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ACLU Says Congress Must Authorize Use of Force in Bosnia;
Urges Clinton to Follow Constitutional Requirements

For IMMEDIATE RELEASE        
May 3, 1993         

     WASHINGTON -- In letters to President Clinton and Congressional
leaders, the American Civil Liberties Union has said that any use of force
by the United States in the former Yugoslavia must be first authorized by
Congress.

     While taking no position on the deployment or use of U.S. military
forces, the ACLU said that the United States Constitution requires prior
congressional authorization for the President to deploy U.S. forces if
they will be authorized to use force other than in self-defense; this
includes the proposed airstrikes or "peace enforcement" actions to ensure
safe havens.

     Kate Martin, Director of the ACLU's Center for National Security
Studies, said that public debate and a congressional vote are especially
important in this complicated and tragic situation."

     "Debate helps to ensure that a full array of viewpoints on the issue
are considered, both from within and outside of the government," she said. 
"A vote ensures that these important decisions have the endorsement of the
Congress, and derivatively the people, from the beginning."

     Martin noted that this view was consistent with that of Secretary of
State Warren Christopher, who stated in a 1982 Foreign Affairs article:
"[A] government makes no more fateful decision than the decision to go to
war.  The President should want to share that decision with the Congress. 
When the President and the Congress stand together, the nation's
commitment is clear."

     Martin also urged President Clinton "not to interpret the
Constitution in the reckless manner of the Bush Administration, by
asserting that the President has constitutional power to use military
force without the authorization of Congress." She said that House Armed
Services Committee Chairman Ron Dellums and 91 other House Members have
informed the President that he must obtain congressional authorization to
use force in the Balkans.

A copy of the ACLU's letter to President Clinton follows.

----------------------------------------------------------------------------

American Civil Liberties Union
Washington Office

April 28, 1993

President Bill Clinton
The White House
Washington, DC 20500

Dear Mr. President:

As the possibility of direct United States military involvement in the
conflict in the former Yugoslavia increases, we urge you to seek a
congressional vote before authorizing any use of force. While the American
Civil Liberties Union takes no position for or against the deployment or
use of U.S. military forces in this or any other conflict, we believe that
any such action must be undertaken in accordance with the Constitution and
consistent with democratic principles.

We believe that the Constitution is clear in requiring Congressional
authorization prior to any use of force to deal with the conflict in the
former Yugoslavia.  Such authorization is necessary whether force is used
to secure humanitarian aid, to enforce the proposed peace plan, or to
deter further aggression. This is true whether or not it is authorized by
the United Nations or the NATO alliance. Congress's general war powers
authority, embodied in Article I, section 8, clause 11 of the Constitution
-- which grants to congress "the power to declare war [and] grant letters
of marque and reprisal" -- applies to all situations in which U.S. forces
are authorized to use military force abroad, except to repel sudden
attacks.(1)

Congress itself interpreted the Constitution in precisely this fashion
when it passed the War Powers Resolution of 1973. Section 2(c), on purpose
and policy, states unequivocally that the President has constitutional
authority to "introduce United States Armed Forces into hostilities, or
into situations where imminent hostilities is clearly indicated by the
circumstances, . . . only pursuant to (1) a declaration of war, (2)
specific statutory authorization, or (3) a national emergency created by
an attack upon the United States. . ." This provision serves as a
statutory definition of the constitutional war powers.(2)

Public debate and a congressional vote are especially important in this
complicated and tragic situation. Debate helps to ensure that a full array
of viewpoints on the issue are considered, both from within and outside of
the government. A vote ensures that these important decisions have the
endorsement of the Congress, and derivatively the people, from the
beginning.(3)

Secretary of State Christopher echoed this view when he wrote in 1982
about the need for prior Congressional involvement in war power matters:
"[A] government makes no more fateful decision than the decision to go to
war. The President should want to share that decision with the Congress.
When the President and the Congress stand together, the nation's
commitment is clear.(4)

In February of this year we called on the Congress to deal with the war
powers issue in a general fashion in anticipation of possible action in
the former Yugoslavia or other parts of the world. At that time we
suggested that Congress establish working procedures with the President to
ensure formal congressional authorization prior to any future use of
force.  Now that the use of force appears more imminent, it is all the
more essential that you go to Congress for authorization before you act.
Not only does the Constitution require it, but common sense and good
government counsel it.

As you know, the previous Administrations have taken an extreme, and in
our view incorrect, view of the President's constitutional powers to
authorize military force. We are aware that your Administration is faced
with an immediate crisis without the luxury of examining the
constitutional issues. Nevertheless, we respectfully suggest that securing
congressional authorization in this situation for whatever actions you
choose to take will not only result in wiser policy and more politically
acceptable decisions, but will also be in accordance with the
Constitution.

We thus call upon both you and the Congress to make sure congressional
authorization is obtained before the United States takes any military
action in this conflict.

Thank you for considering our views. We are available to work with you and
your Administration on this issue.

Sincerely,

Laura Murphy Lee
Director

Kate Martin
Director, Center for National Security Studies

(1) Alexander Hamilton noted that "anything beyond [repelling force with
force -- i.e., self-defense] must fall under the idea of reprisals and
requires the sanction of that Department which is to declare or make
war."

(2) The use of force in the former Yugoslavia, including NATO actions,
would also fall within section 4(a)(1) of the War Powers Resolution, 50
U.5.C. sec. 1543(a)(1) (situations involving ~hostilities or . . . where
imminent involvement in hostilities is clearly indicated by the
circumstances"), necessitating a presidential report and triggering the 60
day time clock. However, we believe that this law is constitutionally
suspect in this regard by not prohibiting the President from using force
for the first 60 days without congressional authorization. Accordingly, as
occurred with respect to Iraq, Congress should address this matter
directly under the Constitution.

(3) Any such vote could, of course, be done expeditiously, as Chairman
Dellums informed you in his April 24 letter.

(4) Warren Christopher, "Ceasefire Between the Branches: A Compact in
Foreign Affairs," Foreign Affairs, Vol. 60, No. 5, 899, 1002 (Summer
1982). While Christopher went on to say that "steps short of war ought to
require less collaboration and permit more Executive discretion," id., he
was referring to military aid and sales, not uses of force. Id. at 1003. 

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