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Read the Fine Print: Clinton, Kosovo, and the War Powers Resolution

(One of the) Editor’s Note: Credit for this one goes to Elizabeth. She posted this before we had fully figured out the by-lines.

Nothing quite like a civil war in Syria to remind us of our past involvement in the internal conflicts of other countries…In March 1999, President Clinton ordered U.S. military forces to participate in a NATO-led military intervention in Kosovo. This brought into question the president’s power to deploy forces without explicit authorization from congress under the War Powers Resolution or otherwise. Congress defeated a declaration of war and authorization of the air strikes, but also voted to fund the operation. Additionally, congress defeated a resolution requiring the President to immediately end the operation. I argue that President Clinton was in clear violation of the War Powers Resolution. This issue was brought before a D.C. Circuit Court in Campbell vs. Clinton, in which the court granted the President’s request to dismiss the case for lack of standing.

The War Powers Resolution (1973) is a federal law that checks the power of the president in his or her capacity to engage in military operations without the consent of Congress. A provision of this act requires that the president formally notify Congress within 48 hours of committing U.S. military forces to any operation. Furthermore, the act forbids armed forces for acting for more than 60 days after this initial notification, allowing for a 30-day window of time to withdraw forces. The military operations may continue past this time frame only if Congress explicitly authorizes the use of military force or declares war[1].

In two reports filed in late March and early April “consistent with the War Powers Resolution” to Congress, President Clinton stated that he had “taken into account the views and support expressed by Congress” and that he “appreciate[d] the support of Congress in this action”[2]. However, neither at the beginning of the conflict nor in the course of its continuation did congress specifically authorize this military operation. The votes that were taken were ambiguous and inconclusive. Clinton first consulted congress on March 26, 1999, two days after commencing air strikes against Yugoslavia in response to the government’s campaign against the ethnic Albanian population of Kosovo. The day before the air strikes began, the Senate passed a non-binding resolution (S.Con.Res. 21) which authorized the president to conduct military operations and air strikes; the House defeated this same measure on a tie vote on April 28, 1999. The House also defeated a resolution which would have declared a state of war between the U.S. and the Federal Republic of Yugoslavia (H.J.Res. 44)[3]. On April 30, 1999, Representative Tom Campbell and 17 other members of the House of Representatives filed suit in Federal District Court seeking a ruling that would require President Clinton to obtain authorization from Congress to continue the air strike.

On May 20, 1999, both chambers of Congress passed H.R. 1141, which authorized emergency supplemental appropriations for funding the existing U.S. military operations in Kosovo. This was a large change to the budget for FY1999, which comprised of billions of dollars of support for air strikes[4]. The War Powers Resolution gives Presidents 60 days (with an additional 30 day withdrawal period, if necessary) to conduct military operations without the explicit consent of Congress, beginning on the day that the President issues a report to Congress. This report is required to follow within 48 hours of initial military action—President Clinton complied with this measure. The 60-day window for U.S. military operations in Kosovo ended on May 25, 1999. President Clinton did not seek an extension (which must be granted by Congress), yet air strikes continued for nineteen days after this deadline[5].

Judge Joyce Hens Green understands the 60-day provision of the War Powers Resolution to be a device for shifting the burden of approval from Congress to the President,

[T]he automatic cutoff after 60 days was intended to place the burden on the President to seek positive approval from the Congress, rather than to require the Congress positively to disapprove the action, which had proven so politically difficult during the Vietnam war. To give force to congressional power to declare war, Presidential warmaking would not be justified by congressional silence, but only by a congressional initiative . . .[6]

This quotation is representative of past decisions of the court (such as Crockett vs. Reagan)—it is clear that precedent places the ultimate decision of war should be left to Congress, and that the President is responsible for obtaining said permission[7].

Clinton’s administration argued that exceeding the 60-day limit was not a violation of the War Powers Resolution because Congress gave implicit consent to the air strikes by passing the appropriations bill[8]. In a memo from the Office of the Attorney General, the administration argues that Congress clearly intended to authorize military operations in Kosovo. The memo details the debate on the floor in Congress leading to the passage of the appropriations bill, the legislative history, and cites the intentions of the sponsors of the bill. This is to be taken as justification for the notion that Congress implicitly authorized military action in Kosovo through its passage of the appropriations resolution[9].

However, when analyzing the text of the War Powers Resolution, it seems clear that appropriations bills may not authorize military operations unless it is explicitly stated. Section 8 of the War Powers Resolution states that,

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–

(1)  from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes 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[10]

The text of the act makes it clear that authorization can’t be inferred from an appropriations act unless it (a) specifically authorizes the military action and (b) states that it is intended as specific statutory authorization as it pertains to the WPA. Therefore even if an appropriations bill specifically authorizes a particular military operation, it does not considered authorization under the WPA unless it explicitly states that it is.

Analysis of the appropriations legislation informs us that both conditions of the above provision are not met[11]. It is telling that the memo from the Office of the Attorney General does not reference the explicit text of the appropriations act to argue that Congress authorized the military action—it rather cites places in the text where it is assumed that the resolution is an authorization. The bulk of the justification that the memo cites comes in the form of transcripts from committee meetings and floor debate; it also cites testimony from several members of Congress who were active in the debate[12]. Indeed, the text of the appropriations bill does not reference at any point the War Powers Resolution, nor does it explicitly state that the appropriation of funds should be interpreted as consent on the part of Congress[13]. Therefore, the military actions which occurred in the three weeks after the 60-day window were a clear violation of the War Powers Resolution.

Though members of Congress attempted to sue President Clinton for his violation of the War Powers Resolution (Campbell vs. Clinton), the case was dismissed on the grounds that members of Congress do not have standing to sue in this manner. Current scholarship is divided over whether Clinton’s actions were covered under the WPR in terms of intent, but analysis of the text demonstrates that these actions were a violation of the War Powers Resolution. Stay tuned for a forthcoming piece on how the case of Kosovo can illuminate our discussion of the Obama Administration’s intervention in Libya.

[1] War Powers Resolution: “Joint resolution concerning the war powers of Congress and the President”.(H. J. Res. 542). Retreived from http://avalon.law.yale.edu/20th_century/warpower.asp.

[2] Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia, 35 WEEKLY COMP. PRES. DOCS. 527 (Mar. 26, 1999); 35 WEEKLY COMP. PRES. DOCS. 602 (Apr. 7, 1999) (citing S. Con. Res. 21 and H. Con. Res. 42).

[3] Richard Grimmett, “War Powers Resolution: Presidential Compliance,” Congressional Research Service Report for Congress: 4-6, http://www.fas.org/sgp/crs/natsec/RL33532.pdf.

[4] Lori Damrosch, “The Clinton Administration and War Powers,” Law and Contemporary Problems, 63, no. 1 (2000).

[5] Savage, Charlie. “Clock Ticking on War Powers Resolution.” The New York Times, April 1, 2011. http://thecaucus.blogs.nytimes.com/2011/04/01/clock-ticking-on-war-powers-resolution/.

[6] Moss, Randolph D. Office of the U.S. Attorney General, “Authorization for Continuing Hostilities in Kosovo.” Last modified December 19, 2000. http://www.justice.gov/olc/final.htm

[7] Id.

[8] Savage 2011

[9] Moss 2000

[10] War Powers Resolution of 1973 (underlining added for emphasis)

[11] Kosovo and Southwest Asia Emergency Supplemental Appropriations Act, 1999 (Public Print – PP). H.R. 1664. Retrieved at http://thomas.loc.gov/cgi-bin/query/z?c106:hr1664:.

[12] Moss 2000

[13] Geoffrey Corn, “Clinton, Kosovo, and the Final Destruction of the War Powers Resolution,” William and Mary Law Review, 42, no. 4 (2001),


About Kyle

"I'm so enriched by my friends' political Facebook statuses and tweets!" said no one ever. So then we made a blog to continue said opinions over more that 140 characters. Op-eds, partisan-ship, unbiased reporting, pop culture, and book recommendations. Look at the headers, n00b.

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