the effect of evading the constitutional safeguard of the Presidential veto-a criterion applied by the Attorney General for determining the compatibility of such a provision with Article I, 87 of the Constitution. The public attitude toward section 5 adopted by the Executive Branch has been to avoid speculation about what the President might do in hypothetical situations where application of the War Powers Resolution might be of doubtful constitutional validity. While preserving the President's constitutional position, the emphasis has been placed on the likelihood of agreement between the President and Congress as to when the commitment of U.S. forces will be necessary to protect our national interests. Other Provisions Most of the remaining provisions of the War Powers Resolution involve statements of policy and interpretation, internal Legislative Branch procedures, and other ancillary matters. A few of these are worthy of note. Powers of the President Section 2(c) of the Resolution contains a statement of the President's constitutional power as Commander-in-Chief to introduce forces into hostilities. According to this statement, the President's power, absent a declaration of war or statutory authorization, extends only to "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The inclusion of this provision in a section of the Resolution entitled "Purpose and Policy" and the inclusion of a separate provision (section 8(d)) disclaiming any intent to alter the constitutional authority of either the President or Congress suggest that section 2(c) was not intended as an exhaustive enumeration of Presidential war powers. This conclusion is also supported by the relevant legislative history. Congress has generally accepted the President's authority to employ force to rescue endangered American citizens. Senator Eagleton's proposed amendment in 1975 would have added a specific provision in section 2(c) on the rescue of American citizens. Section 8(d)(2) makes clear that the War Powers Resolution does not itself grant to the President any new or increased authority to commit U.S. forces. Effect on Treaties and Other Laws Section 8(a) of the Resolution states that authority to introduce U.S. forces into hostilities or situations where hostilities are imminent shall not be inferred from any statute or treaty except where the statute, or legislation implementing the treaty, states it is intended to constitute specific authorization within the meaning of the War Powers Resolution. In addition, section 8(d)(1) disclaims any intent to alter treaties in force. No President has asserted that any of our mutual defense treaties constitutes a standing authorization for the President to commit U.S. forces in the fulfillment of treaty obligations. All of our defense treaties provide specifically that their implementation shall be in accordance with the constitutional processes of the parties. The question of whether the President would have to seek specific Congressional authorization would depend upon whether, under the circumstances, the commitment of U.S. forces was within the constitutional power of the President. Similarly, the Executive Branch informed Congress in 1970 that it did not rely on any of the "area resolutions" (e.g., section 2 of the Resolution to Promote Peace and Stability in the Middle East, 22 U.S.C. 1962) as a current statutory authorization to commit U.S. forces. This position was arrived at on the ground that each of these resolutions had been enacted in response to a specific crisis which had long since passed. Section 8(a) of the War Powers Resolution has now confirmed that the area resolutions cannot be relied on for such authority. Section 8(a) of the Resolution discussed [infra] precludes reliance upon legislative authority other than a statute which indicates it is intended to constitute specific statutory authorization to introduce forces within the meaning of the War Powers Resolution. 2 Declarations of war have traditionally taken the form of a joint resolution. When approved by the President, they become public laws and are legally indistinguishable from other laws enacted in accordance with Article I of the Constitution. Dept. of State File No. P85 0037-2363. For the opinion of Attorney General Griffin B. Bell, Reorganization ActConstitutionality of Provision Permitting Disapproval of Reorganization Plan by Resolution of a Single House of Congress, dated Jan. 31, 1977, see 43 Op. Att'y Gen., No. 10. In regard to legislative vetoes, see, further, Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). See, further, this Chapter, §9, post. Attempted Rescue of Embassy Hostages Following cancellation of the United States Armed Forces operation to rescue the hostages at the American Embassy in Tehran on April 24, 1980 (see this Digest, Ch. 4, §1, ante), the Senate Committee on Foreign Relations met in executive session on May 8, 1980 with Acting Secretary of State Warren Christopher to discuss the applicability of the War Powers Resolution to the attempted rescue, the situation in Iran, and the future course of United States policy regarding Iran. The Committee and the Department of State afterwards agreed that much of the record could be made public "without endangering the hostages or jeopardizing their chances for release." In an introduction to the published transcript, the Chairman of the Senate Foreign Relations Committee, Senator Frank Church, stated in part: The administration asserted that the President had not been obligated to consult with Congress under the War Powers Resolution since the Iranian action was a "humanitarian rescue operation" outside the scope of the Resolution. The committee did not accept this assertion, but was primarily interested in establishing guidelines for the future rather than examining the past. In its discussion with Secretary Christopher, the committee stressed two points. First, consultation requires more than merely informing Congress that an activity is underway or planned; consultation requires giving Congress an opportunity to participate in the decisionmaking process. Second, as Senator Javits pointed out, the judgment concerning the need for and process of consultation in a particular situation cannot be made unilaterally by the President, but must be made by the President and the Congress. The question of who constitutes "Congress" under the War Powers Resolution is not, however, entirely clear. Is consultation with the leadership of the Senate and House adequate? With the leadership, and the chairmen and ranking minority members of the Senate Foreign Relations Committee and the House Foreign Affairs Committee? With the full membership of those, and perhaps other, committees? These are matters that Congress itself must decide. Our discussions did not lead to a firm answer to the questions. Indeed, there may be no single answer appropriate to all circumstances. Nonetheless, our discussions clarified the issue, and thus make an important contribution to a better understanding of this important matter. The Situation in Iran: Hearing before the Sen. Comm. on For. Rel., 96th Cong., 2d sess. (1980), p. iii. In a statement prepared for presentation to the Committee, the Acting Secretary of State described the breakdown of prospects for a diplomatic solution to the hostage crisis, that had led to the President's decision to proceed with the rescue mission. He then discussed its legality from the standpoints of both international and United States law, including the War Powers Resolution, saying: II. [L]et me emphasize two fundamental points about the rescue operation. First, the effort was not a sustained military action against Iran. It was an anti-terrorist rescue operation for humanitarian purposes. It sought only the freedom of Americans held in protracted captivity in gross violation of international law and diplomatic practice. Second, the operation was entirely consistent with both international and United States law. In light of the armed attack against our diplomatic mission, the illegal seizing of our citizens, and the refusal of the government to secure their release, the United States acted wholly within its rights of self-defense under international law-specifically Article 51 of the United Nations Charter. In ordering this operation, the President acted within his constitutional authority as Chief Executive and Commander-in-Chief of the Armed Forces. On April 26, he submitted a report to the Congress consistent with Section 4 of the War Powers Resolution. [See this Digest, Ch. 4, §1, ante.] The President concluded in this case that the success of the operation and the safety of those involved depended on total surprise. For this reason, he concluded that it was essential to limit knowledge of the operation to a very small number of individuals directly involved in planning and implementing the operation. He therefore concluded that it was not possible in this instance to engage in the consultations under Section 3 of the War Powers Resolution. This was a difficult decision, but one which he considered essential under the extraordinary circumstances of this case. Had the operation proceeded, the President had planned to advise appropriate Congressional leaders before the next phase began. In the view of the President's advisers the requirement of Section 3 of the resolution for prior consultations "in every possible instance" must leave to the President the responsibility for deciding whether consultations would be possible without jeopardizing such a vital operation. This interpretation is supported by Section 8(d) of the Resolution, which disclaims any intent to alter the constitutional responsibilities of the President. Thus, the President's decision was within his constitutional authority and responsibility, and was not contrary to the language or intent of Section 3 of the Resolution. I want to emphasize that the Administration does not regard the extraordinary circumstances of this case as a precedent for avoiding consultations with the Congress; nor do we contend that the President is free to avoid consultations in any case where he desires secrecy. The Iran rescue mission was an extraordinary event in several respects: -It was designed to rescue the hostages with the lowest possible risk. Thus, it was important that the rescue team avoid rather than confront Iranian military forces. -It called for the continued presence of the rescue team in Iran, without being detected, for many hours. At all times, the hostages were in a highly vulnerable position in which any disclosure of the rescue effort underway could have cost them their lives. Representatives of this Administration testified before the Committee in 1977 that we did not contest the War Powers Resolution and would work with the Congress to facilitate its implementation. The Iran rescue mission does not represent a departure from that policy. It represents only a judgment by the President in very unusual círcumstances that the consultation was not possible without jeopardizing the success of the mission and the safety of those involved. Today, speaking on behalf of the Administration, I renew the pledge we made in 1977. We do not challenge the validity of the War Powers Resolution, which expressly provides that it does not affect the Constitutional powers of the President. We will do our best to implement it in good faith. Ibid., pp. 13-14. The Department of State subsequently forwarded to Senator Jacob K. Javits, the ranking majority member on the Committee, a requested copy of a legal opinion by Mr. Lloyd Cutler, the President's Counsel, on the President's authority to use the armed forces to attempt to rescue the American hostages in Iran without prior consultation under the War Powers Resolution. The legal opinion follows: 1. In my opinion, the President's decision to use the armed forces in an attempt to rescue the American hostages in Iran, without consulting Congress before taking this action, was a lawful exercise of his constitutional powers as President and Commander-inChief, and did not violate the War Powers Resolution of 1973. 2. The President's constitutional power to use the armed forces to rescue Americans illegally detained abroad is clearly established. In re Neagle, 135 U.S. 1, Durand v. Hollings, 8 Fed. Cases 111. This power was expressly recognized in the Senate version of the War Powers Resolution, and is not negated by the final version of the Resolution, especially where, as here, those to be rescued include United States Marines. 3. His inherent constitutional power to conduct this kind of rescue operation[,] which depends on total surprise, includes the power to act before consulting Congress, if the President con cludes, as he did in this case, that to do so would unreasonably endanger the success of the operation and the safety of those to be rescued. 4. Section 3 of the War Powers Resolution does require consulting with Congress "in every possible instance" before introducing United States Armed Forces into "hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." In this case, the first stage of the operation— introducing the rescue team into Iran during the night of April 24did not involve any hostilities. The rescue effort itself was not to be initiated before the following night, and could have been aborted before any involvement in hostilities was "clearly indicated," and this is in fact what occurred. 5. In any event, Section 8(d)(1) of the War Powers Resolution provides that nothing in it "is intended to alter the constitutional authority of the Congress or of the President." If Section 3 were read to require prior consultation in these precise circumstanceswhere the President has inherent constitutional authority to conduct a rescue operation dependent on surprise and reasonable ground to believe that prior consultation would unreasonably endanger the success of the operation and the safety of those to be rescued this would raise grave issues as to the constitutionality of Section 3. Since statutes and joint resolutions are to be read where possible in a manner that does not raise such grave constitutional issues, Section 3 and Section 8(d)(1), read together, should not be construed to require prior consultation under the precise circumstances of this case. Eastern Railroad Conference v. Noerr, 365 U.S. 127 (1961); California v. Arizona, 440 U.S. 59 (1979). Ibid., p. 48; Dept. of State File No. P80 0078-1331. Senator Javits, who had been an author of the War Powers Resolution (P.L. 93-148, enacted into law Nov. 7, 1973, over President Nixon's veto, 87 Stat. 555, 50 U.S.C. 1541-1548), had spoken on the prior consultation requirement during a lengthy discussion between Committee members and Acting Secretary Christopher. Hearing, ante, pp. 29-47. §9 Military Assistance and Sales Assistance and Sales Sale of Trident I Missiles to the United Kingdom On July 10, 1980, Prime Minister Margaret Thatcher wrote to President Carter of the great importance that the United Kingdom Government attached to maintaining a nuclear deterrent capability and of the necessity to replace the existing Polaris force in the early 1990's. Since the Government had concluded on a review of the options that the Trident I weapon system best met its needs, the Prime Minister wrote, she asked whether the United States would be willing to supply, on a continuing basis, Trident I missiles, equipment, and supporting services, in a manner generally similar to that in which it had supplied Polaris missiles. The Prime Minister noted further that the missiles, complete with multiple independently targettable re-entry vehicles (MIRV's) and less only the warheads them |