made the initiative is unclear, although its origin in the broadest sense appears to have been the pressure of the Congress on the Administration for a stronger approach to the Cuban problem. The resolution contains no clauses "authorizing" the President to do anything, and the President took the position that he needed no authorization, although he welcomed an appropriate endorsement. There are no specific provisions on terminating the resolution. D. The Berlin Resolution, 1962.-House Con. Res. 570, concurred in on October 10, 1962, states the sense of the Congress that the continued exercise of U.S., British and French rights in Berlin constituted a fundamental political and moral determination; that the U.S. would regard any violation of those rights, including the rights of ingress and egress, as intolerable; and that the U.S. was determined. to prevent any such violation by whatever means may be necessary, including the use of arms; and to fulfill its commitment to the people of Berlin. The Berlin Crisis of 1961 faded in October of that year, with Khrushchev's downplaying of the importance of a deadline for the signing of an East German peace treaty. In 1962, Berlin corridor harassment had continued, as did incidents involving the Berlin wall, construction of which had begun the previous August. The Soviet Union continued to assert the intention to sign a separate peace pact unless the Western powers came to terms on a new regime for Berlin, but Khrushchev refrained from imposing a new deadline. Meanwhile, as indicated in the previous section on the Cuban resolution, the nation was debating whether there was a serious threat from Soviet missiles shipped to Cuba. Representative Zablocki, sponsor of the resolution, pointed out that the Congress, representing the American people, had not yet been heard from in support of President Kennedy's position on Berlin. The resolution cleared the House 312-0 October 5 and the Senate five days later by voice vote, with six Senators on the floor at the time. The resolution, while clearly supporting U.S. foreign policy against threatened Communist pressure, is not usually considered in quite the same category as the four major foreign-policy-support resolutions, in that the President apparently did not request it and it did not take the form of a joint resolution. E. The "Gulf of Tonkin" Resolution, 1964.-Sometimes called the "Southeast Asia" Resolution, Public Law 88-408, H.J. Res. 1145, approved August 10, 1964, approved and supported the "determination of the President as Commander in Chief, to take all necessary measures to repeal any armed attack" on U.S. forces and to prevent further aggression. It affirmed that the United States was "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." It provided that the resolution expire by presidential determination concerning the peace and security of the area or by congressional concurrent resolution. The two Gulf of Tonkin incidents occurred on August 2 and 4, 1964, with U.S. air retaliation following on August 4. In a special message on August 5, President Johnson recommended prompt enactment of a resolution expressing support for all necessary action to protect United States armed forces and to assist nations covered by the SEATO treaty, "to give convincing evidence to the aggressive Communist nations, and to the world as a whole, that our policy in Southeast Asia will be carried forward-and that the peace and security of the area will be preserved." The President cited the importance of showing hostile nations "that there is no division among us," at a time "when we are entering on three months of political campaigning." Within two days, the resolution had been adopted, 414-0 in the House and 88-2 in the Senate. Some members of Congress have spoken of a "blank check," a vast grant of power to the President. President Johnson, referring to the air retaliation he ordered, stated on signing the resolution, "As Commander in Chief, the responsibility was mine-and mine alone * * *" and subsequently, "This resolution confirms and reinforces powers of the Presidency ***" 6 The Southeast Asia Resolution was repealed by Section 12 of the Foreign Military Sales Act Amendments (P.L. 91-672), approved January 12, 1917. F. Implied Authorizations. Sometimes it has been contended that congressional support for hostilities through such means as the above resolutions and appropriations for the fighting forces constituted adequate congressional authorization for the conflict despite the absence of a declaration of war. The Supreme Court has not ruled on the matter, and lower courts which have been willing to consider war powers cases have divided on the issue. For example, in Orlando v. Laird the Second Circuit held that the Tonkin Gulf resolution and other congressional action, including the furnishing of manpower and materials in war for protracted operations, constituted sufficient congressional authorization for the military activity in Vietnam." On the other hand, in Mitchell v. Laird, another court, although dismissing the case on the political question ground, expressed the view that congressional votes in favor of the appropriations on the draft did not necessarily signify approval of the war but rather unwillingness to abandon men already fighting.s In recent years Congress has taken steps in two directions to prevent its actions from being construed as authorization and support for a war unless it was so intended. Along one line it has written clear prohibitions, already described, into authorization and appropriation legislation. Along another line it has put on record that congressional authorization for commitments and hostilities was required to be specific, not implied. The National Commitments Resolution, S. Res. 85, passed June 25, 1969, stated the sense of the Senate that a national commitment, defined to mean the use of the armed forces of the United States on foreign territory, or a promise to assist a foreign country by the use of the armed forces or financial resources of the United States, resulted "only from affirmative action taken by the executive and legislative branches of the United States Government by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment." Public Papers of the President: Lyndon B. Johnson, Vol. II, 1963-64, pp. 946-7. 7443 F.2d 1039 (2d Cir.). 8 448 F. 2d 484, 615 (1973). The 1973 War Powers Resolution, already described, went further and required the President to terminate any use of U.S. forces in hostilities within sixty or ninety days unless Congress declared war or enacted a specific authorization for such use. This legislation begins a new chapter in the history of executive-legislative roles in the use of U.S. Armed Forces abroad. APPENDIX I MAJOR U.S. ARMED ACTIONS 1 OVERSEAS, WITH RELEVANT A. DECLARED WARS 1. War of 1812.-Congress declared war on Great Britain, June 17, 1812. Madison's review of grievances did not actually call for war, but Congress resolved the matter with a joint resolution declaring war. 2. Mexican War, 1846.-U.S. troops under General Zachary Taylor were ordered by President Polk to occupy the land between the Nueces and Rio Grande Rivers, territory also claimed by Mexico. This was done without any authorization from Congress. Mexican troops surprised and mauled an American unit, and Polk sent a message to Congress asking that it recognize the existence of hostilities. Congress responded by a resolution declaring that a state of war existed between the U.S. and Mexico. There was opposition to the war from the beginning, which grew stronger with time. The House added a rider to a resolution honoring General Taylor on January 3, 1848, stating that the war was begun "unnecessarily and unconstitutionally" by the President. 3. Spanish-American War, 1898.-President McKinley at first merely requested Congress' permission to use military and naval forces to effect a cessation of hostilities between Spain and its rebellious possession, Cuba, and to establish a stable government in the latter. The Senate added a provision to this request recognizing the independence of Cuba. This provision was opposed by the President and deleted in the conference with the House. A resolution was passed giving the President discretionary authority to use military force to satisfy U.S. aims with respect to Spain and Cuba. Spain responded by declaring war on the U.S. In response, McKinley ordered Dewey to attack the Philippines. He then asked for a declaration of war, which Congress gave, stating that war had existed from the day Spain declared it against the U.S. 4. World War I, 1917-1918-President Wilson asked Congress to recognize that the course of the German government amounted to war against the United States. Congress responded by a joint resolution declaring that a state of war existed between the Imperial German Government and the U.S. War was not declared against Austria-Hungary until December, 1917, eight months after the declaration against Germany. 5. World War II.-After the Japanese attack on Pearl Harbor on December 7, 1941, President Roosevelt went before Congress the next day, and asked for a declaration of war, dating from the time of the Pearl Harbor attack. Germany and Italy, who were allies of Japan, then declared war on the United States. On December 11, President Roosevelt asked that Congress recognize a state of war between the U.S. and Germany and the U.S. and Italy, a request to which Congress acceded the same day." B. OTHER ACTIONS Armed Action Undeclared naval war with France, 1798-1800.-This was a limited war, fought essentially for the protection of American Merchant ships which were being harassed by French naval vessels. This contest included some land actions, i.e., the capture by U.S. marines of a French privateer under the guns of the forts in the Dominican city of Puerto Plata. Congress : Congressional Action 1. Created a Navy Department. 3. Abrogated treaties and consular 4. Authorized the enlistment of a "provisional army" for the duration of the emergency. 5. Authorized seizure and bringing into port of armed French vessels which had been preying on American shipping. Did not authorize seizure of unarmed French vessels.3 1 Armed action means the confrontation of U.S. forces with those of a foreign government or revolutionary faction, usually, but not always resulting in an actual clash. 2 For an account of the moves short of war by which the U.S. sought to aid Britain in its fight against Germany, see part B of this Appendix. 3 Two days before Congress authorized the seizure of French ships, a lone U.S. naval vessel had been sent out on patrol to protect U.S. coastal waters between Long Island and the Virginia Capes. B. OTHER ACTIONS-Continued Armed Action Congressional Action "An Act for the Protection of the Commerce and Seamen of the United States, against the Tripolitan Cruisers." It authorized the President to protect commerce and seamen, to seize and make prizes of vessels belonging to Tripoli, and all other acts of precaution and hostility as in a state of war. This amounted to subsequent approval of Jefferson's actions, plus the authority which only Congress could grant: to take prizes and to give commissions to privateers. An act levying revenue duties to pay the cost of the naval operations was likewise approved. War with Tripoli, 1801–1805.-The so- In 1802 Congress passed a law entitled called Barbary pirates exacted tribute from countries whose ships plied the Mediterranean. The European nations paid, finding this the easiest way. When Jefferson became President the Pasha of Tripoli, feeling tribute paid by the U.S. was insufficient, declared war. Jefferson sent warships to the Mediterranean which, after several naval actions, succeeded in winning a treaty from Tripoli more favorable than any other nation had yet secured from her. During this conflict a few U.S. marines were landed with U.S. Agent William Eaton, with a view to raising a force to free the crew of the Philadelphia. This expedition penetrated as far as Derna, on Tripoli's eastern frontier, and probably influenced the Pasha to make peace. Boxer Rebellion, 1900.-In 1900 a series of anti-foreign disorders erupted in China, fomented by a secret society known to Westerners as Boxers. This uprising was encouraged by elements within the Imperial Government, but it was not, strictly speaking, a war waged by that government. The high point of the rebellion came when the Boxers rampaged through Peking, and laid seige to the foreign legations there. An international force was organized to lift the siege, and a U.S. contingent of 2,500 men was sent by President McKinley to join this international force. These U.S. troops came from forces already mobilized for the Spanish-American War and the Philippine Insurrection. For many years thereafter the U.S. maintained a guard at Peking and other military forces at certain places on Chinese territory, pursuant to authority acquired from the Chinese. Congress authorized the expedition against Algiers. Specifically, it authorized the use of armed vessels, "as may be judged requisite by the President." The same legislation made it lawful to take prizes. None.-Congress was not in session at the time. There was little protest when Congress did reconvene, how ever. Although favorable in comparative terms, the treaty still recognized the right of the pirates to obtain ransom for imprisoned Americans. |