HOW AMERICA GOES TO WAR

 

From: THE PROGRESSIVE CONSERVATIVE

An Online Journal of Political Commentary & Analysis

Volume II, Issue # 1, June 10-December 31, 1999

Dr. Almon Leroy Way, Jr., Editor

 

THE PRESIDENT, AMERICAN LAW, & U.S. MILITARY
INTERVENTION INTO FOREIGN CONFLICTS

 

CONTENTS


 

A. The War Powers--Public Debate & Controversy

 

B. Constitutional Allocation of the War Powers

 

C. The Allocation & the Intent of the Founders

 

D. The Founders' Intent & Late Twentieth-Century Reality

 

E. U.S. Military Actions Without Declarations of War--The Post-World War II Era, 1945-1999

 

F. U.S. Military Actions Without Declarations of War--United States History, 1789-1999

 

G. Development of an Independent Presidential War-Making Power

 

      Hamilton's View of the Presidential War-Making Power

      The Power of Congress to Declare War

      The President's Use of Article XLIII of the U.N. Charter

      The President's Use of the Joint Resolution

      The President's Reliance on Prerogative Theory

 

H. Vietnam & Independent Presidential War-Making

 

I. The New Mood of Withdrawal & Congressional Revolt

 

      A Resurgence of Isolationism

      The Brewing Congressional Revolt

      The Impact of the System of Checks & Balances

      The Impact of Partisan Politics

      The Impact of Human Nature

      The Congressional Revolt in Progress

 

J. The War Powers Act of 1973--Key Provisions

 

      Purpose & Rationale of the War Powers Act

      Consultation Requirements under the War Powers Act

      Reporting Requirements under the War Powers Act

      The War Powers Act & Restrictions on Presidential Action

 

K. Constitutionality of the War Powers Act

 

L. Presidential War-Making under the War Powers Act

 

      President Ford & the War Powers Act

      President Reagan & the War Powers Act

      President Bush & the War Powers Act

      President Clinton & the War Powers Act

            Intervention into the Civil War in Somalia

            Military Action Against Iraq

            Intervention into the Political Turmoil in Hati

            Intervention into the Ethnic Conflict in Bosnia

            Continuing Military Engagement with Iraq

            Intervention into the Kosovo-Yugoslav War

 

M. Montenegro--The Next Occasion for U.S. Intervention?

 

 

From: THE PROGRESSIVE CONSERVATIVE

An Online Journal of Political Commentary & Analysis

Volume II, Issue # 1, June 10-December 31, 1999

Dr. Almon Leroy Way, Jr., Editor



 

Page One

 

 

HOW AMERICA GOES TO WAR

 

THE PRESIDENT, AMERICAN LAW, & U.S. MILITARY
INTERVENTION INTO FOREIGN CONFLICTS

 

 

A. THE WAR POWERS--PUBLIC DEBATE & CONTROVERSY

 

One impact the Kosovo crisis and the American-led NATO military intervention into the Yugoslav conflict has been revival of public debate and political controversy within the U.S.A. over the proper and legitimate exercise of the national government's war-making powers under the United States Constitution. As was the case in the late 1960s and early 1970s, during the period of direct, massive, and escalating U.S. military involvement in the Vietnam War, politically influential individuals and groups within American society are questioning the constitutionality of the nation's participation in an undeclared war abroad. During the 78-day period of NATO's air strikes in Yugoslavia, highly articulate voices began to be heard insisting that, in the absence of a congressional declaration of war or an overt foreign military attack on the territory or military forces of the U.S.A., a presidential decision to commit American troops to a foreign war is a violation of the United States Constitution. Antiwar voices, emanating mainly from the political Right (rather than from the political Left, as was the case during the Vietnam War), asserted that, since President William J. Clinton's involvement of the U.S. Armed Forces in the Kosovo crisis and the aerial bombing campaign over Yugoslavia is unconstitutional, Congress should oppose and block further implementation of Clinton's military policy in the region, making use of the War Powers Act of 1973 to compel the President to withdraw American military forces from the Balkans and bring the troops back home. At the same time they were urging congressional action along these lines, opponents of the President's military policy were also seeking to pursue in the U.S. Courts a constitutional challenge to the President's involvement of the U.S.A. in the Balkan war, hoping to get the case heard by the Supreme Court and obtain from it a clear and unambiguous ruling that presidential war-making in foreign regions without congressional authorization is unconstitutional and null and void.

 

Public controversy over the war powers of the national government and over which branch of government, legislature or executive, may legitimately (i.e., legally, or lawfully) exercise these powers is a recurring theme in American political and constitutional history. Committing American forces to military conflict abroad has always stimulated political and legal controversy over which governmental branch has the constitutional authority to make such a commitment. What are the reasons for this? One reason is that, in the arena of American partisan political rivalry, no governmental function is sacred and above the rough and tumble of partisan politics and, therefore, professional politicians have a very strong tendency to "play politics" in taking public positions on matters of national defense and security. A second reason, much more important and fundamental, is that, under the U.S. Constitution, both Congress and the President possess powers which can be construed as controlling the comitment of troops to armed conflict. The Constitution does not lodge the war powers in a single organ or branch of the national government; instead, its grants some of these powers to Congress and others to the President.



 

B. CONSTITUTIONAL ALLOCATION OF THE WAR POWERS

 

Article I, Section 8, Clause 1, of the U.S. Constitution grants to Congress the power to "lay and collect Taxes" (and, by implication, appropriate money from the U.S. Treasury) in order to "provide for the Common Defense ... of the United States." In the same article and section, Clauses 11-16 and 18 delegate to Congress the following powers:

 

    "To declare War, grant letters of Marque and Reprisal, and

        make rules concerning Captures on Land and Water;"

        [Clause 11]

    "To raise and support Armies (including, by implication, an

        Air Force), but no Appropriation of Money to that Use

        Shall be for a longer period than two Years;"

        [Clause 12]

    "To provide and maintain a Navy;"

        [Clause 13]

    "To make rules for the Government and Regulation of the land

        and naval Forces;"

        [Clause 14]

    "To provide for calling forth the Militia to execute (i.e.,

        enforce) the Laws of the Union, suppress Insurrections

        and repel Invasions;"

        [Clause 15]

    "To provide for organizing, arming, and disciplining the

        Militia, and for governing such Part of them as may be

        employed in the Service of the United States, reserving

        to the States respectively, the Appointment of the Of-

        ficers, and the Authority of training the Militia ac-

        cording to the discipline prescribed by Congress;"

        [Clause 16]

    "To make all Laws which shall be necessary and proper for

        carrying into Execution the foregoing [war] powers [of

        Congress] ... and [those war powers] "vested by this

        Constitution in [the President] ...."

        [Clause 18]

 

Arguments for congressional control of commitment of the nation's military forces to foreign hostilities are based on the enumerated delegations of power to Congress contained in the foregoing clauses of Article I, Section.

 

Those who favor the President's control of America's military commitments abroad rest their case on Article II, Section 2, Clause 1, of the Constitution:

 

    "The President shall be Commander in Chief of the Army and

        Navy"--and, by implication, any other military forces

        (including the Air Force) "of the United States, and of

        the Militia of the several States, when called into the

        actual Service of the United States;"



 

C. THE ALLOCATION & THE INTENT OF THE FOUNDERS

 

In dividing the war-making powers between Congress and the President, the Framers of the U.S. Constitution sought to make the system of checks and balances they were creating applicable to governmental decisions of war and peace and to thereby impose limits on the authority of the national government to commit the country to foreign hostilities. It was the Framers intent that Congress would make the decision as to whether or not, in a given situation, the U.S.A. would go to war. Congress would make such a momentous decision through exercise of its powers to grant or withhold a war declaration proposed by the President and to appropriate or decline to appropriate funds for the purpose of raising, supporting, and maintaining the military forces necessary for successful prosecution of the war.

 

Once Congress had made the decision to go to war, having declared war and having authorized recruitment, support, maintenance, and mobilization of the necessary military forces, the President, as Commander in Chief, would have full authority and responsibility under the Constitution for successful prosecution of the war against the enemy power or powers officially designated as such by Congress in its declaration of war. In military strategy and operations, the President, as supreme commander of the U.S. Armed Forces and of the state militia (National Guard) units called into the national military service, would become dominant and remain so until the enemy had been defeated, its threat to the U.S.A. removed, and the war had come to an end.

 

The Framers' allocation of the war powers between Congress and the President was in accord with the philosophy that (1) a legislative assembly consisting of the people's elected representatives should decide, by majority vote, whether the country was to go to war against a foreign foe and (2) once the determination to go to war had been made by this representative assembly, the successful prosecution of the war required that a single high civil officer, preferably the nation's civilian chief executive, be in full command of the military forces. A large body of elected representatives should decide the question of going to war, but a single person had to be in complete charge of the actual waging of the war, if it was to be waged successfully.



 

D. THE FOUNDER'S INTENT & LATE TWENTIETH-CENTURY REALITY

 

In the late eighteenth century, the Framer' constitutional allocation of the war powers and the philosophical assumptions underlying the allocation were far more realistic than they are today, very close to the end of the twentieth century. At the time of the Federal Constitutional Convention of 1787, when the delegates to the Convention were considering the matter of allocating the central government's war powers, the U.S.A. was a geographically distant country, separated by a vast ocean from Europe and its frequent wars. It required weeks for the slow-moving sailing vessels of the late 1700s to transport military personnel, supplies, and equipment from Europe across the Atlantic Ocean to the North American continent. This gave Congress ample time, in the event of serious trouble between the U.S.A. and one or more European powers, to debate and deliberate on the issue of committing the country to all-out war with the European power(s). Once the two houses of Congress had passed the war declaration recommended by the President, had approved taxes and appropriations to fund the war effort and had provided for calling the state militias into the national service, there would be plenty of time for recruiting, organizing, and mobilizing the military forces that would engage the enemy.

 

Most of the delegates to the Constitutional Convention perceived the raising and support of armies as a governmental function to be performed on an occasional and temporary basis--a measure taken by the national government to deal with a temporary emergency, an emergency in the form of a threat to American sovereignty and independence created by the hostile actions of one or more foreign states. Once a peace treaty had been concluded and the foreign threat ended, Congress would provide for disbanding the armies and sending the troops back home and would sharply reduce military appropriations. With peace restored, the President's role as Commander in Chief would revert to its normal character--a role much smaller and less significant in time of peace than in time of war.

 

The overwhelming majority of the delegates to the Constitutional Convention did not foresee the formation and maintenance in the U.S.A., during peacetime as well as wartime, of permanent, large-scale military forces. Most Americans of the period were opposed to the very idea of such a military policy, seeing it as an unnecessary and unfair burden on the taxpayers and a great danger to civil liberties. Americans, like their British cousins, tended strongly to fear large standing armies, unwilling to pay the costs of their maintenance during peacetime and viewing them as potential instruments of arbitrary and tyrannical rule by the Chief Executive or by the military establishment, therefore constituting a serious threat to constitutional, representative government, the rule of law, and the rights and liberties of the individual citizen or subject under the Constitution. Such military forces were seen as an onerous and oppressive financial strain on the populace and an avenue to executive despotism or military dictatorship.

 

As American governmental institutions and their underlying political culture have evolved over the past two centuries, both executive tyranny and military dictatorship in the U.S.A., with or without large standing armies, have become very remote possibilities. The danger of tyrannical rule by the Chief Executive has been minimized by--

 

      (1)  The fundamental political values and beliefs of Ameri-

           cans--values and beliefs that are widely shared and

           strongly held by the people, by elites as well as the

           general populace;

 

      (2)  Meaningful elections held regularly and frequently;

 

      (3)  Operation of the constitutional system of separation

           of powers and checks and balances;

 

      (4)  A strong and independent bicameral national legisla-

           ture, the U.S. Congress;

 

      (5)  Operation of a system of courts based on the rule of

           law and largely independent of both the Chief Execu-

           tive and the Congress;

 

      (6)  The availability of the impeachment process to deal

           with the President or any other federal civil officer

           who violates the Constitution and/or other laws of the

           United States.

 

The danger of military dictatorship has been attenuated by civilian control and direction of the Armed Forces and by the military establishment's own basic norms--norms which dictate that military personnel (especially commissioned officers of high rank) not become actively and publicly involved in partisan politics while they are on active duty or subject to call to active duty. These norms are strictly enforced by application of very unpleasant sanctions against violators. A military officer making public statements about politically controversial matters and/or openly engaging in activities relating to such matters puts his military career (including opportunity for future advancement and choice assignments) in serious jeopardy. Even if he survives efforts of his superiors to demote him or drum him out of the service, his goose is cooked. He would be wise to seek early retirement.

 

While America's more than 200 years of political and cultural evolution has significantly weakened opposition to and strengthened support for large standing military forces in the U.S.A., the existence of such forces on a continuing basis have been made absolutely necessary by changes that have occurred in the nation's external, or international, environment. In the contemporary era, the maintenance of large-scale, well-equipped, and well-organized standing military forces, capable of rapid and decisive action in the event of foreign hostilities, is essential to American national defense and security. Today, the U.S.A. exists and operates in a tense and troubled world of numerous sovereign states with conflicting interests and clashing world views--a world in which there is widespread access (via research and development or, failing that, via espionage and the international blackmarket) to modern military technology and in which wars involve rapid deployment of military personnel, supplies, equipment, and arms (including intercontinental ballistic missiles). To survive in this world and preserve our system of governance and way of life, the American nation-state must be able and willing to move quickly and decisively to deal with any foreign power or combination of foreign powers which attacks or in any other manner endangers the territory and military forces of the United States or which threatens our vital national interests abroad.

 

When the U.S.A. is faced with such a foreign threat, as has frequently been the case during recent decades, the President, as Commander in Chief, must take swift and decisive action to confront and ward off or eliminate the threat. More often than not, this necessarily entails the President's immediately ordering the Armed Forces into action against the enemy and, at a later date, concerning himself with obtaining from Congress official ratification or endorsement of his action. In short, the President, without first securing from Congress a declaration of war or other authorizing legislation, can and often does send U.S. military forces into action against a foreign enemy or potential enemy, thereby committing the nation to war.

 

This situation was not appreciably changed by the three most significant international developments of the late 1980s and early 1990s--the dissolution of the Warsaw Pact, the collapse of the Soviet Union, and the end of World War III (i.e., the "Cold War"). In the post-World War III era, recent international developments--e.g., the revival of ancient ethnic and religious animosities, reemergence of the Balkans as the "powderkeg" or "tinderbox" of Europe, increased international terrorist activity, the sale of nuclear weapons in the international blackmarket, the efforts of rogue states to develop nuclear and biological warfare capabilities, and the presence in the world of more than a few hostile, anti-Western LCDs, each aspiring to become a world superpower (or, at least, the dominant power in its own region) and hoping to utilize its strengthened position to challenge American hegemony and to undermine and ultimately destroy Western civilation--have added to and thereby complicated the general problem of protecting the vital national-security interests of the U.S.A. at home and abroad and of working with our allies to promote the conditions essential to world peace.

 

The international environment in which the U.S.A. exists and operates remains tense, troubled, and volatile. When military emergencies happen, they happen suddenly and often unexpectedly. To meet such an emergency, the nation must move swiftly. There is no time for raising, training, and equipping the country's military forces. To be effective, the military forces must be forces in being, preexisting forces that can be quickly deployed and that are fully trained, equipped, and prepared to accomplish their mission.

 

One person, the civilian Chief Executive, must be fully in charge and have ample statutory as well as constitutional authority to order the troops into military action in foreign regions. It is the proper function of Congress to enact and provide for executive implemention of standing legislation prescribing the general military policy of the U.S.A., including provisions defining in advance the general conditions and circumstances under which the nation would automatically become involved in a war with a foreign foe, whether that foe be an established sovereign state, an alliance of sovereign states, an international terrorist group, a foreign or international violent revolutionary movement, a gang of international blackmarketeers, or some other type of hostile foreign threat. When such conditions and circumstances are present and the U.S.A. is facing a hostile foreign threat, it is--or should be--the proper function of the President, as Commander-in- Chief and national Chief Executive, to quickly and decisively order the military action needed to remove the threat and, after he has issued the order and made certain that it is being carried out, to issue a presidential proclamation officially announcing and explaining to Congress and the nation the fact that the conditions and circumstances obtain and that the country is at war. Military emergencies no longer allow time for Congress to debate and deliberate on passage of a declaration of war or for the President to wait around and take action only after Congress has gotten around to passing the war declaration.

 

What could be done about a president who deliberately misleads Congress and the nation in order to start a war which, in the absence of presidential deception, would not have occurred? If there is strong and widespread suspicion that the President knowingly made false and misleading statements in his war proclamation and thereby abused his war-making authority, a congressional investigation could be conducted--most appropriately, after the military emergency has ended--and, if the evidence warrants it, impeachment proceedings could be instituted against the President. To augment its ability to impeach the President, put him on trial, convict him and remove him from office, Congress could, prior to such proceedings being initiated against a given president, enact a general statute granting every future presidential proclamation the status of a statement of facts given under oath, thus making any false and misleading statement the President makes in the proclamation a violation of the laws against perjury.

 

Considering the technology and characteristics of modern warfare, official declarations of war are obsolete. A modern war begins prior to a declaration of war. War begins when opposing military forces have been mobilized and are on the move.

 

 

 

THE PROGRESSIVE CONSERVATIVE

An Online Journal of Political Commentary & Analysis

Volume II, Issue # 1, June 10-December 31, 1999

Dr. Almon Leroy Way, Jr., Editor

 

 

Page Two

 

HOW AMERICA GOES TO WAR

 

THE PRESIDENT, AMERICAN LAW, & U.S. MILITARY
INTERVENTION INTO FOREIGN CONFLICTS

(Continued)



 

E. U.S. MILITARY ACTIONS WITHOUT DECLARATIONS OF WAR--THE POST-WORLD WAR II ERA, 1945-1999

 

Official declarations of war having been rendered obsolete by the technology and charactersitics of modern warfare, it should come as no great surprise to a person when he or she realizes that, during the fifty-three and one-half years following the close of World War II in 1945, the U.S.A. has been involved in numerous military conflicts abroad, including four major wars as well as many smaller-scale military interventions--not any of which (whether a major war or a smaller-scale military action) was associated with a congressional declaration of war.

The four major wars in which the U.S.A. has been directly involved during the past half century are listed below, the name of each war followed by the years of direct American military engagement.

 

      1.  The Korean War [1950-1953];

      2.  The Vietnam War (The Second Indochina War) [1961-1975];

      3.  The Persian Gulf War (Operation Desert Storm) [1991];

      4.  The Kosovo-Yugoslav War [1999].

 

As regards the Persian Gulf War and the Kosovo-Yugoslav War, American military action in each of these conflicts lasted less than a year. The wars in Korea and Vietnam, however, entailed much longer periods of U.S. military action, much greater costs to the American taxpayers, and many more casualties among American military personnel than did the wars in the Persian Gulf and Kosovo-Yugoslavia regions. The U.S. military action in Korea lasted three years and the one in Vietnam lasted fourteen years, making it America's longest and most drawn-out war--the longest and most drawn out war in the entire history of the U.S.A. as an independent, sovereign nation-state. Despite the length of the Korean and Vietnam Wars, neither President Harry S. Truman in 1950 nor President John F. Kennedy in 1961 bothered to request a congressional declaration of war, either before or after sending American troops into foreign hostilities. Likewise, President Lyndon B. Johnson, in 1964, did not recommend a declaration of war, before or after he ordered a substantial escalation of direct U.S. military involvement in the Vietnam War.

 

While Operation Desert Storm and U.S. military action in Kosovo and Serbia constituted much shorter periods of U.S. involvement in armed combat with foreign foes, both President George W. Bush in 1991 and President William J. Clinton in 1999 had ample time and opportunity, after war had begun, to recommend declarations of war--President Bush during the 42-day military campaign against the regime of Iraqi dictator Saddam Hussein and President Clinton during the 78-day aerial bombardment of Serbia and Serb military forces in Kosovo. However, such recommendations from the President were not forthcoming. (Qualification: In early May, 1999, during the aerial war in Yugoslavia, members of the U.S. House of Representatives, independently of presidential initiative or instigation, introduced into the House a resolution which, if it had been passed by both chambers of Congress and signed by the President, would officially declare that a state of war existed between the U.S.A. and Yugoslavia. The House, however, refused to pass the proposed declaration of war.)

Ergo, the port-World War II era has, thus far, been an era of wars without official declarations of war. Since 1945, the history of U.S.A. activity in the arena of international politics has been, among other things, the history of presidential war-making and U.S. actions abroad without congressional declarations of war. But what about the presence or absence of such phenomena during the entire history of the U.S.A. under the U.S. Constitution, from 1789 to 1999?



 

F. U.S. MILITARY ACTIONS WITHOUT DECLARATIONS OF WAR--UNITED STATES HISTORY, 1789-1999

 

Throughout the history of the U.S.A. under the Federal Constitution, there have been hundreds of instances in which the nation's Armed Forces, operating solely on the basis of presidential orders and without the benefit of congressional declarations of war, were engaged in military conflict abroad. While most of these undeclared conflicts were short rather than protracted engagements, each beginning and ending so quickly that there was no opportunity for congressional consideration and approval of the President's action, Congress has not always declared war when the nation became involved in a longer, more drawn out conflict. In fact, Congress has declared war in only five of the thirteen major shooting wars in which the U.S.A. has been involved:

 

      1.  The War of 1812 against Great Britain [1812-1814]*;

      2.  The Mexican-U.S.A. War [1846-1848]*;

      3.  The Spanish-American War [1898]*;

      4.  World War I [1917-1918]*;

      5.  World War II [1941-1945]*.

      *Dates of America's direct involvement in the war.

 

In each of the eight other major wars involving the U.S.A., Congress did not pass a declaration of war and the President did not recommend to Congress that it pass such a declaration. The eight undeclared major wars were:

 

      1.  The U.S. naval war with France [1798-1800]*;

      2.  The first war against the Barbary pirate states of

          North Africa [1801-1805]*;

      3.  The second war against the Barbary states [1815]*;

      4.  The Mexican-U.S.A. conflicts immediately preceeding

          American entrance into World War I [1914-1917]*;

      5.  The Korean War [1950-1953]*;

      6.  The Vietnam War [1961-1975]*;

      7.  The Persian Gulf War [1991]*;

      8.  The Kosovo-Yugoslav War [1999]*.

      *Dates of America's direct involvement in the war.

 

The many other undeclared U.S. military actions overseas included armed intervention into--

 

      A revolution in Hawaii [1893];

 

      The Philippine Insurrection [1899-1902];

 

      China during the Boxer Rebellion [1900];

 

      The Moro Wars, suppressing a Muslim rebellion in the

      Philippines [1901-1913];

 

      The Panamaian rebellion, assisting the rebels in their

      efforts to secede from Colombia [1903];

 

      Cuba, to suppress a rebellion and restore order [1906-

      1909];

 

      Various rebellions and civil wars in Central America

      [1909-1933];

 

      Cuba, to "defuse" an armed uprising [1912];

 

      Haiti, making it a virtual protectorate of the U.S.A.

      [1915-1934];

 

      The Dominican Republic, occupying the country until a

      constitutionally elected government was installed

      [1916-1924];

 

      Cuba, to obtain the overthrow of a regime that had come

      to power via an armed revolt and coup d'etat [1917];

 

      The Russian Civil War, siding with the opponents of the

      Bolshevik (Communist) regime [1919-1921];

 

      Lebanon, to counter a Syrian-aided Muslim revolt and

      restore order [1958];

 

      A civil war in the Dominican Republic [1965];

 

      Cambodia, destroying supply centers and staging areas for

      North Vietnamese military operations in South Vietnam

      during the Vietnam War [1969-1970];

 

      Cambodia in the Mayaguez affair, forcing surrender of a

      U.S. merchant ship and crew seized by Cambodian Communist

      military forces [1975];

 

      Iran, in an unsuccessful attempt to rescue the hostages

      taken by Irani militants when, in 1979, they seized the

      U.S. Embassy in Teheran [1980];

 

      The armed struggle among political factions in Lebanon

      [1982-1984];

 

      Grenada, overthrowing the Marxist-Leninist, pro-Cuban

      regime, expelling the Cuban agents and paramilitary

      personnel, and allowing a political coalition committed

      to democratic elections and favorably disposed toward

      American interests to assume governing power [1983];

 

      Panama, overthrowing the regime of dictator and narcotics

      smuggler Manuel Noriega [1989];

 

      Somalia, seeking to end the violence and disorder in

      that East African country [1992-1994];

 

      Haiti, to restore order and reinstate Jean-Bertrand

      Aristide, the democratically elected President of the

      country [1994];

 

      The ethnic warfare in Bosnia, imposing a ceasefire

      and, in effect, establishing a U.N.-U.S.A. protec-

      torate over Bosnia [1994-1995].

 

These numerous undeclared U.S. military actions also included:

 

      The naval war waged against German submarines and other

      Axis naval craft in the North Atlantic immediately

      prior to American entrance into World War II [1941];

 

      The naval "quarantine" (i.e., blockade) maintained

      around Cuba during the Cuban Missile Crisis [1962];

 

      Aerial bombardment of Libya, striking a missile site

      on one occasion and, on another, bombing terrorist-

      related targets in Tripoli and Benghazi [1986];

 

      "Operation Desert Shield"--President Bush's sending

      U.S. troops to Saudi Arabia, in the wake of the Iraqi

      occupation of and huge military buildup in Kuwait

      [1990];

    

      The continuing presence of U.S. aircraft carriers in

      the Persian Gulf and the maintenance of no-fly zones

      over Iraq, the latter, in effect, establishing pro-

      tectorates over Kurdish and Shiite regions of that

      country [1991-1999];

 

      The U.S. missile attack on Iraq, launched on Presi-

      dent Clinton's orders and aimed at the Iraqi govern-

      ment's intelligence headquarters in Baghdad [1993];

 

      Missile strikes against Iraqi military installations

      in southern Iraq [1996];

 

      Cruise missile attacks against terrorist-related

      targets in Afghanistan and Sudan [1998].

 

The thirty-one military actions enumerated in the last two paragraphs are examples and do not constitute a comprehensive listing. As previously indicated, the U.S.A., throughout the course of its history, has been involved in hundreds of military conflicts abroad solely via presidential decision-making and action and without congressional declarations of war.



 

G. DEVELOPMENT OF AN INDEPENDENT PRESIDENTIAL WAR- MAKING POWER

 

1. Hamilton's View of Presidential War-making Power

The foregoing review of the history of presidential behavior in the arena of international politics indicates that U.S. presidents have demonstrated a strong tendency to adhere to and act in accord with Alexander Hamilton's expansive view of the scope of presidential war-making authority under the U.S. Constitution. American presidents have been and are strongly inclined to apply to the fullest extent Hamilton's belief that--

 

      "... it is the peculiar and exclusive province of Con-

      Congress, when the nation is at pease, to change that

      state [of peace] into a state of war ... [but] when a

      foreign nation declares or openly and avowedly makes

      war upon the United States, they are then by the very

      fact already at war and any declaration on the part of

      Congress is nugatory; it is at least unnecessary."

      [Quoted in James Grafton Rogers, WORLD POLICING AND

      THE CONSTITUTION (Boston:  1945), p. 36.]

 

2. The Power of Congress to Declare War

While Article I, Section 8, of the U.S. Constitution provides that "The Congress shall have Power ... To declare War," neither Clause 11 nor any other provision of the Constitution states in so many words that Congress must pass a declaration of war before the President can legally order the nation's military forces into foreign hostilities. Even after the President has ordered the troops into conflict, he is not required by any clause of the Constitution to request a congressional declaration of war. Moreover, the absence of such a declaration does not tie the President's hands in the conduct of the war, as long as adequate appropriations for raising, supporting, maintaining, and transporting the military forces and otherwise funding the war effort are forthcoming from Congress.

 

The objective of the Founders in incorporating Clause 11 into the Constitution was to give to Congress a power which, in Great Britain, was constitutionally vested in the Monarch during the days when the King or Queen was the real head of the executive branch of government and the modern system of British parliamentary government had not yet evolved. Granting to Congress exclusive decision-making authority regarding whether the nation, at any given time, is officially at war with one or more foreign powers has never been practical, not even in the early days of the American Republic, before the advent of modern military technology, with the availability of means of rapid movement and deployment of military personnel, arms, and equipment. Such an allocation of war-making power happens to be considerably less practical in the contemporary era than it was during the late eithteenth and early nineteenth centuries. My study of study of military and diplomatic history has led me, slowly and reluctantly, to the conclusion that the eithteenth-century British Constitution properly vested the power to declare war in the Chief Executive--i.e., the Crown, before the emergence of modern parliamentary government. [Today, the Monarch, now the symbolic and ceremonious Chief of State, symbolically and ceremoniously wields the power to declare war, after the real executive authority, the Prime Minister and Cabinet, has symbolically and ceremoniously "recommended" such a declaration. In reality, the "recommendation" is an order or command, rather than a request or suggestion. Thus, the real decision-making power regarding matters of war and peace is in the Prime Minister and Cabinet, enjoying the support and confidence of a majority in the House of Commons, the popularly elected chamber of Parliament.]

 

The realities associated with war between sovereign states and between opposing coalitions of sovereign states render a nation's legislature ill-suited for determining when, in fact, the nation is at war and therefore military action must be immediately taken. What has been the consequence of this? U.S. presidents, when facing foreign threats or potential threats to American national interests, have tended to function as Hamiltonian or ultra-Hamiltonian presidents. Throughout our history under the Constitution, and especially during the contemporary era, presidents have been inclined to--

 

      Ignore the constitutional power of Congress to declare

      war;

 

      Seek to develop an independent presidential war-making

      power, i.e., a presidential war-making power not legally

      dependent for its exercise on a congressional declara-

      tion of war.

 

In seeking to develop an independent war-making power, not only have American presidents tended to adopt Hamilton's expansive view of the scope of the Chief Executive's constitutional authority and go to the very limits of that view in putting it into practice, they also have tended to go beyond the limits.

 

For the most part, presidents have been successful in this endeavor to assume an independent war-making power, pulling it off without causing major constitutional crises. In the case every war the U.S.A. has fought, the President, not Congress, was chiefly responsible for the nation's participation in the war.

 

3. The President's Use of Article XLIII of the U.N. Charter

The President's claim to an independent war-making power has been advanced primarily on the basis of a very broad construction, or interpretation, of his constitutional authority as Commander-in-Chief of the Armed Forces and as custodian of the executive power of the national government. However, development of this independent war-making power also has been futhered and its legitimacy enhanced by U.S. membership in the United Nations and by the ensuing obligations incurred by the U.S.A. under the United Nations Charter. On particular occasions since the close of World War II, the President has ordered U.S. military forces into foreign conflict abroad, acting not under the authority of a congressional declaration of war, but under that of a U.N. Security Council resolution passed under Article XLIII of the U.N. Charter, which provides:

 

      Section 1:

        All Members of the United Nations, in order to con-

        tribute to the maintenance of international peace

        and security, undertake to make available to the

        Security Council, on its call and in accordance with

        a special agreement or agreements, armed forces, as-

        sistance, and facilities, including rights of pas-

        sage, necessary for the purpose of maintaining in-

        ternational peace and security.

 

      Section 2:

        Such agreement or agreements shall govern the num-

        bers and types of forces, their degree of readi-

        ness and general location, and the nature of the

        facilities and assistance to be provided.

 

      Section 3:

        The agreement or agreements shall be negotiated as

        soon as possible on the initiative of the Security

        Council.  They shall be concluded between the Secu-

        rity Council and Members or between the Security

        Council and groups of Members and shall be subject

        to ratification by the signatory states in accord-

        ance with their respective constitutional processes.

 

When the Korean War broke out in 1950, it was under Article XLIII of the U.N. Charter that the U.S.A. entered the war. Ordering U.S. air, naval, and ground forces to Korea, President Harry S. Truman announced that he was taking this action under the authority of a United Nations resolution approved by the Security Council, pursuant to Article XLIII of the U.N. Charter. The U.N. Security Council resolution, adopted on June 27, 1950, provided:

 

      "The Security Council,

        "HAVING DETERMINED that the armed attack upon the

        Republic of Korea by forces from North Korea con-

        stitutes a breach of the peace.

 

        "HAVING CALLED FOR an immediate cessation of hos-

        tilities, and

        "HAVING CALLED UPON the authorities of North Korea

        to withdraw forthwith their armed forces to the

        38th. parallel, and

        "HAVING NOTED from the report of the United Nations

        Commission for Korea that the authorities in North

        Korea have neither ceased hostilities nor withdrawn

        their armed forces to the 38th. parallel and that

        urgent military measures are required to restore in-

        ternational peace and security, and

        "HAVING NOTED the appeal from the Republic of Korea

        to the United Nations for immediate and effective

        steps to secure peace and security,

        "RECOMMENDS that the Members of the United Nations

        furnish such assistance to the Republic of Korea as

        may be necessary to repel the armed attack and to

        restore international peace and security in the

        area."

 

Through diplomatic negotiation--the constitutional function of the executive branch of the U.S. national government--the President managed to obtain from the U.N. Security Council a resolution authorizing the U.S.A. and other member-states of the United Nations to enter the Korean War on the side of the non-Communist government of South Korea and against the Communist regime in North Korea. The U.N. resolution legitimized President Truman's decision-making and action whereby he brought the U.S.A. into the Korean War and did so without going before Congress to request a declara- tion of war. Pursuant to a decision of the U.N. Security Council, procured by Executive diplomacy, America entered a war which lasted three years and in which U.S. participation was never sanctioned by a congressional declaration of war.

 

When the Persian Gulf War broke out in 1991 and President George W. Bush ordered U.S. military forces into the conflict against Iraq, he acted, in part, under Article XLIII of the U.N. Charter and U.N. Resolution 678, which called on the member-states of the United Nations to come to the defense of Kuwait and employ "all means necessary" to drive the Iraqi invaders from that country. In 1994, President Clinton acted under Article XLIII and U.N. Resolution 940 when he committed U.S. troops to spearheading a 28-nation multinational force which occupied Haiti for the purpose of reestablishing order in that country and restoring Aristide to its Presidency.

 

4. The President's Use of the Joint Congressional Resolution

President Dwight D. Eisenhower, like Harry Truman, was an innovator in the continuing effort to develop an independent presidential war-making power. Eisenhower's innovation was utilization of the joint congressional resolution, short of a declaration of war, as a means of enhancing the President's discretionary decision-making and action-taking authority, as regards sending American troops into military conflict abroad.

 

What is a joint congressional resolution? It is very similar to a legislative bill passed by Congress. To go into effect as American law, a joint resolution, like a legislative bill, must (1) be approved by a majority in each of the two houses of Congress and then be consented to and signed by the President or (2), after a presidential veto (i.e., the President's refusal to give consent to and sign the measure), be repassed by a two-thirds vote in each house, thereby effecting a congressional override of the executive veto.

 

      [NOTE:  An exception to the requirement of the Presi-

      dent's consent and signature is a joint congressional

      resolution passed by a two-thirds vote in the Senate

      and in the House of Representatives and proposing an

      amendment to the U.S. Constitution.  A constitutional

      amendment proposed by Congress is not submitted to

      the President for his formal-legal consideration and

      approval.  Rather, it goes to the fifty states for

      their consideration, and if ratified by three-fourths

      of them, becomes a part of the Constitution.]

 

      [NOTE:  A joint resolution is to be distinquished

      from a concurrent resolution, which does not require

      the President's formal-legal approval.  A concurrent

      resolution goes into effect when approved by simple

      majority vote in each of the two chambers of Con-

      gress.]

 

In 1955, President Eisenhower sought and obtained from Congress a joint resolution which, though not a declaration of war, afforded the President wide discretion to take military action off the coast of mainland China in order to protect Formosa (Taiwan) and the Pescadores Islands from Chinese Communist aggression. The Formosa Resolution 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." In passing this resolution, Congress, without going so far as to formally declare war against Communist China, delegated to the President longterm discretionary authority to engage the U.S. Armed Forces in conflict with Chinese Communist military forces whenever, in his opinion, the latter threatened the security of Taiwan and the smaller offshore islands belonging to Taiwan.

 

President Eisenhower resorted to the same device in the Middle Eastern crisis of 1956. He requested and obtained from Congress a joint resolution authorizing him to employ, as he judged necessary, U.S. military forces in the "general area" of the Middle East to counter "overt armed aggresssion" on the part of "any nation controlled by international Communism."

 

In 1964, when President Lyndon B. Johnson ordered air strikes against North Vietnam and thereby further escalated U.S. involvement in the Vietnam War, he recommended and Congress passed a joint resolution which, in sweeping language, authorized the President "to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression." The Gulf of Tonkin Resolution declared that--

 

      "... the United States is ... 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."  [House Joint Resolution

      1145, August 7, 1964.]

 

The resolution provided that it would remain in force until the President determined that--

 

      "... the peace and security of the [Southeast Asia]

      area is reasonably assured by international condi-

      tions created by the United Nations or otherwise,

      except that it may be terminated earlier by concur-

      rent resolution of Congress."  [House Joint Resolu-

      tion 1145, August 7, 1964.]

 

In 1991, during the Persian Gulf War, President Bush, like his predecessors Dwight Eisenhower and Lyndon Johnson, resorted to the joint-congressional- resolution device (1) to enhance the legitimacy of presidential action to involve the U.S.A. in a situation of foreign hostilities and (2) to give the President a free hand in directing and conducting U.S. participation in the war. In response to Iraq's August 2, 1990, invasion of Kuwait and the November 29, 1990, U.N. Security Council resolution (U.N. Resolution 678) calling on U.N. members to assist Kuwait and authorizing them to use "all means necessary" to expel Iraqi forces from Kuwait, President Bush recommended to Congress a joint resolution authorizing him to employ U.S. military forces against Iraq. On January 12, 1991, Congress passed the Persian Gulf Resolution, which, in phraseology barely short of a formal declaration of war against Iraq, put the congressional stamp of approval upon U.S. participation in offensive operations in the Persian Gulf War and afforded the President wide discretion in his use of U.S. Armed Forces in the Persian Gulf region. Four days later, after expiration of the U.N. Security Council's deadline for Iraq to withdraw its forces from Kuwait, President Bush gave the orders and "Operation Desert Storm"--the sustained air and missile attacks on Iraqi military targets--was launched.

 

G. Development of an Independent Presidential War-Making Power

   (Continued)

 

5. The President's Reliance on Prerogative Theory

In their endeavor to develop and legitimize an independent presidential war-making power, U.S. presidents have utilized the prerogative theory of presidential authority. According to this theory, the U.S. Constitution vests in the President a broad prerogative--a general, undefined power that is inherent in the Office of President and is in addition to the more specific, less ambiguous enumerated grants of presidential authority contained in Article II, Sections 2 and 3, of the Constitution. The adherents of prerogative theory hold that the presidential prerogative is a broad power to act in the national interest, or general welfare, of the U.S.A. during time of a very serious national crisis or extreme emergency. They contend that the President has general, undefined authority and responsibility to take rapid and decisive action to cope with a national crisis or emergency situation of extraordinary proportions, e.g., the U.S.A. being subject to foreign invasion or attack or being in imminent danger of foreign invasion or attack.

 

What is the constitutional basis of the prerogative theory of presidential power? According to the theory's adherents, three clauses in the Federal Constitution--Article II, Clauses 1 and 8, and Article II, Section 2, Clause 1--give the President a broad prerogative.

 

      Article II, Section 1, Clause 1:

        "The executive Power shall be vested in a President

        of the United States of America."

          This clause is interpreted by the prerogative

          theorists as vesting in the President a very

          broad, undefined "executive Power" that is in

          addition to the more specific executive

          powers granted to the President by Sections 2

          and 3 of Article II.

 

      Article II, Section 1, Clause 8:

        "Before he [the President] enter on the Execution

        of His Office, he shall take the following Oath or

        Affirmation:  'I do solemnly swear (or affirm) that

        I will faithfully execute the Office of President

        of the United States, and will to the best of my

        Ability preserve, protect and defend the Constitu-

        tion of the United States.'"

 

          Clause 8 of Section 1 is construed by the pre-

          rogativists as granting the President general,

          undefined authority to take action to--

            Faithfully execute (perform the duties of) the

            Office of President;

            Preserve, protect, and defend the Constitution.

      

      Article II, Section 2, Clause 1:

 

        "The President shall be Commander in Chief of the

        Army and Navy of the United States and of the Mi-

        litia of the several States, when called into the

        actual Service of the United States;"

 

          Clause 1 of Section 2 is interpreted as attach-

          ing to the Office of President broad, undefined

          power to take military and other governmental

          action to suppress armed insurrections and other

          domestic disorders as well as to defend the

          U.S.A. against foreign attack or threatened at-

          tack and protect America's vital national inter-

          ests abroad.  This general, undefined power, ac-

          cording to the exponents of prerogative theory,

          is inherent in the constitutional posi-

          tion of the President as Commander-in-Chief of

          the nation's Armed Forces.

 

 

The prerogative theorists claim that the three constitutional clauses cited above give the President inherent authority that has never been defined or enumerated.  They argue that the power, in fact, cannot be defined, since the scope of this power, at any given time, is contingent upon the conditions and problems existing at that time.

 

The American theory of the presidential prerogative, as stated and defended by its exponents, is related to and derived from the theory of the royal prerogative in English and British constitutional history.  The royal prerogative, claimed by the English/British Crown during the seventeenth and eighteenth centuries, was--in the words of seventeenth-century political philosopher John Locke, in Second Treatise of Civil Government (1690)--the broad, sweeping authority of the Monarch to act for the good of the Kingdom and its people "without the prescription of law" and "sometimes even against it."  American theorists, in general, do not perceive the presidential prerogative under the U.S. Constitution to be as broad or sweeping as the royal prerogative claimed under the English/British Constitution of the 1600s and 1700s.  In 1865, however, U.S. President Abraham Lincoln, a theorist and practitioner of prerogative theory, came very close to using Locke's words describing the royal prerogative-- "without the prescription of law" and "sometimes even against it--when Lincoln sought to justify the extraordinary measures taken by him to deal with the Southern states' secession from the Union, the outbreak of the Civil War, and the emergence of antiwar, secessionist, and pro-Confeder- ate movements in areas of the U.S.A. outside the eleven states of the Confederacy.  These extraordinary measures, taken by Lincoln early in his Presidency, were adopted by presidential fiat, without the legitimacy and support of prior congressional authorization, and in some instances, in clear violation of key provisions of the Federal Constitution.  The Civil War President claimed that, under the Constitution, his positions as national Chief Executive and Commander-in-Chief and his sworn duty to preserve, protect, and defend the Constitution gave him the right, in a grave crisis or emergency threatening the existence of the American nation, to become a quasi-dictator and take extreme measures which, in the absence of such a national crisis or emergency, would be illegal and unconstitutional.

 

In American political and constitutional history prior to the Presidency of Franklin D. Roosevelt, major advocates and practitioners of presidential- prerogative theory include Alexander Hamilton and Presidents Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Woodrow Wilson.

 

Hamilton, as statesman and prerogative theorist, argued that a very broad construction should be applied to Clause 1 of Article II, Section 1, of the Constitution.  He maintained that the general grant of "the executive Power" to the President embraced many inherent functions and powers comprising a broad presidential prerogative.

 

As President, Jackson maintained that, under Clauses 1 and 8 of Article II, he possessed an inherent power to act decisively and forcefully to enforce U.S. national laws, to preserve and protect the U.S. Constitution, and to defend the American nation against all foreign and domestic threats to its safety and existence.

 

President Lincoln, in expounding his theory of "constitutional dictator- ship," held that Article II, Section 1, Clauses 1 and 8, and Section 2, Clause 1 attached to the Office of President a set of inherent powers, a broad prerogative enabling the President to legitimately and constitution- ally become a virtual dictator during time of extreme national crisis or emergency, when the U.S.A. was faced with a real and serious threat to its safety and survival as a free, independent, and unified nation.  According to Lincoln's perception, the language of the U.S. Constitution was deliberately vague and ambiguous and offered considerable room for enlargement of the President's executive and military authority during time of great danger to the nation.  The President, during such a time of great danger, can legitimately expand "the executive Power" to the degree he believes necessary.

 

In short, the President, in time of an extreme national crisis or emergency posing a serious threat to the very existence of the U.S.A., has the inherent power and duty to take dictatorial measures-- extraordinary measures which might be unconstitution- al under more normal and less critical conditions.  Presidential measures, otherwise unlawful, would become lawful by becoming essential to the protection and preservation of the U.S. Constitution, through protection and preservation of the American nation.

 

President Franklin Roosevelt and all presidents succeeding him--Republican as well as Democratic presidents, Conservative-leaning as well as Liberal-leaning presidents--have subscribed to the prerogative theory of presidential power and have used the theory to develop and legitimize an independent war-making power for the Office of President and/or to enlarge the President's internal police powers (e.g., power to suppress domestic disorders, to prevent or settle nation-wide industrial strikes and other labor-management conflicts threatening to paralyze the economy and/or jeopardize the war effort, and to forcibly impose and accelerate court-ordered racial desegregation on the public schools).  They have relied, in particular, upon Lincoln's conception of inherent powers attached to the presidential office by Article II, Section 1, Clauses 1 and 8, and Section 2, Clause 1, of the U.S. Constitution.

 

Examples of FDR's successors utilizing prerogative theory to develop and legitimize an independent presidential war-making power include Dwight Eisenhower, Lyndon Johnson, and Richard M. Nixon.

 

In 1955, when President Eisenhower recommended to Congress that it pass the Formosa Resolution to provide political support for (as well as share in the responsibility for and domestic political risks of) any measures taken by the President to defend Taiwan and the Pescadores against Chinese Communist aggression, he was very careful to insist that "the authority for some of the actions which might be required would be inherent in the authority of the Commander-in-Chief."  While seeking legitimacy-enhancing congressional support in the form of a joint resolution, Eisenhower wished to avoid the appearance of conceding that his exercise of the presidential war powers was dependent or limited by congressional action.  Eisenhower, like all other presidents of the contemporary era, believed that inherent in the President as Chief Executive and Commander-in-Chief were broad powers that could not be constitutionally circumscribed by congressional legislation or rendered inoperative by the failure or refusal of Congress to pass a joint resolution requested by the President.

 

President Lyndon B. Johnson, waging war in Vietnam without the benefit of a congressional declaration of war, took the position that, under the Consti- tution, the President possessed inherent powers, which, most importantly, included the power to make war.  In a 1966 Department of State Bulletin, Leonard Meeker, a spokesman for the Johnson Presidency, maintained that inherent in the roles of the President as Commander-in-Chief and national Chief Executive was the power to--

 

      "deploy American forces abroad and commit them to

      military operations when the President deems such

      action necessary to maintain the security and de-

      fense of the United States....  If he considers

      that deployment of U.S. forces to South Vietnam is

      required, and that military measures against the

      source of Communist aggression in North Vietnam

      are necessary, he is constitutionally empowered to

      take these measures."
 

 

H.  VIETNAM & INDEPENDENT PRESIDENTIAL WAR-MAKING

 

In and off the coast of Vietnam, independent presidential war-making reached its zenith during the Presidencies of Lyndon Johnson (1963-1969) and Richard Nixon (1969-1974).  In their conduct of the Vietnam War, both Johnson and Nixon, as mentioned previously, relied heavily on the version of presidential-prerogative theory advanced by Lincoln a century earlier to justify his unprecedented exercise of the war powers in the Civil War and in planning and announcing what was to be his postwar Reconstruction policy.  Congress, in approving the 1964 Gulf of Tonkin Resulution, did authorize the President to take all necessary measures to defend South Vietnam and its established government against any further aggression on the part of the Viet Cong and North Vietnamese Communist regime and to repel any armed attack against U.S. military forces in the region.  Shortly after passage of this resolution, however, U.S. participation in the Vietnam War was escalated far beyond what, at a later date, many members of Congress claimed they had in mind when they voted for passage of the resolution.

 

In early 1965, immediately after Viet Cong guerrilla units had attacked U.S. Army installations in South Vietnam, President Johnson responded by launching "Operation Rolling Thunder," ordering sustained bombing missions over North Vietnam.  In March of the same year, Johnson sent to South Vietnam the first U.S. ground combat troops--i.e., the first U.S. combat ground troops that were not sent under the label "military advisers."  In response to America's greater military commitment, the Vietnamese Communist Party and the Viet Cong adopted and began to implement a protracted war strategy designed to get U.S. military forces mired in a long, drawn-out war, operating on the assumption that the U.S.A. had neither the will nor the ability to win such a war, since the nation lacked clearly defined interests or objectives in Vietnam and, as the casualties and other costs of American involvement mounted, would eventually become weary of the war and withdraw from it, leaving the Communists a free hand to forcibly take over South Vietnam.

 

As independent presidential war-making progressed during the remaining years of the Johnson Presidency, U.S. involvement in the Vietnam War continued to escalate, the Communists kept on pursuing their protracted war strategy, and things went from bad to worse for American and South Vietnamese ground forces.  With an expanded and prolonged war and with mounting American casualties, soon there were insufficient U.S. Army RAs (volunteers) to continue waging the protracted war and the U.S. government was forced to reintroduce military conscription (i.e., the draft).  More and more young American males were being called on to risk their lives for the sake of fighting what many perceived to be an "unwinable war" to prop up and protect a corrupt and authoritarian South Vietnamese government.  Within the U.S.A., the people began to tire of the war, as the Communist foe had predicted, and there was growing American criticism of and opposition to President Johnson's military policy in Vietnam.  Consequently, there emerged in the U.S.A. a significant political protest movement demanding America's disengagement from the Vietnam War.  Closely associated with the growing antiwar sentiment within the country was a revival of isolationism a political ideology which, during earlier periods of American history, had been advanced to justify and support advocacy of a policy of our nation's noninvolvement in international power struggles and remaining free of "entangling alliances" and which was now being employed to justify the call for America's withdrawal from international affairs in general and the Vietnam War in particular.

 

The military and political developments described above had the consequence of intense pressures being brought to bear on the American national politi- cal system.  These pressures created extreme discomfort for professional politicians and policy advisers in the Johnson Presidency and for many members of what was then the Democratic Party majority in the two houses of Congress.  Fearful of how the voters might react in the 1966 and 1968 congressional elections, Democrats in Congress were spooked into frantic political manuevering and posturing, many second guessing the President's military policy in Vietnam, but being rather disingenuous about their own respective past roles in supporting that policy.  Congressional critics of Johnson's Vietnam policy were getting louder and increasing in number.

 

The second-guessing congressional critics, including members of the Senate Foreign Relations Committee, insisted that President Johnson had gone far beyond what Congress had intended when it passed the Gulf of Tonkin Resolution.  In denouncing his ordering Operation Rolling Thunder (the sustained bombing campaign over North Vietnam) and his sending U.S. ground troops to Vietnam, the critics maintained that the President had utilized the response of Congress to a minor incident off the coast of Vietnam--the North Vietnamese gunboat attack against U.S. naval vessels--to establish the foundation for a major war, that he had converted what previously had been a "limited" war into a major war.

 

While the growing antiwar and isolationist sentiment caused many Democrats in Congress to be concerned about their near-future reelection chances, Democratic Senator Robert F. Kennedy, driven by his all-consuming political ambition, saw the shift in public opinion as a splendid opportunity for himself, an opportunity that he could exploit in order to achieve his ultimate political goal--getting himself elected President of the United States.  In publicly commenting on the Vietnam War in numerous speeches and other media events, Senator Kennedy drastically changed his position from that of the interventionist and War Hawk he had been while serving as U.S. Attorney General and presidential adviser during the Presidency of his brother, John F. Kennedy, and assumed the stance of an isolationist and Dove (as regards the Vietnam War), appealing to the growing segment of Liberal-Leftist opinion reflected in the antiwar protest movement.  Kennedy announced that he would be a contender for nomination by the Democratic Party as its presidential candidate in the 1968 election.  President Johnson, realizing that the rug of political support needed to win the Democratic nomination and the presidential election had been jerked out from under him, announced that he would not be a contestant for the Democratic nomination in 1968. As Kennedy's campaign for the nomination was nearing success, he was assinated by an Arab-American nutcase (a tragedy that could have been avoided, had Kennedy taken the precaution of putting on a steel helmet and bullet-proof vest before publicly opening his mouth about a matter likely to upset a particular variety of wackos within American society and announcing to a Los Angeles crowd that, while having seen the light and now a Dove and noninterventionist in matters regarding Vietnam, he was not abondoning his position as a Hawk and interventionist on the side of Israel in its ongoing conflict with the Arabs).  The Democratic National Convention, meeting in Chicago, nominated Hubert H. Humphrey, but the Republican candidate, Richard Nixon, won the 1968 presidential election.

 

When Nixon became President in January, 1969, he expressed his wish to bring an end to the war in Vietnam, and his National Security Advisor, Henry Kissinger, began meeting in Paris with diplomatic representatives of the North Vietnamese government to negotiate a settlement.  However, the Vietnam War dragged on and the phenomenon of independent presidential war-making continued to flourish.  President Nixon initiated a number of U.S. military actions in Indochina--actions which were taken without the President's consulting Congress and most of which were strongly denounced not only by spokesmen for the antiwar protect movement, but also by con- gressional critics and by Nixon's detractors in the larger American political arena.

 

In March, 1969, the President ordered "Operation Breakfast"--the secret aerial bombing of North Vietnamese Communist sanctuaries in Cambodia, sanctuaries from which the Communists had been launching raids across the Cambodian border into South Vietnam.  In April, 1970, Nixon launched "Operation Fishhook," ordering U.S. ground troops to move into Cambodia and destroy the North Vietnamese Communists' military headquarters, supply centers, and staging areas for operations in South Vietnam.  On January 18, 1971, Nixon ordered U.S. military forces to provide air cover and artillery support for a major South Vietnamese Army operation in Laos, an effort to cut the Ho Chi Minh Trail by attacking the North Vietnamese military forces that were using the trail and keeping it open.

 

In may, 1972, with the Paris negotiations between the U.S.A. and North Vietnam deadlocked and with the North Vietnamese Communists continuing their invasion of South Vietnam, President Nixon ordered the bombing and mining of Hanoi and Haiphong.  In a speech explaining why he had taken this action, the President asserted that--

 

      "There is only one way to stop the killing.  That is

      to keep the weapons of war out of the hands of the

      international outlaws of North Vietnam."  [Richard M.

      Nixon, THE MEMOIRS OF RICHARD NIXON (New York:  Gros-

      set and Dunlap, 1978), p. 605.]

 

 

Nixon continued:

 

      I have ordered the following measures which are being

      being implemented as I am speaking to you.  All en-

      trances to North Vietnamese ports will be mined to

      prevent access to these ports and North Vietnamese

      naval operations from these ports.  United States

      forces have been directed to take appropriate meas-

      ures within the internal and claimed territorial wa-

      ters of North Vietnam to interdict the delivery of

      any supplies.  Rail and all other communications will

      be cut off to the maximum extent possible.  Air and

      naval strikes against military targets in North Viet-

      nam will continue."  [Ibid.]

 

 

In his Memoirs, Nixon said that he believed it was--

 

      "... essential that we take decisive action to crip-

      ple the North Vietnamese invasion [of South Vietnam]

      by interdicting the supplies of fuel and military

      equipment the enemy needed for its push into South

      Vietnam.  I consequently directed that plans be pre-

      pared immediately for mining Haiphong and for bomb-

      ing prime military targets in Hanoi, particularly

      the railroad lines used for transporting military

      supplies."  [Ibid., p. 602.]

     

 

As the Paris peace negotiations and the North Vietnamese agression against South Vietnam were carried on simultaneously throughout the remainder of 1972, and as the North Vietnam "negotiators" remained as brittle, intransi- gent and treacherous as ever, President Nixon decided that the situation--

 

      "... had now reached the point where only the strong-

      est action [by the U.S.A.] would have any effect in

      convincing Hanoi that negotiating a fair settlement

      with us was a better option for them than continuing

      the war."  [Ibid., p. 733]

 

 

Therefore, the President, on December 14, 1972, ordered resumption of the bombing of Hanoi and Haiphong.  Nixon's account of the action was as follows:

 

      "On December 14, I issued an order, to become effec-

      tive three days hence, for reseeding of the mines in

      Haiphong Harbor, for resumed aerial reconnaissance,

      and for B52 strikes against military targets in the

      Hanoi-Haiphong complex.  The bombing plan included

      sixteen major transportation, power, and Radio Hanoi

      transmitter targets in Hanoi, as well as six commu-

      nications command and control targets in the outly-

      ing area.  There were thirteen targets in the Hai-

      phong area, including shipyards and docks."  [Ibid.,

      p. 734]

 

In January, 1973, as the North Vietnamese Communist leaders continued their usual perfidy (lying through their teeth, talking peace while waging war, engaging in delaying tactics, and holding up agreement on a cease-fire), Nixon initiated another resumption of the bombing of Hanoi and Haiphong. This time, the North Vietnamese got the message and, on January 23, agreed to a peace settlement, which provided for a cease-fire scheduled to go into effect four days later.

Not long afterwards, however, the North Vietnamese Communists began their repeated violations of the cease-fire agreement. So numerous and egregious were the violations that, by March, 1973, President Nixon was giving serious consideration to renewed bombing of the Ho Chi Minh Trail and North Vietnamese military forces in Laos.

 

 

I. THE NEW MOOD OF WITHDRAWAL & CONGRESSIONAL REVOLT

 

1. A Resurgence of Isolationism

As a consequence of the nature, course, and outcome of the Vietnam War, the American people were, by 1973, weary, disillusioned, and restive. Popular and congressional support for the U.S. government's policy of endeavoring to "contain Communism" had been seriously eroded and undermined. As indicated previously, the protracted character of the war and the high costs of U.S. involvement resulted in a resurgence within the U.S.A. of public opinion favoring an isolationist, or noninterventionist, foreign policy--a revival of sentiment in favor of America's withdrawal from international affairs, especially from participation in the war in Vietnam. Voices in and out of Congress were calling for America's retreat from its "imperial" role as "World Policeman" and "Protector of the Free World." This new mood of withdrawal, or retreat, was reinforced by the final defeat of the U.S.A. in the Vietnam War--"defeat" in the sense of the utter failure of the U.S. government to "contain Communism" in Indochina and prevent the Communists from overrunning and subjugating South Vietnam and Cambodia.

 

2. The Brewing Congressional Revolt

The new mood of withdrawal had the effect of eroding and undermining congressional sup- port for or acquiescense in independent presidential war-making. Congress was getting its back up and manifesting new found courage, moving to circumscribe the President's role as "chief architect of American foreign policy" and to curb his power as Commander-in-Chief to commit the U.S. Armed Forces to foreign combat. Brewing in Congress was a revolt against the President's virtually solo determination of U.S. foreign and military policy. Congress was seeking to reassert itself, regain power it had lost to the Presidency, and devise new means of participating more fully and effectively in the shaping and control of the nation's external policy.

At this particular moment in American political history, the inclination of Congress to rise up and challenge presidential ascendancy in foreign and military policy-making was given even greater strength--and the idea of such a political revolt made even more tempting--by the combined effects three sets of phenomena: (1) our system of checks and balances, (2) partisan politics, and (3) basic human nature.

 

3. The Impact of the System of Checks and Balances

America's constitutional system of checks and balances was designed by the Founders to facilitate and encourage competition and conflict--rather than collaboration or collusion-- among the three branches of the national government (legislative, executive, and judicial) and between the two chambers of Congress, the Senate and House of Representatives. As a consequence of the (1) Framers' design at the Federal Constitutional Convention of 1787 and (2) the evolution of the American constitutional and political system over the past two centuries, three major policy-making organs of the U.S. government--Presidency, Senate, and House of Representatives--are elected by different constituencies with varying and competing interests. These three major organs of government, reflecting and representing the interests of their respective constituencies, have a much greater tendency to oppose, block, and thwart each other than they have to support and accomodate one another.

 

Conflict between Congress and the President and between the Senate and House of Representatives has been institutionalized and is an essential feature of the national political system. Such conflict is continuous and, at times, includes power struggles between the legislature and the executive.

 

4. The Impact of Partisan Politics

Throughout the period of the Nixon Presidency, the partisan political situation in Washington, D.C., was one of divided government, with the titular leader of one major political party holding the Office of President and with the opposition party controlling Congress. While President Nixon was a Republican, the Democrats held a majority of the seats in each of the two houses of Congress. As was usually the case when the Democrats had majorities in both chambers of Congress during the tenure of a Republican president, the Democrats in Congress, looking after the institutional interests of their own party and seeking to enhance its chances for victory in future presidential and congressional elections, set out to thwart, frustrate, and embarass the Republican President, determined to make partisan political points at every turn and hoping to discover, investigate, and publicly expose a major scandal in the Nixon Presidency or in some other manner provoke or create a public controversy that would weaken, undermine, and possibly decimate support among voters and campaign contributors for Republican candidates in future elections.

 

5. The Impact of Basic Human Nature

During the Nixon Presidency, as has always been the case in the political arena, a major variable, or factor, shaping political events and developments was basic human nature--i.e., human frailty coupled with political ambition, human imperfection and moral weakness, as reflected in the bahavior of that very special class of human beings known to us as "professional politicians." The professional politicians who populate the U.S. Congress tend strongly to "play politics" with issues of American foreign and military policy, placing their own narrower partisan and personal interests above the broader interests of American national defense and security. Acting and reacting like the "political animal" he really is, each congressional politician is strongly inclined to oppose and criticize the foreign and military policy initiatives of a president of the opposing party and support and praise the policy initiatives of a president of his own party, as long as the policies of the latter appear to be popular with the voters in his state or congressional district. If the policy initiatives of a president with whom the congressional politician shares the same party label are not so popular with his state or district constituents, he is quite likely to forget about the institutional interests of his party at the national level and turn against the party's titular leader, claiming and proclaiming that he always had doubted the wisdom of and had opposed the particular presidential policies in question.

 

6. The Congressional Revolt in Progress

In June, 1973, the long-simmering congressional revolt against independent presidential war-making really got underway. Two different standing committees of the Senate voted to recommend to the full Senate its passage of a bill which, if enacted into law, would immediately cut off funds for U.S. bombing in Cambodia. Subsequently, the Senate passed the cutoff bill, and, on June 25, the bill was approved by the House of Representatives. Two days later, President Nixon vetoed the bill, and the bill's supporters in the House of Representatives failed to muster the two-thirds vote required of both chambers of Congress to override the President's veto and make the bill law without his signature and consent.

 

Although his veto of the legislation had been sustained, President Nixon realized that subsequent cutoff bills were very likely to be proposed and that, eventually, his veto would be overridden. To buy time and avoid an immediate cut off of funding, the President agreed to a compromise that had been negotiated between the Presidency and leading Congres- sional Democrats. The compromise bill, passed by the two houses of Congress and signed into law by Nixon, (1) specified August 15 as the date for cessation of U.S. bombing activities in Cambodia and (2) made congressional approval of funding a prerequisite for further U.S. military operations in Indochina.

 

Nixon complained that the effect of the compromise legislation, with its scheduled mandatory cut off of funds, was to deprive the President of the means to compel the Communists' compliance with the terms of the Vietnam peace agreement. According to Nixon--

 

      "We were faced with having to abandon our support of the

      Cambodians  who were trying to hold back the Communist

      Khmer Rouge, who were being supplied by the North Viet-

      namese in violation of the peace agreement.  The Cam-

      bodians ... could not understand why we were suddenly de-

      serting them--especially when the military tide seemed to

      be turning in their favor.

      "Congress, however, was not prepared to hear any arguments

      and was determined to go forward despite the consequences."

      [Nixon, MEMOIRS, p. 887.]

 

On August 3, President Nixon, in a written message to House Speaker Carl Albert and Senate Majority Leader Mike Mansfield, argued that, from the congressional legislation setting the scheduled mandatory funds cut off, the North Vietnamese were likely to draw the conclusion that they were at liberty to initiate military offensives in Cambodia and other parts of Indochina. He said that the North Vietnamese Communists probably would interpret the termination of U.S. bombing in Cambodia as "an invitation to fresh aggression or further violations of the Paris agreements." [IBID., p. 888.]

 

As the Nixon Presidency was being critically wounded--and what remained of its support, influence, and credibility were being drained out of it--by the highly publicized Senate investigation of the Watergate scandal and Nixon's involvement in the coverup, the congressional revolt against independent presidential war-making and its underlying theory continued to roll along pell-mell. With the Presidency momentarily weakened to the point that it was unabble to put up effective resistance to and defense against the onslaught, the Democratic majority in Congress had the taste of blood in its mouth and jumped in for the kill. Restrictive measures were forthcoming.

 

On November 7, 1973, Congress overrode a presidential veto and enacted into law the War Powers Act, which was intended to impose strict limits on the President's war-making abilities. In 1974, Congress started reducing appropriations for U.S. aid to South Vietnam's military forces, doing so at a time when the volume of Soviet supplies, arms, and equipment being turned over to the North Vietnamese was growing.

 

President Nixon maintained that actions taken by Congress against his Presidency--the bombing cut off, the War Powers Act, and the reduction in U.S. military aid to South Vietnam--"set off a string of events that led to the Communist takeover in Cambodia and, on April 30, 1975, the North Vietnamese conquest of South Vietnam." [IBID.]



 

J. THE WAR POWERS ACT OF 1973--KEY PROVISIONS:

 

Passage of the War Powers Act of 1973, also known as "Public Law 93-148" and the "War Powers Resolution," was a major move by Congress in its revolt against independent presidential war-making and the body of political and constitutional theory undergirding the practice--presidential prerogative theory and a very broad construction of the President's constitutional powers as Commander-in-Chief. At this point, I think, an examination of key provisions provisions of the War Powers Act is in order and would be helpful. We will take a look at the Act's stated purpose and rationale as well as the legal obligations and restric- tions the statute imposes on the President.

 

1. Purpose & Rationale of the War Powers Act

The purpose and underlying rationale of the War Powers act are stated in Section 2 of the Act. Section 2 declares that--

 

      "It is the purpose of this joint resolution to fulfill the

      intent of the framers of the Constitution of the United

      States and insure that the collective judgement of both

      the Congress and the President will apply to the introduc-

      tion of United States Armed Forces into hostilities, or

      into situations  where imminent involvement in hostili-

      ties is clearly indicated by the circumstances, and to the

      continued use of such forces in hostilities or in such

      situations.  [Section 2(a).]

 

      "Under Article I, Section 8, of the Constitution, it is

      specifically provided that the Congress shall have

      power to make all laws necessary and proper for

      carrying into execution, not only its own powers but

      also all other powers vested by the Constitution in

      the Government of the United States, or any de-

      partment or officer thereof.  [Section 2(b).]

      "The constitutional powers of the President as

      Commander-in-Chief to introduce United States

      Armed Forces into hostilities, or into situations

      where imminent involvement is clearly indi-

      cated by the circumstances, are exercised only

      pursuant to (1) a declaration of war, (2) specif-

      ic statutory authorization, or (3) a national

      emergency created by attack upon the United

      States, its territories or possessions, or its

      armed forces."  [Section 2(c).]

 

2. Consultation Requirements under the War Powers Act

Section 3 of the War Powers Act provides:

 

      "The President in every possible instance shall

      consult with Congress before introducing

      United States Armed Forces into hostilities or

      into situations where imminent involvement in

      hostilities is clearly indicated by the circum-

      stances, and after every such introduction

      shall consult regularly with the Congress until

      United States Armed Forces are no longer

      engaged in hostilities or have been removed

      from such situations."

 

3. Reporting Requirements Under the War Powers Act

Section 4(a) of the Act requires the President to report to Congress, providing it with information regarding (1) the circumstances necessitating the introduction of the U.S. Armed Forces, (2) the constitutional and statutory authority under which introduction of the Armed Forces took place, and (3) the estimated scope and duration of the hostilities or involvement. Section 4(b) requires the President to--

 

      " ... provide such other information as the Congress

      may request in the fulfillment of its constitutional

      responsibilities with respect to committing the Nation

      to war and to the use of United States Armed Forces

      abroad."

 

Section 4(c) makes these reporting requirements applicable to every case in which the U.S. Armed Forces, in the absence of a congressional declaration of war, are introduced--

 

      " ... into hostilities or into situations where imminent

      involvement in hostilities is clearly indicated by the

      circumstances;

 

      or

 

      " ... 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...."

 

As long as the Armed Forces continue to be engaged in hostilities or involved in any situation described above, the President is legally obligated to--

 

      "report to the Congress periodically on the status of such

      hostilities or situation as well as on the scope and

      duration of such hostilities or situation, but in no event

      shall he report to Congress less often than once every

      six months." [Section 4(c).]

 

4. The War Powers Act & Restrictions on Presidential Action

Sections 2(c) and 5(b) of the War Powers Act establish three conditions, the existence of any one of which authorizes the President to introduce U.S. military forces into foreign hostilities or into a situation where imminent involvement of American troops in foreign hostilities is clearly indicated. These two provisions of the statute limit presidential war-making to the three conditions. The President can legally commit the U.S. Armed Forces to hostilities or potentially hostile situations abroad only (1) after a congressional declaration of war, (2) by an existing congressional statute or resolution granting specific authorization, or (3) in a national emergency caused by a foreign attack on the U.S.A., its territories or possessions, or its military forces. On committing American troops under the third condition, the President must, within forty-eight hours after initiating military action, submit a formal report to Congress.

 

Section 5(b) of the Act provides that, within sixty calender days after a report is submitted or is required to be submitted pursuant to Section 4, whichever is earlier, the President shall--

 

      "terminate any use of the United States Armed Forces with

      respect to which such report  was submitted (or required to

      be submitted), unless the 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."

 

Section 5(b) further provides:

 

      "Such sixty-day period shall be extended for not more

      than an additional thirty days if the President determines

      and certifies to the Congress in writing that unavoidable

      military necessity respecting the safety of United States

      Armed Forces requires the continued use of such armed

      forces in the course of bringing about a prompt removal

      of such forces."

 

Section 5(c) provides that, notwithstanding the provisions of Section 5(b)--

 

      " ... at any time that United States Armed Forces are

      engaged in hostilities outside the territory of the United

      States, its possessions and territories without a declaration

      of war or specific statutory authorization, such forces shall

      be removed by the President if the Congress so directs by

      concurrent resolution."

 

In summary, Section 5 of the War Powers Act recognizes the constitutional authority of the President to initiate limited U.S. military action abroad without first securing the formal consent of Congress. The President, however, is required to file a formal report to Congress no later than forty-eight hours after undertaking such military action. The military action is limited to sixty days, unless Congress grants a thirty-day extension after the President has certified that the safety of the troops necessitates their continued deployment. For the President to legally continue the military action beyond the ninety days, he must have prior congressional approval, either through a declaration of war or through a statute or joint resolution granting specific authorization to continue the military action. At any time before the foregoing time limits, Congress may, through passage of a concurrent resolution not subject to presidential veto, require the President to withdraw the Armed Forces from hostilities abroad.

 

Finally, the War Powers Act was intended to curb the President's use of the United Nations Charter and other other treaties as a means of developing and exercising an independent war-making power. Section 8(a)(2) of the Act provides:

 

      "Authority to introduce United States Armed Forces into

      hostilities or into situations wherein involvement in

      hostilities is clearly indicated by the circumstances shall

      not be inferred ... from any treaty heretofore or hereafter

      ratified unless such treaty is implemented by legislation

      specifically authorizing the introduction of United States

      Armed Forces into hostilities or into such situations and

      stating that it is intended to constitute specific statutory

      authorization within the meaning of this joint resolution."

 

Presidential authority to engage U.S. military forces in armed combat abroad is not to be inferred from any treaty to which the U.S.A. is a party, unless congressional legislation implementing the treaty (1) specifically authorizes the President to take such action and (2) expressly states that the intent of the legislation is to grant such authorization.

 

 

K. CONSTITUTIONALITY OF THE WAR POWERS ACT

 

As was indicated above, Section 5(c) of the War Powers Act provides that, at any time after the President engages U.S. military forces in hostilities abroad, in the absence of a congressional declaration or war or a congressional statute specifically authorizing the action, (1) Congress may pass a concurrent resolution directing the President to withdraw the troops from hostilities and (2) the President must immediately comply with the concurrent resolution. Section 5(c) is seriously flawed, constutution-wise. The Section gives the force of law to a concurrent resolution, which is passed by majorities in both chambers of Congress, but is not presented to the President for his consent or veto. In the past, a concurrent resolution was passed when the two chambers desired to express the "sense of Congress" (i.e., its opinion) on a particular issue or problem and, therefore, the resolution did not have the force of law. Giving the force of law to a concurrent resolution dealing with the circumstances specified in Section 5(c) allows Congress to exercise a legislative veto over military actions initiated by the President without a congressional war declaration or authorizing statute.

 

In the 1930s, Congress began the practice of incorporating the legislative veto into particular legislative bills it drafted and passed. When utilizing the legislative veto, Congress would pass broadly worded legislation delegating general authority to the executive branch, but would include in the statute a provision permitting Congress to review and veto executive-branch decisions involved in carrying out the statute and to exercise such a congressional veto without having to present it to the President for his approval or veto. The legislative veto, in effect, allows Congress to legislate without its decisions on legislation being subject to the risk of presidential veto and the necessity of mustering the two-thirds vote in each chamber to override the veto.

 

A concurrent resolution given the force of law, for whatever purpose it is intended to serve, is clearly unconstitutional. This applies to exercise of the legislative veto through congressional passage of a concurrent resolution. Such congressional action is a violation of the presentment clause (Article I, Section 7, Clause 3) of the U.S. Constitution:

 

      "Every Order, Resolution, or Vote to which Concurrence of

      the Senate and House of Representatives may be necessary

      (except on a question of Adjournment) shall be presented to

      the President of the United States; and before the Same

      shall take Effect, shall be approved by him, or being dis-

      approved by him, shall be repassed by two-thirds vote of

      the Senate and House of Representatives, according to the

      Rules and Limitations prescribed in the case of a Bill."

      [Article V of the Constitution makes an important exception

      to the presentment-to-the-President requirement.  Under

      Article V, a constitutional amendment proposed by a two-

      thirds vote in each chamber of Congress is submitted to

      the states for ratification or rejection, rather than to the

      President for his approval or veto.]

 

In Immigration and Naturalization Service v. Chadha (l983), the U.S. Supreme Court declared unconstitutional the legislative veto, as provided for in Section 244(c)(2) of the Immigration and Nationality Act of 1952. The Court held that the legislative veto was a resolution subject to the requirements of Article I, Section 7, Clause 3, of the Constitution. The Court, in INS v. Chadha, ruled that a simple resolution (i.e., a one-house resolution) given the force of law and employed to effect a legislative veto of executive action did not meet the requirements of Article I and was therefore unconstitutional and null and void. In invalidating the particular legislative veto being challenged, the Supreme Court rendered presumptively unconstitutional the legislative veto authorized in Section 5(c) of the War Powers Act and those authorized in more than 200 other federal statutes.

Despite its obvious unconstitutionality, Section 5(c) has never been struck down by the Supreme Court. Why? Congress has yet to invoke this section of the War Powers Act. Until Congress does invoke Section 5(c) and the constitutionality of the provision and the action of Congress in attempting to enforce it are challenged in the federal courts, the Supreme Court will not have the opportunity to rule on the question of the constitutional validity of Section 5(c) and its enforcement. In the American constitutional system, the Supreme Court, like any other American court of law, issues rulings only in cases and controversies brought before it for argument, judgement, and decision.

 

What about the constitutionality of other provisions of the War Powers Act? Aside from Section 5(c) and its provision for a legislative veto over executive action, I see no constitutional problems with the statute. The consultation and reporting requirements in Sections 3 and 4 of the Act and the Section 5(b) restrictions on presidential action appear to be well within the authority granted to Congress by the Elastic Clause (Article I, Section 8, Clause 18) of the U.S. Constitution:

 

      [The Congress shall have Power] " ... To make all laws which shall

      be necessary and proper for carrying into Execution the foregoing

      [enumerated] Powers, and all other Powers vested by this Constitu-

      tion in the Government of the United States, or in any Department

      [branch] or Officer thereof."

 

Under the Elastic Clause, also known as the "Necessary and Proper Clause," Congress possesses full power to carry into execution (i.e., put into effect, or make operative) not only its own constitutional war powers, but also those of the President.

 

Thus, I do not question the constitutional validity of the provisions of the War Powers Act dealing with presidential consultation and reporting and those imposing limitations on presidential action. What I do question is the wisdom and practicality of these provisions. Taking into consideration the nature and conditions of modern warfare, how wise and realistic are the provisions? Not terribly, I'm afraid. In particular, the Section 5(b) time limit of sixty to ninety days on U.S. military deployment abroad is highly questionable, since the provision unduly restricts presidential discretion in the face of a foreign threat and invites the enemy to persevere in its aggression, encouraged and emboldened by full awareness that the time limit on the American military presence in the area will expire in the not-too-distant future. The Section 3 consultation requirements are difficult to comply with, especially when Congress is not in session. While compliance with the Section 4 reporting requirements is tedious, presidents can learn to live with them.

 

There is a dangerous omission from Section 5(b), which specifies only three circumstances under which the President can legally initiate U.S. military action abroad--a congressional declaration of war, a federal statute or joint resolution granting specific authorization, and/or a national emergency created by a foreign attack on the U.S.A., its territories or possessions, or its military forces. Left out of Section 5(b) is an important condition that should have been included--the existence of a serious threat to the vital national interests of the U.S.A. in a region outside American national territory, airspace, or waters. Failure to include this condition in the circumstances specified in Section 5(b) places in jeopardy the ability of the President to initiate rapid, decisive, and effective military action to confront and eliminate threats to American national security.



 

L. PRESIDENTIAL WAR-MAKING UNDER THE WAR POWERS ACT

 

Since enactment of the War Powers Act in 1973, every president has disapproved of the statute, regarding its provisions as being unwise, unduly restrictive, and based on the shortsighted views and irresponsible motives of those who drafted the legislation and pushed for its adoption. From 1973 to present date, no president has recognized the War Powers Act as a legitimate restriction on the President's exercise of his constitutional powers as Commander-in-Chief. President Nixon vetoed the legislation on the grounds that, if the bill became law, it would unconstitutionally encroach on the President's war powers. Every post-1973 president has taken the position that the legislative veto incorporated into the statute violates the U.S. Constitution, since it empowers Congress to compel the President to do something the Constitution does not require him to do--namely, remove U.S. military forces from overseas deployment at some point in time arbitrarily set by Congress.

 

1. President Ford and the War Powers Act

In military crises of very limited scope and duration, President Gerald R. Ford, like his successors, managed to retain the war-making initiative, despite the War Powers Act. In the Mayaguez affair, for example, President Ford undertook limited but rapid and decisive military action against Cambodia, quickly resolved the dispute in America's favor, and then reported to Congress on the matter and his action in dealing with it. In this case, Ford had no problems with the War Powers Act.

However, during the evacuations of DaNang in 1975 and Lebanon in 1976, President Ford faced practical problems in trying to comply with the consultation requirements of the Act. After expiration of his term of office, the ex-President, in a lecture delivered on April 11, 1977, described his difficulties with the consultation provisions of the statute. As regards the DaNang evacuation, Ford said:

 

      "When the evacuation of DaNang was forced upon us

      during the Congress's Easter recess, not one of the key

      bipartisan leaders of the Congress was in Washington.

      "Without mentioning names, here is where we found the

      leaders of Congress:  two were in Mexico, three were in

      Greece, one was in the Middle East, one was in Europe,

      and two were in the People's Republic of China.  The

      rest we found in twelve widely scattered states of the

      Union.

      "This, one might say, is an unfair example, since the

      Congress was in recess.  But it must be remenbered

      that critical world events, especially military opera-

      tions, seldom wait for the Congress to meet.  In fact,

      most of what goes on in the world happens in the

      middle of the night, Washington time."  [Quoted in

      Peter W. Rodman, "The Imperial Congress," THE

      NATIONAL INTEREST (Fall, 1985), p. 32.]

 

In describing the consultation problems associated with the 1976 evacuation of Lebanon, Ford related:

 

      "On June 18, 1976, we began the first evacuation of

      American citizens from the civil war in Lebanon.  The

      Congress was not in recess, but it had adjourned for

      the day.

      "As telephone calls were made, we discovered, among

      other things, that one member of Congress had an un-

      listed number which his press secretary refused to di-

      vulge.  After trying and failing to reach another mem-

      ber of Congress, we were told by his assistant that the

      congressman did not need to be reached.

      "We tried so hard to reach a third member of Congress

      that our resourceful White House operators had the

      local police leave a note on the congressman's beach

      cottage door:  'Please call the White House.'"  [IBID.]

 

2. President Reagan and the War Powers Act

After Republican President Ronald W. Reagan dispatched U.S. Marines to Lebanon in 1982, he reported to Congress, along the lines mandated in the War Powers Act. With a Republican majority in the Senate but a substantial Democratic majority in the House of Representatives, Reagan's military initiative encountered considerable opposition in Congress, resulting in persistent challenges to the deployment of troops in Beirut. The congressional challenges, motivated primarily by narrowly partisan political considerations, weakened and undermined the Reagan Presidency's negotiating position with Syria and with the various warring political factions in Lebanon, thereby making the situation in which the Marines were involved a whole lot more dangerous than it would been in the absence of congressional challenges.

 

In late 1983, however, congressional leaders worked out a compromise authorizing the President to keep the Marines in Lebanon for a period of eighteen months. Approved by the two houses of Congress, the compromise was sent to the President for his signature.

 

After signing the accord, President Reagan, in a written message to Congress, stated unequivocally that his assent to the arrangement did not--

 

      "cede any of the authority vested in me under the Con-

      stitution as President and Commander-in-Chief....  Nor

      should my signing be viewed as any acknowledgement

      that the President's constitutional authority can be im-

      permissibly infringed by statute."  [Quoted in Christopher

      Madison, "Despite His Complaints Reagan Going Along

      with Spirit of War Powers Law," NATIONAL JOURNAL

      (May 19, 1984), p. 990.]

 

Reagan was never happy with the compromise, feeling that he hand been forced by the reality of the political situation in Congress to accept a less than satisfactory arrangement. Congressional authorization of an 18-month period of continued U.S. military deployment in Lebanon was very costly to the Regan Presidency and to the position of the U.S.A. in the Middle East. Peter W. Rodman, then Director of the Policy Planning Staff of the U.S. Department of State, has described the accord and its costs as follows:

 

      "In September and October, 1983, an accord was reached

      by which Congress purported to authorize a continued

      Marine presence in Beirut for eighteen months; in return,

      legislators exacted a host of assurances by the executive

      branch of what it would not do, further draining the Ma-

      rine presence of its deterrent impact.  The bombing of

      the Marine barracks occurred shortly afterward.  That

      event--regurgitated by the Long Commission report in

      December--led to renewed rumblings in Congress at the

      end of 1983 that suggested great restlessness about

      keeping its part of the bargain.  This, in turn, convinced

      the Syrians that the United States was 'short of breath'

      (as Syrian Foreign Minister Khaddam told his Lebanese

      counterpart), thus undermining the delicate diplomatic

      efforts in December and January that sought a negoti-

      ated solution."  [Rodman, "The Imperial Congress,"

      pp. 31-32.]

 

Faced with military and diplomatic problems caused, at least in part, by political maneuvering and posturing on the part of members of Congress opposed to the U.S. military presence in Lebanon and by the impact these tactics had on the behavior of Syrian dictator Hafez al-Assad and on that of Lebanese political factions encouraged and supported by the Assad regime, President Reagan probably regretted having taken the time and trouble to comply with the reporting requirements of the War Powers Act. On March 6, 1984, Senate Majority Leader Howard Baker, in a speech on the Senate floor, candidly addressed the central problem as he perceived it:

 

      "... the United States with its responsibilities and ob-

      ligations as a superpower is likely to face with increasing

      frequency  situations of ambiguity and imprecision where

      neither diplomatic efforts nor the exertion of force can

      promise a certain outcome.  It will require the nicest of

      judgements in our determination of whether and how the

      United States should be involved....

      "... Perhaps in addressing these questions we should

      review whether the War Powers Resolution, as it now

      stands, remains an appropriate mechanism for the

      interaction between the executive and the legislative

      branches of Government.  I am personally convinced

      that we cannot continue to begin each military in-

      volvement abroad with a prolonged tedious and

      divisive negotiation between the executive and the

      legislative branches of Government.  The world and

      its many challenges to our interests simply do not

      allow us that luxury."  [Quoted in IBID., p. 32.]

 

In other military actions initiated by President Reagan, he proceeded without invoking the War Powers Act and, in general, acted as if his military initiatives did not require congressional authorization in advance. A notable example was the U.S. invasion of Grenada on October 25, 1983. Seeing a serious threat to American national interests in the southern Caribbean region, Regan had the National Security Council and Joint Chiefs of Staff draw up a plan for the U.S. military operation in Grenada, explained the situation to Democratic House Speaker Thomas P. "Tip" O'Neill, and informed him of the presidential decision that had already been made, as regards what was to be done about the situation. Speaker O'Neill, top leader of the overwhelming Democratic majority in the House of Representa- tives, indicated that, if the Grenada mission turned sour, Congress would not accept responsibility for the fiasco, that responsibility for the disaster (and its attendant political costs) would be borne either by the President alone or by the President and the Republican Party. Accepting responsibility for the operation, Reagan sent U.S. military forces to Grenada, effecting liberation of the small island nation from the Marxist-Leninist (Communist), pro-Cuban dictatorship that had been established through a coup d'etat.

 

Shortly after the American invasion of Grenada had begun, all resistance was overcome, since the greater part of the Grenadan population welcomed the invading forces as liberators. A rapid sequence of events ensued: U.S. citizens were safely evacuated from the island, the Cuban agents and socalled "construction workers" (in reality, heavily armed and well trained paramilitary personnel) were expelled, the despotic Marxist- Leninist regime was overthrown, and a political coalition committed to democratic elections and more favorably disposed toward American interests was allowed to assume governing authority. Faced with a fait accompli, the U.S. Congress, after the fact, applied the War Powers Act, declining to grant an extention to the 60-day time limit and, in effect, requiring U.S. military forces to be removed from Grenada no later than December 25, 1983. However, the U.S. troops did not leave Grenada until June, 1985.

 

Another notable example of President Reagan's military initiatives not encountering major problems with Congress and the War Powers Act was the 1986 confrontation with Libyan dictator and Bedouin trouble-maker Muammar al-Qaddafi, involving the naval engagement in the Gulf of Sidra and the aerial bombardment of Libya. Shortly after sinking two Libyan ships and bombing a missile site in Libya, U.S. naval forces, on March 27, were withdrawn from the Gulf of Sidra. On April 14, however, Reagan again sent U.S. warplanes into Libyan air space, on this occasion bombing terrorist-related targets in Tripoli and Benghazi. By the time Congress learned of the operation, U.S. forces had done their job and had been removed from the situation of foreign hostilities.

Congress took no action to oppose or undercut Reagan's military initiatives against the Marxist-Leninists in Grenada and against the Qaddafi regime in Libya. In the case of each of these initiatives, some of the more Leftist-leaning members of Congress and their political allies in the "news" media screamed like stuck pigs, but did very little more than that.

 

Thus, President Reagan, like President Ford, managed to keep the initiative in dealing with problems relating to national security and military affairs.

3. President Bush and the War Powers Act

In spite of the War Powers Act, the presidential initiative in U.S. military actions abroad continued largely unabated during the four years of the Presidency of George W. Bush (1989-1993) as well as during the eight years of the Reagan Presidency (1981-1989), the four years of the Presidency of James E. Carter (1977-1981), and the nearly two and a half years of the Ford Presidency (1974-1977).

Republican President Bush managed to keep the initiative in war-making, despite the fact that, throughout his four-year Presidency, the Democrats had a clear majority in the Senate and an overwhelming majority in the House of Representatives.

During the first year of the Bush Presidency, the critical point was reached in the ongoing difficulty between the U.S. government and the corrupt Panamanian dictator Manuel Noriega, as regards the latter's involvement in smuggling cocaine into the U.S.A. and his actions threatening the safety of the Panama Canal and of U.S. citizens living and working in the Canal Area, i.e., in what had been the Canal Zone prior to its abolition in October, 1979. Realizing that the problem could not be resolved through diplomatic negotiation or successfully dealt with by other political means (e.g., U.S. encouragement and support of a movement within Panama to overthrow the Noriega regime and replace it with a government more amenable to recognizing and respecting American national interests), President Bush, on December 20, 1989, dispatched U.S. military forces to Panama in order to depose Noriega, capture him, and bring him to the U.S.A. to stand trial in a federal district court on drug trafficking charges. Bush took this action, in the absence of a congressional declaration of war and largely without complying with the consultation requirements of the War Powers Act. While many members of Congress were critical of President Bush's ordering the Panama invasion without prior congressional authorization, the Democratic majorities in the Senate and House of Representatives took no action against the President, probably because the military operation was carried out quickly, smoothly and successfully, its main objectives being accomplished with minimal loss of American lives.

In defending his action in ordering the Panama invasion without prior congressional approval, President Bush maintained that it was his constitutional duty as President and Commander-in-Chief to handle matters pertaining to U.S. national security and military operations--and to handle those matters in such manner as he deemed necessary and appropriate, unimpeded by the provisions of the War Powers Act. Bush called attention to the fact that, throughout American history, presidents have found it necessary to send U.S. troops into foreign hostilities without first obtaining the approval of Congress. He insisted that, when the U.S.A. faces a serious threat to its national security, the President has the constitutional authority and responsibility to take swift and decisive action, even in the absence of clear statutory support.

In August, 1990, after Saddam Hussein's military forces had invaded and occupied Kuwait and there immediately followed the beginning of a large Iraqi military buildup close to the Saudi border, President Bush perceived the rapidly developing situation as a serious threat not only to the security and independence of Saudi Arabia but also to vital U.S. national interests in the Persian Gulf region. The Iraqi government and military establishment, controlled and directed by a ruthless dictator, was ready and willing to commit acts against neighboring states, was developing instruments of chemical and biological warfare, and was now in the process of forcibly seizing control of half of the world's supply of petroleum. Bush viewed this situation as one the U.S.A. could not and would not take lying down.

Hussein was, in effect, telling America to "Drink Seawater" (the Arab's way of saying, "Go to Hell"), operating on the assumption that the U.S.A. lacked the will to employ military force in defense of its national interests. President Bush, however, firmly believed that military force was an appropriate and justifiable instrument of American foreign policy, a tool which the nation should use neither carelessly and recklessly nor timidly and hesitantly. Acting in accordance with this belief, the President, on August 6, initiated "Operation Desert Shield," sending U.S. military forces to Saudi Arabia to help defend that country against a possible and, in Bush's view, highly probable Iraqi attack.

President Bush, without seeking and obtaining prior congressional authorization, initially dispatched 230,000 U.S. troops to Saudi Arabia. The President, in reporting to Congress and the nation, defended his action as a legitimate response to the Saudi government's request for American assistance in bolstering Saudi defenses and deterring an Iraqi attack. In late October, when it became clear that the Iraqi regime was continuing its military buildup in Kuwait, Bush, again without the prior consent of Congress, sent an additional 200,000 U.S. troops to Saudi Arabia, deployed there in preparation for a possible military offensive against Iraq. The President reported to Congress his decision to nearly double the number of American military personnel deployed in Saudi Arabia, but did so only hours before implementation of his decision began. In this manner, he caught by surprise his Democratic critics in Congress, denying them sufficient time and opportunity to mobilize an effectual opposition to his military initiative.

Congressional Democrats wishing to obstruct implementation of the President's Persian Gulf policy realized that the only avenue left to them was rejection of proposed military appropriations. The would-be obstructionists also realized that withholding funds for American troops already in harm's way was a strategem fraught with tremendous political risks--one which could very well backfire on those who employed it, resulting in their being severely burned by a voters' backlash in the coming November congressional elections. Hence, suggestions that this maneuver be used against President Bush and his military policy did not receive appreciable support. In fact, the 1990 military initiative taken by Bush under the label "Operation Desert Shield" received the full support of Congress, despite some moaning and groaning over the largescale deployment of U.S. combat troops in Saudi Arabia and the devious manner in which the President outmaneuvered his congressional critics.

Determined to reverse the Iraqi invasion and occupation of Kuwait, President Bush rallied the support of the United Nations, getting the U.N. Security Council, on November 29, 1990, to pass U.N. Resolution 678--the resolution which authorized U.N. members to use "all necessary means" to drive the Iraqi invaders from Kuwait, if Iraq failed to withdraw them by January 15, 1991. In gaining explicit United Nations authorization to employ military force to expel the Iraqi troops from Kuwait, if they did not leave by the specified deadline, Bush again outmaneuvered his critics in Congress, putting pressure on them to abandon their opposition and begin supporting the President's initiatives in the Persian Gulf region. James Baker, then U.S. Secretary of State, explained the advantage which, according to his perception, passage of the U.N. resolution gave to the Bush Presidency vis-a-vis the House and Senate Democratic majorities:

      "It was quite clear that ... [U.N. Resolution 678]
      would give us such a boost, in terms of internation-
      al public opinion but also domestic public opinion
      and public opinion with Congress.  It would put us,
      frankly, in the position of being able to say to a
      congressman who would not vote for us, 'You mean
      you are not willing to support the president, but
      the prime minister of Ethiopia will support the
      president?'"  [Quoted in Michael Duffy and Dan
      Goodgame, MARCHING IN PLACE--THE STATUS QUO PRESI-
      DENCY OF GEORGE BUSH (New York:  Simon & Schuster,
      1992), pp. 157-158.]

On January 12, 1991, President Bush called on Congress to adopt the Persian Gulf Resolution and thereby go on record as giving its full support to the President's use of "all necessary means" to carry out U.N. Resolution 678. The House of Representatives, after a lengthy debate, passed the requested joint resolution by an overwhelming majority vote (250-183). The Senate passed it by a much slimmer majority (52-47). The President signed the measure into law on January 14.

With the Security Council's adoption of U.N. Resolution 678 and congressional passage of the Persian Gulf Resolution, President Bush had all the authority and support he needed to wage war against Saddam Hussein. On January 16, after the Iraqi government failed to withdraw its military forces from Kuwait by the deadline, Bush ordered "Operation Desert Storm," effectuating a devastating aerial assault against military installations and concentrations in Iraq and Kuwait. On the President's orders, a ground offensive began on February 24. After four days of ground warfare, the Iraqi forces were defeated and Kuwait was liberated. Shortly thereafter, Bush unilaterally ordered an informal ceasefire and the Iraqi government agreed to observe and comply with all U.N. Resolutions. On April 6, a formal ceasefire was accepted and signed by representatives of the contending parties in the Persian Gulf War, and the conflict was thereby brought to an official end. Having destroyed and/or captured the greater part of Hussein's military machine and having compelled him to back down, as regards his pursuit of the Iraqi claim to Kuwait, the U.S.A. and the U.S.-led allied coalition emerged from the war victorious.

While President Bush consulted with and reported to Congress during the course of the Persian Gulf War, he disagreed with the contention that Congress has the constitutional authority to take part in decision-making regarding initiation of U.S. military action abroad. Although he sought and obtained congressional passage of the Persian Gulf Resolution, there are indications that Bush believed that, as President and Commander-in-Chief, he had ample constitutional authority to act unilaterally in initiating military operations against Iraq. It has been reported that, in the presence of journalists, Bush expressed the opinion that he possessed the power to undertake military action, regardless of the presence or absence of a congressional joint resolution authorizing the military undertaking. According to the reports, Bush pushed for adoption of the Persian Gulf Resolution to secure the political support of Congress, not to obtain legal authority he would lack in the absence of a congressional joint resolution.

During the remainder of his Presidency, Bush continued to adhere to and act in accord with the belief that the President has full authority to initiate U.S. military action abroad, and to do so without congressional interference. In December, 1992, near the end of his term of office, President Bush, without consulting with or seeking authorization from Congress, sent U.S. troops to Somalia, with orders to operate as part of the United Task Force (UNITAF)--a U.N.-sanctioned, U.S.-led multinational coalition of U.N. member-states. Deployed to Mogadishu on December 9, the United Task Force was given specific authority under Chapter VII of the U.N. Charter to employ armed force, if necessary to accomplish UNITAF's mission--to (1) disarm political factions that were violating the ceasefire and (2) establish and maintain orderly conditions under which food and other humanitarian supplies could be safely delivered to the starving segments of the Somali population. The United Task Force was conceived as a U.N.-authorized military force similar to the U.S.-led coalition forces in the Korean War (1950-1953) and in Operation Desert Shield (1990) and the Persian Gulf War (1991).

The American component, the U.S. troops volunteered by President Bush and given the name "Operation Restore Hope," constituted the overwhelming majority of the military personnel comprising UNITAF. The other U.N. member-states participating in the operation made only token contributions of military personnel. The socalled "United Nations" military operation was, for all practical purposes, a U.S.A. operation. The "U.N. peace-keepers" were primarily a U.S. military force operating behind the facade of a U.N. multi-national force

4. President Clinton and the War Powers Act

a. Intervention into the Civil War in Somalia

During the first year of the Presidency of William J. Clinton, the Somalia operation dragged on and America's participation in the operation continued. In order to divert the attention of Congress and the American public away from Somalia and the involvement of U.S. troops in the hostilities (and thereby reduce the domestic political risks to the Clinton Presidency and the Democratic Party), President Clinton decided on a substantial reduction of the U.S. military presence in Somalia, envisioning transformation of the U.N.-authorized military force deployed there into a force with the appearance of a more "international" and "Third World" composition. By May 4, 1993, the American component no longer comprised the bulk of the U.N. force. Most of the nearly 30,000 well-trained and well-organized U.S. troops, along with most of their helicopters, tanks and armored personnel carriers, had been withdrawn from Somalia and this formidable American component had been replaced by a considerably less than formidable contingent of Pakistani troops, who numbered no more than 4,000, were poorly trained and poorly organized, and had no tanks. The only U.S. military personnel and equipment remaining available for U.N. peacekeeping purposes in Somalia was a small "Quick Reaction Force," deployed in Mogadishu, under U.S. (rather than U.N.) command and control, and intended to function as a reserve, or back-up, force, going into action on those occasions when the U.N. peacekeepers met a degree of armed resistance they could not handle on their own and, therefore, were in genuine need of U.S. military assistance.

In the meantime, after consultations between the Clinton Presidency and U.N. Secretary- General Boutros Butros-Ghali (but not between President Clinton and the U.S. Congress), an important policy decision had been made and was in the process of being carried out. This was the decision to transform the Somalia operation from a limited intervention with a humanitarian objective (distributing food to the starving Somalis) into an overly ambitious and totally unrealistic plan for "nation-building"--a plan for forcibly imposing national unity on the Somali population, against the wishes of the warring clans and political factions in Somalia. National unity was to be imposed on a people determined to remain divided into warring clans and political factions bent on annihilating one another.

The enlarged mission for the U.N. peacekeepers in Somalia, coupled with the premature withdrawal of the formidable contingent of experienced U.S. troops and its replacement with a not-so-formidable Pakistani contingent ill-prepared for the function it was expected to perform, had disastrous consequences. General Mohammed Farah Aidid, leader of the United Somali Congress/Somali National Alliance (USC/SNA) and one of the two principal warlords in Somalia, very quickly realized that the U.N. military force had been critically weakened. General Aidid immediately challenged the authority of the U.N. peacekeepers by sending his armed militia into the streets of Mogadishu to commit acts of violence against U.N. peacekeeping personnel and humanitarian aid workers. In resorting to these guerrilla-warfare tactics, Aidid deliberately set out to disrupt the delivery of humanitarian aid supplies and to thwart the attempt to bring peace, stability, and unity to Somalia.

On June 5, 1993, in a series of attacks by General Aidid's militia on U.N. peacekeepers in south Magadishu, 25 Pakistani soldiers were killed, 10 went missing in action, and 54 were wounded. The bodies of some of the Pakistani dead were dismembered and skinned. Many of the attacking Somali militiamen sought to deter return gunfire by using unarmed women and children as shields.

In response to the events occurring on June 5, U.N. Secretary-General Boutros-Ghali, under U.N. Resolution 814, obtained authorization to "take all necessary measures against those responsible for the armed attacks and for publicly inciting them, including their arrest and detention for prosecution, trial, and punishment." Boutros-Ghali, with the approval and support of President Clinton, gave the U.N. military force in Somalia the added task of hunting down and apprehending Aidid and others responsible for the June 5 militia attacks on U.N. military personnel.

Parallel to its efforts to locate and capture Aidid and his top lieutenants, the U.N. peacekeeping force continued its coercive disarmament operations, which had come to mean primarily an endeavor to forcibly disarm the USC/SNA. General Aidid's militia put up a strong and determined resistance to the U.N. peacekeepers' disarmament operations as well as their efforts to find and seize Aidid. Armed conflict between the U.N. troops and the USC/SNA militia continued. As U.N. troops, led by U.S. helicopters redeployed to Somalia, attacked the militia's weapons depots, the militia fought back, firing at U.N. peacekeepers and U.S. helicopters and slaughtering Somali civilians working in the employ of U.N. entities in Somalia. Throughout the remainder of 1993, the USC/SNA militia conducted mortar attacks on U.N. compounds nearly every night, less frequently launched all-out assaults on U.N. compounds, subjected U.N. military and civilian personnel to random sniper fire, used such anti-personnel devices as mines and command-detonated explosives, utilized rocket-propelled grenades (RPGs) to hit and bring down helicopters, and equipped children with grenades and directed them to go to the gates of U.N. compounds, where they unknowingly blew themselves up and killed or severely wounded any U.N. personnel within close range.

U.N. efforts to disarm the USC/SNA and capture General Aidid met with one failure after another. For the U.N. peacekeeping force to accomplish the mission of subduing and disarming the USC/SNA, the U.S. Quick Reaction Force deployed in Mogadishu needed to be substantially reinforced and then assigned the central role in the disarmament operations. President Clinton, however, delayed taking the necessary actions. During the greater part of the Summer of 1993, Clinton, more concerned with preventing U.S. involvement in Somalia from drawing media and voter attention, declined to augment the Quick Reaction Force to the level recommended by his military and foreign-policy advisers. Success of the mission continued to depend upon the performance of ill-prepared and unreliable troops from Pakistan and other Third World nations.

As regards the task of locating and seizing General Aidid, the Quick Reaction Force was even less capable of accomplishing that mission. What was needed was the U.S. Army's Special Forces Operational Detachment D, the elite, super-secret "Delta Force"--a military unit specializing in covert operations, a commando unit well-trained and well-prepared to employ the tactics essential to accomplishment of the "snatch-and-grab" mission. Ever since the June 5 militia attacks on the U.N. peacekeepers, U.S. Marine General Jonathan Howe, the U.N. Secretary-General's Special Representative in Somalia (officially appointed by Boutros-Ghali but, in reality, handpicked by President Clinton) and charged with responsibility for managing the U.N. peacekeeping mission in that country, had been pushing for deployment of the Delta Force to Somalia, thinking that the unit could pull off an easy and bloodless arrest of Aidid. Supporting General Howe in his repeated requests for the Delta Force were: (1) Medeleine K. Albright, U.S. Ambassador to the United Nations; (2) Warren M. Christopher, U.S. Secretary of State; and Robert Gosende, U.S. Envoy to Somalia. As the Somali conflict became increasingly messy, the Central Intelligence Agency (CIA) came to support Howe's call for use of the Delta Force. So did President Clinton's National Security Adviser (Anthony Lake) and the Deputy to the National Security Adviser (Samuel R. Berger).

On August 8, a remote-controlled land mine, detonated by a Somali spotter, killed four U.S. Army MPs and then, on August 22, the same type of device was used to wound seven American soldiers and destroy their vehicle. These August attacks constituted the last straw. Chairman of the U.S. Joint Chiefs of Staff Colin L. Powell, until then an opponent of using the Delta Force in the Somalia conflict, was suddenly converted into a supporter of the proposal. On August 22, General Powell recommended to the President that he dispatch the Delta Force commandos and other U.S. Army Special Forces to Somalia. Clinton readily agreed and, that evening, the following military units were on their way to Somalia: (1) Special Forces Operational Detachment D, from Fort Bragg, North Carolina; (2) a helicopter detachment of the 160th. Special Operations Aviation Regiment (Nightstalkers), from Fort Campbell, Kentucky; and (3) Company B and a Command and Control Element of the 3rd. Battalion, 75th. Ranger Regiment, from Fort Benning, Georgia. Once these units reached their destination, they were to operate in coordination with a CIA team which had arrived in Somalia more than a month earlier. Their mission, of course, was to arrest General Aidid and his top lieutenants, destroy the command structure of the USC/SNA militia, and put Aidid and his faction out of business. Aidid, once he had been captured, was to be taken to an offshore location, where he would be charged with murder and forced to stand trial on the charges in an international court comprised of African judges.

The U.S. Special Operations forces, sent by the President to Somalia to accomplish the foregoing mission, were to operate under U.S.command and control--not under U.N. command and control.

Within days of the clandestine deployment of Rangers, Nightstalkers, and Delta Force commandos to Somalia, there were clear indications that President Clinton had adopted and was about to implement a new and tougher policy, as regards General Aidid and the USC/SNA militia. On August 27, five days after the secret deployment of the Special Operations team, U.S. Secretary of Defense Les Aspin, speaking for the President, delivered a major public speech on American military and foreign policy, declaring that U.S. military forces would remain in Somalia until Aidid's militia had been disarmed, the acts of terrorism and violence had ended, and there had been created a new and trustworthy Somali police force possessing the will as well as the ability to maintain law and order throughout the country. Aspin's speech sounded very much like an announcement that the U.S. Government had plans for a longterm, massive American military presence in Somalia.

Almost immediately, the new Somalia policy of the Clinton Presidency was subjected to severe criticism in Congress. Most conspicuous was the criticism emanating from Democratic Senator Robert C. Byrd, who, at the time, was Chairman of the Senate Committee on Appropriations and, in that capacity, was one of the more important and influential leaders of the Democratic majority in the Senate. Senator Byrd promised that he would do everything within his power to prevent congressional funding of the enlarged U.S. mission in Somalia. He asserted that the mission should--

      "either be specifically endorsed by Congress
      or we should pack up and go home.  My vote
      is for the latter."  [Quoted in Patrick J.
      Sloyan, "Hunting Down Aidid:  Why Clinton
      Changed Mind," NEWSDAY (December 6, 1993),
      p. 2.]

Keep in mind that Congress and the general American public were, at the time, unaware that President Clinton had, on August 22, sent Special Operations units of the U.S. Army to Somalia, with the assigned task of locating and seizing General Aidid and spiriting him offshore to face murder charges.

Once the Special Operations team had arrived in Somalia and had gotten up and running, it made seven very risky attempts to find and apprehend Aidid, each of these attempts ending in failure. On August 30, when U.S. Army Rangers and Delta Force commandos used helicopters and helicopter ropes to swoop down on designated targets in south Mogadishu, this first attempt of the Special Operations team to "snatch and grab" Somalia's top warlord went badly. The key location targeted for assault, seizure, and arrest of its occupants turned out to be an empty building. Among the personnel arrested at another important location, there was one man who physically resembled Aidid, but subsequently was found to be an employee of the U.N. Relief Mission.

As regards the first six attempts, U.S. military commanders in Somalia contended that the failure of the efforts was due to poor intelligence--i.e., an insufficient supply of relevant information and an overabundance of misinformation. From the very beginning of the endeavor, General Howe had warned that, in the absence of adequate and reliable intelligence, the Special Operations team would not be able to accomplish its mission. Howe was well aware that there had been a substantial decrease in U.S. and U.N. military intelligence capability after most of the American combat troops had, on the orders of President Clinton, pulled out of Somalia in late March and early May, 1993.

On October 3, 1993, when the Special Operations team made its seventh and final attempt to accomplish its mission, the effort ended in disaster--disaster in international geopolitical terms as well as in domestic American political terms. The goal of the October 3 operation, launched by the Rangers in south Mogadishu, was to arrest a number of key aides of General Aidid--men who were suspected of direct involvement in or collusion with those directly involved in the armed attacks on U.N. personnel and installations during June, July, and August. While the Rangers managed to capture two of Aidid's key aides and 22 other suspects, two U.S. helicopters were shot down, 18 American soldiers killed, 75 others wounded, and one helicopter pilot captured. Dead Rangers were stripped of their uniforms and their bodies dragged through the streets of south Mogadishu. Scenes of these outrageous acts of barbarism were broadcast by television networks and stations throughout the world. The secrecy of the Special Operations team and its mission in Somalia had been shattered in a most shocking and revolting manner. 

The October 3, 1993, firefight in south Mogadishu was America's bloodiest military encounter in nearly 10 years. It was the bloodiest encounter since the terrorist bombing incident that occurred in Beirut on October 23, 1983--the incident in which 260 U.S. Marines and Navy Seamen (as well as 60 French soldiers), members of the international peacekeeping force deployed to Lebanon, were slaughtered when a TNT-laden suicide bomb destroyed the Marine headquarters and barracks at Beirut International Airport.

 

Why was the firefight in south Mogadishu such a disaster for the U.S.A.? What went wrong? Why were U.S. soldiers on the ground without armed vehicles? Why were they not backed up and protected by sufficient firepower from the air? To a very great extent, the source of the problems that plagued the Rangers in executing their mission was the fact that, prior to the firefight, the Clinton Presidency repeatedly denied the requests of the Special Operations team for Bradley Fighting Vehicles (on-ground armored vehicles) and for AC-130 gunships (propeller-driven aircraft designed to fly around battlefields and deliver highly accurate and destructive gunfire on enemy ground forces). U.S. Secretary of Defense Aspin, admitting that the refusal to make available the requested armored vehicles and gunships was a serious mistake, took full responsibility for the error and its disastrous results, even though he knew the real responsibility lay with Commander-in- Chief Clinton.

 

The U.S. military commanders in Somalia concluded that the October 3 disaster was, in part, caused by the unavailability of sufficient U.S. ground forces--ground forces sufficient to quickly and effectively come to the aid of and rescue of Rangers surviving the helicopter crashes and thus prevent them from being captured and slaughtered by the rampaging, murder- ous Somali mobs. If the Rangers had been provided with sufficient U.S. ground-force back-up and protection, the duration of the October 3 battle would have been substantially reduced and there would not have been so many casualties. The U.S. forces, according to General Howe, would have had enough "muscle, resources, and people" to effectively control the situation on the battlefield and minimize American casualties. Unmentioned, but clearly understood, was the reason for absence of enough U.S. ground forces in Somalia to back up and protect the Rangers: the action taken by President Clinton three months earlier--his ordering the withdrawal of most of the U.S. military personnel and equipment that had been present in Somalia before late March, 1993.

 

In Somalia, the Rangers and other Special Operations units deployed there performed excellently. They did their best, considering the handicaps to which they were subjected by the top political leadership in Washington, D.C. In the final analysis, the troops were forced to suffer the consequences of the shortsightedness and blunders of the Clinton Presidency, which was much more concerned with keeping its domestic political image well polished and enhancing Democratic candidates chances in the coming 1994 and 1996 federal elections than it was with properly equipping and providing the necessary back-up and protection for American troops sent into very dangerous situations overseas.

 

In geopolitical terms, the disastrous outcome of the October 3 firefight was costly to the U.S.A. and the Clinton Presidency. General Aidid and his political faction were unexpect- edly left with what appeared to be a military and political victory. In standing firm against the U.S. military onslaught and preventing the mission from being accomplished, Aidid and the USC/SNA emerged from the battle with an international reputation and an enhanced stature, both internally and externally. The outcome of the battle increased Aidid's political support within Somalia and encouraged terrorist groups, hostile states, and revolutionary conspiracies throughout the world. Within populations making up states, international movements, and other entities hostile to the U.S.A. and its national interests, there emerged the obvious conclusion: If the Somalis can successfully challenge the U.S.A. and neutralize its military might, we can do likewise. If others can defy and bring down "the great U.S.A.," so can we.

 

Moreover, President Clinton, immediately after October 3, made matters worse by assenting to Aidid's demand for a "Somali-based political settlement" and by publicly announcing that all U.S. military forces would be withdrawn from Somalia no later than March 31, 1994. Clinton seemed to be raising a diplomatic white flag. Undoubtedly, he was reinforcing the emerging conclusion that the U.S.A. had lost the war in Somalia, was now in the process of surrendering to the inevitable, and could be defeated by other groups, states, and movements seeking to thwart and seriously damage the American colossus.

 

In terms of American domestic politics, the events of October 3 were costly to the Clinton Presidency and its military policy in Somalia. The massacre of American troops in south Mogadishu, the desecration of their bodies by crowds of rampaging Somali barbarians, and the portrayal of these gruesome scenes on television sets throughout the U.S.A. upset the entire country. Congress and the general American public were outraged by the debacle. There were calls for immediate termination of the Somali mission.

 

In Congress, there were demands for a shakeup and housecleaning at high levels in the executive branch of the U.S. national government. These demands, made by both Democrats and Republicans, included calls for President Clinton to remove from office all executive officers and policy advisers serving under him and playing key roles in shaping and/or implementing the Somalia policy, including Secretary of State Warren Christopher, Secretary of Defense Les Aspin, National Security Adviser Anthony Lake, and U.S. Envoy Robert Gosende.

 

To save his own political hide and minimize Democratic losses in the coming 1994 congressional elections, Clinton started looking around for scapegoats to take the fall. Almost immediately, Gosende lost his position as U.S. Envoy to Somalia, recalled by Secretary of State Christopher, who apologized to the American public for not giving the Somalia affair greater personal attention. Late in 1993, Secretary of Defense Aspin resigned his position, citing "personal reasons" for his leaving public office. Clinton seemed to have come out of the situation smelling like a rose. However, his political party, in the November, 1994, congressional elections, lost majority control of both houses of Congress. And since January 3, 1995, Clinton has had to face Republican majorities in the Senate and House of Representatives.

 

Within a few months after October 3, 1993, President Clinton withdrew all U.S. troops from Somalia, doing so nearly three months earlier than the announced March 31, 1994, deadline. The U.N. peacekeeping force remained there for nearly two more years, the last of the peacekeepers withdrawing with the assistance of U.S. Marines. Thus ended one of the most mismanaged and ill-conceived military operations in the history of the U.S.A.

 

b. Military Action Against Iraq

In June of 1993, while the U.S. Quick Reaction Force and U.N. peacekeepers were bogged down in Somalia and were being subjected to armed attacks by Aidid's militia, President Clinton decided to initiate U.S. military action against Iraq, doing so without consultation with Congress or seeking its endorsement of the particular military action initiated, asserting that he was acting under the authority of various U.N. resolutions and the Persian Gulf Resolution (U.S. Public Law 102-1), the latter being the congressional joint resolution of January 14, 1991, passed by Congress on January 12, signed into law by the President on January 14 (two days before he ordered the launching of Operation Desert Storm), and still in force as American law. On Clinton's orders, U.S. air strikes, aimed at the Iraqi Intelligence Service headquarters in Baghdad, were launched on June 26. In justifying the cruise missile attack, the Clinton Presidency cited evidence that the Iraqi Intelligence Service had instigated and fostered a conspiracy to assassinate former U.S. President George Bush during his visit to Kuwait two months earlier (April 14-16).

 

In April, the Kuwaiti authorities had uncovered the assassination plot, arresting 14 Iraqi and Kuwaiti nationals for planning to put a 175-pound bomb in a location where it would have exploded and killed Bush as he was being presented an award honoring him as the leader of the Persian Gulf War coalition which drove the Iraqi invaders out of Kuwait. The Kuwaiti authorities immediately informed the U.S. government of the conspiracy and arrests. Receipt of the information was quickly followed by President Clinton's ordering the FBI and CIA to conduct a thorough investigation to find out whether Saddam Hussein had authorized and sponsored the plot. The investigation uncovered convincing evidence of links between the would-be assassins and the Iraqi Intelligence Service.

President Clinton perceived the situation as a major test of his mettle as U.S. Commander- in-Chief and leader of the Western powers. He suddenly abandoned his attempts to send Hussein a conciliatory and somewhat ambiguous message--a message to the effect that he thought Hussein could redeem himself with the U.S.A. and that, if he did so, Clinton would be open to normalization of U.S.-Iraqi relations. On the evening of June 23, when he met with his National Security Adviser and Deputy National Security Adviser, the National Security Council members and General Colin Powell, Clinton was determined to send Hussein a different message, one which, in the words of George Stephanopoulos, the President's Senior Political Adviser, would be "an unambiguous, unapologetic message ... but with weapons, not words." [George Stephanopoulos, ALL TOO HUMAN--A POLITICAL EDUCATION (Little, Brown and Company: Boston, 1999), p. 159.]

 

Those in attendance at the meeting, polled one at a time, unanimously recommended in favor of the President's plan for launching missile trikes against Baghdad. Scheduled for Saturday, June 26, the attack commenced at 4:22 p.m. (EDT), when cruise missiles were launched toward Baghdad from two U.S. Navy vessels positioned in the Persian Gulf--the destroyer USS Peterson and the AEGIS cruiser USS Chancellorville. Once the missiles had landed in Baghdad, President Clinton delivered from the Oval Office a public address announcing the military action he had initiated against Iraq and explaining why he had done so.

 

c. Intervention into the Political Turmoil in Haiti

In early 1994, while President Clinton was striving to extricate his Presidency and the U.S.A. from the military and political quagmire in Somalia, he initiated U.S. military action that could have involved American troops in a bloody civil war in Haiti.

 

Three years earlier, (in December, 1990), Father Jean-Bertrand Aristide had been elected President of Haiti, only to be forcibly overthrown by the Haitian military during September of 1991. With Aristide arrested and expelled from the country, power to govern Haiti was assumed by a military junta--a troika of military dictators led by General Raoul Cedras. After the junta's seizure of power, political and economic conditions within the country went from bad to worse. Faced with the certainty of continued political repression and severe economic hardship if they remained in Haiti, some 35,000 Haitians left the country in boats and attempted to enter the U.S.A. as refugees. Intercepted by the U.S. Coast Guard, most of the refugees were returned to Haiti. Beginning in late 1993, however, there occurred a new wave of Haitian boat people headed for Florida.

 

Concerned about the deteriorating situation in Haiti and the resurgence of refugee efforts to sneak into the U.S.A., the Clinton Presidency intensified its diplomatic and economic pressures on General Cedras to relinquish power and reinstate President Aristide. Cedras refused to do so and stepped up his reign of terror over the Haitian people.

 

By July, 1994, President Clinton had decided that military intervention into the Haitian political mess was unavoidable as well as morally justified. The Clinton Presidency pushed an authorizing resolution through the U.N. Security Council. The U.N. resolution, passed by the Security Council on July 31, authorized a multinational military force to invade Haiti, forcibly depose the Cedras junta, and restore governing power to democratically elected President Aristide.

 

Since President Clinton, without consulting with or seeking the approval of Congress, had already decided to send U.S. troops to Haiti and had issued the necessary orders, the American invasion force was en route to Haiti when the U.N. resolution was adopted. With the resolution's adoption, the Cedras junta gave in to U.S. demands. Hence, the necessity of an immediate and massive U.S. military assault on and bloody conquest of Haiti was obviated.

 

On September 18, 1994, the Cedras regime agreed that he and the other military leaders would step down and Aristide would resume governing power. As part of the agreement, 20,000 U.S. troops began to arrive in Haiti on September 19. On October 15, Aristide returned to Haiti and was reinstated as President. On March 31, 1995, responsibility for guaranteeing politican legitimacy and democratic governance in Haiti was turned over to a U.N. peacekeeping force. On April 17, 1998, the last U.S. combat troops departed from Haiti.

 

On September 7, 1994, when President Clinton met with his National Security Adviser and members of the National Security Council to discuss plans for the impending U.S. invasion of Haiti, he was concerned about the problem of obtaining congressional support for the invasion. A major purpose of the meeting was to help the President decide whether to seek congressional passage of a joint resolution authorizing U.S. military action in Haiti. Secretary of State Christopher argued against the President's requesting such a resolution from Congress, holding that, if Clinton took this course of action, he would be encouraging congressional interference with the President's constitutional powers as Commander-in- Chief, resulting in undue legislative restraints on exercise of those powers by Clinton and his successors. George Stephanopoulos, who was present at the meeting, has given the following account of the issue and its resolution:

 

      "Colored by my years in the House [of Rep-

      resentatives], I believed that a president

      shouldn't send soldiers into combat without

      congressional support.  But that principle

      was now being tested by hard reality:  We

      didn't have the votes, not even close.

      Congress wasn't about to give the Presi-

      dent political cover for an unpopular in-

      vasion, so restoring democracy in Haiti

      required sacrificing a bit of it here at

      home.  I thought the cost was justified,

      but Congress would howl, and partisan ten-

      sions were so high that a few members might

      even argue for impeachment if American

      casualties mounted.  To cover our flank,

      I suggested that the State Department draft

      a public 'white paper' making the case for

      unilateral presidential action.  Like me,

      Clinton had just read in Doris Kearns

      Goodwin's new book that FDR had used this

      tactic when he circumvented Congress on

      lend-lease.  He took the suggestion."

      [IBID, pp. 306-307.]

 

At the White House on September 13, President Clinton met with Democratic members of Congress to discuss the Haiti problem and what the U.S.A. should do about it. The meeting, however, was hardly a consultation with Congress or a move to lay the groundwork for an attempt to secure official congressional of the President's planned military initiative. The Capitol Hill Democrats attending the meeting were well aware that Clinton had already made up his mind and could not be persuaded to abort his projected invasion of Haiti, regardless of the number and intensity of the complaints uttered by congressional Democrats.

 

The success of the Haiti mission, which was accomplished smoothly and without effective Haitian resistance or mounting American casualties, functioned as a restraint on both Democrats and Republicans in Congress. The President dispatched U.S. combat troops to Haiti and kept them there for over four and a half years. Yet, Clinton's initiation and pursuit of his Haiti policy did not raise a major storm of congressional criticism and protest.

 

d. Intervention into the Ethnic Conflict in Bosnia

Beginning in late February, 1994, once again while President Clinton was trying to disengage from the Somalia quagmire, the U.S.A. and its NATO allies, with Clinton's coaxing, became militarily involved in the ethnic warfare going on in Bosnia (officially, the "Republic of Bosnia and Herzegovina")--a small Balkan country, which, from 1946 to early 1991, was one of six supposedly "autonomous republics" in the multinational "Federal People's Republic of Yugoslavia."

 

In 1991, Yugoslavia began to undergo political disintegration, with each of its autonomous member-republics (except Serbia and Montenegro), one after another, seceding from the Yugoslav federation and declaring itself to be a fully independent, sovereign state. Slovenia, proclaiming its independence on June 25, 1991, had to withstand an attack by the Serbian-dominated Yugoslav federal army--the so-called "Yugoslav People's Army" (JNA). Croatia, declaring its independence on the same day, had to put an army in the field and militarily defeat an anti-secessionist military force comprised of members of the Serb minority dwelling within the Croatia's borders, but orchestrated and supported by Slobodan Milosevic, leader of Serbia and the Serbian-dominated Yugoslav federal Government.

 

On October 15, 1991, Bosnia took its first formal step toward independence, when its parliament adopted a declaration of sovereignty. In a referendum held on February 29, 1992, an overwhelming majority of the Bosnian voters participating in the referendum voted in favor of Bosnian independence. On April 7, 1992, the U.S.A. and member-states of the European Union extended diplomatic recognition to Bosnia, enhancing the legitimacy of its claim to international legal status as a completely independent, sovereign state. Subsequently, Bosnia was admitted to membership in the United Nations.

 

The Bosnian Serbs, who constituted 40 percent of the Bosnian population, did not take these developments lying down. Having opposed holding the February 29 referendum, they were most unhappy about its outcome and subsequent events relevant to the outcome. Egged on and assisted by Serbia's Milosevic, the Bosnian Serbs resorted to violence and terrorism, proclaiming their own separate state and waging war against the Muslims and Croats dwelling in Bosnia. The Bosnian Serb Army slaughtered thousands of Bosnia's Muslim and Croat inhabitants, tortured and starved many others in concentration camps, and carried out programs of "ethnic cleansing," forcing Muslims and Croats to move out of the regions controlled by Bosnian Serbs. The ultimate war aim of the Bosnian Serbs was to drive all non-Serbs out of Bosnia and seize their land and other property. If necessary to attain this end, the Bosnian Serb leaders and their more militant followers were ready and willing to resort to deliberate mass murder and ethnic genocide.

 

In April, 1992, Sarajevo, the capital of Bosnia, was surrounded by the Bosnian Serb Army and subjected to sustained attack, resulting in the deaths of many of the city's inhabitants. The tide of war continued to run in favor of the Bosnian Serbs. By March, 1993, 70 percent of Bosnia's territory was controlled by the Bosnian Serbs. At that time, Bosnian Croats and Muslims started fighting each other over the 30 percent of Bosnia that remained free of Serb control. In early 1994, the Bosnian Croats and Muslims (together constituting 60 percent of Bosnia's population of more than two and a half million) patched up their differences and formed an alliance directed against the Bosnian Serbs. At mid-year, however, the Serbs still controlled 70 percent of Bosnian territory.

 

As the armed conflict continued, it became increasingly evident that the Bosnian Serbs' attacks on Bosnian Croats and Muslims were aided, abetted, and orchestrated by Serbia, that Milosevic was the mastermind behind most of the violence perpetrated by the Bosnian Serbs. As a matter of fact, the Bosnian Serb Army was by no means an indigenous militia; it was not a grassroots military organization that had arisen spontaneously among the Bosnian Serbs. The Bosnian Serb Army was a well organized, well trained, and fully equipped military force, created by Milosevic and his generals when they renamed the 80,0000 Yugoslav federal army toops present in Bosnia at the time of that republic's secession from Yugoslavia. In waging war against the Bosnian Croats and Muslims, the Bosnian Serb Army commanders operated in close coordination with Milosevic and Serbia's military establishment.

 

Since Bosnia was now an internationally recognized sovereign state and a member of the United Nations, maintaining diplomatic relations with the U.S.A. and many other countries, the Serbian-supported and Serbian-directed Bosnian Serb attacks on Bosnian Croats and Muslims constituted, under international law, a clear case of armed aggression by one sovereign state against another--armed aggression by Serbia against Bosnia, with the objective of forcing Bosnia to rejoin the Serbian-dominated Yugoslav federation (by now, comprised only of Serbia and Montenegro). Under international law, as interpreted by the U.S.A. and other civilized societies having at least a modicum of respect for the rule-of-law principle, the conflict in Bosnia was not simply a civil war--a purely internal war between opposing factions within or regions of the same country. The conflict was a case of international aggression.

 

On this basis, the United Nations as well as the U.S.A. and NATO began efforts to bring the Bosnian conflict to an immediate close, seeking not only to negotiate a ceasefire between Bosnia's warring ethnic factions, but also to pressure Serbia into putting a stop to its aggression and cooperating with the peacemakers.

 

During June and September of 1992, the U.N. Security Council adopted resolutions which increased the strength of the United Nations Protection Force (UNPROFOR) and expanded its mandate to include duties in Bosnia as well as in Croatia. Under the authority of U.N. Resolution 758 (June 8, 1992), UNPROFOR military observers and related personnel and equipment were deployed to Sarajevo in order to (1) effect the safe and smooth operation of the city's airport, (2) oversee the removal of Bosnian Serb antiaircraft weapons from their positions near the airport, (3) supervise the storage of Bosnian Serb heavy weapons at locations previously agreed on, and (4) ensure uninterrupted delivery of humanitarian aid supplies to Sarajevo and their distribution throughout the city and its environs. Under U.N. Resolution 776 (September 14, 1992), the mandate of UNPROFOR in Bosnia was enlarged to include (1) supporting efforts by the U.N. High Commissioner for Refugees (UNHCR) to deliver humanitarian assistance throughout Bosnia, (2) protecting relief convoys and personnel, at the UNHCR's request, and (3) protecting convoys of released civilian prisoners, at the request of the International Committee of the Red Cross.

 

On October 9, 1992, the Security Council passed U.N. Resolution 781, establishing a "no-fly zone" (NFZ) over Bosnia. U.N. Resolution 781 prohibited all military flights in Bosnian airspace, exempting from the ban UNFROFOR and other flights in support of U.N. peacekeeping operations and humanitarian aid delivery and distribution. UNPROFOR was assigned responsibility for monitoring compliance and non-compliance with the ban on unauthorized military flights in the NFZ. And member-states of the United Nations were called on to assist UNFROFOR in monitoring violations of the NFZ.

 

The U.S.A. and its NATO allies responded to Security Council's call for U.N. member-states to provide assistance to UNPROFOR. On October 16, 1992, NATO's "Operation Sky Monitor" commenced. NATO Airborne Early Warning and Control System (AWACS) aircraft, in support of U.N. Resolution 781, began to monitor flights in the airspace of Bosnia. The U.S.A. and its NATO allies were now very very close to direct military involvement in the Bosnian conflict.

 

In December, 1992, the foreign ministers of the member-states comprising the NATO alliance assembled as the North Atlantic Council (NAC), NATO's highest decisionmaking and policymaking body. At this meeting, the foreign ministers (including U.S. Secretary of State Warren M. Christopher) approved a formal statement indicating the willingness of the alliance members to employ military force, under United Nations authority, to assist UNPROFOR in its peacekeeping operations.

On March 31, 1993, the U.N. Security Council adopted U.N. Resolution 816, which authorized enforcement of the NFZ over Bosnia and broadened the proscription to include flights of all fixed-wing and rotary-wing aircraft, except those sanctioned by UNPROFOR. In addition, the resolution authorized member-states of the United Nations to take all necessary measures to ensure compliance with the ban, "all necessary measures" to include use of military force to deal with future violations of the NFZ.

 

On April 8, 1993, the North Atlantic Council, responding to U.N. Resolution 816, endorsed NATO's plans for enforcing the NFZ over Bosnia and apprised the U.N. Security Council of NATO's readiness to undertake the enforcement operation. When the NATO enforcement operation--"Operation Deny Flight"--began on April 12, the armed forces of the U.S.A. and its NATO allies became directly involved in the Bosnian conflict.

 

Carried out during a period of nearly two and a half years (April 12, 1993-December 20, 1995), Operation Deny Flight was a combined airborne reconnaissance and combat air patrol operation, entailing enforcement of the NFZ over Bosnia and air strikes launched in support of UNPROFOR's peacekeeping operations in Bosnia. Operation Deny Flight involved more than 200 fighter, bomber, and reconnaissance aircraft from different member-states of NATO. By December 20, 1995, when the mandate of Operation Deny Flight was terminated, close to 100,000 sorties had been flown by NATO military aircraft. Nearly 50 percent of the sorties were flown by U.S. military aircraft, with the U.S. Air Force's participation in the operation accounting for 30 percent of the total number of sorties flown by NATO aircraft. The fighter and bomber sorties were flown from air bases in Italy and from aircraft carriers positioned in the Adriatic Sea, while the tanker and surveillance sorties were flown from air bases in France and Germany.

 

Concurrently with NATO's execution of Operation Deny Flight, the United Nations contin- ued its endeavor to bring an end to the war on the ground in Bosnia. As part of this endeav- or, the U.N. Security Council, during April and May of 1993, adopted resolutions declaring six U.N.-protected "safe areas" in Bosnia for its Muslim inhabitants--Sarajevo, Bihac, Girazde, Srebrenica, Tuzla, and Zapa--and calling on the Serbs to refrain from attacking these areas. The first of these resolutions was U.N. Resolution 819, passed by the Security Council on April 16. And the second was U.N. Resolution 824, passed on May 6.

 

In U.N. Resolution 819, the Security Council--

 

      Reaffirmed "the sovereignty, territorial

      integrity and political independence of the

      Republic of Bosnia and Herzegovina";

      Expressed its concern over "the pattern of

      hostilities by Bosnian Serb paramilitary

      units against towns and villages in eastern

      Bosnia";

 

      Declared its deep alarm at "the rapid de-

      terioration of the situation in Srebrenica

      and its surrounding areas, as a result of

      the continued deliberate armed attacks and

      shelling of the innocent civilian population

      by Bosnian Serb paramilitary units";

 

      Strongly condemned the Bosnian Serb paramil-

      itary units' "deliberate interdiction ... of

      humanitarian assistance convoys" and their

      "actions ... against UNPROFOR, in particular

      their refusal to guarantee the safety and

      freedom of movement of UNPROFOR personnel";

 

      Demanded--

            "... that all parties [to the Bosnian

            conflict and to previous ceasefire

            agreements relating to the Bosnian

            conflict] and others concerned treat

            Srebrenica and its surroundings as a

            safe area which should be free from

            any armed attack or any other hostile

            act;"

 

            "... the immediate cessation of armed

            attacks by Bosnian Serb paramilitary

            units against Srebrenica and their

            immediate withdrawal from the areas

            surrounding Srebrenica;"

 

            "... that the Federal Republic of Yu-

            goslavia (Serbia and Montenegro) im-

            mediately cease the supply of mili-

            tary arms, equipment and services to

            the Bosnian Serb paramilitary units

            in the Republic of Bosnia and Herze-

            govina;"

 

            "... the unimpeted delivery of hu-

            manitarian assistance to all parts

            of the Republic of Bosnia and Herze-

            govina, in particular to the civil-

            ian population of Srebrenica and

            its surroundings ..." and declared

            that "such impediments to the de-

            livery of humanitarian assistance

            constitute a serious violation of

            international humanitarian law;"

 

            "... that all parties guarantee the

            safety and full freedom of movement

            of UNPROFOR and of all other United

            Nations personnel as well as members

            of humanitarian organizations;"

 

      Called on "the Secretary-General, with a

      view to monitoring the humanitarian situ-

      ation in the safe area, to take immediate

      steps to increase the presence of UNPROFOR

      in Srebrenica and its surroundings" and

      demanded "that all parties and others con-

      cerned cooperate fully and promptly with

      UNPROFOR toward that end";

 

      Reaffirmed "that any taking or acquisi-

      sition of territory by threat or use of

      force, including through the practice of

      'ethnic cleansing', is unlawful and un-

      acceptable...."

 

In U.N. Resolution 824, the Security Council--

 

      Again reaffirmed "the sovereignty, terri-

      torial integrity and political independ-

      ence of the Republic of Bosnia and Herze-

      govina";

 

      Demanded "that any taking of territory by

      force cease immediately";

 

      Expressed its deep concern over "the con-

      tinuing armed hostilities by Bosnian Serb

      paramilitary units against several towns

      in the Republic of Bosnia and Herzegovina"

      and stated the Council's determination "to

      ensure peace and stability throughout the

      country, most immediately in the towns of

      Sarajevo, Tuzla, Zepa, Gorazde, Bihac, as

      well as Srebrenica";

 

      Declared "that the capital city of the Re-

      public of Bosnia and Herzegovina, Sarajevo,

      and other such threatened areas, in partic-

      ular the towns of Tuzla, Zepa, Gorazde,

      Bihac, as well as Srebrenica, and their

      surroundings should be treated as safe

      areas by all parties concerned and should

      be free from armed attacks and from any

      other hostile act";

 

      Further declared "that, in these safe

      areas, the following conditions should be

      observed:

 

            The immediate cessation of armed

            attacks or any hostile act against

            these safe areas, and the withdraw-

            al of all Bosnian Serb military or

            paramilitary units from these towns

            to a distance wherefrom they cease

            to constitute a menace to their

            security and that of their inhabit-

            ants, to be monitored by United Na-

            tions military observers;

 

            Full respect by all parties of the

            rights of the United Nations Protec-

            tion Force (UNPROFOR) and the inter-

            national humanitarian agencies to

            free and unimpeded access to all

            safe areas in the Republic of Bosnia

            and Herzegovina and full respect for

            the safety of the personnel engaged

            in these operations";

 

      Demanded that, toward attainment of the

      foregoing end, "all parties and others con-

      cerned cooperate fully with UNPROFOR and

      take any necessary measures to [guarantee]

      respect [for] these safe areas...."

 

On June 4, 1993, the Security Council adopted U.N. Resolution 836. Toward the end of ensuring full respect for the safe areas referred to in Resolutions 819 and 824, the Security Council, in Resolution 836, Paragraph 5, extended the mandate of UNPROFOR in order to--

 

      "... enable it, in the safe areas ... to

      deter attacks against the safe areas, to

      monitor the ceasefire [agreements], to pro-

      mote the withdrawal of military and para-

      military units other than those of the Gov-

      ernment of the Republic of Bosnia and Her-

      zegovina and to occupy some key points on

      the ground, in addition to participating

      in the delivery of humanitarian aid to the

      population...."

 

In paragraph 9 of Resolution 836, UNPROFOR's mandate was further extended, authorizing the Protection Force--

 

        "... acting in self-defense, to take the

      necessary measures, including the use of

      force, in reply to bombardments against

      the safe areas by any of the parties or to

      armed incursion into them or in the event

      of any deliberate obstruction in or around

      those areas of the freedom of movement of

      UNPROFOR or of protected humanitarian con-

      voys...."

 

Following these enlargements of the UNPROFOR mandate, Resolution 836, Paragraph 10, provided that member-states of the United Nations--

 

      "... acting nationally or through regional

      organizations or arrangements, may take,

      under the authority of the Security Council

      and subject to close coordination with the

      Secretary-General and UNPRPFOR, all neces-

      sary measures, through the use of air power,

      in and around the safe areas in the Republic

      Bosnia and Herzegovina, to support UNPROFOR

      in the performance of its mandate ..." as

      expanded in Paragraphs 5 and 9 of Resolu-

      tion 836.

 

In other words, the Security Council, via Resolution 836, Paragraph 10, finally sanctioned the use of NATO air power in (1) protecting UNPROFOR and the U.N.-declared safe areas, (2) retaliating against and severely punishing acts of armed aggression and other violations of international law on the part of Bosnian Serbs in the ground war in Bosnia, and (3) seeking to force the Bosnian Serbs to (a) make peace with the Bosnian Croats and Muslims and (b) honor and abide by the peace agreement.

In response to Paragraph 10 of U.N. Resolution 836, the North Atlantic Council made a number of important decisions during the eight-month period from June 10, 1993, through February 9, 1994. On June 10, 1993, the North Atlantic Council, assembled as a meeting of NATO foreign ministers (including U.S. Secretary of State Christopher), decided to offer protective air power for UNPROFOR in the performance of its overall mandate in Bosnia. The foreign ministers agreed that member-states of NATO (including the U.S.A.) would provide close air support for UNPROFOR military and civilian personnel, if (1) they were attacked and (2) the UNPROFOR Command requested NATO air strikes against the attackers.

 

At its August 2 and 9, 1993, meetings, the North Atlantic Council, again functioning as an assembly of NATO foreign ministers, made decisions regarding the protection of U.N.-declared safe areas in Bosnia. On August 2, the Council decided to at once begin preparations for taking stronger and more drastic action in Bosnia, including air strikes against Bosnian Serb Forces which persisted in their attempts to bring about strangulation of Sarajevo and other safe areas and in their widespread interference with humanitarian aid convoys. At the August 2 meeting, the Council also assigned NATO Military Authorities the task of drafting, in close collaboration with UNPROFOR, an operational plan for air strikes against appropriate Bosnian Serb targets. On August 9, the Council endorsed the military planning for air strikes and indicated NATO's readiness to execute the plan.

 

At the Alliance summit meeting held in January, 1994, the heads of governments of NATO member-states (including President Clinton) confirmed all previous decisions of the North Atlantic Council relating to Bosnia and reaffirmed NATO's commitment to launch airstrikes against Bosnian Serb forces in order to prevent their strangulation of the threatened areas of Bosnia, including Sarajevo and the other U.N.-proclaimed safe areas.

 

On February 6, 1994, a Bosnian Serb mortar shell landed and exploded in Sarajevo's central market, killing 68 people. Three days later, the North Atlantic Council met and made several decisions, which, in effect, constituted a final warning to the Serbs. The Council proclaimed a 20-kilometer exclusion zone around Sarajevo and declared that the Bosnian Serb forces, no later than February 20, 1994, must have withdrawn their mortars and other heavy weapons from the exclusion zone or transferred of them to UNPROFOR. The Council announced that any such weapons not removed from the exclusion zone or placed under UNPROFOR control by the deadline date would be subject to NATO air strikes. In addition, the Council authorized the Commander-in-Chief, Allied Forces Southern Europe (NATO's southern European command), to initiate air strikes, at the United Nations' request, against mortar and artillery positions in and around Sarajevo-- mortar and artillery positions which, according to UNPROFOR's official findings, were responsible for attacks against civilian targets in the city.

 

The first instance of NATO's involvement in armed combat in or over Bosnia occurred on February 28, 1994, when four Bosnian Serb military aircraft, operating out of Banja Luca, violated the No-Fly Zone and were engaged and shot down by NATO warplanes--four U.S. Air Force F-16s. On August 5, after Bosnian Serb Army units defied UNPROFOR and illegally appropriated a number of heavy weapons from the Ilidza weapons collection site in the Sarajevo exclusion zone, an M18 Tankbuster operating in the exclusion zone was attacked by two U.S. A-10 aircraft, resulting in the Bosnian Serbs returning the heavy weapons they had seized. When Bosnian Serbs attacked an UNPROFOR vehicle with rocket-propelled grenades on September 22, NATO aircraft responded by striking a Serb tank inside the Sarajevo exclusion zone. In response to attacks on the Bihac safe area by Serb fighters from the Ubdina airfield in the Serb-held Krajina region of Croatia, NATO aircraft, on November 21, conducted air strikes against that airfield. In retaliation for surface-to-air missile attacks on Alliance aircraft, NATO warplanes, on November 23, carried our air strikes against Serb surface-to-air missile sites around Bosanka Krupa and Otoka in north-western Bosnia and in the vicinity of Dvor, a town near Bihac, also in northwestern Bosnia.

 

In spite of the NATO airstrikes and their success in significantly damaging Bosnian Serb forces and, on occasion, inducing them to back down, the Bosnian Serb Army continued to (1) target for attack NATO aircraft as well as UNPROFOR vehicles and personnel, (2) interdict humanitarian assistance convoys, and (3) violate the U.N. resolutions relating to safe areas and heavy weapons exclusion zones. Moreover, the Bosnian Serbs, during late 1994 and early 1995, greatly escalated the war they were waging against the Bosnian Croats and Muslims.

 

In the meantime, the foregoing developments were prompting and shaping further NATO military decisionmaking and planning, as regards application of NATO air power in the Bosnian conflict. At meetings of the North Atlantic Council held during October, November, and December of 1994, the Council arrived at decisions which increased the authority of NATO forces to deal with Serb threats to Alliance aircraft as well as with their attacks on U.N. safe areas. On the basis of these decisions, two operational plans were formulated--"Operation Dead Eye" and "Operation Deliberate Force."

NATO's Operation Dead Eye was a plan to destroy the Soviet-style air defense network the Serbian military had developed for Bosnian Serb use. The plan was designed to reduce the risk to NATO aircraft flying in Bosnian airspace. Bosnian Serb positions and facilities targeted by Operation Dead Eye were (1) principal air defense communications links, (2) air defense command and control installations, (3) early warning radar placements, and (4) surface-to-air missile positions and support facilities.

 

NATO's Operation Deliberate Force was an air attack plan designed to diminish the ability of the Bosnian Serb Army to threaten or attack UNPROFOR and the safe areas. The plan targeted (1) forces in the field and their heavy weapons, (2) command and control installations, (3) key military support systems and structures, and (4) communications lines and other infrastructure supporting and facilitating military operations.

 

During the Winter, Spring, and early Summer of 1995, a peaceful settlement of the Bosnian conflict seemed to be no closer to realization than it was when the U.S.A. and its NATO allies first intervened into the conflict. And the situation in Bosnia was continuing on its course of deterioration, despite the stronger and more drastic measures that NATO had in store for the Bosnian Serbs.

 

In May, 1995, NATO aircraft carried out air strikes against the Bosnian Serbs, following their repeated shelling of safe areas and repeated violations of the exclusion zones. On May 24, after the Bosnian Serbs failed to comply with the U.N. ultimatum to withdraw their heavy weapons from the Sarajevo area and exclusion zone, NATO aircraft struck an ammunition depot of the Serbs, who responded by launching mortar and artillery attacks on the safe areas, including the Sarajevo area.

 

On May 25 and 26, NATO warplanes (including four U.S. F-16s, two U.S. F-18s, two U.S. EF-111 electronic warfare aircraft, one U.S. HC-130 refueling aircraft, and two U.S. search and rescue planes) were involved in a raid on ammunition depots near the Bosnian Serb stronghold of Pale. The NATO aircraft attacked and destroyed the ammunition dumps, after the Serbs in the area disregarded the U.N. demand that they relinquish control of all heavy weapons in their possession.

In retaliation, the Bosnian Serbs seized 370 UNPROFOR personnel, taking them hostage, holding them at locations that were potential targets for NATO air strikes, and thereby using the captured UNPROFOR personnel as human shields in an effort to deter future NATO air raids. The remainder of the UNPROFOR personnel, who were isolated and in great danger at heavy weapons collection sites around Sarajevo, had to be removed from those sites. And this left the Serbs free to take over the sites and seize the heavy weapons.

 

On July 11, 1995, NATO was called on to defend the Srebrenica safe area, which was threatened by the Bosnian Serb Army's push toward the area. NATO aircraft struck Bosnian Serb targets identified by UNPROFOR. However, the Bosnian Serbs managed to overrun the Srebrenica and Zepa areas, killing thousands of Bosnian Muslims. NATO's response was to launch a month-long bombing campaign against the Bosnian Serbs.

 

At its meeting on July 25, the North Atlantic Council endorsed NATO military planning directed toward strongly discouraging any future Bosnian Serb attacks on the Gorazde safe area and, at the same time, guaranteeing timely and effective application of NATO air power, in the event that the Bosnian Serb Army remained undeterred and continued to attack the safe area. On August 1, the Council met and made similar decisions, as regards future Bosnian Serb attacks on the Sarajevo, Bihac, and Tuzla safe areas, again guaranteeing timely and effective use of NATO air power against the Bosnian Serbs, if they could not be deterred and proceeded to attack any of these safe areas.

The Bosnian Serbs remained unpersuaded and undeterred. On August 28, 1995, a Bosnian Serb artillery shell landed in a Sarajevo open market, killing 38 civilians and crippling or otherwise seriously injuring 85 others. According to the perceptions of U.S. and NATO leaders, this attack on Sarajevo's civilian inhabitants was the very last straw, occuring after a lengthy pattern of Bosnian Serb attacks on civilian targets in the safe areas and violations of ceasefires and other agreements to which the Serbs had been a party. NATO moved rapidly toward "disproportionate retaliation," simultaneously launching Operation Deliberate Force and Operation Dead Eye--the two military contingency plans that had been formulated toward the end of 1994.

 

Operation Dead Eye disrupted and put out of commission the Bosnian Serbs' air defense network. In carrying out Operation Deliberate Force, NATO air power, supplemented by artillery fire, was used in a massive pounding of Bosnian Serb heavy weapons, ammunition dumps, command and control facilities, military support facilities, lines of communication, and other supporting infrastructure.

Out of a total of 3,515 sorties flown by NATO aircraft in Operation Deliberate Force, 2,318 (65.9 percent) were flown by U.S. aircraft. Most of the U.S. flights were from Aviano and other military bases in Italy, while 18 were flown from U.S. aircraft carriers in the Adriatic Sea.

 

Operation Deliberate Force began on August 30, 1995, and lasted three weeks, ending on September 20, when the refractory Serbs gave in and agreed to enter into serious negotiations with the Bosnian Croats and Muslims. Meanwhile, the tide began to turn in the Bosnian ground war, with the military advantage shifting from the Serbs to the Muslim- Croat alliance. During September, the Bosnian Serb seige of Sarajevo was lifted, and a Muslim-Croat military offensive drove back the Serbs and restored a considerable amount of territory to Muslim and Croat control. By the end of the month, Bosnian territory controlled by the Serbs had been reduced to about 49 percent of the total.

As a consequence of Operation Deliberate Force and its success in inducing the Bosnian Serbs to seriously negotiate a peace with their enemies, peace talks commenced on November 1 at Wright-Patterson Air Force Base in Dayton, Ohio. The outcome of these talks was the "Dayton Peace Accord," or "Bosnian Peace Agreement," which was initialed on November 21 by the leaders of Serbia (Slobodan Milosecic), Croatia (Franjo Tudjman), and Bosnia (Alija Izetbegovic). Three days later, Serbian leader Milosevic assured the other parties to the peace accord that Radovan Karadzic, leader of the Bosnian Serbs, would cooperate and urge his followers to comply with the terms of the accord. The peace agreement was formally signed by the Serbian, Croatian, and Bosnian leaders in Paris on December 14.

 

On December 15, the U.N. Security Council passed Resolution 1031, which gave NATO a mandate to enforce the military aspects of the Bosnian Peace Agreement. On the same day, the North Atlantic Council formally approved the operational plan for enforcing the peace agreement--a plan calling for deployment to Bosnia of a NATO-led multinational military force, which was given the name "Implementation Force," or "IFOR." On December 16, deployment of the main body of some 60,000 IFOR troops (including 28,000 U.S. troops) commenced.

 

Once the IFOR troops arrived in Bosnia, they were to activate "Operation Joint Endeavor," which entailed performance of a number of important military tasks, including making certain that Bosnia's opposing forces--

 

      Complied with the ceasefire agreement of

      October 5, 1995;

 

      Withdrew from the four-kilometer-wide zone

      of separation, moved back to their respec-

      tive areas, and remained there.

 

The important military tasks also included:

 

      Seeing to it that heavy weapons were col-

      lected and stored at designated locations,

      referred to in the peace agreement as "can-

      tonment/barracks areas";

 

      Ensuring demobilization of military forces

      which could not be accomodated in the desig-

      nated cantonment/barracks areas--i.e., de-

      militarization, or demobilization, of most

      of the military units of opposing ethnic

      factions;

 

      Making certain that all combatants and ci-

      vilians were released and transferred with-

      out delay, in accordance with a plan to be

      developed by the International Committee of

      the Red Cross;

 

      Maintaining control of Bosnian airspace.

 

While IFOR's mission was to execute the military aspects of the Bosnian Peace Agreement, a major goal of the military mission was to create secure conditions for other organizations to implement the civilian aspects of the peace agreement.

 

IFOR was given authority to carry out its mission vigorously, including the robust use of force, if necessary. In performing its military tasks and in providing security and support for organizations implementing civilian aspects of the peace accord, IFOR was to have unimpeded freedom of movement, control over airspace, and status of forces protection.

 

Many of the military personnel assigned to IFOR duty, mainly British and French troops, were already in Bosnia as members of UNPROFOR and, on termination of UNPROFOR's mandate, were transferred to IFOR. Since the U.S.A. had no ground-force units in Bosnia prior to December, 1995, the 28,000 American ground combat troops had to be transported to Bosnia, most of them from military bases in Germany, where they were stationed.

 

By December 20, 1996, IFOR had, for the most part, accomplished its mission in Bosnia. The war had come to an end, and the military forces of opposing ethnic factions had been separated and relocated in the designated cantonment/barracks areas. However, the peace agreement that the U.S.A. and NATO had imposed on the warring ethnic factions created a very fragile and uncertain peace. As regards demobilization of factional military units, the Bosnian Serbs managed to circumvent most efforts of IFOR to enforce the relevant provisions of the Bosnian Peace Accord. Moreover, IFOR was unable to provide the Commission for Displaced Persons and Refugees with the degree of security and support needed to make possible the latter's enforcement of those provisions of the accord guaranteeing refugees and displaced persons the right to return to their homes and either recover lost property or receive just compensation. In short, the peace agreement was and still is a war-breeding arrangement--an arrangement, like so many other international agreements concluded during the last two centuries, almost certain to be a source of future wars.

Nevertheless, President Clinton and other NATO heads-of-government declared that IFOR had successfully accomplished its mission. On December 20, therefore, IFOR was replaced by another U.N.-authorized, NATO-led multinational military force, one named "Stabilization Force," or "SFOR," and its mission code-named "Operation Joint Guard." SFOR was about half the size of IFOR, the former comprised of approximately 31,000 troops (including 8,500 U.S. troops).

 

The role of IFOR had been to "implement" the pease in Bosnia--i.e., impose a peace settlement on warring factions which were extremely reluctant to make peace with one another. The role of SFOR was to "stabilize" the peace--i.e., strive to prop up a peace settlement which was quite unsatisfactory to all the previously warring factions and which was in danger of collapse at any moment.

 

Originally, duration of the U.S. military presence in Bosnia was to be for a period of no longer than one year, with the period scheduled to have expired by the middle of December, 1996. Near the end of the one-year period, however, President Clinton announced that he was extending the exit deadline an additional 18 months. When SFOR replaced IFOR on December 20, Clinton had 8,500 U.S. troops in IFOR transferred to SFOR. Clinton indicated that, while some of the U.S. troops might be withdrawn on dates earlier than the new exit deadline, others would not be leaving Bosnia until June 1, 1998. As of September 13, 1999, there were more than 6,000 U.S. troops still in Bosnia.

Back in December, 1995, when the U.S. Congress was considering whether to grant or withhold its approval of the Bosnian Peace Accord and President Clinton's plan to contribute 28,000 U.S. ground troops to IFOR, the issue generated a high level of political controversy in the U.S.A.--controversy outside as well as inside Congress. Despite the President's December 3 speech, delivered in an attempt to rally public support for the planned deployment of U.S. combat troops on the ground in Bosnia, most Americans continued to doubt the wisdom of sending American troops to a feud-ridden country in an endeavor to implement a peace plan rather clumsily put together and completely lacking in stability and viability. In an ABC News public opinion poll taken after the President had delivered his speech, 57 percent of those polled opposed the plan to send troops, while 39 percent approved the plan. A CNS News poll taken before the speech found only 33 percent of the respondents favored the President's plan. A CNN/USA Today/Gallup pre-speech poll showed 49 percent opposed and 47 percent favoring the plan, while a post-speech poll taken by the same polling group showed a small plurality supporting the plan, with 46 percent in favor and 40 percent opposed.

 

In seeking to obtain congressional endorsement of his military and foreign policy initiative in Bosnia, Democratic President Clinton had to deal with Republican majorities in both chambers of Congress. Making the political situation even more difficult for the President was the fact that his congressional opposition, as regards the planned Bosnia deployment, included Democrats as well as most Republicans.

 

On December 13, 1995, one day before the formal signing and finalization of the Bosnian Peace Agreement, the U.S. House of Representatives, via a bipartisan and overwhelming majority vote (287-141), passed House Resolution 302--a simple (single-chamber) resolution, which expressed the House's "serious concerns and opposition" regarding Clinton's plan to send U.S. ground forces to Bosnia. In Section 1 of Resolution 302, the House stated its findings of fact as follows:

 

      "... On October 30, 1995, the House of Repre-

      sentatives agreed to H. Res. 247, which ex-

      pressed the sense of the House of Representa-

      tives that in the negotiations of any peace

      agreement regarding the conflict in the Repub-

      lic of Bosnia and Herzegovina there should not

      be a presumption that the United States Armed

      Forces would be deployed to that country to

      enforce such an agreement, and that in any

      event, no United States Armed Forces should be

      deployed on the ground in the territory of the

      Republic of Bosnia and Herzegovina to enforce

      such an agreement until Congress has approved

      such a deployment.

 

      "... On November 17, 1995, the House of Repre-

      sentatives passed H.R. 2606, which provided

      that none of the funds appropriated or other-

      wise made available to the Department of De-

      fense could be obligated or expended for the

      deployment on the ground of the United States

      Armed Forces in the Republic of Bosnia and

      Herzegovina unless funds for such deployment

      were specifically appropriated by law.

      "... Despite the expressed will of the House

      of Representatives heretofore mentioned, the

      President has chosen to proceed with the de-

      ployment of approximately 20,000 members of

      the United States Armed Forces on the ground

      in the territory of the Republic of Bosnia

      and Herzegovina to enforce the peace agree-

      ment among parties to the conflict in the Re-

      public of Bosnia and Herzegovina initialed

      in Dayton, Ohio, on November 21, 1995."

 

In Section 2 of Resolution 302, the House of Representatives stated its declarations of policy regarding the matter of the Bosnia deployment. The House declared that--

 

      "... it reiterates serious concerns and op-

      position to the President's policy that re-

      sults in the deployment of 20,000 members of

      the United States Armed Forces on the ground

      in the territory of the Republic of Bosnia

      and Herzegovina;

      "... it is confident that the members of the

      United States Armed Forces, in whom it has

      the greatest pride and admiration, will per-

      form their responsibilities with professional

      excellence, dedicated patriotism, and exem-

      plary courage...."

 

On the same day that the House of Representative adopted its simple resolution opposing the President's deployment of American troops to Bosnia but indicating its support of the troops put in harm's way, the U.S. Senate passed Senate Joint Resolution 44 and sent it to the House, requesting that body's concurrence with the Senate's decision. The Preamble to the Senate-passed joint resolution declared:

 

      "... beginning on February 24, 1993, Presi-

      dent Clinton committed the United States to

      participate in implementing a peace agree-

      ment in Bosnia and Herzegovina without prior

      consultation with Congress;

      "... the Republic of Bosnia and Herzegovina,

      the Republic of Croatia, and the Federal Re-

      public of Yugoslavia initiated the General

      Framework Agreement and Associated Annexes

      on November 21, 1995, in Dayton, Ohio, after

      repeated assurances that the United States

      would send troops to assist in implementing

      that agreement;

      "... as part of the negotiations which led

      to the General Framework Agreement, the

      United States has made a commitment to en-

      sure that the Federation of Bosnia and Her-

      zegovina [the Muslim and Croat entity in

      Bosnia] is armed and trained to provide for

      its own defense, and that commitment should

      be honored...."

 

The main body of S.J. Res. 44, would have Congress (1) indicating its unequivocal support for the U.S. troops being dispatched to Bosnia and (2) granting the President authority to deploy the troops there during a period of about one year. S.J. Res. 44 would have Congress stating that the deployment authority was being granted in order to enable the President to fulfill international commitments he had already made, as regards U.S. military assistance to NATO in implementing the Bosnian Peace Agreement and its Military Annex. The deployment authority would be subject to conditions specified in the joint resolution.

 

Section 1 of S.J. Res. 44 stated that--

 

      "The Congress unequivocally supports the

      men and women of our Armed Forces who are

      carrying out their mission in support of

      peace in Bosnia and Herzegovina with pro-

      fessional excellence, dedicated patriot-

      ism and exemplary bravery, and believes

      they must be given all necessary re-

      sources and support to carry out their

      mission and ensure their security."

 

Section 2 of the resolution imposed a limitation on the President's deployment authority, providing that--

 

      "... Notwithstanding reservations ex-

      pressed about President Clinton's deci-

      sion to deploy United States Armed Forces

      to Bosnia and Herzegovina and recognizing

      that--

 

            (1) the President has decided to

            deploy United States Armed Forces

            to implement the General Framework

            Agreement in Operation Joint En-

            deavor citing American interests

            in preventing the spread of con-

            flict, maintaining its leadership

            in NATO, stopping the tragic loss

            of life, and fulfilling American

            commitments;

 

            (2) the deployment of United States

            Armed Forces has begun; and

 

            (3) preserving United States credi-

            bility is a strategic interest,

 

      the President may only fulfill his com-

      mitment to deploy United States Armed

      Forces in Bosnia and Herzegovina for ap-

      proximately one year to implement the

      General Framework Agreement and Military

      Annex, pursuant to this resolution, sub-

      ject to the conditions" specified in

      Section 2.

 

As regards the conditions to which the deployment authority was to be subject, Section 2 of S.J. Res. 44 contained a requirement for presidential determination:

 

      "... Before acting pursuant to this reso-

      lution, the President shall make available

      to the Speaker of the House of Representa-

      tives and the President pro tempore of the

      Senate, his determination that--

 

            (1) the mission of the NATO Imple-

            mentation Force and United States

            Armed Forces deployed in Bosnia and

            Herzegovina will be limited to im-

            plementation of the military provi-

            sions of the Military Annex to the

            General Framework Agreement and

            measures deemed necessary to pro-

            tect the safety of the NATO Imple-

            mentation Force and United States

            Armed Forces;

 

            (2) an integral part of the suc-

            cessful accomplishment of the

            United States objective in Bosnia

            and Herzegovina in deploying and

            withdrawing United States Armed

            Forces is the establishment of a

            military balance which enables the

            Federation of Bosnia and Herzego-

            vina [the Muslim and Croat entity

            within the Republic of Bosnia and

            Herzegovina] to provide for its

            own defense without depending on

            the United States or other outside

            forces; and

 

            (3) the United States will lead an

            immediate international effort,

            separate and apart from the NATO

            Implementation Force and consistent

            with United Nations Security Coun-

            cil Resolution 1021 and the General

            Framework Agreement and Associated

            Annexes, to provide equipment, arms,

            training and related logistics as-

            sistance of the highest possible

            quality to ensure the Federation of

            Bosnia and Herzegovina can provide

            for its own defense, including, as

            necessary, using existing military

            drawdown authorities and requesting

            such additional authority as may be

            necessary."

 

Subsequent sections of S.J.Res. 44 would require the President to submit reports to Congress on (1) his plan to assist the Muslim and Croat entity within Bosnia to provide for its own defense, (2) the status of the deployment of U.S. Armed Forces in Bosnia, and (3) the status of implementation of the civilian and other non-military as pects of the Bosnian Peace Accord.

 

The Senate's passage of S.J. Res. 44 by a 69-30 vote was hardly a ringing endorsement of President Clinton's Bosnia policy or an unqualified vote of confidence in his leadership of the U.S.A. in the areas of military and foreign affairs. The wording of the resolution clearly indicated that the Senate intended that Congress express strong support for the American troops being sent to Bosnia, while very grudgingly authorizing the President to deploy the troops there. When Republican Senators Robert Dole and John McCain were drafting the resolution, in consultation with the White House, the Republican majority in the Senate insisted on wording which would make congressional authorization of the military deployment appear as reluctant and grudging as possible. In accordance with Republican demands, the resolution contained language which emplasized that--

 

      Congress had strong reservations regarding

      President Clinton's decision to send U.S.

      ground forces to Bosnia to enforce a seri-

      ously flawed peace agreement;

 

      During the time when the President was par-

      ticipating in, manipulating, shaping, and

      nudging along the Bosnian peace process,

      Congress was never consulted on the matter

      of deployment of U.S. troops;

 

      The decision to deploy American troops to

      Bosnia was a decision made by the Presi-

      dent alone, and he alone should be held

      responsible for the decision and its con-

      sequences;

 

      Congress, left out of the decisionmaking

      process and informed of the troop-deploy-

      ment commitment after the commitment had

      already been made, was placed in the very

      difficult and uncomfortable position of

      having to choose between two undesirable

      alternatives--(1) authorizing an ill-con-

      ceived military mission and (2) voting

      against authorization and thereby under-

      mining the credibility and leadership of

      the U.S.A. in international relations;

 

      S.J. Res. 44 was an expression of support

      for American troops placed in harm's way,

      not a declaration of policy approving the

      President's decision to send the troops to

      Bosnia.

 

During the Senate's consideration of S.J. Res. 44, Senate Majority Leader Dole, in a speech from the floor of the chamber, made the following remarks:

 

      "We are not voting on a decision to send

      American troops to Bosnia.  That decision

      has been made.  It was made 2 years ago

      by the President of the United States.

      Without  consulting Congress, the Presi-

      dent of the United States made that deci-

      sion.

      "So we say to those soldiers who may be on

      early duty there at 4:00 a.m. in the morn-

      ing, in the bitter cold--from those of us

      in the warmth of the U.S. Senate, free

      from any danger--we are about to cast a

      vote.  We are about to cast a vote, Ser-

      geant Jones or Private Smith, whoever it

      is, to indicate that we support your ef-

      forts there.  They may have some misgiv-

      ings about why they are there, and we may

      have some doubts.

      "So this is a very difficult debate for

      Members of Congress.  It is a difficult

      debate because Congress was not part of

      the decisionmaking with respect to send-

      ing troops.  Congress was not consulted.

      Congress was told of the President's

      commitment to send troops after the com-

      mitment was made.  And then we were

      faced with the dilemma of undermining

      that commitment or acquiescing in a mil-

      itary mission with serious flaws.  And

      make no mistake about it, the President

      has said he made this decision and he

      takes responsibility.  It was his deci-

      sion to send troops and his decision

      alone.

      "This resolution does not endorse the

      President's decision.  It does not en-

      dorse the agreement reached in Dayton.

      It does support our men and women in

      uniform."

 

e. Continuing Military Engagement with Iraq

Since the end of the Persian Gulf War in April, 1991, the U.S.A. and its Western allies have continued to be engaged in military as well as diplomatic conflict with Iraq. Presidents Bush and Clinton, acting under the authority of U.S. Public Law 102-1 (the Persian Gulf Resolu- tion, which is still in effect) and under the authority of various U.N. resolutions passed by the Security Council before and since the close of the Persian Gulf War, have employed the U.S. Armed Forces in an ongoing endeavor to (1) prevent Saddam Hussein's political regime and military machine from again becoming a serious threat to international peace and U.S. national interests in the Middle East, (2) deny Hussein the opportunity to use Iraqi military and security forces to literally exterminate his political opponents among the Kurdish inhabitants of northern Iraq and among the Shi'ite Muslim Marsh Arabs of southern Iraq, and (3) compel the Iraqi government to honor its international obligations, including those relating to (a) the ban on further development, production, and stockpiling of nuclear, biological, chemical, and other weapons of mass destruction, (b) the call for destruction of existing stockpiles of weapons of mass destruction, (c) recognition of and respect for the sovereignty, territorial integrity, and political independence of Kuwait, and (d) compliance with the terms of the ceasefire agreement ending the Persian Gulf War.

 

Since April, 1991, U.S., British, French, and Turkish military aircraft, under "Operation Northern Watch," have been enforcing a no-fly zone in Iraq north of the 36th. parallel, seeking to create and maintain a safe haven for Hussein's Kurdish opponents. Since August, 1992, U.S. and allied warplanes, under "Operation Southern Watch," have been enforcing a similar NFZ south of the 32nd. parallel, in an attempt to prevent Hussein from extinguishing his Shi'ite opponents in southern Iraq. Operations Northern Watch and Southern Watch entail allied reconnnaissance sorties over the two NFZs. On the average, there are 20,000 American troops deployed to the Middle East in support of Operation Southern Watch, which is ongoing and will continue as long as the governments of the U.S.A. and its allies deem the operation to be necessary. Continuation of Operation Northern Watch is dependent upon the Turkish government's continuing approval of deployment of U.S., British, and French military forces in Turkey, but, taking into consideration the strength and durability of the U.S.A.-Turkish alliance and the obstinacy and duplicity of Saddam Hussein, the operation is likely to endure for the foreseeable future.

 

While patrolling the NFZs, U.S. and allied aircraft have been subject to repeated military challenges, each of them followed by U.S. and allied air strikes on Iraqi military targets. In his August 2, 1999, report to Congress on "the status of efforts to obtain Iraq's compliance with resolutions adopted by the United Nations Security Council," President Clinton stated:

 

      "Aircraft of the United States and coalition

      partners enforcing the no-fly zones over Iraq

      under operations Northern Watch and Southern

      Watch are regularly illuminated by radar and

      engaged by anti-aircraft artillery, and occa-

      sionally, by surface-to-air missiles.

      "As a result of Iraq's no-fly zone violations

      and attacks on our aircraft, our aircrews con-

      tinue to respond with force.  United States

      and coalition forces are fully prepared and

      authorized to defend themselves against Iraqi

      threats while carrying out their no-fly zone

      enforcement mission and, when circumstances

      warranted, have engaged various components of

      the Iraqi integrated air defense system."

      [William J. Clinton, "Text of a Letter from

      the President to the Speaker of the House of

      Representatives and the President Pro Tempore

      of the Senate," Washington, DC:  The White

      House, Office of the Press Secretary, August

      2, 1999.]

 

Since June 26, 1993, when President Clinton initiated air strikes aimed at the Iraqi Intelligence Service headquarters in Baghdad, U.S. military forces have participated in three additional major military actions against Iraq--"Operation Vigilant Warrior" (October, 1994), "Operation Desert Strike" (September, 1996), and "Operation Desert Fox" (December, 1998).

 

i. Operation Vigilant Warrior

As mentioned previously, a major objective of the continuing military presence and activity of the U.S.A. and its allies in the Middle East--the Southwest Asia/Northeast Africa/Per- sian Gulf region--is to prevent the Iraqi regime and military forces from jeopardizing inter- national peace and U.S. national interests (as well as the interests of U.S. allies) in the region. In reality, this means preventing Iraq from threatening the security and independence of neighboring countries, such as Kuwait and Saudi Arabia, and from endangering America's access and that of other industrialized nations to the oil of the Middle East, the region which has over 70 percent of the earth's known petroleum reserves.

 

In late September and early October, 1994, just as a gradual drawdown of U.S. military forces in the Middle East had commenced, large numbers of Iraqi ground forces, on Saddam Hussein's orders, moved southward, crossing the 32nd. parallel and headed in the direction of Kuwait. The result was a significant Iraqi military build-up along the Kuwaiti border. Hussein's action clearly manifested his eagerness as well as his capacity to threaten neighboring states and imperil the industrialized West's access to Middle Eastern petroleum. The Iraqi dictator's movement of troops toward and military build-up along Kuwait's border also demonstrated Hussein's complete lack of trustworthiness and his determination to violate the terms of the ceasefire agreement ending the Persian Gulf War.

 

On October 15, The U.N. Security Council, acting under Chapter VII of the U.N. Charter, adopted Resolution 949, which--

 

      Condemned Iraq's "military deployment in the

      direction of the border with Kuwait;"

      Demanded "that Iraq immediately complete the

      withdrawal of all military units recently de-

      ployed to southern Iraq" and return them "to

      their original positions in Iraq;"

 

      Demanded "that Iraq not again utilize its

      military or any other forces in a hostile

      manner to threaten either its neighbors or

      United Nations operations in Iraq;"

 

      Demanded "therefore that Iraq not redeploy

      to the south the units referred to" above

      "or take any other action to enhance its

      military capacity in southern Iraq...."

 

In order to obtain the Iraqi regime's voluntary (though begrudging) compliance with U.N. Resolution 949, President Clinton put into effect Operation Vigilant Warrior, ordering units of the United States Central Command (formerly, the Rapid Deployment Joint Task Force) at MacDill Air Force Base, Tampa, Florida, deployed to the Middle East to join forward deployed USCENTCOM units and allied forces already in the region. By late October, additional U.S. military units, including an aircraft carrier group, cruise missile ships, reinforcing Air Force squadrons and two Army brigades, had been deployed to the Middle East. The U.S. reinforcements ordered by the President involved deployment of more than 28,000 troops and 200 aircraft into the region.

 

In the face of the strong and determined U.S. response during Operation Vigilant Warrior, Saddam Hussein backed down, withdrew all Iraqi military units recently deployed to southern Iraq, and redeployed them north of the 32nd. parallel. In early November, President Clinton, after having received confirmation of the withdrawal and redeployment of Iraqi forces, considered the Middle Eastern crisis defused and ordered redeployment of the U.S. forces he had sent to the Middle East during the crisis.

 

ii. Operation Desert Strike

After Operation Vigilant Warrior, Iraqi aggression subsided for a couple of years. In the late Summer and early Fall of 1996, however, Saddam Hussein began to take military actions which demonstrated that his predisposition toward making mischief in the Middle East had not really abated. With his inclination toward mischief as strong as ever, he was again up to his old tricks.

 

In August, 1996, the Iraqi despot sent his military forces into the Kurdish region of Iraq, seeking to regain political control over Iraqi territory north of the 36th. parallel--the region which, following Iraq's defeat in the Persian Gulf War, the U.S.A. and its allies turned into a no-fly zone and a safe haven for Hussein's Kurdish opponents, banning Iraqi aircraft from the region's air space and allowing the Kurds to enjoy de-facto autonomy under Western military protection. Iraqi military forces, on Hussein's orders, invaded the region north of the 36th parallel, captured Irbil (a key city in the region), and pursued and attacked Kurdish refugees fleeing Hussein's wrath and extermination program. President Clinton responded to the Iraqi aggression by initiating Operation Desert Strike

Operation Desert Strike was not the vigorous U.S. military response that, on the surface, it might appear to have been. Instead of attacking and taking out the Iraqi tanks that were invading and overrunning Iraqi Kurdistan, the Clinton Presidency elected to attack anti-aircraft and training sites in southern Iraq and extend the southern NFZ to the 33rd parallel. Hence, the U.S. response was to take action affecting Iraqi military positions and matters far from the battlefield in northern Iraq. In short, President Clinton abandoned the Kurds and failed to live up to the U.S. obligation to protect and defend against Iraqi aggression the region north of the 36th. parallel, where thousands of members of groups opposed to Hussein's regime were operating--organized groups aided and promoted by the U.S. government and functioning under the guidance of the U.S. Central Intelligence Agency.

 

Why did President Clinton opt for such an inept response to Iraq's aggression against the Kurds? In terms of American domestic partisan politics, the events of August and September, 1996, were most inconvenient for the Clinton Presidency and the Democratic Party. The events were occuring at a time entirely too close to the coming November federal elections. Clinton wanted to keep the issue of U.S. military engagement with Iraq out of the debate in the 1966 presidential and congressional elections. So he sought to avert an inconvenient confrontation with Iraq's ground forces--a confrontation likely to be quite messy and therefore damaging to the incumbent President and other Democratic candidates in the federal elections--and, at the same time, avoid leaving himself open to criticism to the effect that, in the face of Iraqi aggression, he behaved like a timid soul lacking intestinal fortitude, a week-kneed and indecisive leader who drew back from the crisis and took no action whatsoever against the aggressor.

 

While President Clinton managed to keep the Iraq issue out of the 1996 elections and thereby enhance his reelection chances, Saddam Hussein quickly picked up on Clinton's very poorly camouflaged acquiescence in the despot's brutal suppression of the Kurds in northern Iraq. This greatly encouraged Hussein in his continuing endeavor to thwart, outmanuever, circumvent, and erode the determination and strength of the U.S.A. and its allies. With his expectations of future victories boosted, Hussein soon began a series of challenges to the system of U.N. sanctions, restrictions, and inspections imposed on his regime to prevent it from developing, producing, and stockpiling weapons of mass destruction. Hussein's increasing resistance to the U.N. WMD program and its implementation came to a head in January, 1998, when he expelled the U.S. members of UNSCOM, the U.N. weapons inspection team.

 

iii. Operation Desert Fox

In October, 1997, Saddam Hussein began to step up and intensify his efforts to obstruct and render ineffectual the U.N. weapons inspection program in Iraq. In doing so, he initiated a protracted military confrontation with the U.S.A. and its allies. Accusing the American program participants of operating as U.S. intelligence agents within Iraq, Hussein expelled most of the U.S. members of the weapons inspection team. In response, the U.N. Security Council threatened to reinstate economic sanctions against Iraq. Hussein ignored the threat.

 

On November 13, 1997, Hussein expelled the six remaining U.S. members of the inspection team. In protest, the United Nations recalled the other inspection team members. These events were followed by an American-British military build-up in the Persian Gulf. And the military build-up induced Hussein to back down temporarilly and readmit the weapons inspectors, including those from the U.S.A.

 

Hussein's submission was short-lived. Later in November, the Iraqi regime gave notice that it would not permit the U.N. inspectors to enter and inspect sites designated "palaces and official residences." Suspecting that these sites were being employed to camouflage Hussein's stockpiling of weapons of mass destruction, U.N. officials protested the denial of access to the sites.

In January, 1998, Hussein again expelled the U.S. members of the U.N. weapons inspection team. The United Nations again protested by withdrawing the other inspectors. A standoff ensued and tensions were heightened. The U.N. Security Council reimposed economic sanctions on Iraq. A U.S. military build-up in the Persian Gulf commenced.

 

In February, U.N. Secretary-General Kofi Annan negotiated an agreement whereby the Iraqi regime allowed readmission of the U.N. inspectors and resumption of the weapons inspection program. In return for this concession, the Iraqi government was given assurance that the Security Council would consider lifting the economic sanctions.

 

The U.N. weapons inspectors returned to Iraq and resumed the inspections, which the Iraqi regime continued to hinder. In August, the regime severed all its ties with the inspection team, asserting that the Security Council had shown no signs of taking steps in the direction of removing the sanctions. In September, the Security Council, by a unanimous vote, decided not to consider or discuss removal of sanctions until such time as the Iraqi government had started cooperating with the inspection team. On October 31, Hussein terminated all work of the inspectors and, for the third time, expelled them from Iraq. On the same day, the U.S.A. and Britain warned Iraq of possible air strikes to compel its cooperation with the inspection program. An American-British military build-up in the Persian Gulf ensued.

 

On November 5, the Security Council adopted a resolution condemning Iraq for its failure to live up to the agreements it signed after the close of the Persian Gulf War. On November 11, the United Nations recalled most of the U.N. personnel assigned to Iraq.

 

Meanwhile, the U.S.A. and Britain continued their military build-up in the Persian Gulf. On November 14, Hussein, facing a situation in which B-52 bombers were already in the air and within 20 minutes of Iraqi sites targeted for attack, yielded and consented to the U.N. inspectors' return to Iraq. Hussein agreed to permit unconditional and unrestricted weapons inspections.

 

Hussein, however, had no intention of cooperating with the inspectors or allowing them to operate unrestricted and unimpeded. This fact soon became apparent to the inspectors.

 

On December 8, Richard Butler, head of the inspection team, reported that the Iraqi dictator was still obstructing the work of the inspectors. On the same day, the inspectors began to leave Iraq. On December 15, a formal U.N. report charged the Iraqi government with a consistent pattern of activity characterized by obstruction of the weapons inspection program. The U.N. report accused the Iraqis of persistently placing obstacles in the program's path, doing so through denial of access to records and inspection sites and through clandestine movement of equipment and equipment records from site to site.

 

On the basis of the information provided by Richard Butler on Secember 8 and by the U.N. report of December 15, President Clinton decided to order the U.S. Armed Forces into immediate action against Iraq. On December 16, U.S. military units, joined by British units, began to execute Operation Desert Fox, a massive campaign of air strikes against key military and security targets in Iraq--targets believed to be major contributors to Iraq's capacity to produce, store, and utilize weapons of mass destruction. Operation Desert Fox concentrated on such targets as airfields, command centers, and missile factories.

 

Other targets for attack included some upon which Hussein undoubtedly placed very high value. In Baghdad, the targets included such pillars of the regime as (1) the headquarters of Iraqi intelligence, (2) the barracks of Hussein's elite unit of bodyguards, the Special Security Organization, and (3) the headquarters of Hussein's political party, the Baath Party. In Tikrit, Hussein's home town, a Republican Guard barracks and his daughter's palace were hit. In Basra, a major oil refinery was struck.

 

U.S. and British military assets utilized in Operation Desert Fox included (1) F-14 Tomcats, F/A-18C Hornets, and other U.S. Navy and Marine Corps jets launched from U.S. aircraft carriers in the Persian Gulf, (2) U.S. Air Force and Royal Air Force attack aircraft flying from bases in Kuwait, Bahrain, Oman, Saudi Arabia, and the United Arab Emirates, and (3) Tomahawk cruise missiles guided by global positioning satellites and launched from U.S. Navy ships at sea as well as from U.S. Air Force B-52 bombers operating out of a base in Diego Garcia, a British island in the Indian Ocean.

The Tomahawk missiles launched from B-52 bombers were late-model cruise missiles with 2,000-pound and 3,000-pound warheads and with a much higher degree of accuracy than the cruise missiles used against Iraq in the Persian Gulf War in 1991. These Tomahawks are hard to spot and shoot down, since they are low-flying and produce a comparatively cool exhaust, which enables them to elude detection by heat-seeking antiaircraft missiles.

 

The goals of Operation Desert Fox, according to U.S. Secretary of Defense William Cohen, in a December 16 news briefing, were to (1) "degrade Saddam Hussein's ability to make and use weapons of mass destruction," (2) "diminish his ability to wage war against his neighbors," and (3) "demonstrate the consequences of flouting international obligations." [DEFENSELINK NEWS (December 16, 1998), p. 1.]

 

President Clinton terminated Operation Desert Fox after only three days, asserting that the 70-hour campaign of air strikes had accomplished its mission. Operation Desert Fox, according to the President, had "inflicted significant damage on Saddam's weapons of mass destruction programs, on the command structures that direct and protect that capability, and on his military and security infrastructure." [DEFENSELINK NEWS (December 21, 1998), p. 1.] U.S. Defense Department officials estimated that Iraq's missile program had been set back by at least 12 months. Spokesmen for the Clinton Presidency claimed that Hussein's military might had been substantially degraded.

While Operation Desert Fox may very well have degraded, or weakened, the war-waging capacity of the Iraqi military establishment, it had a similar impact on American military forces. How? Within the very brief period of three days, the U.S. Air Force exhaused the greater part of its supply of very expensive air-launched missiles. This was a harbinger of things to come in the near future--things to come in the Kosovo-Yugoslav War.

 

Before the end of December, 1998, U.S. forces in the Persian Gulf were, on President Clinton's orders, being drawn down to forces levels in the Gulf prior to the build-up for Operation Desert Fox. When the military draw-down began, the Iraqi regime had not yet been compelled to accept and cooperate with the U.N. weapons inspection program. Hussein perceived this development as Clinton's tacit recognition and acceptance of the fact that the weapons inspection program had come to an end and was not to be revived. This encouraged Hussein to continue playing his dangerous "game of chicken" with the U.S.A. and its allies:

 

      Step 1:  Defy the West and jeopardize its interests

               in the Middle East.

      Step 2:  Yield temporarily when threatened with or

               subjected to Western military attack.

      Step 3:  Renege on the international commitments

               which he made in order to avoid or end a

               Western military assault against his pol-

               itical regime and military/security

               forces.

 

Since the end of Operation Desert Fox, the U.S.A. and its allies have waged a sustained low-level war of attrition against Iraq. U.S. and British warplanes continue to patrol the northern and southern no-fly zones. Iraqi radar and air defense installations continue to challenge and endanger the patrolling aircraft, which respond by striking the radar and air defense installations. Almost daily, American and British aircraft pound Iraqi targets with missiles and bombs.

 

The most frequently stated objectives of the low-grade war of attrition are to enforce the NFZs, wear down Iraqi military strength, and provide the Kurdish and Shi'ite minorities in Iraq with some measure of protection from Hussein's program of suppression and genocide. However, the war of attrition has an additional objective: bringing about the overthrow of Hussein and his replacement by another leader or group of leaders--a leader or leadership group less rambunctious and more favorably favorably disposed toward U.S. and allied interests in the Middle East. Governing elites in Washington and London hope that the air strikes against Iraqi targets will create or intensify political discontent within Iraq. They hope that, as a consequence of the air strikes, politically significant elements of the Iraqi population will come to perceive Hussein as a danger to his own people, to see him as an unwise and corrupt leader whose reckless conduct has gotten himself and his country into serious trouble--a predator and rogue-dictator who has run out of luck, who is now trapped and unable to protect his own territory and people.

 

In waging war against Iraq, President Clinton, thus far, has been acting in compliance with the reporting requirements of Section 4 of the War Powers Act and with those of Section 3 of the "Authorization for the Use of Military Forse Against Iraq Resolution" (Public Law 102-1, or the Persian Gulf Resolution). The President has been reporting periodically to Congress on the status of U.S. hostilities with the Iraqi regime and on other matters relating to the hostilities. [While Section 4 of the War Powers Act requires such reports to be made every six months, Section 3 of the Persian Gulf Resolution requires them to be made every 60 days.]

f. Intervention into the Kosovo-Yugoslav War

America's intervention into the Bosnian conflict has turned out to be only one phase of the continued military intervention of the U.S.A. and its allies in the Balkan turmoil resulting from the political integration of Yugoslavia. The most recent phase of U.S.-NATO involvement in the former Yugoslavia has been intervention into the Kosovo-Yugoslav War, or Kosovan-Serbian War, involving NATO's 78-day aerial bombardment of Serbia and Serb military positions in Kosovo, followed by the forced withdrawal of Milosevic's military and paramilitary forces from Kosovo, the military occupation of Kosovo by NATO-led ground forces, and the current endeavor of the U.S.A. and the Western alliance to maintain peace and order within Kosovo.

Yugoslavia's 1946 federal constitution--the Constitution of the Federal Socialist Republic of Yugoslavia--designated Kosovo as one of Serbia's two autonomous provinces, which, unlike Yugoslavia's six autonomous republics (Serbia, Slovenia, Croatia, Bosnia- Herzegovina, Macedonia, and Montenegro), lacked the constitutional right to secede from the Yugoslav federation. While less than eight percent of Kosovo's 2,100,000 inhabitants are Serbs, more than 90 percent are Albanian-speaking Kosovans, or Kosovars, a separate nationality group distinct from the Serbs and culturally akin to the people of Albania. In 1974, Yugoslav president Marshal Josip Broz Tito, granted Kosovo a significantly greater degree of autonomy, giving the province legal standing almost equal to that of one of the six autonomous republics and permitting Albanian-language schools and observation of Muslim holy days within the province. The greater autonomy and other concessions granted to Kosovo in 1974, coupled with the unraveling of the Yugoslav federation, following the death of Tito in 1980 and the subsequent disintegration of the Soviet Union, encouraged the Kosovans to demand even greater autonomy. Kosovan students began to demonstrate and riot, demanding complete independence for Kosovo.

In 1987, Slobodan Milosevic, leader of the Communist Party of Serbia but, for purposes of domestic political appeal, assuming the public posture characteristic of a Pan-Serbian ultranationalist, stirred up tensions between Serbs and Kosovans and employed anti-Kosovan, extreme Serbian nationalist propaganda in a successful bid to take over governing power in Serbia and in the Yugoslav federation. Two years later, Milosevic revoked Kosovo's autonomy, bringing the province under the direct control of the Serbian government in Belgrade. Suspending operation of Kosovo's legislature and executive, Milosevic stripped the provincial institutions of all their powers and functions and transferred them to the Serbian parliament and cabinet. Declaring Albanian an unofficial language, he had all Albanian-speaking Kosovans expelled from the schools, universities, and medical institutions in Kosovo. When the Kosovans vigorously protested these actions, Milosevic sent military and security-police units into Kosovo and imposed a police-state regime on the province.

In a plebiscite, or referendum, held in 1991, an overwhelming majority of the Kosovans voted in favor of complete independence and declared Kosovo to be a sovereign state. Milosevic overruled the decision of the Kosovan voters, asserting that Kosovo was an inseparable part of Serbia. Only Albania extended diplomatic recognition to Kosovo.

Holding elections in 1992, the Kosovans elected a parliament, and Dr. Ibrahim Rugova, a moderate, was elected president. Following the path of peaceful resistance to Serbian rule, Rugova established a system of educational and medical institutions that were operated by and for Kosovans--institutions parallel to those run by and for Serbs. The clinics, schools, and university provided by Rugova and his supporters were financed entirely by Kosovans living outside of Kosovo and Yugoslavia.

Milosevic refused to recognize the Kosovan elections as legitimate and sought to forcibly suppress the institutions operated by the Kosovans. His repression of the Kosovans intensified, becoming increasingly violent and high-handed. Kosovan political activists were arrested and imprisoned without trial.

As Milosevic stepped up his reign of terror in Kosovo, more and more Kosovans came to regard as futile Rugova's campaign of nonviolent resistance to the Serbs. Out of frustration over the ineffectiveness of the nonviolent approach, more and more of the younger, more militant Kosovans joined the emerging Kosovo Liberation Army (KLA)--an underground guerrilla movement dedicated to complete independence for Kosovo and convinced that this goal could not be achieved without resort to armed rebellion.

Reinforcing this increasing determination of Kosovans to go for broke, demanding for Kosovo nothing less than the status of a sovereign, completely independent state and resorting to revolutionary violence in order to obtain that status, was Rugova's failure to secure U.S. support for his peaceful approach to persuading Milosevic to respect and observe Kosovo's right to autonomy. When Rugova, in 1995, went to Washington, D.C., and asked the U.S. Government to spearhead an endeavor to resolve by international mediation the conflict between Serbia and the Kosovans, the Clinton Presidency turned down the request.

Refusal of the Clintonites, in 1995, to initiate and promote international mediation of the Kosovan-Serbian conflict proved to be a serious blunder, one that was quite costly to the U.S.A. and its Western allies. The Clintonites were taking what they perceived to be a moderate, reasonable, and strictly legal position regarding the Serbian-Kosovan conflict, the position that--

      International borders in Europe were inviolable;
 
      Kosovo, legally, was an integral part of Serbia and
      lacked the constitutional right to secede;
 
      While the Kosovans should have the right to substan-
      tial autonomy, they must exercise that self-governing
      power within the framework of the Serbian state;
 
      The Western nations could not and would not support
      the Kosovan separatists' demand for full indepen-
      dence;
 
      If the West supported the separatists, the result
      would be radicalization of the Kosovan resistance to
      Milosevic and further destabilization of the already
      very volatile situation in the Balkans.

By refusing Rugova's 1995 request, the Clinton Presidency undermined its own Balkan policy as well as the political position of Rugova in Kosovo. Failure of the U.S. Government to support Rugova was a major factor in the increasing radicalization of the Kosovan resistance movement--a potent variable influencing the Kosovan people to lose faith in Rugova's efforts at moderation and peaceful resistance and to rally to the support of the Kosovo Liberation Army--support of the KLA's commitment to waging revolutionary war to achieve its objective of outright independence.

Moreover, the U.S. refusal to intervene diplomatically on behalf of Rugova encouraged Milosevic to believe that America had grown weary of the conflict in Kosovo and, as a consequence, was abandoning Rugova and throwing him to the wolves. Milosevic figured that he could now crack down on the Kosovans, without provoking the U.S.A. and NATO into taking serious military action against his regime. In anticipating the West's reaction to his planned military offensive in Kosovo, Milosevic was grossly miscalculating, as he had done in Bosnia.

The overly cautious tactics employed by the Clinton Presidency, instead of preventing radicalization and further destabilization, did just the opposite; they actually caused radicalization of the conflict and further destabilization of the situation in the former Yugoslavia. With the Kosovans determined to seize independence and sovereignty by means of force and violence and with Milosevic equally determined to employ the same means to prevent the Kosovans from attaining even the most minimal degree of autonomy, much less independence and sovereignty, another Balkan war directly involving the U.S.A. was imminent.

Later in 1995, the KLA began an armed insurrection against the police-state regime that Milosevic had imposed on the Kosovan people. Withstanding and driving back Milosevic's security-police and units of the Yugoslav Federal Army, the KLA gained control of a small segment of Kosovo's territory. By Summer, however, the security police and federal soldiers had received Milosevic's order to use any and all means--including the most brutal--to stamp out the Kosovan rebellion.

In 1996, tensions between Kosovans and Serbs began to heat up again. Launching another campaign against Serbian domination, the KLA, with approximately 30,000 armed guerrillas, began to attack Serb policemen. In 1997, the KLA stepped up its campaign against Serb policemen, killing many of them and managing to win control over particular regions of Kosovo.

In early 1998, Milosevic retaliated in a merciless and savage manner, initiating a massive counteroffensive against the Kosovan people. Ignoring U.S. and NATO warnings not to do so, Milosevic dispatched to Kosovo Yugoslav/Serbian military and paramilitary units which, in carrying out their orders, massacred hundreds of Kosovan civilians in an effort to terrorize the Kosovans, to frighten them into submission and obedience.

Milosevic, however, underestimated both the military capabilities of the KLA and the resolve of the Kosovan people. The Serbian assault on the whole Kosovan population--entailing perpetration of such atrocities as using armored vehicles and anti-aircraft guns to fire on and destroy entire villages, burning down houses, murdering hundreds of civilians, and dispossession of survivors, forcing them to migrate under the worst possible conditions--had the effect of strengthening the resolve of the Kosovans to resist and overthrow Serb domination. The ranks of the KLA swelled, and the fighting continued. By the Summer of 1998, the KLA controlled sizeable portions of Kosovo's territory

Milosevic reacted to this debacle by launching a larger and more brutal offensive against the Kosovans. Yugoslav/Serbian security-police and military forces slaughtered more than 2,000 Kosovans and caused nearly 400,000 of them to flee their homes as refugees and displaced persons. This escalation of the Kosovan-Serbian conflict caught the attention of the U.S.A. and its allies, causing them grave concern and significantly mitigating their reluctance to intervene into the conflict. When NATO threatened Serbia with air strikes, Milosevic pulled most of his military and paramilitary forces out of Kosovo, giving assurance that he would neither renew his efforts to repress the Kosovan people nor redeploy his forces in Kosovo. Within weeks, however, Milosevic was making plans for a still larger and more brutal offensive and genocidal program against the Kosovans.

As the Kosovan-Serbian conflict continued, sporadically at first, and then constantly, the U.S.A. and its NATO allies began taking the initial steps toward intervention into the conflict.

At the May 28, 1998, meeting of the North Atlantic Council, the defense ministers of NATO member-states (including U.S. Secretary of Defense William S. Cohen) officially defined two principal policy objectives with regard to the conflict in Kosovo. These two objectives were to (1) assist the "international community" in its endeavor to bring about a peaceful settlement of the conflict and (2) seek to enhance the stability and security of neighboring Balkan states, especially Albania and Macedonia.

At the North Atlantic Council's June 12 meeting, NATO foreign ministers requested an enumeration and evaluation of additional actions which NATO could take with respect to the growing crisis in Kosovo. This resulted in NATO's examination of numerous possible alternative cources of military action.

Three days later, NATO made an attempt to deliver a clear and unambiguous message to Milosevic:

      Get out of Kosovo, or be blasted out.  We are now present
      in your part of the world.  We are right above you.  And
      we are in a position to strike you--and, if necessary,
      destroy you.

The message, though unequivocal, was subtle in form. It was in the form of NATO warplanes in the sky above the Balkan Peninsula. For on June 15, NATO aircraft commenced military exercises over the Balkans.

Apparently, Milosevic failed to get the message. In early September, he launched his planned new offensive against the Kosovans, an extremely brutal military campaign characterized by the usual atrocities that Serbs had become accustomed to committing against non-Serbs--massacre of civilians, destruction of homes and villages, confiscation of property without compensation, and forced of migration civilian survivors. In response to these developments, the U.N. Security Council called for an immediate truce, to be followed by peace talks between Serbs and Kosovans. The North Atlantic Council, on September 24, issued an ultimatum to Milosevic, demanding that he cease the violence against Kosovans and warning the Serbian dictator that, if he failed to do so, Serbia and Serb positions in Kosovo would be subject to NATO air strikes.

Despite the U.N. and NATO initiatives, the Serbian military campaign continued. Hence, NATO continued its preparations for air strikes against the Serbs.

On October 2, the U.S. Government issued a blunt warning: If the Serbian offensive is not terminated forthwith, air strikes against the Serbs will be launched within two weeks.

On October 13, the North Atlantic Council approved Activation Orders for NATO air strikes against the Serbs. This action, along with diplomatic pressures subsequently brought to bear on Milosevic, induced him, at the eleventh hour, to accept a ceasefire agreement brokered by U.S. special envoy Richard C. Holbrooke. With Milosevic's acceptance of the agreement, the NATO air strikes were called off.

According to the terms of the October 13 truce, (1) the Serbian offensive was to be ended immediately, (2) the bulk of the Yugoslav/Serbian security police and military forces were to be withdrawn from Kosovo, (3) Yugoslav/Serbian troops remaining in Kosovo were not to interfere with the return of refugees and displaced persons to their homes, and (4) the Milosevic regime was to allow the introduction of 1,800 unarmed international observers--observers who were to monitor compliance with the terms of the ceasefire agreement and who were to operate as the Kosovo Verification Mission (KVM), which had been authorized by the North Atlantic Council and which was to be established by the Organization for Security and Cooperation in Europe (OSCE).

Following Milosevic's acceptance of the October 13 agreement, large numbers of Kosovan refugees returned home, many of them to find out that the Yugoslav/Serbian troops had burned their homes and slaughtered their livestock. KVM observers arrived in Kosovo and began to monitor compliance with the ceasefire agreement. The U.S.A. and its allies hoped that a peaceful settlement of the Kosovo conflict had been achieved at last.

However, peaceful relations between Kosovans and Serbs was not yet in the cards. The animosity between the two nationality groups was so acute and the disagreement between them so bitter that it was impossible for the two groups to dwell in close proximity to each other under a common government and within the same territorial borders and, at the same time, be at peace with one another. The fighting and killing continued, and by early January, 1999, the truce had collapsed. The Yugoslav/Serbian offensive resumed, reaching a peak on January 15, when the Yugoslav Federal Army and Milosevic's Special Police attacked the small village of Racak, resulting in the deaths of 45 Kosovan civilians.

The slaughter at Racak was the stimulous for the U.S.A. and its allies to bring representatives of the warring parties together to negotiate a settlement of the conflict. The settlement proposed by the Western powers called for wide autonomy for Kosovo and introduction into the province of NATO ground forces to enforce the terms of the settlement. Milosevic refused to consent to such an arrangement.

On January 18 and 19, NATO threatened Milosevic with air strikes. On January 20, the U.S. aircraft carrier, USS Enterprise, was deployed to the Adriatic Sea.

On January 29, Yugoslav/Serbian troops attacked a suspected KLA stronghold and killed 24 men, most of whom were civilians.

On January 30, the North Atlantic Council, meeting at the ambassadorial level, authorized NATO air strikes against Serb positions and installations in Serbia and Kosovo, unless Milosevic, within a week, agreed to negotiate with the Kosovans. The Council, on the same day, issued a warning to both Milosevic and the KLA: Begin negotiations right away and arrive at a peace agreement within three weeks, or face the consequences--namely, NATO air strikes against militarily significant targets within territory under your control.

These actions on the part of NATO's supreme decision-making body resulted in both sides in the conflict reluctantly entering into negotiations at Rambouillet (near Paris), the first round of talks occurring February 6-23 and the second round taking place March 15-18. The proposed peace settlement presented by U.S. mediator Christopher Hill called for granting Kosovo broader autonomy for a three-year period and allowing the political parties to make arrangements for what would occur after the end of the period. The U.S. proposed peace plan included provision for a Kosovan constitution, holding elections, and an international ombudsman to hear and resolve complaints. In addition, the peace plan stipulated that the Milosevic regime was to permit up to 30,000 NATO troops to be deployed to Kosovo to enforce the terms of the peace settlement.

On March 18, at the end of the second round of peace talks in Rambouillet, the Kosovan delegation, which included representatives of the KLA, signed the proposed agreement, and the talks ended without the signatures of the Serbian delegation.

Immediately following the failure and breakup of the Rambouillet peace conference, Yugoslav/Serbian security-police and military forces escalated the fighting in Kosovo. Milosevic sent additional troops and modern tanks into Kosovo, in a flagrant violation of the peace agreement of October 13, 1998. The Serbian military and paramilitary forces conducted a systematic offensive against the Kosovans, tens of thousands of whom began to flee their homes.

On March 20, the KVM monitors, no longer able to perform their function, due to Yugoslav/Serbian forces' interference with and obstruction of KVM activities, were evacuated from Kosoco.

Two days later, Richard Holbrooke went to Belgrade in a last, unsuccessful attempt to persuade Milosevic that it was in his and Serbia's best self-interest to stop the offensive against the Kosovans and accept and observe the terms of the Rambouillet peace accord. Holbrooke conveyed to Milosevic the final U.S.A.-NATO either-or warning: Either cease hostilities and sign and abide by the proposed peace agreement, or suffer NATO air strikes. Milosevic refused to end the hostilities and accept the peace agreement, asserting that he would never allow NATO military forces to be stationed in Kosovo or any other territorial area over which Yugoslavia possessed sovereignty.

NATO and U.S. Government officials, on March 22, announced that the decision had been made to wage a longer and more thoroughgoing aerial-warfare campaign than was originally planned, if Milosevic's intransigence forced the alliance to launch air strikes against the Serbs. According to Ken Bacon, spokesman for the U.S. Department of Defense, the revised war plan was designed to allow NATO military forces the increased flexibility needed to conduct a "coherent and seamless air campaign."

On March 23, Holbrooke reported that his efforts to induce Milosevic to cease military action against the Kosovans and accept the Rambouillet peace agreement had failed. On the same day, the North Atlantic Council again authorized air strikes against Serbia and against Serb military positions in Kosovo and elsewhere in the former Yugoslavia. Then, Javier Solana, NATO Secretary-General, issued the order authorizing and commanding U.S. Army General Wesley K. Clark, NATO's Supreme Commander in Europe (SACEUR), to commence air strikes against the Serbs.

On the evening of March 24, 1999, NATO launched "Operation Allied Force," the 78-day aerial war against the Serbs. The objectives of the operation were to induce Milosevic to agree to--

 

      Immediate cessation of the Yugoslav/Serbian milirary

      offensive against the Kosovans;

 

      Withdrawal of Yugoslav/Serbian military, paramilitary,

      and security-police forces from Kosovo;

 

      Restoration of Kosovo's autonomy, to be exercised by

      a democratically elected provincial government--

      elected by the adult inhabitants of the province;

 

      Deployment of a NATO-led multinational peacekeeping

      force in Kosovo;

 

      Uncoditionally allowing the safe and peaceful return

      of all refugees and displaced persons to Kosovo;

 

      Unimpeded access of humanitarian-aid organizations

      to the returning refugees and displaced persons;

 

      Accredible guarantee of Serbia's willingness to work

      for a Kosovo political settlement based on the

      Rambouillet agreement and in compliance with inter-

      national law and the United Nations Charter.

 

The foregoing objectives were also the conditions for ending the aerial assault on the Serbs. NATO was ready and willing to terminate Operation Allied Force as soon as Milosevic clearly and unambiguously agreed to these conditions and the Western alliance had confirmed that Yugoslav/Serbian forces were being withdrawn from Kosovo in accordance with an exact and expeditious schedule.

 

The opening phase of Operation Allied Force included air strikes on Serb air-defense positions and installations throughout the former Yugoslavia and a limited number of additional military targets in Kosovo and the southern part of Serbia. When it became evident that this initial phase of the war was not having the desired impact on Milosevic's behavior, that the air strikes were failing to induce him to yield to NATO's demands, the range of attacks were broadened to include carefully chosen targets throughout Serbia--targets that were of appreciable military value to the Serbs and the Milosevic regime.

 

At the beginng of Operation Allied Force, NATO military aircraft flying over Serbia and Kosovo operated under orders that did not permit the planes to fly at levels lower than 15,000 feet, due to the danger presented by Serb air-defense systems, which included numerous small arms, shoulder-launched missiles, and anti-aircraft artillery units. As the Serb air-defense systems were damaged and put out of commission, however, NATO orders were modified, easing restrictions on aircraft operating height. During the second half of Operation Allied Force, some NATO warplanes operated at levels as low as 6,000 feet, when necessary for purposes of target identification and weapons delivery profile.

 

Throughout the 78-day war, from the beginning of the aerial bombardment on March 24 to its formal suspension on June 10, NATO warplanes struck well over 400 stationary targets, more than 75 percent of which sustained medium to extreme damage. While air strikes against Serb field forces were, to some extent, successful in restricting their operations, the air strikes did not prevent Milosevic from continuing and drastically escalating the ethnic-cleansing and genocidal campaign against the Kosovans.

 

During Operation Allied Force, NATO aircraft flew more than 35,000 sorties, an average of approximately 450 a day. Involved in the opening phase of the operation were approximately 400 aircraft, only one of which was lost to Serb anti-aircraft fire--a U.S. F-117 Nighthawk Stealth fighter shot down near Belgrade on March 27. No combat fatalities were suffered by NATO, but two U.S. soldiers were killed in an accident on May 5, when their Apache helicopter crashed in Albania during a training exercise.

 

The U.S.A. bore the greater part of the burden of the aerial war. Of the approximately 400 NATO aircraft involved in the earlier phase of the war, about 200 were U.S. aircraft-- including a Navy carrier air wing--and senior U.S. Defense Department officials planned to deploy 300 additional aircraft to the war zone. Approximately 22,000 U.S. Air Force, Navy, and Marine Corps personnel were assigned to the U.S. European Command in support of the NATO mission.

 

Serb targets were struck by cruise missiles fired from U.S. and British war ships and submarines positioned in the Adriatic Sea. Serb targets were also struck by cruise missiles launched from U.S. B-52 bombers. Other aircraft attacking the Serbs flew from Aviano and other bases in Italy.

By late April, it was apparent that Operation Allied Force was neither slowing down the Serbian offensive in the ground war in Kosovo nor bringing a halt to the ethnic-cleansing campaign being carried out against the Kosovans. The Serbians were continuing their drive into Kosovo and drastically increasing the speed and volume of ethnic cleansing. Serb military and paramilitary forces were subjecting the Kosovans to an accelerating and expanding program of terror and ethnic genocide. On a massive scale, the Kosovans were being driven from their homes and communities. Serb forces were looting the homes of Kosovans, burning down their houses and villages, rounding up and summarily executing Kosovan men and older boys (boys old enough and large enough to bear arms), murdering many women and children, and telling the survivors to leave Kosovo immediately or be killed. Mounting numbers of Kosovan refugees fleeing the Serbs were pouring into Albania, Montenegro, and Macrdonia. According to an estimate by General Wesley Clark on April 27, 700 Kosovans had been driven out of the province since the commencement of Operation Allied Force.

 

By the end of April, Pristina, the provincial capital of Kosovo, had become virtually a ghost town. On May 5, the U.N. High Commissioner for Refugees reported that Kosovo was being "brutally and methodically" depopulated.

 

On April 21, however, NATO forces had begun an effort that would eventually bring an end to Milosevic's program of violence, repression, and genocide in Kosovo. On that date, NATO expanded its range of targets to include electric power transformers which supplied military command and control centers close to Belgrade. NATO air strikes destroyed transformers providing electrical power to civilians as well as to military command and control installations. NATO increasingly targeted for attack and destruction primarily civilian aspects of Serbia's infrastructure--roads and bridges, water supplies, electrical power plants, heating plants, factories, communications lines and facilities, etc. As Serbia's infrastructure was progressively demolished and Serbian civilians increasingly suffered the painful consequences of Serbia's military aggression in Kosovo, the internal political pressure on Milosevic became so great that he was persuaded to meet most of NATO's demands and make peace.

 

On June 2, Russian envoy and former premier Viktor S. Chernomyrdin and Martti Ahtisaari, European Union envoy and President of Finland, met with Milosevic and presented to him a proposed peace plan supported by Major Western powers. The plan stipulated (1) removal of Yugoslav/Serbian police, military, and paramilitary forces from Kosovo, (2) deployment of a NATO-led multinational peacekeeping force in the province, and (3) the safe and peaceful return of Kosovan refugees and displaced persons under the protection of the international peacekeeping force. In agreeing to support the revised peace plan, NATO had (1) dropped its insistence on a referendum by Kosovans to determine their political future and (2) limited the peacekeeping force to Kosovo--i.e., prohibited the peacekeepers from entering other areas of Serbia. On June 3, Milosevic and the Serbian parliament acceded to the plan.

 

Meeting at Kosovo's border on June 5-9, NATO military officials and the military authorities of Yugoslavia/Serbia concluded the Military Technical Agreement of June 9, 1999. In signing this agreement, the Yugoslav/Serbian authorities (1) pledged that the withdrawal of Yugoslav/Serbian forces from Kosovo would be completed within 11 days and (2) acquiesced in the deployment of the NATO-led multinational peacekeeping force--the Kosovo Force, or KFOR. It was agreed that KFOR would possess and exercise full authority to monitor and enforce the withdrawal of Yugoslav/Serbian forces, maintain peace and order within Kosovo, protect and assist returning refugees, and demilitarize the KLA.

 

The Military Technical Agreement included the following provisions:

 

      "To establish a durable cessation of hostilities,

      under no circumstances shall any Forces of the FRY

      [Federal Republic of Yugoslavia] and the Republic

      of Serbia enter into, reenter, or remain within the

      Ground Safety Zone (GSZ) and the Air Safety Zone

      (ASZ) ... without the prior express consent of the

      international security force ('KFOR') commander

      [the commander of the NATO-led multinational peace-

      keeping force].

 

            [Ground Safety Zone (GSZ)--A five-kilometer

            zone extending beyond the Kosovo province

            border into the rest of FRY territory and

            including the terrain within that five-

            kilometer zone.]

 

            [Air Safety Zone (ASZ)--A 25-kilometer zone

            extending beyond the Kosovo province border

            into the rest of FRY territory and including

            air space above that 25-kilometer zone.]

 

      "The FRY Forces [all Federal Republic of Yugoslavia

      and Republic of Servia military personnel and or-

      ganizations] shall immediately, upon entry into

      force (EIF) of this Agreement, refrain from commit-

      ting any hostile or provocative acts of any type

      against any person in Kosovo and will order armed

      forces to cease all such activities.  They shall

      not encourage, organize or support hostile or pro-

      vocative demonstrations.

 

      "The FRY [Federal Republic of Yugoslavia] agrees to

      a phased withdrawal of all FRY Forces from Kosovo

      to locations in Serbia outside Kosovo.  FRY Forces

      will mark and clear minefields, booby traps and ob-

      stacles.  As they withdraw, FRY Forces will clear

      all lines of communication by removing all mines,

      demolitions, booby traps, obstacles, and charges.

      They will also mark all sides of all minefields.

 

      "The authorities of FRY and the Republic of Serbia

      will cooperate fully with the international secur-

      ity force ('KFOR') in its verification of the with-

      drawal of forces from Kosovo and [their redeploy-

      ment to locations] beyond the ASZ/GSZ.

 

      "... the State Governmental authorities of the FRY

      and Republic of Serbia understand and agree that

      the international security force ('KFOR') will de-

      ploy and operate without hindrance within Kosovo

      and with the authority to take all necessary action

      to establish and maintain a secure environment for

      all citizens of Kosovo.

 

      "The international security force ('KFOR') commander

      shall have the authority, without interference or

      permission, to do all that he judges necessary and

      proper, including the use of military force, to pro-

      tect the international security force ('KFOR'), the

      international civil implementation presence, and to

      carry out the responsibilities inherent in this

      Military Technical Agreement and the Peace Settle-

      ment which it supports.

 

      "International security force ('KFOR') shall have

      the right ... to monitor and ensure compliance with

      this Agreement and to respond promptly to any viola-

      tions and restore compliance, using military force

      if required.  This includes necessary actions to

      ... enforce withdrawals of FRY forces.

 

      "... the Parties [to this agreement] understand and

      agree that international security force ('KFOR')

      commander has the right and is authorized to compel

      the removal, withdrawal, or relocation of specific

      Forces and weapons, and to order the cessation of

      any activities whenever the international security

      force ('KFOR') commander determines a potential

      threat to either the international security force

      ('KFOR') or its mission, or to another Party.

      Forces failing to redeploy, withdraw, relocate, or

      cease threatening or potentially threatening activ-

      ities following such a demand by the international

      security force ('KFOR') shall be subject to mili-

      tary action by the international security force

      ('KFOR'), including the use of necessary force, to

      ensure compliance.

 

With Serbia's acceptance of the Technical Military Agreement and with General Clark's confirmation that the withdrawal of Yugoslav/Serbian forces from Kosovo had begun, NATO Secretary-General Solana, on June 10, ordered a temporary suspension of the aerial bombardment campaign.

On the same date, the U.N. Security Council passed Resolution 1244, which (1) outlined KFOR's peacekeeping and other responsibilities in Kosovo and (2) in effect, endorsed the Military Technical Agreement between NATO and the Federal Republic of Yugoslavia/ Republic of Serbia. This resolution was adopted under Chapter VII of the U.N. Charter--the Charter provision permitting (1) a U.N.-sanctioned international peacekeeping force to carry weapons for purposes of its own protection and (2) the U.N. peacekeepers' use of necessary force in implementing the provisions of the relevant U.N. resolution or resolutions. Resolution 1244 authorized "Member States [of the United Nations] and relevant international organizations to establish the international security presence in Kosovo"--an "international security presence with substantial North Atlantic Treaty Organization participation ... deployed under unified command and control and authorized to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees." The international security presence, or KFOR, was to have "all necessary means" to fulfill its responsibilities, as set forth in U.N. Resolution 1244 and the Military Technical Agreement.

 

On June 12, "Operation Joint Guardian" began, when the first of KFOR's advanced enabling forces entered Kosovo. Once KFOR was fully deployed in Kosovo, the peacekeeping force was to consist of a total of 50,000 military personnel, including 12,000 troops from Britain, 8,500 from Germany, 7,000 from the U.S.A., 7,000 from France, 2,000 from Italy, and an indeterminate number from Russia. Other nations contributing to KFOR were to include Canada, Finland, Greece, Lithuania, Norway, Poland, Portugal, Sweden, and Turkey. British Lieutenant General Michael Jackson was named KFOR commander.

 

On June 20, after NATO had confirmed that all Yugoslav/Serbian forces had been withdrawan from Kosovo, the aerial bombing campaign was formally terminated.

 

The involvement of the U.S.A. and its allies in Kosovo, like their involvement in Bosnia and Iraq, is an open-ended engagement. Currently, Operation Joint Guardian is still in progress. KFOR--including U.S. troops--is still in Kosovo, with authority and responsibility for ensuring that Milosevic does not renege on his international commitments and send his military, paramilitary, and security-police forces back into the province, renewing his campaign of anti-Kosovan terrorism and ethnic genocide. KFOR--including U.S. troops--is still striving to maintain order in Kosovo, a responsibility which now entails protecting the minority of Serb inhabitants of Kosovo from being murdered or otherwise victimized by the Kosovan majority, many members of which are former refugees and displaced persons who have returned home and are seeking revenge for the extreme pain and suffering they experienced while in the clutches of Serb forces.

 

As regards America's involvement in the Kosovo-Yugoslav War, the U.S. Armed Forces participated in the aerial war over Kosovo and Serbia without the formal approval of Congress. On March 23, 16 Republicans and 42 Democrats coalesced to pass U.S. Senate Concurrent Resolution 21, an action that did not have the force of law, but allowed a majority of the senators to go on record as favoring congressional authorization of U.S. participation in the imminent NATO air assault against the Serbs. On the night of March 24, the House of Representatives, on a 424-1 vote, passed U.S. House Resolution 130, a comparatively noncontroversial and legally meaningless action declaring the House's support for American members of the military forces involved in Operation Allied Force. Neither House Resolution 130 nor Senate Concurrent Resolution granted the President any additional authority, as regards sending the U.S. Armed Forces into foreign hostilities.

 

When the House of Representatives was debating House Resolution 130, Republican members supporting the resolution declared that they supported the U.S. troops sent into military action, but not President Clinton's Balkan policy. Representative Floyd Spence (R-SC), Chairman of the House Armed Services Committee, stated that he had "reservations" about Clinton's policy, but not about congressional support for the men and women in the U.S. Armed Forces--military personnel put in harm's way by implementation of the President's policy. Spence's remark was repeated by other Republicans.

 

On April 28, the House of Representatives rejected two resolutions brought to the floor of the House by Representative Tom Campbell (R-CA). One of these resolutions, if passed by both chambers of Congress, would have declared that a state of war existed between the United States of America and the Federal Republic of Yugoslavia. The other resolution, U.S. House Concurrent Resolution 82, directed "the President, pursuant to section 5(c) of the War Powers Resolution, to remove United States Armed Forces from their positions in connection with the present operations against the Federal Republic of Yugoslavia. Campbell called on Congress to follow the U.S. Constitution, either clearly and unambiguously declaring war against Yugoslavia/Serbia or using the War Powers Act to force the President to withdraw U.S. forces from military engagement with the Serbs. However, the House of Representatives was unwilling to take either of these actions, both of which the majority of the chamber perceived to be highly controversial and fraught with great political risks. Hence, the House refused to go on record supporting either a declaration of war against the FRY or a move to compel the President to remove U.S. forces from the war zone.

 

Later on the same day, the House refused to pass an appropriations bill providing funds for the deployment of American ground forces in Kosovo or elsewhere in the FRY. That evening, the House, on a 213-213 tie vote, failed to adopt a resolution supporting the aerial campaign against the Serbs. In refusing to fund deployment of U.S. ground troops and in failing to pass a resolution supporting Operation Allied Force, House merbers were again seeking to avoid controversy and political risks.

In the eyes of House members, who serve very short terms of two years, the next election is always looming large on the horizon. Therefore, avoiding controversies and risks that might cause a House member to lose the next election is nearly always the primary consideration in deciding how he or she will vote on a divisive issue before the House--if the issue is divisive within his or her congressional district, with the constituents almost evenly divided on the issue.

 

In making their own narrow political interests their primary concern and seeking to insulate themselves from the political pitfalls associated with being honest and forthright with the voters, the members of the House, on April 28, sent to the American public and the world at large a jumble of conflicting messages, as regards House support for U.S. involvement in an ongoing military conflict abroad.

 

Making it even more difficult for the world outside of Congress to understand the position of the House of Representatives regarding U.S. involvement in the conflict, that chamber, on April 29, voted 311-105 to pass a bill appropriating $13 billion to fund U.S. military involvement in the Balkans during the remainder of the fiscal year. The $13 billion appropriated was twice the amount requested by President Clinton.

 

On April 20, five weeks after the commencement of Operation Allied Force, the issue of congressional support for U.S. participation in the air war over Kosovo and Serbia was brought before the Senate. On that date, a coalition of Republican and Democratic senators led by Senator John McCain (R-AZ) sought to force the hand of Congress on the issue, launching a drive to obtain Senate passage of U.S. Senate Joint Resolution 20. S.J. Res. 20, introduced into the Senate by Senator McCain, provided that--

 

      "... the President is authorized to use all necessary

      force and other means, in concert with United States

      allies, to accomplish United States and North Atlantic

      Treaty Organization objectives in the Federal Republic

      of Yugoslavia (Serbia and Montenegro)."

 

If this joint resolution had been passed by both houses of Congress, it would have had the force of law, giving the President full legal authority to "use all necessary force" in the Kosovo-Yusoslav conflict to accomplish the objectives of the U.S.A. and NATO in that conflict.

 

The Senate referred S.J. Res. 20 to the Senate Foreign Relations Committee, which acted in accord with the wishes of the Republican and Democratic leadership in the chamber and delayed consideration of the proposed joint resolution. When, on April 30, the Foreign Relations Committee got around to considering the resolution, the committee voted 14-4 to report S.J. Res. 20 to the full Senate, but without a recommendation for or against the Senate's passage of the measure. The members of the Foreign Relations Committee took this action, knowing that the prospects for Senate passage of the resolution were zero. They were well aware that the Senate leadership had already decided to table S.J. Res. 20 when it reached the floor of the Senate.

 

Both Senate Majority Leader Trent Lott (R-MS) and Senate Minority Leader Thomas Daschle (D-SD) indicated that they wanted the proposed resolution tabled. Senator Daschle stated:

 

      "I will be joining Senator Lott in voting to table

      that resolution because I believe we need to post-

      pone without prejudice any further debate on involve-

      ment in the Balkans."

 

Both Majority Leader Lott and Minority Leader Daschle said that, while floor debate on S.J. Res. 20 would be opened, they favored indefinite postponement of the Senate's decision on final passage.

On May 3, Senate Joint Resolution 20 reached the Senate floor and debate on the measure began. The next day, however, the Senate, on a 78-22 vote, postponed indefinitely further consideration of the resolution.

 

The overall significance of the foregoing Senate and House votes is that, by early May, a congressional majority supporting President Clinton's military policy in Kosovo and Serbia had not been formed. And since that time, no such majority in Congress has materialized.

 

All along, the Clinton Presidency has held the position that the President does not need from Congress a war declaration or joint resolution authorizing his involvement of the U.S. Armed Forces in the Kosovo-Yugoslav conflict or in any other situation of foreign hostilities. President Clinton, like many of his predecessors (including all modern presidents), contends that the President can take such action on the basis of his own constitutional authority.

 

In a January, 1999, letter to Representative Tom Campbell, National Security Adviser Sandy Berger stated:

 

      "This administration, like previous administrations,

      takes the view that the president has broad authority,

      as commander-in-chief and under his authority to con-

      duct foreign relations, to authorize the use of force

      in the national interest."

 

Obviously, the prerogative theory of presidential power is still alive and healthy. And American presidents are still conducting themselves in accordance with the theory. Independent presidential warmaking goes on, in spite of the War Powers Act.

 

 

M. MONTENEGRO--THE NEXT OCCASION FOR U.S. INTERVENTION?

 

Montenegro could very well be the next occasion for U.S. and NATO military intervention into the Balkan mess. The developing situation within Montenegro and between Montenegro and Serbia indicate that there is a very high probability that the U.S.A. and NATO will intervene militarily into the situation, probably sooner, rather than later.

 

Montenegro, an Adriatic country with a population of approximately 640,000 (as compared with Serbia's population of 10,000,000) and a territorial area about the size of Connecticut, is, by far, the smaller of the two member-republics in the Federal Republic of Yugoslavia. Montenegro was one of the six member-republics of the former Federal Socialist Republic of Yugoslavia. Following the collapse of the Federal Socialist Republic in 1992, Montenegro and Serbia, on April 17 of that year, proclaimed a new federal entity, calling it the "Federal Republic of Yugoslavia."

 

Within Montenegro, proclamation of the new federation with Serbia was--and still is--a highly controversial decision. Supported at the time by the Democratic Party of Socialists (DPS), Montenegro's largest political party and currently its ruling party (ruling in coalition with other parties), the decision to federate was adamantly opposed by the Liberal* Alliance of Montenegro, the country's third largest party and its largest opposition party. The Liberal Alliance boycotted the 1992 plebiscite, or referendum--the direct popular vote which approved the federation, but was held under conditions approximating those of all-out civil war.

 

      *[NOTE:  LIBERAL--How the Term Is Used in European

      Politics:  In the countries of continental Europe

      (not including Great Britain), the political label

      "Liberal," or "liberal," is generally used to refer

      to a party, group, individual person, or body of po-

      litical theory (1) supporting a free market economy

      and (2) opposing "statism," or "state intervention-

      ism,"--i.e., opposing central control and direction

      of the economy by the sovereign state.  By way of

      contrast, the term "Liberal" is used in the U.S.A.

      to designate support for just the opposite of what

      European Liberals advocate.  American Liberals push

      for an economy centrally controlled and directed by

      the U.S. national government.  The American Liberal

      political orientation, as regards government econom-

      ic policy, closely approximates the orientation of

      "Social Democratic," "Socialist," "Democratic So-

      cialist," "Labor," and "Workers" parties in European

      countries.  The position of continental European

      Liberals on government economic policy closely re-

      sembles the position of contemporary American Con-

      servatives.]

 

In Montenegro today, its federation with Serbia, facing growing criticism and popular discontent, is being seriously reconsidered by Montenegro's political leadership. Milo Djukanovic, top leader of the Democratic Party of Socialists and President of the Republic of Montenegro, has done an about face on the matter of support for a tightly-knit Yugoslav federation--a federal union tying Montenegro closely to Serbia--and is now leading a movement to substantially loosen the bonds between the two member-republics of the Federal Republic of Yugoslavia. Currently, Djukanovic seeks to loosen the bonds to the point of obtaining virtual sovereignty and independence for Montenegro.

 

As the smaller and weaker partner in the Federal Republic of Yugoslavia, Montenegro has not fared well. About a month and a half after proclamation of the FRY, the United Nations imposed economic sanctions on Yugoslavia (Serbia and Montenegro), seeking to induce Milosevic to terminate his military aggression in Bosnia. The U.N. sanctions brought severe economic hardship to the people of Montenegro, resulting in increased public unrest within the country. This was the beginning of the end of the rather short and troubled honeymoon between Montenegro and Serbia.

 

The government of the Republic of Serbia completely dominates the reconstituted Yugoslav federal government. Serbia has used its position of dominance in the FRY to advance its own interests, at the expense of those of Montenegro. Serbia has used its position of advantage to incorporate the will of Miloseviv into Yugoslav federal law and public policy, easily overriding Montenegro's objections.

 

The Montenegrin government has demanded a greater degree of democratization in the Yugoslav political system. The Montenegrins have also called for economic reforms to liberalize the Yugoslav economy, i.e., to transform it into a free market economy. However, the politically dominant Serbians have declined to give serious consideration to the Montenegrin proposals for political and economic reform. The Serbians, in most cases, have simply ignored the Montenegrin proposals and, in other cases, have subjected them to derision.

 

Increasingly, the Montenegrins have come to see the policies pursued by Milosevic as unwise, inflexible, and placing an intolerable burden on Montenegro, pulling it down with Serbia into a quagmire of continuous and costly warfare, successive military defeats, widespread economic destitution, and isolation from as well as alienation of the constitutional democratic states of Western Europe and North America.

 

Although the Constitution of the Republic of Montenegro proclaims the sovereignty of Montenegro and guarantees the republic the right to independent representation in all international organizations, including the United Nations, these constitutional provisions consistently have been disregarded by the Serbian government and by the Serbian- dominated Yugoslav federal government.

 

Since 1997, the government of Montenegro has opposed Serbia's--and the FRY's--policy of political oppression and military aggression within Yugoslavia and of confrontation with the Western powers. The Montenegrin government has endeavored, without success, to obtain repudiation or substantial alteration of this policy. Montenegro has opposed, in particular, Milosevic's political oppression and military aggression in Kosovo.

 

Blaming Milosevic and the Serbian government for Yugoslavia's international isolation and for the U.N.-imposed economic sanctions, Montenegro is becoming increasingly pro-Western in its orientation. Seeking to adopt and pursue its own foreign policy and disavow Belgrade's policy of military confrontation with Western powers, Montenegro has taken steps to strengthen its ties with the West. Behaving as if it were already a fully sovereign state, Montenegro is seeking membership in NATO and the European Union and is otherwise acting independently of and at odds with the foreign policy of the Yugoslav federal government.

 

As these developments have been occurring, tensions between Montenegro and Serbia have been rising. The two member-republics of the Yugoslav federation are on a coalition course.

On August 6, 1999, the Montenegrin government presented to the Yugoslav federal authorities proposals for far-reaching political and constitutional change. The proposals call for a radical redesign of the troubled relationship existing between Montenegro and Serbia in the Yugoslav federation. Under the redesigned relationship, the name "Yugoslavia" would be eliminated and a "Commonwealth of Serbia and Montenegro" would be created to replace the Federal Republic of Yugoslavia. The bicameral federal parliament of the FRY would be abolished and supplanted by a unicameral legislature in which Montenegro and Serbia would be represented equally, rather than on the basis of population. Not only would the two member-states of the "Commonwealth" have equal voting power in the Commonwealth legislature and therefore an equal voice--and absolute veto power--regarding Commonwealth decisions on public policy and its implemention, but each member-state would (1) establish and maintain its own separate currency, (2) adopt and pursue its own independent foreign policy, and (3) organize and maintain its own military forces. In short, the concept and system of federation, or federalism--endeavoring to maintain a stable constitutional division and balance of power between a strong "federal" (central) government and the governments of autonomous or semiautonomous constituent regional or local units--would be abandoned and succeeded by a relationship between Montenegro and Serbia based on the principle of confederation, "confederation" defined as a loose union or association of fully or virtually sovereign states.

 

Montenegro's submission of the foregoing proposals was tantamount to a declaration of independence. The call for the new Commonwealth of States of Serbia and Montenegro was essentially a face-saving formula for Serbia to agree to the peaceful dissolution of the FRY.

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If the Montenegrin proposals are accepted as the legal basis of a new relationship between Montenegro and Serbia, Milosevic's position as President of the Federal Republic of Yugoslavia will be eliminated, along with the FRY itself. And Milosevic is constitutionally ineligible for election to another term as President of Serbia, unless the independent Serbian state resulting from dissolution of the FRY is legally determined to be a new and different state, not a continuation of the political entity currently designated as the "Republic of Serbia," a member-state of the Yugoslav federation. Hence, the Montenegrin government's demands for far-reaching political and constitutional change seriously endanger Milosevic's ability to continue exercising political power, even in the projected final remnant of the former Yugoslavia--in the landlocked rump-state of Serbia. Since Milosevic is by no means inclined to peacefully relinquish what he is determined to hold on to, he is very likely to order a military crackdown on Montenegro and thereby start another Balkan war.

 

Aside from the direct threat that the Montenegrin proposals pose to Milosevic's grasp on political power, he may have good reason to welcome the opportunity to start another war. By launching a Yugoslav/Serbian military invasion of Montenegro and/or instigating a Yugoslav/Serbian-supported armed rebellion within the country, Milosevic may be able to diffuse the current political crisis in Serbia, diverting the attention of the Serbian people away from the disastrous consequences of his failed policy in Kosovo. Weakened politically by the Serbian public's reaction to his defeat in the Kosovo-Yugoslav War and to the suffering which that war inflicted on the Serbian people, Milosevic is being pressured by opposition political parties and the Serbian Orthodox Church to resign from the Yugoslav Presidency and leave the arena of active politics. Army reserve troops have been staging strikes since the end of the Kosovo-Yugoslav War, protesting delayed payments for their service in that war. Milosevic is confronted with his most serious political crisis since the 1996 mass demonstrations, which came very close to forcing him to step down from the Presidency and relinquish political power. A military conflict with the Montenegrin government and its supporters would enable Milosevic to (1) proclaim a state of emergency and exercise emergency powers, (2) muzzle the independent sectors of Serbia's mass communications media, (3) imprison or exile the leaders of and spokesmen for Serbia's opposition parties, and (4) order Army reservists into active military service, where their political activities would be severely curbed. The foregoing measures, in combination, would have the effect of quashing the internal challenge to his rule.

 

If Milososevic uses the Yugoslav Federal Army to extinguish Montenegro's threat to his political power, the Serbian dictator will have a decided advantage over the Montenegrin government. The Yugoslav Second Army, with an estimated strength of 20,000 troops, is stationed at bases located within the borders of Montenegro. If Milosevic orders military action against the Montenegrin government in an attempt to preserve the existing relationship between Montenegro and Serbia, he can rely upon the Second Army to obey his orders with speed and dispatch, since all units of the Yugoslav Federal Army, including the Second Army, have been purged of all but the most loyal cadres.

 

Milosevic's past behavior is a very reliable predictor of his future behavior, as regards his use of the Federal Army against break-away regions of Yugoslavia. In the case of the four wars he started by taking military action against regions seeking substantial autonomy or complete independence--first, the war against Slovenia; next, the war against Croatia; then, the war against Bosnia; and, finally, the war against Kosovo--Milosevic did not hesitate to employ the Federal Army to further the particular interests of Serbia, rather than the general interests of the Yugoslav federation. If Milosevic decides on military action against the Montenegrin government, once again he will have no qualms about using the Federal Army to advance the special interests of Serbia, to the detriment of another member-state or region of the Yugoslav federation.

 

If Milosevic makes a determined effort to instigate a civil war within Montenegro, it is conceivable that he will succeed in the effort. Montenegro's population contains an important (though declining) minority loyal to Milosevic and the FRY and opposed to Djukanovic's moves toward Montenegrin independence. This minority, with Belgrade's encouragement and the Federal Army's assistance, can be expected to resort to armed rebellion in an attempt to overthrow Djukanovic, extinguish the Montenegrin independence movement, and oppress the majority of Montenegro's population. If Milosevic exploits this political tenderbox inside Montenegro and manages to ignite a civil war within the country, he can use the ensuing violence and disorder to justify massive Yugoslav and Serbian military intervention into Montenegro, to justify deployment to Montenegro of additional Federal Army units as well the Special Police and the deadly paramilitary militia forces.

 

Keenly aware of the great danger represented by the 20,000 Yugoslav federal troops inside Montenegro's borders and by Milosevic's capacity and willingness to instigate a bloody civil war within those borders and use that conflict as justification for a more massive Yugoslav/Serbian military intervention into Montenegro, Djukanovic has sought to counter the danger by building up a police force of 15,000 heavily armed men.

 

The Montenegrin government, in spite of the threats emanating from Belgrade, has continued to take steps toward Montenegro's independence. In early November, 1999, the German mark was officially designated an alternative Montenegrin currency--an alternative to the devalued Yugoslav dinar. Montenegrin officials, in justifying this action, stated that the currency measure was necessary to prevent Montenegro's economy from being seriously damaged by the impending hyperinflation in Serbia.

 

Subsequently, the Montenegrin government assumed authority and responsibility for guarding and controlling Montenegro's borders--a function previously performed by the Yugoslav federal government.

 

On November 24, in still another unilateral move in the direction of independence, the Montenegrin government issued an official statement declaring the airports located in or near the city of Podgorica (Montenegro's capital) and the town of Tivat (in southern Montenegro) were the property of the Republic of Montenegro and that the Montenegrin government had the legal right to assume control over and responsibility for operation and management of the airports. JAT, the Yugoslav airline based in Belgrade, took exception to the declaration, insisting on maintenance of the status quo at the Podgorica airport--JAT control of the civilian sector of the airport and Federal Army control of the military sector. Federal officials in Belgrade also objected to the declaration, contending that, since the FRY holds legal title to the airport, the Republic of Montenegro has no right to assume control.

 

This dispute regarding the matter of airport ownership and control led to what has been, thus far, the most serious confrontation between the Yugoslav Second Army and the Montenegrin police force. The confrontation occurred over control of Montenegro's main airport, the Golubovci airport in Podgorica.

 

On December 8, the Second Army, on Milosevic's orders, took action to stimy a maneuver on the part of the Montenegrin government to obtain control of the Golubovci airport--the attempt of the Montenegrin police and Montenegrin airlines officials to occupy a hanger on the military part of the airport. The Army moved heavy trucks onto the main runway at Golubovci, blocking the runway and taking up positions in confrontation with the Montenegrin police. Following this move, Yugoslav federal air-traffic authorities closed the airport, cancelling all civilian flights to and from it.

The Montenegrin government protested federal military interference with operation of the Golubovci airport, labelling the Army's December 8 action an unlawful seizure of the airport and asserting that the Republic of Montenegro had every right to control and operate the airport. Disputing this contention, Momir Bulatovic, Yugoslav Federal Premier, Milosevic loyalist and Djukanovic's former chief rival in Montenegro politics, blamed the Montenegrin police for the face-off with the Second Army, claiming that the Army acted when the police used force in an illegal attempt to take over the airport. General Spasoje Smiljanic, head of the Yugoslav airforce, stated that the military sector of the Golubovci airport was the property of the Federal Ministry of Defense and would be defended by the Yugoslav Army.

 

Reacting to the incident, Lord Robertson, British nobleman and NATO Secretary-General, publicly warned Milosevic against starting another Balkan war. U.S. General Wesley Clark, head of the U.S. European Command and NATO's Supreme Allied Commander in Europe, publicly warned Milosevic not to "interfere in Montenegrin processes." Both Lord Robertson and General Clark stated that NATO and its member-states were watching very closely and with great concern the brewing crisis in Montenegro."

 

In response to the statements of Lord Robertson and General Clark, Premier Bulatovic issued a Yugoslav/Serbian warning to NATO. He stated that NATO would be well advised not to interfere in the dispute between Serbia and Montenegro. He went on to say that the Yugoslav Army would defend the country, that NATO's military intervention in Montenegro "would meet armed resistance of the Yugoslav Army and all citizens of Yugoslavia."

 

On December 10, the FRY air-traffic directorate reopened the Golubovci airport, rescinding the ban on civilian flights to and from the airport. However, Montenegro's dispute with the FRY and Serbia over ownership and control of the airport has not been resolved. Both the Yugoslav Second Army and the Montenegrin police force are still on alert. A clash and ensuing war between the Army and the police could erupt at any time.

 

Bulatovic, in an interview published on December 13, warned Djukanovic not to make good on his threat to hold a plebiscite on the question of Montenegrin independence. Bulatovic asserted that an independence referendum would result in the outbreak of violent conflict in Montenegro. Bulatovic's not-so-subtle message to the Montenegrin political leadership was clear: If the plebiscite on independence is conducted and the vote goes against Montenegro's remaining in the FRY, there will be another Balkan war and, as a consequence of that war and Montenegro's inevitable defeat in the war, its population will be subject to great suffering. The statement of Bulatovic was a thinly disguised threat of FRY/Serbian incitement of a civil war in Montenegro and action by the Yugoslav Federal Army--and the Special Police and the paramilitaries--to restore order and establish pro-Milosevic rule in Montenegro.

 

Because of a recent shift in public opinion in Montenegro, Bulatovic's warning and threat are not likely to faze Djukanovi and the Montenegrin government. NATO's victory over the FRY and Serbia in the Kosovo-Yugoslav War has broken the psychological barrier to Montenegro's pushing for complete independence. In Montenegro today, there is much greater popular support for full independence than there was a few months ago. The results of public opinion polls taken in December suggest that almost 70 percent of Montenegro's voting population support Djukanovic's moves toward dissolution of the Yugoslav federation and toward independence for Montenegro. Approximately 50 percent of those backing the drive toward independence are committed Montenegrin ethnic nationalists and the remainder are Djukanovic loyalists, who will follow his leadership in taking Montenegro out of the FRY.

 

However, increasing popular support within Montenegro for the independence movement is not likely to be a major consideration of Milosevic in deciding whether to lower the boom on Montenegro and start another Balkan war. Not known for allowing Yugoslavia's parts to separate peacefully, Milosevic can be counted on to resort to military force and violence to keep Montenegro in the Yugoslav federation. And the highest-level military authorities of the U.S.A and NATO are well aware of this. Like it or not, another Balkan war is coming soon, and the U.S.A. and the Western alliance, sooner or later, will be right in the middle of that war.

 

Anticipating the coming Montenegro-Yugoslav War and NATO's intervention into the conflict, U.S. and NATO military athorities are determined that, when these developments materialize, the U.S.A. and NATO will be better prepared than they were in the Kosovo- Yugoslav War. In the case of Kosovo, the U.S.A. and NATO, weeks after their intervention into the war, still did not have plans for conducting an on-the-ground military campaign. Unwilling to take any chances this time around, General Wesley Clark, in early October, requested his superiors in the U.S. Department of Defense to authorize him to begin drafting contingency war plans for Montenegro--plans for NATO military action in Montenegro, in the event that the country is subject to Yugoslav/Serbian military aggression and/or subversion by internal forces inspired and supported by Milosevic. U.S. Secretary of Defense William S. Cohen and General Henry Hugh Shelton, Chairman of the U.S. Joint Chiefs of Staff, approved General Clark's request, giving him the green light to start drawing up the contingency plans for war in Montenegro.

 

The contingency plans drafted by General Clark call for an amphibious task force, including over 2,000 U.S. marines, to attack and seize the Montenegrin seaport of Bar. The goals of this military assault on Bar would be to (1) capture or destroy the vessels of the Yugoslav Navy, especially its two diesel-powered submarines and its modicum of small ships equipped with cruise missiles, (2) obtain complete control of the seaport, and (3) use control of the port to establish a secure beachhead for NATO military operations in other parts of Montenegro, including a ground-force invasion to drive FRY/Serbian forces out of the country and allow it to be governed by its own duly constituted authorities.

 

General Clark's contingency plans also call for (1) a brigade of assault troops transported by helicopters to land at or near the Golubovci airport and seize control of it and (2) military jets to clear the skies of hostile aircraft and destroy any missile or artillery batteries putting up resistance to the NATO operation.

 

 

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