The Fog of War [Powers] – Stanford Journal of International Law – with H. Lee Halterman, Jules Lobel, Joel E. Starr and James Klimaski – PDF

SJIL means – Stanford Journal of International Law

2001 Commentary: The Fog of War [Powers]


The U.S. Supreme Court’s refusal to grant certiorari in Campbell v. Clinton1 brings to an end a chain of Cold War-era litigation regarding the Constitution’s allocation of war powers. It concludes a line of cases launched in the 1960s that sought to return the nation to its constitutional moorings by re­quiring Congress to authorize the initiation of military conflicts. Those cases sought to reverse the accretion of the war power to the executive branch that had been initiated by President Truman in Korea, the first major battle of what would become the Cold War.

Until the Korean War, all major and most minor deployments of U.S. forces into armed conflict had the approval of Congress either before or during the conflict. The famous action against the Barbary Pirates during the presi­dency of Thomas Jefferson, for example, was authorized by Congress, as were U.S. actions during the Napoleonic wars.2 When North Korea invaded South Korea on June 25, 1950, President Truman also considered going to Congress to seek a resolution of approval before dispatching U.S. troops to defend the South Koreans. But Secretary of State Dean Acheson recommended to Truman that he instead rely upon his “constitutional authority” as Commander-in-Chief. Relying on this dubious advice, and with scarcely a whiff of con­gressional opposition, Truman set a precedent for future presidential wars.3 This enormous military event started the accretion of power also to the execu­tive branch that has been characterized by major war power disputes between presidents and Congress over military action in Vietnam and Kosovo. Such disputes also arose during U.S. armed engagements in the Americas, the Car­ibbean, and the Persian Gulf. The accretion of power led to a concurrent ef­fort, via the legislative process and judicial review, to provide modern mean­ing to the Constitution’s requirement that Congress authorize commitments to war.4

The early decades of U.S. history contained a similar conflict, but the outcome was very different. As the young nation tried both to familiarize it­self with its governing institutions and to occupy its space in international re­lations, conflicts arose about the nature of the balance of the war power. The courts at that time robustly embraced the view that lilt is emphatically, the province and duty of the judicial department, to say what the law is”5 with re­gard to the war power. Therefore, they demonstrated little reluctance to read the Constitution as the Framers had intended.6 To them the intent was clear: “There can hardly be room for doubt that the framers of the Constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military . . . all according to his notions of the fitness of things . .”7 With the executive branch inherently inclined to let the war power accrete to it, if not to gather it in, the judicial branch duly protected the Framer’s effort to constrain that impulse. The courts arbitrated in manageable terms the Constitution’s guides to political branch conduct.

The danger of eviscerating the Congress’s war power would have been readily apparent to early jurists. Entanglements in conflict with the major powers could have spelled the death of the democratic experiment. Debate in the legislative branch would allow calm and deliberation to govern, resulting in determined and foresighted decisions. However, a century and a half later, the United States was a superpower, engaged in what many perceived to be an on-going global conflict with the Soviet Union and its allies. With the advent of nuclear weapons, urgent and decisive command decisionmaking seemed necessary to the very survival of the nation. Preventing adversarial creep, tilting the balance, or propping up dominoes, each offered rationalization for the branches to err on the side of presidential engagement. Still, throughout the Cold War, many argued that the dangers anticipated by the Framers in ceding such decisions to the executive remained more compelling than the danger that would flow by requiring the legislative branch engagement envisioned in the Constitution.

The end of the Cold War offered opportunities to clear the fog from the war powers battle. Whatever Cold War logic justified an executive, or “imperial,”8 exercise in congressional war powers authority died along with the Soviet Union. However, like many modern armed conflicts, the ends of which are often confusing, irresolute, and prone to sow the seeds of future conflict, the Supreme Court’s unwillingness to hear Campbell leaves this area of law in a disrepair that the jurists of that earlier era would fmd intolerable. What those earlier drafters and jurists had done in order to prevent a president from acting as a king in matters of war has been further and badly frayed by the Court’s inaction in Campbell and the confusion rendered in the courts be­low.

Most disturbing is neither the overreaching of the executive, predicted by and guarded against by the Framers and the early cases, nor the acquies­cence of the Congress anticipated in the language of the War Powers Resolu­tion (WPR);9 it is rather the unwillingness of the Campbell courts to discharge their duty to “say what the law is.” This disappointment comes against the promise of what turned out to be the penultimate adjudication in this cycle, Dellums v. Bush, in which Judge Harold H. Greene refused to “read out of the Constitution the clause granting to the Congress, and to it alone, the authority ‘to declare war.'”10

Until Campbell’s desultory outcome, Dellums was in a continuum of cases that held the promise that the courts accepted the teaching of the earlier cases and were prepared to assume their duty as outlined in Marbury—under the right facts and with the right plaintiff. In Berk v. Laird, the Second Circuit re­jected the view that the role of Congress was an “antique formality.”11 It noted that the Constitution intended not only to confer the war power on Con­gress but that this Article I, Section 8 assignment was also “an explicit restriction upon the power of the Executive to initiate war on its own prerogative.”12 Decided against the backdrop of congressional legislation spanning several years, this case attempted to undo the accretion of military initiative to the executive that had occurred during the Cold War.

In 1973, over the veto of President Richard M. Nixon, Congress finally succeeded in imposing a statutory view of its authority on the executive. The WPR13 both asserted congressional power and contained a mechanism designed to enforce it—a sixty-day deadline for the cutting off of hostilities initiated by a president without subsequent congressional approval. Congress was not seeking to constrain the power of a president to defend the nation from at­tack, a constitutional power of the executive acknowledged in Mitchell v. Laird, but to uphold its authority to authorize war, a constitutional power the Mitchell court had also observed belonged to Congress.14

Where judgments might vary on the need for precipitous action, the WPR acknowledged that a president might choose to act, but that Congress needed subsequently to confirm that judgment. Few could doubt they would back up a president responding to the legitimate defensive requirements or strategic in­terests of the nation. The cut off was to occur if, in Congress’ view, the ex­ecutive had misjudged the need for immediate military action and an orderly termination of hostilities was to follow. As Senator Jacob Javits noted at the time: “The [cut-off] provision contained in Section 5 assumes that the Presi­dent will act according to law. No other assumption is possible unless we are to discard our whole constitutional system.”15

In the wake of this effort, further litigation ensued. Crockett v. Reagan16 constituted the first test, and the results were mixed but encouraging. First, the court rejected the executive branch’s view that litigation under the WPR would improperly interfere with its discretion. Second, it determined that, with less elusive facts, a court could order the executive to file a report under the act. Third, it concluded that a court could order military withdrawal from combat under the terms of the WPR.

The case of Lowry v. Reagan17 again turned on a factual issue of a dispute between the branches and within Congress. Seeking to compel President Reagan to file a report as required by the WPR, congressional plaintiffs had failed to secure congressional support for their view that hostilities existed in the Persian Gulf. Anticipating a conclusion that would be reached by the Su­preme Court in Raines v. Bird18 concerning congressional standing, the Lowry court concluded that the plaintiffs’ claim rested on a dispute with congres­sional colleagues and not one between the branches. Nonetheless, implicit in Lowry is the court’s legitimization of the WPR, as well as the view of the Crockett court that the judiciary could order withdrawal if Congress failed to provide the requisite authority.

This commentary does not permit an exhaustive discussion of these or other cases that came to the bar; but we must conclude this section by dis­cussing Dellums v. Bush,19 a claim brought by Representative Ron Dellums that President Bush’s planned Persian Gulf War could not be launched without explicit congressional authorization. This case returned the litigation effort to its roots—the U.S. Constitution—and did not reference the WPR Judge Greene determined that, while the issue was not ripe for injunctive relief, Dellums and his colleagues had standing to bring the case. The Dellums court concluded that such relief might flow if the war was imminent and Congress had refused to support President Bush’s determination to go to war.20 Shortly thereafter, both houses of Congress deliberated and granted President Bush authority to conduct what became Operation Desert Storm. The litigation aside, this is what the Framers had envisioned.

Judge Greene articulated what seemed to be a compromise reached by the courts throughout this era: When Congress was silent, the courts would de­mur; if Congress acted, the courts would have the capacity to judge. Justice Powell’s opinion in Goldwater v. Carter21 and Judge Ginsburg’s opinion in Sanchez-Espinoza v. Reagan22 are further examples of this tendency. We strongly disagree with these conclusions because they apparently derogate from the Constitution and the WPR’s command that congressional silence rep­resents disapproval; but, they at least represented a compromise path by which the judiciary could find a way through the dispute between the two political branches. Why, the courts seemed to be asking, should we undertake to divine what the Congress might intend by its inaction in matters that strike so close to the heart of the nation’s foreign affairs and national security? But, if the Con­gress were to vote and thereby deny a president such authority, then the courts would give meaning to Congress’s conduct.

These were exactly the facts that led to Campbell. Using the procedural provisions of the WPR, Representative Tom Campbell set out to force a vote on the U.S. air war in the former Yugoslavia. Both a declaration of war23 and an authorization to wage war under the WPR24 failed (the latter on a tie vote in the House). Although the courts would be able to find ambiguity of legislative intention in other congressional votes, no other congressional action occurred that authorized or would meet the required test in the WPR to authorize continuation of the air war. When the sixty-day clock had run, Representative Campbell, leading a bipartisan group of thirty-one colleagues, brought suit to achieve what the Dellums and Crockett courts concluded the judicial branch should do when Congress itself had acted to deny a president the requisite le­gal authority: Order the president to terminate the illegal conduct.

As the petition for writ of certiorari argues, the district and circuit courts failed, in a confusing mix of opinions, to defend the Constitution or uphold the law. This substantive refusal to give flesh and muscle to the Constitution’s frame or Congress’ intent creates the lingering threat of belligerent entangle­ments like those against which Congress legislated during the Vietnam War. By refusing in such a clear case to order the cessation of an unauthorized war or to provide declaratory relief because the president had exceeded both the statute’s and the Constitution’s authority, the courts have left to future genera­tions the question of who may suffer and die before someone can again at­tempt to vindicate the Constitution’s mandate.

Equally disturbing was the Supreme Court’s unwillingness to clarify the issue of legislative standing, and whether any life is left in Coleman v. Miller,25 a case that the Court refused to overrule in Raines.26 Having done so much to limit congressional standing in Raines, it remained to be seen whether the courts would grant members of Congress the dignity that they had granted to state legislators in Coleman: If their votes were essential for an action or to block an action, then they could have standing to vindicate their claimed authority. The Campbell plaintiffs stood as had those in Coleman. Their votes had been sufficient to block congressional authority for the air war, and the Court should have granted standing to hear their claims on the merits. Instead, the confusing melange of opinions in the district and circuit courts provides little guidance, and the Court’s silence does nothing to clarify the matter.

Because the courts, while paying homage to Congress’ war power author­ity, are unwilling at this time to enforce either Congress’ constitutional or statutory war powers authority, Congress itself will once again legislatively have to attempt to retrieve this power. Clearly the WPR, whatever its other constitutional deficiencies, has failed in its intended purposes: to prevent presidentially initiated military conflicts or to bring them to an orderly end if they do not garner the necessary congressional support in relatively short order.

In the wake of Campbell, Congress will have to concern itself with re­gaining its substantive power and the procedural means to enforce it. The WPR, passed in 1973, spurned by presidents and now unenforced by the courts, can no longer be relied upon to defend Congress’ authority. During the present era of geopolitical unrest, the time is ripe for the passage of comple­mentary or successor legislation to the WPR in order to return the nation to constitutional form in the war power arena. World events clearly will continue to call for U.S. engagement.27 The Congress must seek to reassert its role in authorizing those deployments that constitute armed conflict. Commitment of troops to belligerent circumstances that can lead to broader mischief is pre­cisely what the Framers intended to prevent a president from doing unilater­ally. With the nuclear threat now lessened, it is clearly the time to establish a new consensus on how to proceed.

Congressional hearings should be held to generate further congressional support, executive engagement, and clarification of the road forward. During the April 1999 debate on Representative Campbell’s Yugoslavia resolutions before the House International Relations Committee (HIRC), several Repre­sentatives who voted against Campbell’s resolutions nonetheless went on rec­ord expressing support for holding hearings on the war powers issue, even ab­sent an immediate military crisis.28 Leadership commitment to passage of legislation designed to wrest the war power authority back to Congress will be required for success.

The status quo is constitutionally unacceptable and eviscerates the concept of separation and balance of powers. Currently, the executive acknowledges no congressional war power authority and expresses no concern for any possi­ble political consequences of such an attitude. Why? Apparently because there are no such consequences—except for the dramatic and lingering conse­quences to our foreign policy that so concerned the Framers. This was exem­plified in the exchange between Representative Campbell and Secretary of State Madeleine Albright during her testimony before the HIRC on day twenty-eight of the NATO air war over Yugoslavia. When he asked her three times whether there were “hostilities” in Yugoslavia, thus triggering the provi­sions of the WPR, she refused to answer him, and by extension all the people’s representatives, fearing no political consequences for acting in contempt of Congress.29 She turned out to be right.

In the wake of the denial of certiorari, Representative Campbell observed that the Supreme Court had “shirked its responsibility” in refusing even to of­fer an opinion in the Campbell case.30 Although Congress has sometimes failed to assert its own war power authority, in Kosovo, as in the Persian Gulf War, it discharged its constitutional war power duty by voting. Only the out­come was different; yet President Clinton ignored Congress on Kosovo, and thus the will of the American people as well.

“Our nation’s government is built on a fragile balance of power,” said Representative Campbell:

When one branch oversteps that balance, it is the duty of the other branches to stand up for the Constitution. Because of the Supreme Court decision in our case, the President of the United States will es­sentially be without check in any decision he or she makes to put our troops into combat. Because the judicial branch has not, Congress must be more vigilant in reasserting its war power authority. Other­wise, our country will become weaker, and our liberties less sure, and we shall all be the worse for it.31

Experience suggests that Congress will not soon take up such a difficult task that requires bipartisan support and a stubborn willingness to assert legislative branch power against the executive. After all, passage of the WPR required a lengthy, controversial war with massive casualties. But, with this era’s war power litigation effort ending as it has in Campbell, Congress must act. It now stands as the only branch that can avert the type of future national tragedy that the WPR was intended to prevent.


* Managing Partner, Dellums, Brauer, Halterman & Associates, LLP. J.D., U.C. Berkeley (Boalt Hall), 1979; B.A., U.C. Berkeley, 1973. Halterman was a congressional aide for 28 years, serving as General Counsel to U.S. Representative Ronald V. Dellums, as well as Democratic Counsel and Policy Director of the House Armed Services Committee.

** Professor of Law, University of Pittsburgh Law School; Board of Directors and cooperating at­torney, Center for Constitutional Rights; lead counsel, Campbell v. Clinton. J.D., Rutgers Law School, 1978; B.A., New York University, 1972. Editor, A Less Than Perfect Union (MONTHLY REVIEW 1988); editor, CIVIL RIGHTS LITIGATION AND ATTORNEYS FEES HANDBOOK (Clark Boardman 1985).

*** Counsel and Legislative Assistant to Congressman Tom Campbell (R-CA); First Lieutenant, Judge Advocate General Corps, U.S. Army Reserve. M.P.A. Harvard University, 1992; J.D., University of Oklahoma, 1985; B.A. Westminster College, 1981.

**** Vice-President, Center for Constitutional Rights. J.D., Columbia University, 1971; B.A. Bran­deis University, 1966. Counsel in numerous cases seeking to limit U.S. military intervention; successfully litigated closing U.S.-run HIV refugee camp, Guantanamo Bay, Cuba; Trial Lawyer of the Year Award; lecturer in law, Columbia Law School; Skelly Wright Fellow at Yale Law School; author, INTERNATIONAL HUMAN RIGHTS LITIGATION IN U.S. COURTS (Transnational Press 1996); editor, THE PINOCHET PAPERS (Kluwer 2000).

***** Partner, Klimaski & Grill, P.C.; Litigation Director for the Government Accountability Proj­ect. Serves as a Director of the Metropolitan Washington Employment Lawyers Association, the Vet­eran’s Education Project, and the Military Law Task Force of the National Lawyers Guild. J.D., Antioch School of Law, 1976; M.A., New School for Social Research, 1973. The authors would like to thank Mr. Franklin Siegel (Volunteer Staff Attorney associated with the Center for Constitutional Rights) for his as­sistance.

1 Campbell v. Clinton, 203 E3d 19 (D.C. Cir. 2000); Campbell v. Clinton, 52 E Supp. 2d 34 (D.D.C. 1999).

2 CONSTITUTION OF THE UNITED STATES OF AMERICA, ANALYSIS & INTERPRETATION 309 (Johnny H. Killian & George A. Costello eds., 1996) (discussing President Jefferson’s reactions to the Bay of Tripoli hostilities); see also JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 139-40 n.4, 3 (1993). (“The power to declare war was constitutionally vested in Congress. The debates, and early practice, establish that this meant that all wars, big or small, ‘declared’ in so many words or not—most weren’t, even then—had to be legislatively authorized.”)


4 U.S. CONST. art. I, § 8, cl. 11 (“[The Congress shall have the Power] . .. To declare War, grant Letters of Marque and Reprisal . .”).

5 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added).

6 Bas v. Tingy, 4 U.S. (4 Dall.) 7, 40 (1800) (“[T]he whole power of war being . . . vested in the Congress.”); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801) (“The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone can be resorted to as our guides in this inquiry.”).


8 See SCHLESINGER, supra note 3.

9 The authority for using U.S. armed forces in a conflict may not be inferred “from any provision . . . contained in any appropriation Act, unless such provision specifically authorizes the introduction of . . . [forces] . . . into hostilities…” 50 U.S.C. § 1547 (2000).

10 Dellums v. Bush, 752 F Supp. 1141, 1146 (D.D.C. 1990).

11 Berk v. Laird, 429 F.2d. 302, 305 (2d Cir. 1970).

12 Id.

13 50 U.S.C. §§ 1541-1548 (1973).

14 Mitchell v. Laird, 488 F.2d 611, 613-16 (D.C. Cir. 1973).

15 119 CONG. REC. 1401 (1973).

16 Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff’d, 720 E2d 1355 (D.C. Cir. 1983).

17 Lowry v. Reagan, 676 E Supp. 333 (D.D.C. 1987).

18 Raines v. Bird, 521 U.S. 811 (1997).

19 Dellums v. Bush, 752 E Supp. 1141 (D.D.C. 1990).

20 Id.

21 Goldwater v. Carter, 444 U.S. 996, 997-1002 (1979) (Powell, J., concurring).

22 Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210-11 (D.C.Cir. 1985) (Ginsburg, J., concurring).

23 H.R.J. Res. 44, 106th Cong. (1999).

24 S. Con. Res. 21, 106th Cong. (1999).

25 Coleman v. Miller, 307 U.S. 433 (1939).

26 Raines v. Bird, 521 U.S. 811 (1997).

27 Rowan Scarborough, Record Deployments Take Toll on Military, WASH. TIMES, Mar. 26, 2000, at 6 (stating that forty-eight U.S. military missions deployed overseas in the 1990s alone; already our military advisors are being stationed in Colombia, and our troops remain in Bosnia, Kosovo, and other places of crisis around the globe).

28 H. Con. Res. 82 and H. J. Res. 44, 106th Cong. (1999) (comments of Reps. Hyde and Berman).

29 Situation in Kosovo: Hearings Before the House Committee on International Relations, 106th Cong., 1st Sess. 30-31 (1999) (testimony of Madeleine K. Albright, Secretary of State).

30 Press Release, Office of Congressman Tom Campbell, U.S. Supreme Court ‘Shirks its Responsi­bility’ by Denying Oral Argument to Congressional War Powers Lawsuit (Oct. 2, 2000).

31 Interview with Congressman Tom Campbell in Washington, D.C. (October 5, 2000).