UN Peacekeeping and the War Power Resolution

In 2018, Andrey was a graduate student in the Government and Public Policy program at Johns Hopkins University. One of the best courses that he took was Congress and the Making of Foreign Policy — many thanks to Prof. Lester Munson for sharing his vast foreign policy experience with us (and for being my reference and mentor all these years afterward.) This excerpt is from the final paper for this class, where Andrey explored a discrepancy between the obligatory status of the UN Security Council peacekeeping mandates and the U.S. Constitution War Powers clause.

Another controversial case of using the U.S. military force under the UN mandate happened in 1991 when Pres. Bush invaded Kuwait and Iraq using the decision of the UN Security Council. However, unlike Truman in 1950, Pres. Bush asked the U.S. Congress for the authorization for the use of military force on January 8, 1991, the House and the Senate approved it on January 12, Pres. Bush signed it into law two days later and ordered the troops to start the attack on January 16. Even though the authorization for the use of military force was requested and received by the administration, there are still several legal and moral controversies around this operation.

Legally, under Sec. 4(a)(1) of the War Powers Resolution, the president must request congressional approval for actions, when “U.S. Armed Forces are introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” In such cases, under Sec. 5(b), in the sixty-day period the president must terminate any use of the U.S. armed forces unless Congress has declared war or extended the sixty-day period for the use of forces. This requirement was met when Pres. Bush requested the authorization in January 1991. However, such authorization must have been requested earlier, in August 1990, when U.S. troops were gathering in Saudi Arabia in anticipation of the upcoming war with Iraq. Sec. 4(a)(2) specifies that the president must seek authorization when U.S. Armed Forces are introduced “into the territory, airspace or waters of a foreign nation, while equipped for combat.” Thus, the moment for a report to Congress was at the time, when U.S. troops were gathering in Saudi Arabia.

Even though Pres. Bush eventually asked for the authorization for the use of military force and got it just two days before invading Iraq, the process of legally justifying this invasion was not as easy for him, as it was for Pres. Truman. If in 1950 the U.S. Congress stayed almost silent about the use of the U.S. military, in 1990 it turned into a scandal and a lawsuit. On November 29, 1990, when the Resolution 678 authorizing the use of military force in Iraq passed the UN Security Council, and it was clear that U.S. troops that were stationed in Saudi Arabia will invade Iraq as soon as in mid-January (Pres. Bush declared that offensive military operation is an option on November 9), two branches engaged in the dispute if the U.S. Congress should authorize the use of military force if the UN Security Council has already done that. The groups of 53 congressmen and one senator filed a lawsuit against Pres. Bush on November 19 in order to stop implementing his orders until the authorization from the U.S. Congress. The District of Columbia Federal Court denied a preliminary injunction against the President, citing that:

a) the group of members of Congress did not represent the majority of members, and the Court cannot conclude that the Congress has an opinion on this issue – “it is only if the majority of the Congress seeks relief from an infringement on its constitutional war-declaration power that it may be entitled to receive it;”

b) the executive has not yet engaged in military action; thus, it is unknown, if the authorization for the use of military force would be necessary, at the same time the court did not state that the administration needed the authorization when stationed troops in Saudi Arabia.

In their defense, the Department of Justice has not cited the authorization by the UN Security Council. Instead, they claimed that the U.S. Congress might not need to address the issue at all, as there is still time to resolve the conflict diplomatically.

The moral and legal crisis emerged on the same grounds as in 1950 – should the president seek congressional authorization for the UN action, however, the question was addressed not just from the legal side of the constitutionality of such decision, but also from the moral side of checks and balances. On December 3, 1990, after the UN Security Council authorized the operation, but before the date of invasion that was set in the resolution, the Secretary of Defense Dick Cheney was testifying before the Senate Armed Services Committee about the upcoming use of military forces in Iraq. When asked by Sen. Ted Kennedy (D-MA), if Sec. Cheney believes that “[the president] alone can bring this country to war”, the Secretary claimed that this is not a sole decision of the President of the United States, but a combined decision of the international coalition of countries, who were ready to provide troops for this mission, under the request from governments of Saudi Arabia and Kuwait to defend them, and with the authorization by the UN Security Council. Later Sec. Cheney asked the senator not to turn this issue into “Iraq-U.S. War,” stressing again that this is an international military operation and not just a simple war.

This dialogue represents the modern dilemma of authority. Checks and balances in general, and the shared responsibility of engaging in a war, in particular, was created to limit the power of the president to start a war and send troops into battle based on his own wishes, and Sen. Ted Kennedy addresses this idea, which is stated in the U.S. Constitution. The position of Sec. Cheney is that the decision of the president to send troops into a war without the consent of Congress can be justifiable in terms of checks and balances, if there is authorization of the Security Council, because, with such authorization, it is no longer an individual decision of one person, but the collective decision of the world with the legal basis of the UN Charter.

The second moral controversy arises from the fact that the United States was not obligated to engage in the Gulf War by the UN Security Council. Unlike in cases, when there is an Article 43 special agreement between the UN and a Member State, this resolution authorized UN Members to act in order to restore peace in the region but not obliged them: “The Security Council <…> Authorizes Member States <…> to use all necessary means to <…> restore international peace and security in the area.” Even though resolutions of the UN Security Council are obligatory for all Member States, there is no obligation to use military force against Iraq in this particular clause. Thus, the question arises – should the United States use every Security Council authorization for the use of military force to engage into a war, and why should the UN Security Council decide, if the United States should send the troops to another country? Finishing the dialogue with Sec. Cheney, Sen. Kennedy said: “…I think all of the American families have to be enormously distressed to find out that this authority about whether their children are going to go to war comes from some United Nations resolution rather than the Congress of the United States.”