,'

USDOJ Seal
U~S.
U.S. Denartment
Department

of Justice
Jus

Office of Legal Counsel

Office
Office of
of the
the Deputy
Deputy Assistant
Assistant Attorney
Attorney General
General

WashmglOn.
Washington, DC
DC 20530
20530

October 21, 2002

MEMORANDUM
MEMORANDUM FOR DANIEL J. BRYANT
BRYANT
ASSISTANT
ASSISTANT ATTORNEY GENERAL
GENERAL
OFFICE
OFFICE OF
OF LEGISLATIVE AFFAIRS
AFFAIRS

Yo~_ Mrr-

From:
From: John
John e.
C.Yoo-SignatureofJohnC.Yoo
Deputy
Deputy A#nt-AUme'y
Assistant Attorney General
General
Re:
Re:

Authorization for Use of Military Force Against lrag
Iraq Resolution of
of 2002

This memorandum confirms the views of
of the Office
Office of
of Legal Counsel, expressed to you
last week, on H.
H. J.
J. Res.
Res. 114, the Authorization for Use of Military Force Against Iraq Resolution
last
2002. This resolution authorizes the President to use the United States Armed
he
of 2002.
Anned Forces, "as
"ashe
determines to be necessary and appropriate," either to "defend the national security of
the
United
of
States against the continuing threat posed by lraq,"
Iraq," or to "enforce all relevant United Nations
States
Security Council resolutions regarding lraq."
Iraq." H. J. Res. ]114,
14, § 3(a).
. We have no constitutional objection to Congress expressing its support for the use of
of
1
Iraq. Indeed, the Office
Office of
of Legal Counsel was an active participant
military force against Iraq.1
participant in the
drafting of and negotiations over H. J. Res. 114. We have long maintained, however, that
Res. 114 are legally unnecessary. See,
resolutions such as H. J. Res.
S£!e, e.g., Deployment of
of United
United
Armed Forces into Haiti, ]18
O.L.C. 173,
173,175-76
States Armed
8 Op. O.L.e.
175-76 (1994)
(J 994) ("the President may introduce
troops into hostilities or potential hostilities without prior authorization by the Congress");
Proposed Deployment of
of United States Armed
Proposed
Armed Forces into Bosnia, 19 Op. O.L.C. 327, 335
specific statutory authorization, to introduce troops
(1995) ("the President has authority, without specific
of circwnstances").
circumstances"). As Chief
into hostilities in a substantial range of
Chief Executive and Commander
Commander in
Chief of
of the Aimed
Armed Forces of
of the United States, the President possesses ample authority under
the Constitution to direct the use of
of military force in defense
defense of
of the national security
security of
of the
United States, as we explain in Section I of
this
memorandum,
and
as
H.
J.
Res.
114
itself
of
itself
acknowledges when it states that "the President has authority under the Constitution
Constitution to take
Congress has expressed its support for the use of
of military force on a number
number of
of occasions throughout
throughout U.S.
U.S.
of September
September 11,
II, 2001.
200 I. See Authorization
Authorization for
for Use
Use of
of
history, including, most recently, in response to the attacks of
Military Force, Pub. 1.
L. No. ]07-40,
107-40,115
Military
] IS Stat. 224 (2001);
(200]); see also Act of
of May 28,1798,1
28, 1798, ] Stat. 561
56] (Quasi
(Quasi War
War with
with
of Feb. 6,1802,2
6,1802,2 Stat. 129 (First Barbary War); Act of
of Jan. 15,1811,
IS, 181 I, 3 Stat. 471 (East
(East Florida); Act
Act of
of
France); Act of
12, ]813,3
1813, 3 Stat. 472 (West Florida); Act of
Feb. ]2,
of Mar. 3, 1815,
]815,33 Stat. 230 (Second
(Second Barbary
Barbary War); Act
Act of
of Mar.
Mar. 3,
3,
1819,
510
1858, 11
9, 3 Stat. 5]
0 (African Slave Trade); Joint Resolution of
of June 2, .1858,
] I Stat. 370 (Paraguay); Joint
Joint Resolution
Resolution
]8]
1898, 30 Stat. 738 (Spanish-American
(Spanish-American War); Joint Resolution of
38 Stat. 770 (Mexico);
of Apr. 20, ]898,30
of Apr. 22, 1914,
19]4,38
of Jan. 29, J955,
1955, 69 Stat. 77{Formosa);
{Formosa); Joint Resolution
71 Stat. 5 (codified
Resolution of
of Mar. 9, 1957,
]957,7]
(codified at
at 22
22
Joint Resolution ofJan.
U.S.C. § 1962)(Middle
1962) (Middle East); Joint Resolution of
78 Stat. 384 (Gulf
of Aug. 10, 1964,
]964,78
(Gulf of
of Tonkin); Authorization
Authorization for
U.S,C.
Use ofMilitary
of Military Force Against Iraq
Resolution, Pub. 1.
L. No. 102-1,105
lraqR~~o!ution,
]02-1, 105 Stat. 3 (1991).
(199]).

of international terrorism against the United States."
action in order to deter and prevent acts of
Moreover, as we detail in Section 1I,
II, Congress has previously authorized the use of force against
Iraq.
It has been our understanding that the President sought this resolution not out of need for
legal authority, but in order to demonstrate, to the United Nations and to the current regime in
Iraq, that the American people, as represented by both their President and their representatives in
both Houses of
of Congress, frilly
all action necessary and appropriate to enforce all
fu]]y support taking a]]
relevant United Nations Security Council resolutions involving Iraq and to defend the United
of force if
if necessary. We recognize that, notwithstanding
States against Iraq, including the use of
the President's pre-existing constitutional and statutory authorities to use force, there are
significant non-legal reasons for the President and Congress jointly to state their renewed
significant
of the terrorist attacks of
of September 11,
11, 2001,
2001, to use force if
if
commitment, particularly in light of
of the United States and to
necessary to deal with the threat posed by Iraq to the national security of
Gulf region.
. international peace and security in the Persian Gulf

Accordingly, last week we recommended to you and to the White House that the
President take steps to ensure that his decision to approve H. J. Res. 114 would not be construed
legally necessary. Specifically, we
in the future as an indication' that this resolution was lega]]y
recommended that the President's signing statement include an explicit reservation stating that
of the resolution did not reflect any change in his position, and the long-standing
his signing of
position of
of the Executive Branch, that the President already possesses ample legal authority
of force.
force against Iraq. We further recommended that the
under the Constitution to order the use of
President's signing statement expressly state that his signing of
of H. J. Res. 114
President's
]]4 also did not
change the established position of
of the Executive Branch that the War Powers Resolution cannot,
Chief Executive and
consistent with the Constitution, restrict the President's authority as Chief
Commander in Chief
Chief to order the use of
of military force. See,
See, e.g.,
e.g., Statement
Statement on Signing the
of George Bush 40
Resolution
of Military Force Against Iraq, 1 Pub. Papers of
Resolution Authorizing
Authorizing the Use ofMilitary
(1991) ("my request for congressional support did not, and my signing [Pub. L. No. 102-1] does
of the executive branch on eIther
either the
not, constitute any change in the long-standing positions of
President's constitutional authority to use the Armed Forces to defend vital U.S. interests or the
constitutionality ofthe
of the War Powers Resolution").
1.
I.

As we have explained on numerous occasions, the President has authority under the
Constitution to initiate the use of
of military force to defend the national security of the United
full "executive
States. Article II expressly vests in the President, and not in Congress, the fun
of the United States. U.S. Const.
Const, art. II, § 1, cl. 1. Article II also provides that the
Power" of
Chief of
of the Army and Navy of
of the United States." U.S.
President "shall be Commander in Chief
Const, art. II, § 2, cl. 1. The Framers understood the Commander in Chief
Chief Clause as investing
Const.
the President with the fullest
fullest range of
of power understood at the time of
of the ratification
ratification of
of the
Constitution as belonging to the military commander. Taken together, these two provisions
constitute a substantive grant of
of broad war power to the President.

2

of the Constitution demonstrates that any power traditionally
In addition, the structure of
understood as pertaining to the executive - which includes the conduct of
of warfare and the
of the nation - is vested in the President unless expressly assigned in the Constitution to
defense of
11, Section 1 makes this clear by stating that the "executive Power shall be
Congress. Article II,
of the United States of
of America." U.S. Const.
Const, art. n,
II, § 1, d.
cl. I.
1. That
vested in a President of
sweeping grant vests in the President an unenumerated "executive Power" and contrasts with the
specific enumeration of
of the powers granted to Congress by the Constitution. See U.S. Const,
Canst. art.
"all legislative Powers herein granted'')
I, § 1 (vesting in Congress "[a]l1
granted") (emphasis added). The
of constitutional text and structure are confirmed
confirmed by the practical consideration that
implications of
national security decisions require the unity in purpose and energy in action that characterize the
Presidency rather than Congress. Indeed, the textual provisions in Article n,
II, combined with
considerations of
constitutional
structure
and
the
fundamental
principles
of
of
of
fundamental
of the separation of
powers, forbid
of his core
forbid Congress from interfering with the President's exercise of
constitutionally assigned duties, absent those "exceptions and qualifications
qualifications ...
. . . expressed" in the
v. United States,
States, 272 U.S.
Constitution. Myers v.
U-S. 52, 139 (1926) (quotations omitted).
There is no expression in the Constitution of
of any requirement that the President seek
authorization from Congress prior to using military force. There is certainly nothing in the text
of the Constitution that explicitly ~equires
requires Congress to consent before the President may exercise
of
Chief Executive and Commander in Chief
Chief to command U.S. military forces. By
his authority as Chief
contrast, Article J]
II expressly states that the President must obtain the advice and consent of
of the
Const, art. II, § 2, cl. 2"
2.
Senate before entering into treaties or appointing ambassadors. U.S. Const.
Similarly, Article I, Section 10 expressly denies states the power to "engage" in war without
congressional authorization, except in case of
of actual invasion or imminent danger. U.S. Const.
cl. 3. Moreover, founding documents prior to the U.S. Constitution, such as the
art. I, § 10, cI.
South Carolina Constitution of
of 1778, explicitly prohibited the Executive from commencing war
S.C. Const.
Const, art. XXVI (1776), reprinted in
or concluding peace without legislative approval. S.e.
Francis N. Thorpe, ed., 6 The Federal
and
State
Constitutions,
Colonial Charters, and Other
Federal
Organic Laws
of Confederation, art. IX, § 6, 1I Stat. 4, 8 (1778)
Organic
Laws at 3247 (1909). See also Articles of
("The United States, in Congress assembled, shall never engage in a war ...
. . . unless nine States
of the Constitution thus well knew how to constrain the
assent to the same."). The framers of
President's power to exercise his authority as Commander in Chief
Chief to engage U.S. Armed Forces
in hostilities, and decided not to do so.
All three branches have recognized the President's broad constitutional power as the
Chief Executive and Commander in Chief
Chief to initiate hostilities and to use military force to
Chief
protect the nation. The Executive Branch, for example~
example, has long interpreted the Commander in
Chief
power
"as
extending
to
the
dispatch
of
of protecting
Chief
of armed forces . .. . . for the purpose of
American interests." Training
Training of
British Flying
Students in the United States, 40 Op. Att'y Gen.
ofBritish
Flying Students
58, 62 (1941); see also Authority
to
Use
United
States
Military
Somalia, 16 Op. D.L.e.
O.L.C
Authority
Military Forces
Forces in Somalia,
Chief Executive vests him with
6 (1992) (President's role as Commander in Chief and Chief
constitutional authority to order U.S. forces abroad to further
further national interests). The Supreme
Court has likewise held that a major
major object of
of the Commander in Chief
in the
Chief Clause is "to vest in
President
the
supreme
command
over
all
the
military
forces,
such
supreme
and
undivided
President.
command as would
would be necessary
necessary to
to the
the prosecution of
of aa successful
successful war."
war." United States v.
command
Sweeny,
157
U.S.
281,
284
(1895).
As
Commander
in
Chief,
the
President
"is authorized
authorized to
to
Sweeny, ! 57 U.S. 281, 284 (1895). As Commander in Chief, the President "i:>

.

3

3

direct the movements of
of the naval and military forces placed by law at his command, and to
employ them in the manner he may deem most effectual
effectual to harass and conquer and subdue the
(1850). 2
Fleming v. Page,
Page, 50 U.S. (9 How.) 603, 615 (1850).2
enemy." Fleming
itself recently recognized the President's constitutional authority to use military
Congress itself
overwhelming margins shortly after
after the terrorist
force when it enacted Pub. L. No.
No.1107-40
07-40 by overwhelming
attacks of
September
11,
2001.
That
law
expressly
states
that
"the
President
has
authority under
of September I ], 200 I.
of international terrorism against the
the Constitution to take action to deter and prevent acts of
United States," and H. J. Res. 1]4
114 explicitly reaffirms
reaffirms that conclusion. Moreover, Congress has
of force by Presidents during the course of
of numerous armed
acquiesced in the unilateral use of
conflicts. During the previous Administration, for example, our Office
Office concluded that Congress
of President Clinton's unilateral decision to use military force in Kosovo, when it
had approved of
21, 1999), to provide emergency supplemental
supplemental
enacted Pub. L. No. 106-31, 113 Stat. 57 (May 21,
See Authorization
Continuing
appropriations for continued military operations there. See
Authorization for
Jor Continuing
Hostilities
in
Kosovo,
2000
WL
33716980
(O.L.C.).
Hostilities Kosovo,
(O.L.c.).

Indeed, Presidents have relied upon their inherent constitutional powers when they have
used force in recent conflicts. For example, President George H.W. Bush launched Operation
Commander in Chief. See Letter
Congressional
Letter to Congressional
Desert Storm pursuant to his authority as Commander
Leaders
Gulf Conflict,
Conflict, 1 Pub. Papers of
of George Bush 52 (1991). In 1992,
Leaders on the Persian
Persian Gulf
President Bush ordered the participation
participation of
of the United States in the enforcement
enforcement of
of the southern
President
no-fly zone in Iraq pursuant to his constitutional authority. See
See Letter
Congressional Leaders
Leaders
Letter to Congressional
no-fly
Reporting
on
Iraq's
Compliance
with
United
Nations
Security
Council
Resolutions,
Reporting
Iraq's Compliance with United Nations Security Council Resolutions, 2 Pub.
of George Bush 1574, 1575 (1992-93). When President Clinton ordered the 1993, 1996,
Papers of
and 1998 missile strikes against Iraq, he likewise pointed to his constitutional authority as
Commander in Chief
Chief and Chief
Chief Executive. See
See Letter
Congressional Leaders
Military
Letter to Congressional
Leaders on the Military
Commander
Strikes Against
of William Jefferson
Jefferson Clinton 2195, 2196 (1998); Letter from
from
Strikes
Against Iraq,
Iraq, 2 Pub. Papers of
President
William
J.
Clinton,
to
the
Honorable
Newt
Gingrich,
Speaker
of
the
House
of
Speaker of
of
President
Congressional Leaders
Strike on Iraqi
Iraqi
Representatives at 2 (Sept. 5, 1996); Letter
Letter to Congressional
Leaders on the Strike
Intelligence
Headquarters,
1
Pub.
Papers
of
William
Jefferson
Clinton
940
(1993).
And,
to
take
Intelligence Headquarters,
of
Jefferson
1999 air
a more recent example, when President Clinton directed the extensive and sustained .1999
campaign
in
the
Former
Republic
of
Yugoslavia,
he
relied
entirely
on
his
"constitutional
campaign
of
"constitutional
authority to conduct U.S. foreign relations and as Commander
Commander in Chief
Chief and Chief
Chief Executive."
Letter
Congressional Leaders
strikes against
against Serbian
Serbian Targets
Targets in the Federal
Federal
Letter to Congressional
Leaders Reporting
Reporting on Air
Airstrikes
Republic
of
Yugoslavia
(Serbia
and
Montenegro),
1
Pub.
Papers
of
William
Jefferson
Clinton
Republic oj Yugoslavia (Serbia and Montenegro), 1 Pub. Papers of William Jefferson Clinton

As we have recently explained, various procedural obstacles make it unlikely that a court would reach the
of the President's constitutional power to engage the U.S. Armed Forces in military hostilities, regardless
question of
of whether the suit is brought by a Member of Congress or a private citizen. See.
See Letter for Honorable Alberto R.
of
Yoo,
Office Of
of Legal Counsel
Gonzales, Counsel to the President, from John C. Y
00, Deputy Assistant Attorney General, Office
(Sept. 10,2002);
10, 2002); see also Campbell)/.
Campbell v. Clinton,
Clinton, 203
203 F.3d
F.3d 19
19 (D.C.
(D.C. CiT.),
Cir.), cert.
cert, denied,
denied, 53l
531 U.S.
U.S. 815
815 (2000)
(2000) (Kosovo);
(Kosovo);
Holtzman
v. Schlesinger, 484 F.2d J307
1307 (2d Cir. 1973) (Vietnam); Luftig
Holtzman)/.
Lufiig v. McNamara, 373 F.2d 664,665-66 (D.C.
Cir. 1967) (Vietnam); Ange )/.
v. Bush, 752 F. Supp. 509 (D.D.C. 1990) (Persian Gulf
Gulf War); Crockettv.
Crockett v. Reagan,
Reagan, 558
Cir:
Sup P ; 893 (D.D.C. 1982) (El Salvador); cf
cf. Harisiades
v.,Shaughnessy, 342 U.S. 580, 588-89 (1952); Johnson v.
Harisiades v.•Shaughnessy,
F. Supp~
Eisentrager,
763,789
Eisen/roger, 339 U.S. 763,
789 (1950). A federal district court recently dismissed sua sponte a suit filed on August
27, 2002 to enjoin the President from engaging in military action against Iraq absent a declaration of war or other
27,2002
of lack of
of standing and the political question doctrine. See Mahorner
extenuating circumstances on the grounds {)t
Mahorner v.
Bush,
- , 2002 WL 31084938 (D.D.C. 2002).
Bush, - F. Supp. 2d -,
2

4

of these interventions did Congress interfere with or regulate the President's
459 (1999). In none of
Commander-in-Chief powers.
exercise of his Commander-in-Chief
constitutional authority as Chief
Chief Executive and
Because the President possesses broad constitutional.
Chief to direct the use of military force against Iraq, congressional authorization
Commander in Chief
is legally unnecessary. Congress has the power to "provide for the common Defence," to "raise
and support Armies," to "provide and maintain a Navy," and to appropriate funds to support the
U.S. Const.
Const, art. I,
1, §§ 8-9, to be sure, but it is the President who enjoys the constitutional
military, US.
of Commander in Chief. As such, the President has full constitutional authority to use all
status of
of the military resources provided to him by Congress. Indeed, within the past half
half century,
of
Presidents have unilaterally initiated military actions in Korea, Vietnam, Grenada, Lebanon,
3
Panama, Somalia, and Kosovo, without congressional authorization.
The Constitution does vest in Congress, and not the President, the power to "declare
U.S. Const.
Const, art. I, § 8, cl. 11.
11. The Constitution nowhere states, however, that Congress
War." U.S.
has the additional power to "make" or "engage" or "levy" war. By contrast, Article I, Section 10
of states to "engage" in war, U.S.
U.S. Const.
Const, art. I,
1, § 10, cl. 3, while Article III
addresses the power of
offense of
of treason as the act of
of "levying war" against the United States, U.S. Const.
describes the offense
art. Ill, § 3, cl. 1. Thus, the constitutional text itself
itself demonstrates that the power to "declare" war
of engaging, making, or levying war. By placing the power to
was a narrower power than that of
declare war in Congress, the Constitution did nothing to divest the President of
of the traditional
power of
of the
the Commander
Commander in
in Chief
Chief and
and Chief
Chief Executive
Executive to
to decide
decide to
to use
use force.
force. Congress's
Congress's ability
ability
to restrain the President from using military force arises out of
of its control over military resources,
and not
not out
out of
of its
its power to
to declare
declare war.
war.4
and

The Founders did not contemplate that a declaration of
of war would be legally necessary
familiar
for the President to use military force. To the contrary, the Founders were intimately familiar
of engaging in undeclared ,wars
wars throughout the preceding
with the extensive British practice of
century. That is not to say that the power to
declare war had no meaning whatsoever at the time
todeclare
of the Founding. Rather, Congress's Article I power to declare a legal state of
of war, and to notify
notify
of
3

The normative role of
of historical practice in constitutional law, and especially with regard to separation of
of
powers, is well settled. As the Supreme Court has repeatedly recognized,
recognized, governmental practice plays a highly
significant
significant role in establishing the contours of
of the constitutional separation of
of powers: "a systematic, unbroken,
executive practice, long pursued to the knowledge of
. . . may be treated
of the Congress and never before questioned ...
as a gloss on 'executive Power' vested in the President by § ]1 of
of Art.lI."
Art. II." Youngstown
Youngstown Sheet &
& Tube Co.
Co. v. Sawyer,
Sawyer,
343 U.S. 579, 610-11 (1952) (Frankfurter,
(Frankfurter, J., concurring) (quoted in Dames &
& Moore v.
v. Regan, 453 U.S. 654, 686
(1981)). Moreover, the role of
of practice is heightened in dealing with issues affecting
affecting foreign affairs and national
security. As the Supreme
Supreme Court has noted, "the decisions of
of the Court in th[e] area [of
[of foreign affairs] have been
rare, episodic, and afford
afford little precedential value for subsequent cases." Dames &
& Moore, 453 U.S.
U.S. at 661.
661. In
particular, the difficulty
difficulty the courts experience in addressing ",the
"the broad range of
of vitally important day-to-day
affairs and national security
questions regularly decided by Congress or the Executive" with respect to foreign affairs
of the necessity to rest [judicial] decision[s]
decisions on the narrowest possible ground
makes the judiciary "acutely aware of
capable of
of deciding
deciding the case." Id.
of Executive Branch
Id at 660-61. Historical practice and the ongoing tradition of
constitutional interpretation therefore play an especiaJly
especially impOrtant
important role in this area.
.constitutional
4
As James Madison explained during the critical st'!te
state ratification
ratification convention in Virginia, "the sword is in
the hands of
of the British King; the purse in the hands of
of the Parliament. It is so in America, as far as any analogy
analogy can
exist:'
exist." 3 Jonathan Elliot, THE DmAnS
DEBATES IN mE
THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF mE
THE FEDL:RAL
FEDERAL
CONSTITUTION, J'.S
AS RECOMMENDED BY mE
THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787,
1787, at
at 393
393 (1836).

5

of that status, once had an important effect
effect under the law of nations. And even
other nations of
today, the power to declare war continues to trigger significant
significant domestic statutory powers, such
as those established under the Alien Enemy Act of
of 1798,50
1798, 50 U.S.c.
U.S.C. § 21,
21, and
and federal
federal surveillance
surveillance
laws, 50 U.S.c.
U.S.C. §§ 1811,
1811, 1829, 1844. Declarations of
of war have significant
significant constitutional
ramifications as well. See U.S. Const.
Const, art. I,
1, ,§§ 10, cl. 3 (prohibiting states from "lay[ing] any
ramifications
of Tonnage, keep[ing] Troops, or Ships of
of War" without congressional consent only "in
Duty of
of Peace"); U.S. Const.
Const, amend. III
Ill (permitting
(permitting the quartering of
of soldiers in private homes
time of
. . . in a manner to be prescribed by law"); U.S.
U.S. Const.
Const, amend. V (permitting
"in time of war ...
. . . in the Militia, when in actual
criminal trials without grand jury indictment in cases "arising ...
of War or public danger"). The power to declare war has seldom been used,
service in time of
U.S. Armed Forces, by conservative estimates,
however. Although Presidents have deployed the U.S.
history,5 Congress has issued formal declarations in
more than a hundred times in our nation's history,S
only five wars.6 This long practice of U.S. engagement in military hostilities without a
of war demonstrates that the political branches have interpreted the Constitution just
declaration of
as the Founders did.

II.
In addition to his powers under the Constitution, the President already enjoys statutory
authorization to use force against Iraq. On January 14, 1991,
1991, shortly before the
the United States
and allied nations began Operation Desert Storm, Congress enacted Pub. L. No. 102-1, 105 Stat.
of Military Force Against Iraq Resolution." Subsection 2(a)
3, the "Authorization for Use of
authorizes the President "to use United States Armed Forces pursuant to United Nations Security
of Security Council
Council Resolution 678 (1990) in order to achieve implementation of
660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677." U.N. Security Council
Resolutions 660,661,662,
turn, authorizes member states "to use all necessary means to uphold and
Resolution 678, in tum,
implement resolution 660 (1990) and all subsequent relevant resolutions and to restore
international peace and security in the area." The other resolutions listed in Pub. L. No. 102-1
of Kuwait on August 2, 1990 and are identical to the resolutions
relate to Iraq's military invasion of
"recall[ed] and reaffirm[ed]" in Resolution 678.

of U.S. Armed Forces "pursuant to" Resolution 678, Pub. L. No.
By authorizing the use of
sanctions not only the employment of
of the methods approved in that resolution - that is,
102-1 sanctions
the objectives outlined therein -:
- namely, "to uphold and
"all necessary means" - but also the
implement....
. . all subsequent
implement
subsequent relevant resolutions and to restore international peace and security
of the most important "subsequent relevant
relevant
to the area." S.C. Res. 678 (emphasis added). Two of
resolutions" respecting "international peace and security" in the Persian Gulf
Gulf region are U.N.
Council Resolution 687, which requires, inter alia, the inspection and destruction of
of
Security Council
5
See, e.g., Congressional Research Service, Library of
of Congress, Instances of
of Use
Use of
of United Staies
States A~med
Armed
(1999).
Forces Abroad, 1798-/999
J 798-1999(1999).
6
6
See Act of June ]8,
18, ]8]2,2
1812, 2 Stat. 755 (18]2)
(1812) (War of ]8]2);
1812); Act of May
May 13,
13, ]846,9
1846, 9 Stat. 9 (Mexican89&, 30 Stat. 364 (Spanish-American War); Joint Reso]ution
American War); Act of
of Apr. 25, ]1898,
Resolution of
of Apr. 6, ]917,40
1917, 40
of Dec. 7, ]9]7,40
1917, 40 Stat. 429 (Wor]d
(World War I: Austria-Hungary);
Stat. ]1 (World War I: Germany); Joint Resolution of
Resolution of
of Dec. 8, ]941,55
1941,55 Stat. 795 (World War II:
11: Japan);
Japan); Joint
Joint Reso]ution
Resolution of
of Dec.
Dec. 1],
11, ]941,55
1941,55 Stat.
Stat. 796
796
Joint Reso]ution
(World War II: Germany); Joint Resolution of
of Dec. ]],
11, ]94],55
1941, 55 Stat.
Stat. 797
797 (Wor]d
(World War
War II:
II: Ita]y);
Italy); Joint
Joint Resolution
Resolution of
of
(Wor]d
1942, 56 Stat. 307 (World War]]:
War II: Bu]garia);
Bulgaria); Joint Reso]ution
Resolution of
of June 5, 1942, 56 Stat. 307 (World War II:
June 5, ]942,56
Hungary); loint
]942,56 Stat. 307 (World War]]:
Joint Reso]ution
Resolution ofJune
of June 5,
5,1942,56
War II: Rumania).

'6
6

Iraq's program to develop weapons of mass destruction, and U.N. Security Council Resolution
688, which demands that Iraq halt the repression of its civilian population. Should the President
detennine
determine that the use of force is necessary to implement either resolution, such force would find
statutory authorization in Pub. L. No. ]02-1.
102-1.
effect. First,
Congress has demonstrated several times that Pub. L. No. 102-1 remains in effect.
the same Congress that enacted Pub. L. No.1
02-1 twice expressed its sense that Pub. L. No.
No.110202No. 102-1
continues to
to authorize
authorize the
the use
use of
of force
force even
even after
after haq'
Iraq'ss withdrawal from Kuwait. Specifically,
Specifically,
1 continues
Section 1095 of the National Defense Authorization Act for Fiscal Years 1992 and 1993 contains
a congressional
congressional finding that haq
Iraq is violating Resolution 687'
687'ss requirements relating to its
weapons of mass destruction program, and expresses Congress's sense that "the Congress
supports the use of all necessary means to achieve the goals of
of Security Council Resolution 687
of Military Force Against Iraq Resolution
as being consistent with the Authorization for Use of
(Public Law 102-])."
102-1)." Pub. L. No. 102-190, § 1095, 105 Stat. 1290, 1488 (1991). Section 1096
of that same Act expresses Congress's sense that "Iraq's noncompliance with United Nations
Security Resolution 688 constitutes a continuing threat to the peace, security, and stability of
of the
. . . and [that] the Congress supports the use of
of all necessary means to
Persian Gulf region ...
achieve the goals of United Nations Security Resolution 688," which condemns the repression of
the Iraqi civilian population, "consistent with all relevant United Nations Security Council
102-1."
Second, in 1999 Congress amended
Resolutions and ...
. . . Public Law ]02-]
." 105 Stat. 1489. Secon'd,
L. No.
No. 102-]
102-1 to extend the reporting requirements from every 60 days to every 90 days,
Pub. L.
thereby indicating that the law continues in effect. See Pub. L. No. 106-113, Div. B, §
1000(a)(7), 113
113 Stat. 1501,
1501,1536(1999).
1536(1999).
1000(a)(7),
The practice of the Executive Branch, in which Congress has acquiesced, further
demonstrates that Pub.
effect and to provide supplemental
Pub. L. No. 102-1
102-1 continues to be in effect
statutory authority for the President to implement applicable Security Council
Council Resolutions,
688. Consistent with the reporting requirement
including Resolutions 678, 687, and 688.
requirement in section 3
Pub. L.
L. No.
No. ]102-1,
of Pub.
02-1, President Bush and his two predecessors have written to Congress at
of efforts
efforts to secure Iraqi compliance with the applicable
regular intervals to report on the status of
Security Council resolutions. This practice has gone unchallenged by Congress. Moreover,
of force on several
President George H.W. Bush and President Clinton authorized the use of
occasions under Pub.
Pub. L. No. ]02-1.
102-1. For example, in January 1991, shortly after
occasions
after ordering U.S.
Armed Forces to commence Operation Desert Stonn
Storm , President George H.W. Bush reported to
Aniled
Congress that such operations were «contemplated
"contemplated by" Pub. L. No. 102-1.
102..;1. See Letter
Letter to
Congressional Leaders on the Persian Gulf
Gulf Conflict, ]1 Pub. Papers of
of George Bush 52 (1991).
Congressional
Shortly thereafter, President Bush reported to Congress that he had ordered the 1992
enforcement of
of the southern no-fly
no-fly zone in Iraq
participation of the United States in the enforcement
"consistent
with"
Pub.
L.
No.
102-1.
See
Letter
to
Congressional
Leaders
Iraq's
Reporting on
on Iraq's
"consistent with" Pub. L. No. 102-1. See Letter to Congressional Leaders Reporting
Compliance with
with United
United Nations
Nations Security
Security Council
Council Resolutions,
Pub. Papers
Papers of
of George
George Bush
Bush
Compliance
Resolutions, 22 Pub.
1574,
1575
(1992-93).
In
September
1996,
President
Clinton
reported
to
Congress
that
he
1574, 1575 (1992-93). In September 1996, President Clinton reported to Congress that he had
had
ordered U.S.
U.S. cruise
cruise missile
missile strikes
strikes "consonant
"consonant with"
with" Pub.
L. No.
102-1 and
ordered
Pub. L.
No; 102-]
and section
section 1096
1096 of
of the
the
1992-93
Defense
Authorization
Act.
See
Letter
from
President
William
J.
Clinton,
to
the
1992-93 .Defense Authorization Act. See Letter from President William J. Clinton, to the
Honorable Newt
Newt Gingrich,
Gingrich, Speaker
Speaker of
of the
the House
House of
of Representatives
Representatives 11 (Sept.
(Sept. 5,
5, 1996).
1996). And
And in
in
Honorable
1998,
President
Clinton
directed
missile
and
aircraft
strikes
against
Iraq
"under"
Pub.
L.
No.
1998, President Clinton. directed missile and aircraft strikes against Iraq "under" Pub. L. No.
102-1. See
See Letter
Letter to
to CongressionalLeaders
Congressional Leaders on
on the
the Military
102-1.
Military Strikes
Strikes Against
Against Iraq,
Iraq, 22 Pub.
Pub. Papers
Papers

7

of
of William Jefferson
Jefferson Clinton 2195, 2196 (1998). Congress has acquiesced in each of
of these uses
of force.
force.
of
In addition, Pub. L. No.
No.1105-235,
05-235, a Joint Resolution finding that Iraq "is in unacceptable
and material breach of
of its international obligations," and "urg[ing)"
"urg[ing]" President Clinton "to take
appropriate action, in accordance with the Constitution and relevant laws of
of the United States, to
bring Iraq into compliance," arguably expresses Congress's support for the President to direct
1541 (1998). The
military action against Iraq. Pub. L. No. 105-235, 112 Stat. 1538, 1538, 1541
resolution contains multiple "whereas" clauses detailing almost two dozen Security Council
of Iraqi violations of
of its WMD obligations and concluding that "Iraq's continuing
findings of
weapons of
of mass destruction programs threaten vital United States interests and international
Stat. 1540.
the Joint Resolution does not specifically
specifically
peace and security." I112
]2 Stat.]
540. Although thl
of force, and cautions that any action taken must comply with the Constitution
authorize the use offorce,
insofar as the President determines
determines that directing military action against Iraq is
and relevant laws, insofar
. . . to bring haq
Iraq into compliance with its international obligations," and consistent
"appropriate ...
U.S. law,
law. Congress has expressed its support for such action.
with the Constitution and relevant U.S.
]112
12 Stat. 1541.
Military action against Iraq might also be authorized, under certain circumstances,
"Authorization for Use of
of Military Force" enacted shortly
pursuant to Pub. L. No. 107-40, the ··Authorization
after the terrorist attacks of
of September II,
11, 200
2001.
after
I. Pub. L. No. 107-40 authorizes the President to
"all necessary and appropriate force" against those nations, organizations or persons whom
use ··all
'he determines
determines planned, authorized, committed, or aided the [September 11] terrorist attacks ...
...
"he
of international
or harbored such organizations or persons, in order to prevent any future acts of
terrorism against the United States by such nations, organizations or persons." 115 Stat. 224
(emphasis added). Were the President to order military action against Iraq because, in his
11 attacks, he also would
judgment, Iraq provided assistance to the perpetrators of
of the September 11
be acting with prior statutory authorization pursuant to Pub. L. No.
No.1107-40.
07-40.

8