Deployment of United States Armed Forces Into Haiti

• Court: Department of Justice Office of Legal Counsel
• Decided: September 27, 1994
• Status: Published

Opinion

Deployment of United States Armed Forces into Haiti

T h e P resid e n t p o sse sse d the leg al a u th o rity to d e p lo y U n ite d S ta te s A rm e d F o rc e s in to H aiti

T h e p la n n e d d e p lo y m e n t a cc o rd e d w ith th e sen se o f C o n g re ss, s a tisfie d the re q u ire m e n ts o f th e W ar P o w ers R e s o lu tio n , an d w as not a “ w a r” w ith in th e m e a n in g o f the C o n stitu tio n .

September 27, 1994

L e t t e r O p in io n f o r F o u r U n i t e d S t a t e s S e n a t o r s

I write in response to your letter of September 15, 1994, in which you requested a copy or summary of any legal opinion that may have been rendered, orally or in writing, by this Office concerning the lawfulness of the President’s planned de­ ployment of United States military forces into Haiti. After giving substantial thought to these abiding issues of Presidential and congressional authority, we con­ cluded that the President possessed the legal authority to order that deployment. In this case, a combination o f three factors provided legal justification for the planned deployment. First, the planned deployment accorded with the sense of Congress, as expressed in section 8147 of the Department of Defense Appropria­ tions Act, 1994, Pub. L. No. 103-139, 107 Stat. 1418, 1474 (1993) (“Defense Ap­ propriations A ct”). That resolution expressed C ongress’s sense that the President would not require express prior statutory authorization for deploying troops into Haiti provided that he first made certain findings and reported them to Congress. The President did make the required findings and reported them. We concluded that the resolution “evince[d] legislative intent to accord the President broad dis­ cretion” and l“ invite[d]’ ‘measures on independent presidential responsibility.’” D am es & M oore v. Regan, 453 U.S. 654, 678 (1981) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)). Sec­ ond, the planned deployment satisfied the requirements o f the W ar Powers Resolu­ tion. Finally, after examining the circumstances, nature, scope, and duration o f the anticipated deployment, we determined that it was not a “war” in the constitutional sense. Specifically, the planned deployment was to take place with the full consent of the legitimate government, and did not involve the risk of major or prolonged hostilities or serious casualties to either the United States or Haiti. For those rea­ sons, which are set out in detail below, we concluded that the President had legal and constitutional authority to order United Slates troops to be deployed into Haiti.

173 O pinions o f th e O ffice o f L egal C ounsel

I.

First, the Haitian deploym ent accorded with the sense of Congress, as expressed in section 8147 o f the D efense Appropriations A ct.1 That provision was sponsored by, am ong others, Senators Dole, Simpson and Thurmond. See 139 Cong. Rec. S14,021-22 (daily ed. Oct. 20, 1993). Section 8147(b), 107 Stat. at 1474, o f the Act states the sense o f Congress that “funds appropriated by this Act should not be obligated or expended for United States military operations in Haiti” unless certain conditions (including, in the al­ ternative, prior Congressional authorization) were met. Section 8147(c), 107 Stat. at 1475, however, added that

[i]t is the sense o f Congress that the limitation in subsection (b) should not apply if the President reports in advance to Congress that the intended deployment o f United States Armed Forces into Haiti—

(1) is justified by United States national security interests; (2) will be undertaken only after necessary steps have been taken to ensure the safety and security of United States Armed Forces, including steps to en­ sure that United States Armed Forces will not be­ com e targets due to the nature o f their rules of engagem ent; (3) will be undertaken only after an assessment that— (A) the proposed mission and objectives are m ost appropriate for the United States Armed Forces rather than civilian personnel or armed forces from other nations, and

1 In sp ea k in g o f the d ep lo y m en t, we should be understood to include, not only the actual deploym ent begun on S e p te m b e r 19, but also the military operation that w as planned, and in p a n initiated, before an agreem ent w ith the H aitian m ilitary leadership w as negotiated o n Septem ber 18 by form er President Jim m y C arter, S en ato r Sam N unn and G eneral C o h n Pow ell (the "S ep tem ber 18 agreem ent"). As the President noted in his te lev ised ad d ress o f Septem ber 18, th a t agreem ent “ w as signed after Haiti received evidence that paratroopers from o u r 82nd A irb o rn e Division, based at Fort B ragg, North C arolina, had begun to load up to begin the in v asio n w hich I had ordered to start this evening " T ext o f C lin to n ’s A ddress, The W ashington Post, Sept 19, 1994, at A 17

174 D eploym ent o f U nited States A rm ed F orces into Haiti

(B) that the United States Armed Forces pro­ posed for deployment are necessary and sufficient to accomplish the objectives of the proposed mission;

(4) will be undertaken only after clear objectives for the deployment are established;

(5) will be undertaken only after an exit strategy for ending the deployment has been identified; and (6) will be undertaken only after the financial costs of the deployment are estimated.

In short, it was the sense of Congress that the President need not seek prior authorization for the deployment in Haiti provided that he made certain specific findings and reported them to Congress in advance of the deployment. The Presi­ dent made the appropriate findings and detailed them to Congress in conformity with the terms of the resolution. See Letter to the Speaker o f the United States House of Representatives from the President (Sept. 18, 1994). Accordingly, this is not, for constitutional purposes, a situation in which the President has “take[n] measures incompatible with the expressed or implied will of Congress,” Young­ stown, 343 U.S. at 637 (Jackson, J., concurring). Rather, it is either a case in which the President has acted “pursuant to an . . . implied authorization of Con­ gress,” so that “his authority is at its maximum,” id. at 635, or at least a case in which he may “rely upon his own independent pow ers” in a matter where Congress has “enable[d], if not invite[d], measures on independent presidential responsibil­ ity.” Id. at 637.

II.

Furthermore, the structure of the W ar Powers Resolution (“W PR”) recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circum stances.” 50 U.S.C. § 1543(a)(1). The WPR requires that, in the absence of a declaration of war, the President must report to Congress within forty-eight hours of introducing armed forces into such circum­ stances and must terminate the use of United States armed forces within sixty days (or ninety days, if military necessity requires additional time to effect a withdrawal) unless Congress permits otherwise. Id. § 1544(b). This structure makes sense only if the President may introduce troops into hostilities or potential hostilities without

175 O pinions o f ihe O ffice o f L egal C ounsel

prior authorization by the Congress: the W PR regulates such action by the Presi­ dent and seeks to set limits to it.2 To be sure, the W PR declares that it should not be “construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circum stances.” 50 U.S.C. § 1547(d)(2). But ju st as clearly, the W PR assu m es that the President already has such authority, and indeed the WPR states that it is not “intended to alter the constitutional authority of the . . . Presi­ dent.” Id. § 1547(d)(1). Furthermore, although the W PR announces that, in the absence o f specific authorization from Congress, the President may introduce armed forces into hostilities only in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” id. § 1541(c), even the defenders o f the WPR concede that this declaration — found in the “Purpose and Policy” section of the W PR — either is incomplete or is not meant to be binding. See, e.g., Cyrus R. Vance, Striking the Balance: C ongress an d the P residen t U nder the W ar Powers R esolution, 133 U. Pa. L. Rev. 79, 81 (1984).3 The W PR was enacted against a background that was “replete with instances of presidential uses o f military force abroad in the absence of prior congressional approval.” P resid en tia l P ow er to U se the A rm ed F orces A b ro a d Without Statutory A u th orization, 4A Op. O.L.C. 185, 187 (1980). W hile Congress obviously sought to structure and regulate such unilateral deploym ents,4 its overriding interest was to prevent the United States from being engaged, without express congressional authorization, in m ajor, prolonged conflicts such as the wars in Vietnam and Ko­ rea, rather than to prohibit the President from using or threatening to use troops to achieve im portant diplom atic objectives where the risk of sustained military con­ flict was negligible.

2 It should be em p h asized that this A d m in istratio n has not yet had to face the difficult constitutional issues raised by the p ro v isio n o f the WPR, 50 U .S .C § 1544(b), that requires w ithdraw al of forces after sixty days inv o lv em en t in h o stilities, absent congressional authorization. 3 T h e W P R om its, fo r ex am p le, any m ention o f the P resid e n t's pow er to rescue A m ericans; yet even the C o m p tro lle r G en eral, an a g en t o f Congress, h as acknow ledged both that "the w eight o f authority” supports the p o sitio n th at ’‘the P resident does possess som e unilateral constitutional pow er to use force to rescue A m e ric a n s,” an d lhat § 1541(c) “does not in a strict sense o perate to restrict such authority.” 55 C om p G en 1081, 1083, 1085 (1 976) S e e also Peter R av en -H an sen and W illiam C. Banks, P ulling the Purse Strings o f the C o m m a n d e r in C hief, 8 0 Va. L. Rev. 8 3 3 , 879 (1 9 9 4 ) (“ [a] custom o f executive deploym ent o f arm ed force for rescu e and p ro tectio n o f A m ericans abroad has dev elo p ed at least since 1790” ); id. at 917-18 (“ [s]ince 1868 the so -called H ostage Act has authorized and req u ired the P resident to ‘use such m eans, not am ou n tin g to acts o f w ar, as he may think necessary and p ro p er to obtain or effectuate [the] release’ o f A m erican c itiz en s ‘unjustly d eprived of [their] liberty by o r un d er the authority o f any foreign governm ent.' . [T ]he H o stag e A ct lends fu rth er support to custom and m ay constitute congressional autho n zatio n for at least this lim ited d efen siv e w ar p o w e r'') 4 E ven th o u g h the P resid en t has the in h eren t pow er to dep lo y troops abroad, including into situations o f h o stilities, C o n g ress m ay, w ithin constitutional lim its, regulate the exercise o f that pow er See, e.g., S a n ti­ ag o v N o g u era s, 214 U S 260, 266 (1909) (P resid en t had p o w er lo institute m ilitary governm ent in o c cu ­ pied territo ries unul fu rth er action by C o n g ress); The Thom as G ibbons, 12 U.S (8 C ranch) 421, 427-28 (1814).

176 D eploym ent o f United States A rm ed F orces into Haiti

Further, in establishing and funding a military force that is capable o f being projected anywhere around the globe, Congress has given the President, as Com­ mander in Chief, considerable discretion in deciding how that force is to be de­ ployed.5 See Johnson v. E isen trager , 339 U.S. 763, 789 (1950); cf. M aul v. U nited States, 274 U.S. 501, 515-16 (1927) (Brandeis and Holmes, JJ., concurring) (President “may direct any revenue cutter to cruise in any waters in order to per­ form any duty of the service”). By declining, in the W PR or other statutory law, to prohibit the President from using his conjoint statutory and constitutional powers to deploy troops into situations like that in Haiti, Congress has left the President both the authority and the means to take such initiatives. In this case, the President reported to Congress, consistent with the W PR, that United States military forces, together with units supplied by foreign allies, began operations in Haitian territory, including its territorial waters and airspace. The President stated in his report that he undertook those measures “to further the na­ tional security interests of the United States; to stop the brutal atrocities that threaten tens of thousands of Haitians; to secure our borders; to preserve stability and promote democracy in our hemisphere; and to uphold the reliability o f the commitments we make, and the commitments others make to us, including the Governors Island Agreement and the agreement concluded on Septem ber 18 in Haiti.” Letter to the Speaker of the United States House of Representatives from the President at 2 (Sept. 21, 1994). We believed that the deployment was fully consistent with the W PR, and with the authority Congress reserved to itself under that statute to consider whether affirmative legislative authorization for the con­ tinuance of the deploym ent should be provided.

III.

Finally, in our judgm ent, the Declaration of W ar Clause, U.S. Const, art. I, § 8, cl. 11 (“[t]he Congress shall have Power . . . [t]o declare W ar”), did not o f its own force require specific prior congressional authorization for the deploym ent of troops at issue here. That deployment was characterized by circum stances that sufficed to show that the operation was not a “war” within the meaning o f the Declaration o f W ar Clause.6 The deployment was to have taken place, and did in fact take place, with the full consent of the legitimate government of the country

5 We recognize, o f course, that the W PR provides that authority to introduce the arm ed forces in to h o s­ tilities o r situations w here hostilities are clearly indicated may not be inferred from an appropriation act, unless that statute "states that it is intended to constitute specific statutory au th o n z atio n w ithin the m eaning o f this ch ap ter " 5 0 U S C !) 1547(a) 6 See Note, C ongress, The President. A n d The Pow er To C om m it F orces To C o m b a t, 81 H arv. L Rev. 1771, 1790 (1968) (describing other lim ited interventions and suggesting conclusion that ' “ w ar' in the sense o f article J, section 8, requiring congressional sanction, does not include interventions to m aintain ord er in w eak countries w here a severe contest at arm s w ith another nation is not likely to result"). Here, o f course, there is still less reason to co n sid er the deploym ent a "w ar,” since it was undertaken at the request o f the recognized, d em o cratically-elected governm ent, and not m erely to "m aintain order."

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involved.7 Taking that and other circum stances into account, the President, to­ gether with his military and intelligence advisors, determined that the nature, scope, and duration o f the deployment were not consistent with the conclusion that the event was a “war.” In reaching that conclusion, we w ere guided by the initial premise, articulated by Justice Robert Jackson, that the President, as C hief Executive and Commander in Chief, “is exclusively responsible” for the “conduct o f diplomatic and foreign affairs,” and accordingly that he may, absent specific legislative restriction, deploy United States armed forces “abroad or to any particular region.” Johnson v. Eis- en tra g e r , 339 U.S. at 789. Presidents have often utilized this authority, in the ab­ sence o f specific legislative authorization, to deploy United States military personnel into foreign countries at the invitation o f the legitimate governments of those countries. For example, during President T aft’s Administration, the recog­ nized governm ent o f Nicaragua called upon the United States to intervene because of civil disturbance. According to President Taft, “[t]his led to the landing of ma­ rines and quite a cam paign . . . . T his was not an act of war, because it was done with the consent of the lawful authorities of the territory wliere it took place.” W illiam H ow ard Taft, The P residen cy 88-89 (1916).8 In 1940, after the fall o f Denmark to Germany, President Franklin Roosevelt or­ dered United States troops to occupy Greenland, a Danish possession in the North Atlantic of vital strategic interest to the United States. This was done pursuant to an agreem ent between the United States and the Danish M inister in Washington, and was welcom ed by the local officials on Greenland.9 Congress was not con­ sulted or even directly informed. S ee James Grafton Rogers, W orld Policing and the C on stitution 69-70 (1945). Later, in 1941, the President ordered United States troops to occupy Iceland, an independent nation, pursuant to an agreement between him self and the Prime M inister of Iceland. The President relied upon his authority as C om m ander in Chief, and notified Congress only after the event. Id. at 70-71. M ore recently, in 1989, at the request of President Corazon Aquino, President Bush authorized m ilitary assistance to the Philippine governm ent to suppress a coup attem pt. Pub. P a p ers o f G eorge Bush 1615 (1989). Such a pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents o f both parties, “evidences the exis­ tence o f broad constitutional power.” 4A Op. O .L.C. at 187. W e are not suggesting, however, that the United States cannot be said to engage in “w ar” w henever it deploys troops into a country at the invitation of that coun-

7 M o reo v er, the dep lo y m em accorded w ilh U nited N ations Security C ouncil R esolution No 940 (1994). T here can th u s be no q u estio n b u t that the d e p lo y m e n t ts law ful as a m atter o f international law 8 P resid en t G ro v er C lev elan d had also o p in e d that a "‘m ilitary dem onstration” on the soil o f a foreign country w as not an “ act o f w ar” if it was “m ade eith e r with the consent o f the [foreign] governm ent . or for the b on a ji d e p urpose o f p ro tectin g the im p eriled lives and property o f citizens o f the U nited States ** 9 M e ssa g e s a n d P apers o j the Presidents 1789-1897, at 466 (Jam es R ichardson ed , 1898). 9 T h e D anish K ing and m in isters were in G erm an hands at the time

178 D eploym ent of U nited States A rm ed F orces into Haiti

try’s legitimate government. Rather, we believe that “war” does not exist where United States troops are deployed at the invitation of a fully legitimate government in circumstances in which the nature, scope, and duration o f the deployment are such that the use of force involved does not rise to the level of “war.” In deciding whether prior Congressional authorization for the Haitian deploy­ ment was constitutionally necessary, the President was entitled to take into account the anticipated nature, scope, and duration of the planned deployment, and in par­ ticular the limited antecedent risk that United States forces would encounter sig­ nificant armed resistance or suffer or inflict substantial casualties as a result of the deploym ent.10 Indeed, it was the President’s hope, since vindicated by the event, that the Haitian military leadership would agree to step down before exchanges of fire occurred. Moreover, while it would not be appropriate here to discuss opera­ tional details, other aspects of the planned deployment, including the fact that it would not involve extreme use of force, as for example preparatory bombardment, were also relevant to the judgm ent that it was not a “war.” On the basis of the reasoning detailed above, we concluded that the President had the constitutional authority to deploy troops into Haiti even prior to the Sep­ tember 18 agreement.

W ALTER DELLINGER A ssistant A ttorney G eneral Office o f Legal Counsel

10 A llhough the President found lhai the d eploym ent w ould not be w ithout risk, he and his sen io r advisers had also determ ined that the U nited States w ould introduce a force o f sufficient size to deter arm ed resis­ tance by the H aitian m ilitary and thus to hold both U nited States and H aitian casualties to a m inim um The fact that the U nited States planned to deploy up to 20,000 troops is not in u self dispositive on the question w hether ihe operation was a "w ar" in the constitutional sense, since the very size o f the force w as designed to reduce o r elim inate the likelihood o f arm ed resistance.