United States armed forces and to assist nations covered by the SEATO treaty, "to give convincing evidence to the aggressive Communist nations, and to the world as a whole, that our policy in Southeast Asia will be carried forward-and that the peace and security of the area will be preserved." The President cited the importance of showing hostile nations "that there is no division among us," at a time "when we are entering on three months of political campaigning." Within two days, the resolution had been adopted, 414-0 in the House and 88-2 in the Senate. Some members of Congress have spoken of a "blank check," a vast grant of power to the President. President Johnson, referring to the air retaliation he ordered, stated on signing the resolution, "As Commander in Chief, the responsibility was mine-and mine alone * * *" and subsequently, "This resolution confirms and reinforces powers of the Presidency***"6 The Southeast Asia Resolution was repealed by Section 12 of the Foreign Military Sales Act Amendments (P.L. 91–672), approved January 12, 1917. F. Implied Authorizations. Sometimes it has been contended that congressional support for hostilities through such means as the above resolutions and appropriations for the fighting forces constituted adequate congressional authorization for the conflict despite the absence of a declaration of war. The Supreme Court has not ruled on the matter, and lower courts. which have been willing to consider war powers cases have divided on the issue. For example, in Orlando v. Laird the Second Circuit held that the Tonkin Gulf resolution and other congressional action, including the furnishing of manpower and materials in war for protracted operations, constituted sufficient congressional authorization for the military activity in Vietnam.? On the other hand, in Mitchell v. Laird, another court, although dismissing the case on the political question ground, expressed the view that congressional votes in favor of the appropriations on the draft did not necessarily signify approval of the war but rather unwillingness to abandon men already fighting.s In recent years Congress has taken steps in two directions to prevent its actions from being construed as authorization and support for a war unless it was so intended. Along one line it has written clear prohibitions, already described, into authorization and appropriation legislation. Along another line it has put on record that congressional authorization for commitments and hostilities was required to be specific, not implied. The National Commitments Resolution, S. Res. 85, passed June 25, 1969, stated the sense of the Senate that a national commitment, defined to mean the use of the armed forces of the United States on foreign territory, or a promise to assist a foreign country by the use of the armed forces or financial resources of the United States, resulted "only from affirmative action taken by the executive and legislative branches of the United States Government by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment." Public Papers of the President: Lyndon B. Johnson, Vol. II, 1963-64, pp. 946-7. 443 F. 2d 1039 (2d Cir.). 448 F. 2d 484, 615 (1973). The 1973 War Powers Resolution, already described, went further and required the President to terminate any use of U.S. forces in hostilities within sixty or ninety days unless Congress declared war or enacted a specific authorization for such use. This legislation begins a new chapter in the history of executive-legislative roles in the use of U.S. Armed Forces abroad. 1 MAJOR U.S. ARMED ACTIONS OVERSEAS, WITH RELEVANT A. DECLARED WARS 1. War of 1812.-Congress declared war on Great Britain, June 17, 1812. Madison's review of grievances did not actually call for war, but Congress resolved the matter with a joint resolution declaring war. 2. Mexican War, 1846.-U.S. troops under General Zachary Taylor were ordered by President Polk to occupy the land between the Nueces and Rio Grande Rivers, territory also claimed by Mexico. This was done without any authorization from Congress. Mexican troops surprised and mauled an American unit, and Polk sent a message to Congress asking that it recognize the existence of hostilities. Congress responded by a resolution declaring that a state of war existed between the U.S. and Mexico. There was opposition to the war from the beginning, which grew stronger with time. The House added a rider to a resolution honoring General Taylor on January 3, 1848, stating that the war was begun "unnecessarily and unconstitutionally" by the President. 3. Spanish-American War, 1898.-President McKinley at first merely requested Congress' permission to use military and naval forces to effect a cessation of hostilities between Spain and its rebellious possession, Cuba, and to establish a stable government in the latter. The Senate added a provision to this request recognizing the independence of Cuba. This provision was opposed by the President and deleted in the conference with the House. A resolution was passed giving the President discretionary authority to use military force to satisfy U.S. aims with respect to Spain and Cuba. Spain responded by declaring war on the U.S. In response, McKinley ordered Dewey to attack the Philippines. He then asked for a declaration of war, which Congress gave, stating that war had existed from the day Spain declared it against the U.S. 4. World War I, 1917-1918-President Wilson asked Congress to recognize that the course of the German government amounted to war against the United States. Congress responded by a joint resolution declaring that a state of war existed between the Imperial German Government and the U.S. War was not declared against Austria-Hungary until December, 1917, eight months after the declaration against Germany. 5. World War II.-After the Japanese attack on Pearl Harbor on December 7, 1941, President Roosevelt went before Congress the next day, and asked for a declaration of war, dating from the time of the Pearl Harbor attack. Germany and Italy, who were allies of Japan, then declared war on the United States. On December 11, President Roosevelt asked that Congress recognize a state of war between the U.S. and Germany and the U.S. and Italy, a request to which Congress acceded the same day." B. OTHER ACTIONS Armed Action Undeclared naval war with France, 1798-1800.-This was a limited war, fought essentially for the protection of American Merchant ships which were being harassed by French naval vessels. This contest included some land actions, i.e., the capture by U.S. marines of a French privateer under the guns of the forts in the Dominican city of Puerto Plata. Congress : Congressional Action 1. Created a Navy Department. 3. Abrogated treaties and consular 4. Authorized the enlistment of a 1 Armed action means the confrontation of U.S. forces with those of a foreign government or revolutionary faction, usually, but not always resulting in an actual clash. For an account of the moves short of war by which the U.S. sought to aid Britain in its fight against Germany, see part B of this Appendix. Two days before Congress authorized the seizure of French ships, a lone U.S. naval vessel had been sent out on patrol to protect U.S. coastal waters between Long Island and the Virginia Capes. B. OTHER ACTIONS-Continued Armed Action Congressional Action "An Act for the Protection of the Commerce and Seamen of the United States, against the Tripolitan Cruisers." It authorized the President to protect commerce and seamen, to seize and make prizes of vessels belonging to Tripoli, and all other acts of precaution and hostility as in a state of war. This amounted to subsequent approval of Jefferson's actions, plus the authority which only Congress could grant: to take prizes and to give commissions to privateers. An act levying revenue duties to pay the cost of the naval operations was likewise approved. War with Tripoli, 1801–1805.-The so- In 1802 Congress passed a law entitled called Barbary pirates exacted tribute from countries whose ships plied the Mediterranean. The European nations paid, finding this the easiest way. When Jefferson became President the Pasha of Tripoli, feeling tribute paid by the U.S. was insufficient, declared war. Jefferson sent warships to the Mediterranean which, after several naval actions, succeeded in winning a treaty from Tripoli more favorable than any other nation had yet secured from her. During this conflict a few U.S. marines were landed with U.S. Agent William Eaton, with a view to raising a force to free the crew of the Philadelphia. This expedition penetrated as far as Derna, on Tripoli's eastern frontier, and probably influenced the Pasha to make peace. Boxer Rebellion, 1900.—In 1900 a series of anti-foreign disorders erupted in China, fomented by a secret society known to Westerners as Boxers. This uprising was encouraged by elements within the Imperial Government, but it was not. strictly speaking, a war waged by that government. The high point of the rebellion came when the Boxers rampaged through Peking, and laid seige to the foreign legations there. An international force was organized to lift the siege, and a U.S. contingent of 2,500 men was sent by President McKinley to join this international force. These U.S. troops came from forces already mobilized for the Spanish-American War and the Philippine Insurrection. For many years thereafter the U.S. maintained a guard at Peking and other military forces at certain places on Chinese territory, pursuant to authority acquired from the Chinese. Congress authorized the expedition against Algiers. Specifically, it anthorized the use of armed vessels. "as may be judged requisite by the President." The same legislation made it lawful to take prizes. None.-Congress was not in session at the time. There was little protest when Congress did reconvene, how ever. Although favorable in comparative terms, the treaty still recognized the right of the pirates to obtain ransom for imprisoned Americans. B. OTHER ACTIONS-Continued Armed Action Congressional Action Panama, 1903.-U.S. warships in Cen- No chance for Congress to act. Sen tral American waters were ordered to seize the Panama railroad, keep the Isthmus of Panama clear, and prevent Colombia from landing troops within 50 miles of the Isthmus if a revolution broke out. These orders were issued on November 2, 1903, and a revolution broke out in Panama on November 3, 1903. Troops from the U.S.S. Nashville prevented loyal Colombian troops from suppressing the revolt. On November 4 Panama declared its independence. The U.S. recognized the independence of Panama de facto on November 6, and de jure a week later. Armed hostilities with Mexico, 19141917.-1. During a time of revolutionary upheaval in Mexico there were at least two major armed actions by U.S. forces in Mexico. The first was the occupation of Vera Cruz in 1914, ostensibly for failure of the Mexicans to fire a 21 gun salute to the American flag. The salute had been demanded by Admiral Mayo, U.S. Navy, following the release by Mexico of an officer and nine sailors who had been arrested and paraded through the streets of Tampico after going ashore without the permission of Mexican authorities. President Wilson backed Admiral Mayo's demands, and ordered the North Atlantic battleship fleet to Tampico. Wilson's motive, essentially, was to force Huerta out as Mexican president, so that a constitutional government would come to power. Tampico was to be attacked, but Vera Cruz was made the objective when it was learned that a German ship was heading there with munitions for Huerta. There was a clash with Mexican naval cadets and soldiers resulting in some 400 casualties, mostly Mexican. Following the mediation of Argentina, Brazil, and Chile. U.S. troops were withdrawn from Mexico. 2. In October 1915, the U.S. recognized the Carranza government in Mexico. General "Pancho" Villa, whom the U.S. had briefly supported, revolted, hoping to capitalize on anti-American sentiment and embroil the U.S. in a war with Mexico. To this end his guerrilla forces held up a train carrying 17 American mining engineers in January, 1916, and shot all but one ate ratified the Hay-Bunau-Varilla Treaty on February 23, 1904. President Wilson requested authority to use the armed forces, two days before they were actually landed. Congress passed a joint resolution giving him such authority the day after. The use of armed forces was approved by the Senate, which passed a joint resolution offered by Sen. La Follette. The use of armed force was declared to be for the sole purpose of punishing the outlaws who had raided Columbus. This resolution did not come up for a vote in the House, however. In terms of the military forces involved, the Panama episode of 1903 cannot be classified as a major action. In terms of the stakes involved, and the long range impact, it seems appropriate to so classify it. |