Olc Memo Re Authorization for Use of Military Force Against Iraq Resolution 10-21-02
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,' 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