Giving further evidence of the intent of the framers, a letter written by Thomas Jefferson to Madison in 1789 stated:

We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay."

W. Taylor Reveley's comments on the Constitutional Convention conclude that:

It seems reasonably clear * that the Drafters intended decisions regarding the initiation of force abroad to be made not by the President alone, not by the Senate alone, nor by the President and the Senate, but by the entire Congress subject to the signature or veto of the President. The Framers recognized the potentially momentous consequences of foreign conflict and wished to check its unilateral initiation by any single individual or group. Madison expressed this concern early in the Constitutional Convention: "A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them [wars] on the whole." Foreign conflicts, since they involve the entire nation, are to be begun only after both legislative houses and the Executive have been heard, even at the cost of some delay in reaching a decision."

In a legal memorandum prepared by the State Department in 1966, Leonard Meeker translates the intent of the framers regarding repulse of a sudden attack into a different context today:

In 1787 the world was a far larger place, and the framers probably had in mind attacks upon the United States. In the 20th century, the world has grown much smaller. An attack on a country far from our shores can impinge directly on the nation's security. * * * The Constitution leaves to the President the judgment to determine whether the circumstances of a particular armed attack are so urgent and the potential consequences so threatening to the security of the United States that he should act without formally consulting the Congress."

31

In 1970 Assistant Attorney General William Rehnquist commented on the Constitutional Convention in a speech on the constitutionality of the President's actions in Cambodia:

An examination of the proceedings of the Constitutional Convention * indicates that the framers did not intend to precisely delimit the boundary between the power of the Executive Branch and that of the Legislative Branch. While rejecting the traditional power of kings to commit unwilling nations to war, they at the same time recognized the need for quick Executive response to rapidly developing international situations.

32

The Senate Foreign Relations Committee report on the National Commitments Resolution of 1969 granted the President's constitutional powers to "repel sudden attacks" against the United States:

A careful study of the Constitution and of the intent of the framers as set forth in the extensive documentation which they bequeathed to us leaves not the slightest doubt that, except for repelling sudden attacks on the United States, the founders of our country intended decisions to initiate either general or limited

Boyd, Jules. ed. The Papers of Thomas Jefferson, Princeton, Princeton University Press, 1955, v. 15, p. 397. Reveley W. Taylor, III. Presidential War-Making: Constitutional Prerogative or Usurpation? Virginia Law Review v. 55, November 1969, p. 1284. In a footnote to this passage, Reveley explains:

In short, an attempt was made to devise a scheme in which war would be entered upon only after measured deliberation, thus avoiding involvement in conflicts where the costs, upon reflection, appeared to outweigh the gains, or where the primary "gains" would be executive aggrandizement or the satiation of popular passion. These checks were intended to insure that the fighting would be supported by most Amerieans, thus avoiding disastrous internecine struggle within the country over war policy. Meeker, op. cit., pp. 484-85.

Rehnquist. William H., Assistant Attorney General, Office of the Legal Counsel, Department of Justice. "The President's Constitutional Authority to Order the Attack on the Cambodian Sanctuaries." Remarks before the Association of the Bar of the City of New York, May 28, 1970, p. 3.

hostilities against foreign countries to be made by the Congress, not by the Executive.3

But the committee did not approve of the extension of Presidential power to the defense of other countries. The report cited a previous committee report on the North Atlantic Treaty, to illustrate the con gressional interpretation of the constitutional considerations under the Treaty's provisions:

Would the United States be obligated to react to an attack on Paris or Copenhagen in the same way it would react to an attack on New York City? In such an event does the treaty give the President the power to take any action without specific congressional authorization which he could not take in the absence of the treaty? The answer to both of these questions is "No."

The committee report on the North Atlantic Treaty also stated: *** The Committee does not believe it appropriate in this report to undertake to define the authority of the President to use the armed forces. Nothing in the treaty, however, including the provision that an attack against one shall be considered an attack against all, increases or decreases the constitutional powers of either the President or the Congress or changes the relationship between them. The report on the commitments resolution added the following comments:

There seems to have been general agreement that the * * postwar security treaties did not change the relative powers of Congress and the President with respect to the use of the armed forces. There was little agreement, however, on what exactly those relative powers were * * * because, as the trend toward executive control accelerated, constitutional considerations were neglected and the de facto power of the President came to be accepted as a constitutional power.

34

Congressional concern over the manner in which United States troops became involved in the Vietnam War intensified after the Cambodian incursion of 1970 and further study was given to the division of the war powers intended under the Constitution. In the 91st Congress the House passed a war powers bill and in the 92d Congress both the Senate and the House passed legislation designed to reassert and define the congressional role in undeclared wars, but the two bodies came to no agreement in conference. In 1973 agreement was reached and the Congress passed the War Powers Resolution (P.L. 93–148) over the veto of the President. The purpose of the resolution of which the full text is printed in the appendix is

to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

The constitutional powers of the President as Commander in Chief to introduce U.S. Armed Forces into hostilities or situations in which involvement in hostilities is imminent, the resolution states, are exercised only pursuant to:

(1) a declaration of war.

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

U.S. Congress. Senate. Committee on Foreign Relations. National Commitments. (91st Congress, 1st session. Senate. Report no. 91-129), p. 30–31. Washington, U.S. Govt. Print. Off., 1969.

34 Ibid., p. 47.

Requirements in the resolution that the President consult with and report to Congress prior to and after such use of troops, and that Congress authorize the continued use of troops beyond 60 or 90 days, are discussed below under the section, "Limitations by Congress."

IV. PRECEDENTS IN THE USE OF FORCES BEYOND THE NATIONAL BOUNDARY

The power of the President as Commander in Chief has been exer cised to send troops abroad on many occasions-sometimes under : declaration of war, sometimes with other types of congressional au thorization or support, and sometimes without congressional sanction Authorities differ on the number of instances in which America troops have been landed abroad for the protection of American interests. A State Department list of armed actions taken by the United States without a declaration of war showed a total of 137 such actions. In his doctoral thesis, "The United States Congress and the Power to Use Military Force Abroad," Robert William Russell compiled a list of the uses of American military force abroad from 1789-1967, which had 144 entries. The author assigned no numbers to the incidents, however, and gave no totals, "because the figures would be meaningless without further analysis."

A list prepared under the direction of Senator Barry Goldwater contained 199 instances of U.S. military hostilities abroad, without a declaration of war, from 1798 to 1972.2 The differences in numbers between these lists, and between them and others, reflect individual differences over the kinds of actions to be included. Appendix I of this report represents a judgment as to which U.S. armed interventions overseas represented major military actions. It is divided into actions which were declared wars and those which were unaccompanied by a formal declaration of war, for which relevant congressional action is noted. Appendix II is a more comprehensive list of such military actions, both major and minor, drawn from a number of sources.

The number of troops involved in these incidents of the application of military force varies greatly. They range from a few sailors or marines landed to protect American lives and property, to hundreds of thousands in Vietnam and to millions in World War II. Most applications of force were of short duration, although some, like Korea or Vietnam, lasted a number of years. Those undertaken at Presidential initiative were often backed up by subsequent congressional action. Some of these incidents, whether supported by congressional action or not, developed into situations analogous to war.

A. PROTECTION OF LIVES AND PROPERTY

Many of the actions not involving a declaration of war have directly concerned the protection of American lives and property.

1 Armed Actions Taken by the United States Without A Declaration of War, 1789-1967. Research Project 806A. Historical Studies Division, Historical Office, Bureau of Public Affairs, Department of State, August 1967, 30 pp.

2 Goldwater. Barry. War Without Declaration. A Chronological List of 199 U.S. Military Hostilities Abroad Without a Declaration of War, 1798-1972. Remarks in the Senate. Congressional Record, v. 119, July 20, 1973: S14174-14183.

The fourteenth amendment to the Constitution guarantees the privileges and immunities of citizens of the United States, and these have been held to include the right of protection abroad. In 1873, in the Slaughter House cases, the Supreme Court said:

Another privilege of a citizen of the United States is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this, there can be no doubt, nor that the right depends upon his character as a citizen of the United States.3

It has been held that the President may use the armed forces in foreign territory to give this protection. There is also a basis for this action in international law, which has recognized the right of a state to employ its armed forces for the protection of lives and property of nationals abroad. Such action is permissible where the state in which nationals reside, because of revolutionary disturbances or other reasons, is unable or unwilling to afford them the protection to which they are entitled."

In 1854, the President directed United States naval forces to bombard Greytown, Nicaragua, because of the failure of that country. to make reparation for an attack upon the American consul. The legality of this act was questioned in Durand v. Hollins. Mr. Justice Nelson, sustaining the action, said:

Now as respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must of necessity, rest in the discretion of the President. Acts of lawless violence, or of threatened violence to the citizen and his property, cannot be anticipated and provided for, and the protection, to be effectual *** may *** require the most prompt and decided action. *** The great object and duty of government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home * 6

The Boxer Uprising of 1900-1901, which led to the capture of Peking by the armed forces of the United States, Great Britain, France, Russia, and Japan, is a good example of what was in reality action by an "international police force" to protect lives and property. Without waiting for congressional authorization, President McKinley sent an American contingent of 2,500 soldiers to fight-together with the forces of other countries-in "preventing a spread of the disorders or their recurrence." The nature of the operation, involving the joint use of armed forces by the United States and other states whose diplomatic representatives were threatened by the siege of the Legation Quarter in Peking, may be considered as collective measures.s

Much of the United States action has occurred in Latin America, especially during revolutions. United States Armed Forces have also been used in the South Sea Islands, Africa, and in the Near and Far East."

16 Wallace 36, 79.

Perrin v. U.S., 4 Ct. Cls. 543 (1868); In re Neagle, 135 U.S. 1 (1890).

Clark. J. Reuben. Right to Protect Citizens in Foreign Countries by Landing Forces (2d Rev. Ed.). Washington, U.S. Government Printing Office, 1929.

4 Blatch. 451. 454 (1860).

7 See Rogers, J. G., World Policing and the Constitution. Boston, World Peace Foundation. 1945, pp. 58-61; Elihu Root, Military and Colonial Policy of the United States 1916, pp. 333. 336-347; message of President McKinley in Foreign Relations, 1900, p. xiv.

Philip C. Jessup has characterized such action as "a measure of forcible self-help, legalized by international law because there has been no international organization competent to act in an emergency." See Force Under a Modern Law of Nations, 24 Foreign Affairs. (1946), p. 98.

⚫ 2 Moore, Digest of International Law, pp. 400-402, 414-418.

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