administrations considered Iraq a continuing threat to U.S. national security interests; in addition, U.S. armed forces were enforcing relevant U.N. Security Council resolutions regarding Iraq. Relevant U.N. resolutions included the creation in 2003 of the Multinational Force in Iraq (MNF-I), of which U.S. armed forces made up the significant majority. The United Nations Security Council ultimately terminated the MNF-I on December 1, 2008. (49) Be ginning January 1, 2009, U.S. armed forces remained in Iraq pursuant to an agreement between Iraq and the United States that set the date for withdrawal of such forces on December 31, 2011. (50) At the time of the U.S.-Iraq agreement, it was argued that the end of the U.N. mandate required a new authorization for continued U.S. military presence in Iraq, and that the agreement itself needed congressional approval either by submission to the Senate as a treaty for advice and consent, or by general legislative approval. (51) Congress continued to provide funds for military operations in Iraq, however, and legislative efforts to repeal P.L. 107-243 or otherwise bring about an end to the U.S. military presence in Iraq did not succeed. (52)
P.L. 107-243 does not include provision for automatic termination of its use of force authorization, and Congress has not repealed the legislation. Thus P.L. 107-243 remains current U.S. law, although its continued effectiveness is questionable. Arguably, the President could rely on P.L. 107-243 to reintroduce U.S. armed forces into Iraq if he determined that Iraq once again posed a threat to U.S. national security, or in order to enforce relevant U.N. resolutions, as the legislation provides in its authorization language. Nevertheless, any presidential decision to again utilize the authority for use of military force in P.L. 107-243 would likely meet renewed resistance from some Members of Congress, as well as other observers who have argued for repeal of open-ended use of force authorizations such as this.
Implications Under International Law
Traditionally, peace and war have been deemed under international law to be distinctive forms of relations between states. Thus, peace has been defined as "a condition in which States maintain order and justice, solve their problems by cooperation, and eliminate violence. It is a condition in which States respect each other's sovereignty and equality, refrain from intervention and the threat or use of force and cooperate with one another in accordance with the treaties which they have concluded." (53)
War, in contrast, has been described as "a condition of armed hostility between States," (54) "a contention, through the use of armed force, between states, undertaken for the purpose of overpowering another." (55) War has been said to terminate or suspend the laws and customs that prevail in peacetime and to substitute for them the laws of war. Under the traditional laws of war enemy combatants can be killed, prisoners of war taken, the enemy's property seized or destroyed, enemy aliens interned, and other measures necessary to subdue the enemy and impose the will of the warring state taken. (56) Moreover, the existence of a state of war traditionally has been deemed to terminate diplomatic and commercial relations and most of the treaty obligations existing between the warring States. (57) A state of war also has brought into play the law of neutrality with respect to relations between the belligerent and non-belligerent States.
In this traditional understanding a declaration of war has been deemed, in and of itself, to have the effect of creating a state of war and changing the relationship between the states involved from one of peace to one of war. That has been the case even if no hostilities actually occur. Some question exists as to whether international law traditionally deemed a declaration of war to be a necessary prerequisite to the existence of a state of war; (58) but it is clear that under international law a declaration of war has been viewed as "creating the legal status of war ... [and giving] evidence that peace has been transmuted into war, and that the law of war has replaced the law of peace." (59)
Authorizations for the use of force, in contrast, have not been seen as automatically creating a state of war under international law. The U.S. Court of Claims, in construing the statutes authorizing the limited use of force against France in 1798, described how their effects differed from those that followed in the wake of a war:
[Our naval vessels] might seize armed vessels only, and only those armed vessels which had already committed depredations, or those which were on our coast for the purpose of committing depredations, and they might retake an American vessel captured by such an armed vessel. This statute is a fair illustration of the class of laws enacted at this time; they directed suspension of commercial relations until the end of the next session of Congress, not indefinitely they gave power to the President to apprehend the subjects of hostile nations whenever he should make "public proclamation" of war and no such proclamation was made; they gave him authority to instruct our armed vessels to seize French "armed," not merchant, vessels ..., together with contingent authority to augment the army in case war should break out or in case of imminent danger of invasion.... If war existed, why authorize our armed vessels to seize French armed vessels? War itself gave that right, as well as the right to seize merchantmen which the statutes did not permit. If war existed why empower the President to apprehend foreign enemies? War itself placed that duty upon him as a necessary and inherent incident of military command. Why, if there was war, should a suspension of commercial intercourse be authorized, for what more complete suspension of that intercourse could there be than the very fact of war? There was no declaration of war; the tribunals of each country were open to the other--an impossibility were war in progress; diplomatic and commercial intercourse were admittedly suspended; but during many years there was no intercourse between England and Mexico, which were not at war; there was retaliation and reprisal, but such retaliations and reprisals have often occurred between nations at peace; there was a near approach to war, but at no time was one of the nations turned into an enemy of the other in such manner that every citizen of the one became the enemy of every citizen of the other; finally, there was not that kind of war which abrogated treaties and wiped out, at least temporarily, all pending rights and contracts, individual and national. (60)
Whether this traditional understanding of war and of the effect of a declaration of war continues to be viable is a matter of considerable dispute among scholars. The right of a state to initiate war, many contend, has been outlawed by such international agreements as the Kellogg-Briand Peace Pact and the Charter of the United Nations. In the Kellogg-Briand Peace Pact, (61) for instance, the Parties stated that they "condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another." (62) After World War II the Nuremberg Tribunal gave teeth to this commitment by ruling that the Pact rendered aggressive war illegal under international law and makes those who plan and wage such a war guilty of a crime. (63) The Charter of the United Nations, in turn, states one of its purposes to be "to save succeeding generations from the scourge of war," and it requires its Members "to refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations." (64) Moreover, it provides for a system of collective security through the Security Council as the primary means of maintaining or restoring international peace and security. (65) Both instruments, it is contended, recognize that the concept of war as a legal right of states, except in self-defense, (66) has been superseded. (The United States, of course, is a Party not only to the Charter but also to the Pact, and it still regards the latter as continuing to be in force. (67)) Whether the traditional concept of war remains valid has been further complicated by the increasing participation in armed conflict of non-State actors such as insurgents, freedom fighters, and terrorists.
The clarity of the consequences of a state of war in traditional international law has also become muddied in the modern era. Most States since 1945, even when engaged in armed conflict, have resisted describing the conflict as a war. (68) States so engaged have not always automatically terminated diplomatic and commercial relationships, (69) and the discontinuance of treaty obligations has increasingly been deemed to require a treaty-by-treaty examination. (70) Moreover, conventions that attempt to regulate the means used to wage war, such as the Hague Conventions and other more recent agreements, (71) and those that attempt to ameliorate the consequences of war for certain categories of persons, such as the Geneva Conventions, (72) are deemed to apply to armed conflicts regardless of what label the Parties attach to them. A state of war still gives rise to "a mutual right to kill in battle," (73) triggers application of the various conventions regulating the means of waging war as well as of the general principles of necessity and proportionality, and brings into play the Geneva Conventions. But its other legal consequences seemingly have become less determinate.
Perhaps as a consequence of these developments, declarations of war have fallen into disuse and are virtually never issued in modern conflicts. One commentator asserts that since 1945 "[t]here are no cases of a formal declaration of war having been delivered by one state to another through diplomatic channels. ..." (74) As noted above, the United States last declared war in 1942 against Rumania and has since adopted only authorizations for the use of force.
Thus, declarations of war may have become anachronistic in contemporary international law. The legal right of States to engage in war has seemingly become constrained (for other than defensive purposes), and the most salient international laws regarding the means of waging war and the protection of certain categories of persons apply to the circumstance of armed conflict regardless of whether war has been declared. That circumstance can arise in the wake of an authorization to use force as well. States likely still retain a right to issue declarations of war, at least in exercising the right of self-defense; and such a declaration seemingly would still automatically create a state of war. But it is not clear that the legal consequences under international law that would flow from a declaration differ dramatically from those that occur if an armed conflict comes into being pursuant to an authorization for the use of force.
Implications Under Domestic Law
Early American jurisprudence drew a distinction between general, or perfect, war and limited, or imperfect, war, and understood a declaration of war under Article I, [section] 8, of the Constitution to commit the nation to a general war. Justice Washington, in Bas v. Tinghy, (75) described the distinction as follows:
It may, I believe, be safely laid down, that every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war. If it be declared in form, it is called solemn, and is of the perfect kind; because one whole nation is at war with another whole nation; and all the members of the nation declaring war are authorised to commit hostilities against all the members of the other, in every place, and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences of war attach to their condition. ... [H]ostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war; because not solemn, and because those who are authorised to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention, by force, between some of the members of the two nations, authorised by the legitimate powers. (76)
Justice Chase, more simply, stated: "Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time." (77)
Thus, at least in the 18th and 19th centuries, authorizations for the use of force were understood to be included within Congress's power to declare war and to have narrower legal consequences than declarations of war. Declarations were reserved for general war against particular countries and empowered the President "to use the whole land and naval force of the United States" (United Kingdom in 1812), "to employ the militia, naval, and military forces of the United States" (Mexico in 1846), or "to use the entire land and naval forces of the United States" (Spain in 1898) to prosecute the war. Authorizations, in contrast, allowed the President to use the American navy against the vessels of France, the Bey of Tripoli, and the Dey of Algiers, or against piracy generally.
In the modern era authorizations have sometimes been quite broad (78); and some have, arguably, been equivalent in scope to a declaration of war. But the domestic legal consequences that flow from such authorizations still are substantially more limited than those that would flow from a declaration of war.
Both declarations of war and authorizations for the use of force have the effect of eliminating the time limits otherwise imposed on the President's use of the armed forces under the War Powers Resolution; and both may legitimate the killing of foreign officials that might otherwise be prohibited by the executive order on assassinations. The capture of enemy combatants on the battlefield and their detention until hostilities have subsided is implied in an authorization to use ground forces, (79) just as it would be included in a formal declaration of war.
But a declaration of war automatically brings into effect a number of statutes that confer special powers on the President and the Executive Branch, especially concerning measures that have domestic effect. A declaration, for instance, activates statutes that empower the President to interdict all trade with the enemy, order manufacturing plants to produce armaments and seize them if they refuse, control transportation systems in order to give the military priority use, and command communications systems to give priority to the military. A declaration triggers the Alien Enemy Act, which gives the President substantial discretionary authority over nationals of an enemy state who are in the United States. It activates special authorities to use electronic surveillance for purposes of gathering foreign intelligence information without a court order under the Foreign Intelligence Surveillance Act. It automatically extends enlistments in the armed forces until the end of the war, can make the Coast Guard part of the Navy, gives the President substantial discretion over the appointment and reappointment of commanders, and allows the military priority use of the natural resources on the public lands and the continental shelf.
An authorization for the use of force does not automatically trigger any of these standby statutory authorities. Some of them can come into effect if a state of war in fact comes into being after an authorization for the use of force is enacted; and the great majority of them, including many of the most sweeping ones, can be activated if the President chooses to issue a proclamation of a national emergency. But an authorization for the use of force, in itself and in contrast to a declaration of war, does not trigger any of these standby authorities.
On the other hand, the authorization to use force in response to the terrorist attacks of 2001 has been asserted as legal authority for executive actions in the domestic context, the validity of which remains unresolved. The executive branch asserted that the authorization permits detention without trial of persons arrested in the United States on suspicion of Al Qaeda related terrorism, which it regarded as bolstered by the Supreme Court's Hamdi decision finding the detention of enemy combatants captured in Afghanistan to be authorized as "a fundamental incident of waging war." (80) While there is limited authority to support military trials of enemy soldiers captured within the United States, in previous wars the Alien Enemy Act would likely have been the chief means of interning suspected enemies domestically. (81) Under the executive branch view, the authorization to use force could be construed as broader than a declaration of war in that it is seen to authorize detention powers without any of the few rules or restrictions specified in the Alien Enemy Act, and to authorize the detention of U.S. citizens as an exception to the Non-Detention Act. (82) Similarly, the executive branch argued that the authorization to use force must also be read to permit the conduct of certain types of electronic surveillance outside of the strictures of the Foreign Intelligence Surveillance Act, even though that act provides for only a two-week exception triggered by a declaration of war. (83) Accordingly, it is possible that any similarly broad authorization to use force may be read to authorize any power that may properly be regarded as "a fundamental incident of waging war" under the circumstances, at least as implied exceptions to statutes that admit of statutory exception.
The following subsections give an overview of some of the more salient domestic legal consequences of a declaration of war or authorization for the use of force. They are followed by a section setting forth a detailed list of the standby statutory authorities that can be triggered by a declaration of war, a state or war, and/or a proclamation of national emergency.
The War Powers Resolution
Both a declaration of war and an authorization for the use of force have significant implications with respect to the War Powers Resolution (WPR). (84) The WPR was enacted over President Nixon's veto in 1973 purportedly to restore a congressional role in authorizing the use of force that was thought by many to have been lost in the Cold War and the Vietnam War. To that end the WPR mandates that the President consult with the Congress "in every possible instance" prior to introducing U.S. armed forces into hostilities and regularly afterwards. Section 4(a) of the WPR further requires the President, "in the absence of a declaration of war," to report to Congress within 48 hours in any case in which United States Armed Forces are introduced--
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.
Section 5(b) of the Resolution, in turn, requires that if a report has been submitted or was required to be submitted under [section] 4(a)(1) above, the President shall terminate the involvement of U.S. forces unless Congress
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces;
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States. (85)
Thus, congressional enactment of either a declaration of war or an authorization for the use of force pursuant to [section] 5(b) has the effect of tolling the 60-90 day withdrawal mandate of the WPR.
Each of the last three authorizations for the use of force enacted--the 1991 Gulf War authorization, the September 18, 2001, authorization with respect to terrorist attacks, and the October 16, 2002, authorization with respect to Iraq--have explicitly stated that they constitute the authorization required by [section] 5(b) of the WPR. Each, in other words, has tolled the 60-90 day limitation that the WPR otherwise would impose on the use of military force by the President. All three authorizations have further specified that "[n]othing in this resolution supersedes any requirement of the War Powers Resolution." That appears to mean that the consultation and reporting requirements of the WPR still apply.
Trading with the Enemy Act and the International Emergency Economic Powers Act
Two related statutes, the Trading With the Enemy Act (86) (TWEA) and the International Emergency Economic Powers Act (87) (IEEPA), grant the President extraordinary powers to control foreign-owned property and foreign trade transactions with designated countries under certain exceptional circumstances. TWEA comes into effect upon a declaration of war or the existence of a state of war, while IEEPA is triggered solely by a presidential declaration of national emergency. Neither statute is triggered by an authorization for the use of force (unless, in the case of TWEA, the authorization eventually leads to the existence of a state of war). IEEPA is the authority most commonly invoked to freeze or block the assets of foreign states, companies, or individuals located within the jurisdiction of the United States.
Until 1977 the broad range of economic authorities granted by TWEA could be exercised both in times of war and in times of national emergency. However, in 1977 Congress limited the prospective application of TWEA to times of declared or undeclared war only and enacted IEEPA to apply during times of a national emergency declared by the President. Under TWEA the President may
(A) investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit or payments or payments between, by, through, or to any banking institution, and the importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion, currency or securities, and
(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest, by any person, or with respect to any property, subject to the jurisdiction of the United States; and any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States. ... (88)
IEEPA replicates many of TWEA's powers to regulate international transactions, (89) but it does not include TWEA authorities relative to purely domestic transactions, the regulation of bullion, and seizure of records. (90) It also does not contain TWEA's general authority to take title to foreign assets. But Congress did amend IEEPA in the "USA PATRIOT Act" in 2001 to authorize the President to confiscate and take title to
any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided or engaged in ... hostilities or attacks against the United States.... (91)
Congress further amended both IEEPA and TWEA in the "Terrorism Risk Insurance Act of 2002" to provide that the assets of foreign terrorist states that have been frozen in the U.S. pursuant to either statute may be used to satisfy certain civil judgments against them. (92)
As noted, IEEPA is triggered solely by a declaration of national emergency, while TWEA applies in time of war. Thus, TWEA is not dependent upon a declaration of war, but it can be triggered by such a declaration. Neither appears to be triggered by an authorization for the use of force, unless and until, in the case of TWEA, a state of war actually develops.
Other Economic Authorities
As noted, a declaration of war gives the President full authority over trade relations with the enemy. Other statutes triggered by a declaration give the President the authority to order plants to convert to the production of armaments and to seize those that refuse to do so, (93) to take control of the Tennessee Valley Authority in order to manufacture explosives or for other military purposes, (94) to assume control of transportation systems for military purposes, (95) to condemn land for military uses, (96) to have the right of first refusal over natural resources, (97) and to take control of communications facilities. (98) It also gives the President full power over agricultural exports. (99) An authorization for the use of force, in itself, does not trigger any of these authorities.
Alien Enemy Act
First enacted in 1798, the Alien Enemy Act (100) broadly authorizes the President to deport, detain, or otherwise condition the stay of alien enemies in the U.S. in cases of "declared war" or "any invasion or predatory incursion ... perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government. ... The act implements the internationally recognized right of every nation to protect itself during times of war from individuals whose primary allegiance lies with a hostile foreign power. Given this premise, the Supreme Court has observed that "[e]xecutive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security." (101)
The President must publicly proclaim the event that gives rise to activation of the act and make regulations regarding the treatment of those aliens. But once he does so, his power to "apprehend, restrain, secure, and remove" enemy aliens extends to all "natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be in the United States and not actually naturalized." (102) The President may intern or remove enemy aliens or set lesser restraints on them, and may adopt any "regulations which are found necessary in the premises and for the public safety." (103) Thus, President Woodrow Wilson, for example, barred alien enemies during World War I from possessing firearms and explosives, coming within a half a mile of a military facility or munitions factory, residing in certain areas, possessing certain communications equipment, and publishing certain types of materials. President Franklin D. Roosevelt authorized similar restrictions during World War II and, additionally, set up over 100 community hearing boards to make internment recommendations to the Attorney General. (104)
The procedural rights of aliens who are subject to the Alien Enemy Act are drastically restricted compared with those that aliens otherwise enjoy, including hearing rights under the removal provisions of the Immigration and Nationality Act. (105) The scope of judicial review is equally circumscribed. (106) Among the few rights recognized under the act, alien enemies subjected to removal may, if not chargeable with "actual hostility" or other crime against public safety, be entitled to the time allowed by applicable treaty or order to wind up his or her affairs here. (107) A very limited right to judicial review under a petition for a writ of habeas corpus also is recognized. Generally, however, the power of the President to control alien enemies under the act is extraordinary.
As noted, the act does not appear to be triggered solely by an authorization for the use of force.
There are a number of civilian federal criminal law provisions that apply explicitly to specified conduct in time of war. They do not appear to distinguish between circumstances involving a declaration of war and other situations in which a state of war may exist absent a declaration of war, although courts (and Congress) have in some cases construed "time of war" or "at war" to require a formal declaration by Congress. Thus, these statutes may be triggered by a declaration of war, but they also may apply in circumstances where a state of war is deemed to exist.
Consequently, these criminal prohibitions do not appear to be triggered by an authorization for the use of force, unless and until a state of war develops. These statutes include, for example: (108)
(a) 18 U.S.C.A. [section] 443 (willful secreting, mutilating, obliterating or destroying records of a war contractor, that is, a holder of a prime or subcontract connected with or related to the prosecution of a war);
(b) 18 U.S.C.A. [section] 757 (procuring the escape of a prisoner of war held by the United States or any of its allies or the escape of an apprehended or interned enemy alien held by the United States or its allies; aiding or assisting such escape or assisting the prisoner of war or enemy alien after his escape; or attempting or conspiring to do any of the above);
(c) 18 U.S.C.A. [section] 792 (harboring or concealing persons known or believed to have committed or to be about to commit an offense under 18 U.S.C. [section][section] 793 or 794);
(d) 18 U.S.C.A. [section] 793 (gathering, transmitting or losing information related to the national defense with the intent or reason to believe that it is to be used to the injury of the United States or to the benefit of a foreign nation. Includes, among other things, such actions with respect to information on any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being prepared, repaired, stored, or are the subject of research or development; or with respect to any prohibited place so designated by the President by proclamation in time or war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared, constructed, or stored);
(e) 18 U.S.C.A. [section] 794 (gathering or delivering information relating to the national defense with the intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation. Subsection (b) deals with recording, publishing, or communicating or attempting to elicit information regarding movements, numbers, condition or disposition of Armed Forces, ships, aircraft or war materials, with the intent that the information be communicated to the enemy in time of war. It also covers communicating to the enemy in time of war information on plans or conduct of naval or military operations or defense measures.) (109)
(f) 18 U.S.C.A. [section] 1038 (making a false statement, with intent to convey false or misleading information, about the death, injury, capture, or disappearance of a member of the Armed Forces of the United States during a war or armed conflict in which the United States is engaged);
(g) 18 U.S.C.A. [section] 1091 (genocide in time of peace or in time of war);
(h) 18 U.S.C.A. [section] 1653 (aliens who are found and taken on the sea making war against the United States or engaging in piracy against U.S. vessels or property);
(i) 18 U.S.C.A. [section] 2153 (when the United States is at war or when a national emergency has been declared, willful destruction of war material, war premises, or war utilities, with intent or reason to believe that such actions may injure, interfere with, or obstruct the United States or associate nations in their war or defense activities; and conspiracy to do so);
(j) 18 U.S.C.A. [section] 2154 (in times of war or national emergency, willfully producing defective war material, war premises, or war utilities with intent to injure, interfere with, or obstruct the war or defense activities of the United States or associate nations);
(k) 18 U.S.C.A. [section] 2381 and U.S. Constitution, Art. 3, Sec. 3, Cl. 1 (while owing allegiance to the United States, levying war against the United States or adhering to its enemies, giving them aid and comfort. Constitution requires confession in open court or testimony of two witnesses to the same overt act to convict for treason);
(l) 18 U.S.C.A. [section] 2382 (misprision of treason);
(m) 18 U.S.C.A. [section] 2384 (seditious conspiracy to overthrow or destroy by force the Government of the United States or to levy war against the United States);
(n) 18 U.S.C.A. [section] 2388 (willfully engaging in certain activities in time of war with intent to adversely affect armed forces of the United States or to obstruct enlistment or recruitment; conspiracy to do so; harboring a person knowing or having reason to believe that the person has engaged in such conduct);
(o) 18 U.S.C.A. [section] 2389 (recruiting soldiers or sailors within U.S. jurisdiction to engage in armed hostilities against the United States); and
(p) 18 U.S.C.A. [section] 2441 (war crimes).
It should also be noted that other federal and state criminal law provisions, (110) which do not draw distinctions between conduct in time of war and at other times, also apply during wartime. (111) For example, 18 U.S.C.A. [section] 175 prohibits knowing development, stockpiling, acquisition, possession or retention of any biological agent, toxin, or delivery system for use as a weapon, or knowing assistance to a foreign state to do so. 18 U.S.C.A. [section] 229, with certain exceptions, prohibits similar conduct with respect to chemical weapons. 18 U.S.C.A. [section] 831 prohibits specific transactions or actions involving nuclear materials, while 42 U.S.C.A. [section] 2284 deals with sabotage of nuclear facilities or fuel. 18 U.S.C.A. [section] 2332a prohibits certain uses of weapons of mass destruction. Other explosives offenses are covered in 18 U.S.C.A. [section] 844. Hostage-taking is addressed in 18 U.S.C.A. [section] 1203, while kidnapping is covered by 18 U.S.C.A. [section] 1201. 18 U.S.C.A. [section] 1116 deals with murder or manslaughter of foreign officials, official guests, or internationally protected persons. 18 U.S.C.A. [section] 1114 addresses the murder or attempted murder of federal officers and employees, including members of the uniformed services, while they are engaged in or on account of the performance of official duties. It also covers murder or attempted murder of any person assisting an officer or employee of the United States in the performance of those duties or on account of that assistance. (112)
Statutes of limitations, which preclude prosecutions after a specific amount of time has lapsed (typically five years), may also be affected during wartime. When the United States "is at war" or Congress has authorized the use of military force within the meaning of the War Powers Resolution, the Wartime Suspension of Limitations Act ("Suspension Act"), codified at 18 U.S.C. [section] 3287, extends the statute of limitations for the prosecution of certain crimes against the United States for five years beyond the termination of hostilities. Originally enacted during World War II, the Suspension Act previously extended the statute of limitations in relevant cases until three years after the end of hostilities only "when the United States is at war." One court had construed this language to refer only to a war declared by Congress, and held that the 1990-91 Persian Gulf conflict, although authorized by Congress, did not qualify. (113) Apparently also construing the phrase "is at war" to mean pursuant to a declaration of war, (114) Congress amended the provision in 2008 (115) to trigger its application also upon the enactment of an authorization to use military force "as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544 (b))." (116) (The military counterpart to the provision, found in 10 U.S.C. [section] 843(f), was not amended. It continues to suspend the applicable statute of limitations for three years beyond the end of hostilities, and applies "when the United States is at war.")
There are other criminal law provisions applicable to the military in the Uniform Code of Military Justice, 10 U.S.C.A. [section][section] 801 et seq. Some of these provisions apply specifically in times of war. These will be treated separately in the subsequent section of this report on "Military Personnel." (117)
Foreign Intelligence Surveillance
The Foreign Intelligence Surveillance Act (FISA), as amended, in pertinent part, authorizes electronic surveillance, physical searches, and the use of pen registers and trap and trace devices to gather foreign intelligence information and sets out the procedures and circumstances under which each of these investigative tools may be used. (118) In the event of a declaration of war, FISA authorizes the use of each of these investigative tools to gather foreign intelligence for up to 15 days without a court order. For electronic surveillance subsequent to a declaration of war, FISA provides, at 50 U.S.C.A. [section] 1811, that:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
In the context of physical searches, 50 U.S.C.A. [section] 1829 includes language similar to that in [section] 1811:
Notwithstanding any other provision of law, the President, through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress.
For pen registers and trap and trace devices, 50 U.S.C.A. [section] 1844 provides that:
Notwithstanding any other provision of law, the President, through the Attorney General, may authorize the use of a pen register or trap and trace device without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by Congress.
None of these provisions appears to be triggered by an authorization for the use of force or the existence of a state of war under any authority other than a congressional declaration of war. (119)
In addition to the foregoing provisions, FISA has been amended to authorize the use of these investigative tools without a court order for foreign intelligence purposes in "emergency" circumstances as determined by the Attorney General. To do so the Attorney General must (1) find that an emergency exists, (2) determine that the factual basis for the issuance of an order to approve such surveillance, physical search, or pen register or trap and trace device also exists, (3) advise a judge of the U.S. Foreign Intelligence Surveillance Court (FISC) that a decision to use the emergency authority has been made, and (4) apply to the FISC judge so notified for a court order as soon as practicable (but no later than within 72 hours in the case of an electronic surveillance or physical search or 48 hours in the case of a pen register or trap and trace device). (120) These provisions do not expressly address the question of whether such emergency procedures might be triggered either by an authorization for the use of force or by a congressional declaration of war. However, depending upon the circumstances involved, these emergency powers, or other provisions within FISA, (121) might be utilized.
As noted in the foregoing discussion of criminal law, 18 U.S.C.A. [section] 1116 makes it a crime to kill or attempt to kill a "foreign official, official guest, or internationally protected person." The term "foreign official" includes, among others, a Chief of State or the political equivalent thereof while he or she is in the United States. "Internationally protected person" covers, among others, a Chief of State or the political equivalent thereof, whenever such person is in a country other than his or her own. This criminal provision does not apply to the killing or attempted killing of an internationally protected person in his or her own country. The United States courts may exercise jurisdiction over the killing or attempted killing of internationally protected persons in violation of 18 U.S.C. [section] 1116 committed outside the United States where the victim is a representative, officer, employee or agent of the United States; where a perpetrator is a U.S. national; or where an offender is later found in the United States.
In addition, Part 2.11 of Executive Order 12333 forbids any person employed by or acting on behalf of the United States Government from engaging in, or conspiring to engage in, assassination. Part 2.12 of that executive order further prohibits any agency of the Intelligence Community from participating in or requesting any person to undertake activities forbidden by the order. The executive order does not define "assassination," nor does either the criminal statute or the executive order specifically address the applicability of the prohibition to an armed conflict in which the U.S. is engaged. However, in times of war, the targeting of an enemy's command and control structures may be regarded as strategically important, is lawful under international law, likely is not intended to be barred by E.O. 12333, and does not appear to be covered by 18 U.S.C. [section] 1116. Hence, a declaration of war, because it creates a state of war regardless of whether actual hostilities have occurred, arguably creates a situation where such an act is not prohibited by domestic law. Less clear is the effect of an authorization for the use of force. Once a state of war comes into existence following such an authorization, then the legal situation appears to be the same as with a declaration. But prior to that development, the legal effect of an authorization for the use of force on the assassination ban appears somewhat ambiguous.
An executive order may be revoked by the President through another executive order. To the extent that an executive order is issued pursuant to authority granted by statute, Congress may repeal it or terminate the underlying statutory authority upon which it rests. The assassination ban is part of an executive order issued by President Reagan in 1981 under both statutory and constitutional authority. The order does not indicate the nature of the authority underlying the assassination ban in particular. If one were to argue that a statutory basis for the ban exists, then one might contend that an authorization for a use of force would, by implication, modify the ban or repeal it with respect to the context in which the use of force was authorized.
The Defense Production Act of 1950
Conversely, declarations of war or authorizations for the use of force do not appear to have any particular consequences for the broad authorities conferred by the Defense Production Act of 1950 (DPA), as amended. (122) The DPA was first enacted in 1950 to mobilize the nation's productive capacity after the outbreak of the Korean War. It currently plays a key role in enabling the United States to maintain a national defense/military readiness capability that will support a rapid and effective response to any threat to U.S. national security, including "an attack on the United States." The DPA has been reauthorized and amended a number of times, most recently in 2009. The original 1950 act contained seven titles, four of which were rescinded in 1953. (123) Currently, three titles of the DPA are in effect, and they are due to expire on September 30, 2014, unless renewed. (124) The authorities contained in the act are not triggered by any particular event but are continuously available "to ensure the national defense preparedness, which is essential to national security. ..." (125)
Title I (Priorities and Allocations)
This title (126) provides the President with the authority to require the priority performance of defense contracts and to allocate scarce critical and strategic materials essential to the national defense. This authority may also be extended to support the military requirements of allied nations when such extension is in the U.S. national defense interest. Priority contract performance, especially as implemented with respect to industrial resources, is intended to ensure sources of supply and timely delivery of required items for defense purposes. (127)
The post-Cold War use of this authority includes the 1990-1991 operations in the Persian Gulf (Desert Shield/Storm). During this operation, such items as computer and communications equipment, Global Positioning System receivers, chemical warfare protective clothing, and medical supplies were urgently required by both U.S. and Allied nation forces. More recently, DPA authority has been used to ensure timely delivery of critically needed items to support the deployment of U.S. and NATO troops in Bosnia and nearby areas and the availability of natural gas in California's energy crisis in December, 2000, and January, 2001.
Title I contains a section that prohibits the President from exercising his priorities and allocations authority unless he makes certain findings supporting the need for such action. Additional sections provide the President with authority relating to the hoarding of designated materials, penalties for the violation of any provision of Title I, small business preferences, etc.
Title III (Expansion of Productive Capacity and Supply)
This title (128) is used only in cases where domestic sources are required and domestic firms cannot, or will not, act on their own to meet a national defense production need. Because private firms may be reluctant to invest in production capabilities for a new material unless a near-term demand for the material is relatively certain, Title III authorizes the use of financial incentives to expand defense-related productive capacity of critical components, critical technology items, and industrial resources "essential to the national defense." These financial incentives include loan guarantees, direct federal loans, purchases, purchase guarantees, and installation of equipment in contractor facilities. The authorities conferred in this title become broader in times of a national emergency declared by the President or Congress.
Title VII (General Provisions)
This title (129) includes various provisions with relevance to defense industrial preparedness. Examples include (a) Section 708, which authorizes the President to provide antitrust defenses to private firms participating in voluntary agreements aimed at solving production and distribution problems involving national defense preparedness; (b) Section 710, which establishes a National Defense Executive Reserve (NDER) composed of recognized experts from various segments of the private sector and government (except full-time federal) employees for training for possible employment in the federal government in the event of an emergency; and (c) Section 721, a provision popularly known as the "Exon-Florio Amendment," which authorizes the President to suspend or prohibit the acquisition, merger, or takeover of a domestic firm by a foreign firm if such action would threaten to impair national security. (130)
Another domestic legal issue implicated by declarations of war and authorizations for the use of force is their effect, if any, on insurance contracts, particularly with respect to clauses that exclude coverage for "acts of war." The overwhelming characterization of the events of September 11, 2001, as an "act of war" by public officials, sovereigns, international organizations, and the media, for instance, caused concern that insurance companies and the courts would interpret so called "war risk" exclusion clauses in the pertinent insurance contracts to deny claims related to the attacks. However, even a declaration of war by Congress does not appear to have an authoritative effect upon the construction of material terms contained in private contracts. (131) The intent of the parties, not the description of Congress, is what is most relevant to understanding whether the events of September 11 or any future terrorist attacks constitute "acts of war" within the meaning of private contracts, (132) and it is not uncommon for such exclusion clauses in insurance contracts to be given narrow constructions in order to allow recovery to the insured. (133)
In the leading case in this area, Pan American World Airways, Incorporated v. Aetna Casualty and Surety Company, (134) a jet was hijacked and destroyed by political dissidents in the Middle East. "Notwithstanding the obvious political overtones of the event," the court ruled that "the hijacking was too contained to come under the war or insurrection exclusion." (135) A rule of causation and a rule of identity informed this conclusion. According to the Pan Am decision, when a court interprets an insurance policy excluding from coverage any injuries "caused by" a certain class of conditions, "the causation inquiry stops at the efficient physical cause of the loss; it does not trace events back to their metaphysical beginnings." (136) In the Pan Am case, the court examined contract language excluding from coverage losses caused by a "military or usurped power" and stated that an act causing such a loss "must be at least that of a de facto government." (137) On the facts of the case, the court then found that the terrorist organization that highjacked the Pan Am airplane "was not a de facto government in the sky over London when the 747 was taken" (138) and held that the exclusion clause, therefore, did not apply.
This issue will not likely arise with respect to any future acts of terrorism on U.S. territory. In the aftermath of September 11, 2001, Congress enacted the Terrorism Risk Insurance Act to ensure the availability of commercial insurance coverage for losses due to acts of terrorism. (139)
A number of provisions of the U.S. Code concern crimes under the Uniform Code of Military Justice, the activation of the reserves, the role of the Coast Guard, tax benefits for military personnel, and disability and death as the result of combat duty. None appear necessarily to require a declaration of war to be applicable, but a declaration can trigger their application.
Crimes Under the UCMJ
Various crimes defined under the Uniform Code of Military Justice ("UCMJ," 10 U.S.C.A. [section][section] 801 et seq.) occur either primarily or exclusively in the context of states of hostilities (e.g., "misbehavior before the enemy" under section 899; "subordinate compelling surrender" under section 900; "improper use of countersign" under section 901; "forcing a safeguard" under section 902; "aiding the enemy" under section 904; "misconduct as prisoner" under section 905; and rules concerning "spies" under section 906). Several of these crimes either only occur or occur in aggravated form "in time of war."
The Manual for Courts Martial sets out Rules for Court Martial. Rule 103(19) defines the expression "time of war," as follows:
For purpose [sic] of ... implementing the applicable paragraphs of Parts IV and V of this Manual only, "time of war" means a period of war declared by Congress or the factual determination by the President that the existence of hostilities warrants a finding that a "time of war" exists for purposes of ... Parts IV and V of this manual. (140)
Thus, a congressional declaration is not indispensable to prosecutions of these crimes but can trigger their application. They do not appear to be triggered by an authorization for the use of force unless a state of war develops. In the absence of a presidential or congressional declaration, military courts have applied a variety of pragmatic tests to determine whether a "time of war" existed in connection with specific offenses. (141)
For some offenses, the statutes of limitations may be tolled in "time of war." (142) When the United States is "at war," the statute of limitations on offenses involving fraud against the United States or offenses committed in connection with U.S. property or procurement of contracts related to the prosecution of the war is suspended until three years after the termination of hostilities (10 U.S.C.A. [section] 843(f)). (143) These provisions have been held to apply during hostilities that were initiated without a declaration of war or congressional authorization to use force. (144)
The jurisdiction of the military expands during time of war. Prior to 2006, the UCMJ permitted trial by court-martial of "persons serving with or accompanying an armed force in the field" in time of war (10 U.S.C.A. [section] 802(a)(10)).When faced with the court-martial of civilians, courts interpreted the phrase "in time of war" to mean only during wars declared by Congress. (145) However, Congress amended 10 U.S.C.A. [section] 802(a)(10) to extend military jurisdiction in "time of declared war or a contingency operation." (146) The provision has reportedly resulted in one conviction of a civilian contractor in Iraq, (147) a non-U.S. citizen whose Iraqi citizenship precluded jurisdiction under the Military Extraterritorial Jurisdiction Act. (148)
In time of war or conditions of martial law, military commissions may provide a special venue for trying persons not otherwise subject to the UCMJ. (149) Military jurisdiction expands during war to cover civilians accused of violating sections 904 or 906 (aiding the enemy and spying), as well as other "offenders or offenses that by ... the law of war may be tried by military commissions, provost courts, or other military tribunals" ([section] 821), at least insofar as the Constitution permits. (150)
The Military Commissions Act of 2009, chapter 47A of Title 10, U.S. Code, permits the trial by military commission of "alien unprivileged enemy belligerents" suspected of committing violations against the law of war or "other offenses triable by military commission." (151) The commissions may try such persons for offenses committed "before, on, or after September 11, 2001," (152) without any requirement for the authorization for the use of force in response to the terrorist attacks of that date to have been in effect at the time the offense was committed. The definition of "unprivileged enemy belligerent" is restricted to those who engaged in or substantially supported hostilities against the United States or its coalition partners, except that those who were members of Al Qaeda at the time of the offense need not have such a connection to hostilities. (153) Thus, offenses defined by or under the jurisdiction of the Military Commissions Act do not depend on a declaration of war or authorization to use force.
Activation of Reserves
Chapter 1209 of title 10 of the United States Code (10 U.S.C.A. [section][section] 12301 et seq.) relates generally to activation of reserve forces. The Ready Reserve forces include members of the Army National Guard and the Air National Guard (see 10 U.S.C.A. [section] 10145(b)). The authority conferred under sections 12302 through 12304 can be exercised without a congressional declaration of war or national emergency; but those sections only allow reserve forces to be called to active duty for fixed statutory periods (i.e., up to 24 consecutive months under sections 12302 and 12303 and up to 270 days under section 12304). By contrast, the authority conferred under section 12301 can be exercised "[i]n time of war or of national emergency declared by Congress" and allows reserve forces to be called to active duty "for the duration of the war or national emergency and for six months thereafter." The Standby Reserve (as distinguished from the Ready Reserve and Selected Reserve forces) can only be called to active service under the authority conferred by section 12301 (see section 12306). While the Retired Reserve can be called to active service for up to 12 months under 10 U.S.C.A. [section] 688, it can be called to service "for the duration" under the authority conferred by section 12301 (see section 12307). So-called "stop loss" authority is conferred under section 12305. This authority allows the President, whenever persons are called to active service under sections 12301, 12302, or 12304, to "suspend any provision of law relating to promotion, retirement, or separation" with respect to any member of the armed forces who the President determines is essential to the national security of the United States. This means that, when persons have been called to active service under the authority conferred by section 12301 "for the duration" of a war or national emergency declared by Congress, otherwise applicable rules concerning promotions, retirements, and separations may not apply. Moreover, under section 671a, the "period of active service" of any servicemember is extended to six months beyond the duration of any war in which the United States is engaged, unless the Secretary concerned terminates the period at an earlier date. Thus, for all of these sections, a declaration of war is not a necessary predicate, but it can trigger the application of section 12301 and related provisions. Reemployment rights for reservists called to active duty available under the Uniformed Services Employment and Reemployment Rights Act (USERRA, 38 U.S.C.A. [section][section] 4301 et seq.) and benefits available through the Servicemembers Civil Relief Act (50 U.S.C.A. App. [section][section] 501-596) do not require a declaration of war, but depend generally on the authority under which the call to active duty was made, and may vary according to whether service was rendered during a period of war.
Section 3 of title 14 of the United States Code specifies that "[u]pon the declaration of war if Congress so directs in the declaration or when the President directs, the Coast Guard shall operate as a service in the Navy. ..." (154) Thus, a congressional declaration of war is not indispensable to bring the Coast Guard under the control of the Navy, but it would have that effect.
There are several provisions of the Internal Revenue Code which apply to taxpayers involved directly or indirectly with war. A congressional declaration of war is not needed to render any of these provisions applicable.
Perhaps the most significant relevant provision of the Internal Revenue Code is section 112 under which some or all of the pay received by members of the uniformed services for active service in a combat zone is excluded from gross income (i.e., is received tax-free). The same exemption applies to military pay received by service members hospitalized due to injuries sustained while serving in a combat zone, subject to a two-year limitation. The term "combat zone" is specially defined for purposes of this rule and means an area so designated by the President of the United States in an Executive Order, and such an Executive Order must be issued to make the tax exemption apply. No reference is made in this provision to any declaration by Congress of the existence of a state of war and, by its express terms, it applied to service in the Korean and Vietnam conflicts.
The pay of POWs and those listed as "missing in action" is also exempt (see (IRC [section] 112(d)).
In addition, pay received tax-free because of IRC [section] 112 is exempt from federal income-tax withholding under IRC [section] 3401(a)(1). Qualified military benefits are exempt from tax under IRC [section] 134, and these include bonus payments made by a state or its political subdivision to a current or former member of the Armed Forces, or to his or her dependents, by reason of service in a combat zone designated under [section] 112. Due dates for filing returns and for paying taxes, according to IRC [section] 7508, are deferred for members of the uniformed services serving in a combat zone designated by the President for purposes of IRC [section] 112. Telephone calls originating from combat zones designated under IRC [section] 112 are exempt from the federal excise tax that would otherwise apply (see IRC [section] 4253(d)). The so-called "additional estate tax" does not apply in the case of the estate of a member of the Armed Forces who is killed in action in a combat zone designated under IRC [section] 112 or who dies as a result of wounds, disease, or injury suffered in such a combat zone (see IRC [section] 2201).
An exemption from federal income tax for the current taxable year and any prior taxable year ending on or after the first day of service in a combat zone and the preceding taxable year is allowed under IRC [section] 692 for a member of the Armed Forces who dies in a combat zone designated under IRC [section] 112 or who dies as a result of wounds, disease, or injury suffered in such a combat zone. In addition, any unpaid taxes owed at the time of death will be forgiven. A similar exemption is also allowed in the case of a civilian federal employee killed in any military action involving the United States (see IRC [section] 692).
Special rules for spouses of persons who become missing in action also appear in the Code (see IRC [section][section] 2(a)(3) and 6013).
Disability and Death
Subchapter II of chapter 11 of title 38 of the United States Code (38 U.S.C. [section][section] 1110 et seq.) relates to "wartime disability compensation." Relevant disability must result from personal injury suffered or disease contracted in the line of duty in active military, naval, or air service "during a period of war." (155) Thus, there is no explicit requirement of a congressional declaration of war. On the other hand, such a declaration would obviously assure that the particular period of hostilities in question is indeed a period of war. Some other veterans' benefits depend on whether the person seeking benefits served during a period of war.
Chapter 13 of title 38 of the United States Code (38 U.S.C.A. [section][section] 1301 et seq.) relates to service- connected deaths. Compensation in connection with such deaths is accorded without regard to whether or not they occurred during or as a result of a war declared by Congress.
Rules under 38 U.S.C.A. [section] 2402 relating to the eligibility of members of the Armed Forces who die while on active duty to be buried in national cemeteries (including Arlington National Cemetery) and other rules concerning burial benefits are not contingent on a congressional declaration of war.
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|Title Annotation:||p. COV-42|
|Author:||Elsea, Jennifer K.; Weed, Matthew C.|
|Publication:||Congressional Research Service (CRS) Reports and Issue Briefs|
|Date:||Apr 1, 2014|
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