Proposed Deployment of United States Armed Forces Into Bosnia ( 1995 )

Proposed Deployment of United States Armed Forces into
Bosnia
The President, acting without specific statutory authorization, may lawfully introduce United States
ground troops into Bosnia in order to assist the North Atlantic Treaty Organization to ensure
compliance with a peace agreem ent
November 30, 1995
M e m o r a n d u m O p in io n for th e Counsel to t h e P r e s id e n t
This is to provide you with our analysis of whether the President, acting without
specific statutory authorization, lawfully may introduce United States ground
troops into Bosnia and Herzegovina (“ Bosnia” ) to help the North Atlantic Treaty
Organization (“ NATO” ) ensure compliance with the recently negotiated peace
agreement. We believe that the President may act unilaterally in the circumstances
here.
I. Background
The United States has a large stake in helping to secure the Bosnian peace
agreement. The United States has a firm commitment to the principle that the
security and stability of Europe are of fundamental interest to the United States.
As the President stated, if the negotiations fail and the war resumes, there is a
very real risk that it could spread beyond Bosnia, and involve Europe’s new
democracies as well as our NATO allies.
Although the involvement of the United Nations in the Bosnian conflict can
be traced back to at least 1991, the United Nations first deployed the United
Nations Protection Force (“ UNPROFOR” ) in the former Yugoslavia in April
1992. Most of the troops in UNPROFOR have been provided by nations allied
with the United States under the NATO Treaty. In addition to operations involving
ground forces, the Security Council, in Resolutions 781 and 786 (October 9 and
November 10, 1992), established a ban on unauthorized military flights over
Bosnia. In Security Council Resolution 816 (March 31, 1993), the Security
Council authorized Member States and regional organizations to take “ all nec­
essary measures” to ensure compliance with the no-fly zone. The NATO allies
agreed to undertake that enforcement. In Security Council Resolutions 836 and
844 (June 4 and 18, 1993), the Security Council authorized Member States and
regional organizations (including NATO) to help protect UNPROFOR. In response
to attacks on Sarajevo, NATO also agreed, on February 9, 1994, to accept the
Secretary General’s request to begin air operations, in coordination with
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UNPROFOR, against military positions determined to be involved in attacks on
civilian targets in Sarajevo.
Working with its NATO allies, the United States has played an important role
in the United Nations’ dispute-settlement efforts and in UNPROFOR’s Bosnian
operations. It contributed combat-equipped fighter aircraft and other resources to
NATO’s enforcement of the Security Council’s no-fly ban. It also provided mili­
tary assets to implement NATO’s February 9, 1994, decision to attack military
targets near Sarajevo. On occasion, United States military forces, under the aus­
pices of NATO, have engaged in combat in support of UNPROFOR. On February
28, 1994, United States aircraft on air patrol for NATO engaged Serb aircraft
violating the no-fly ban, destroyed three of them, and downed a fourth. On April
10-11, 1994, United States combat-equipped aircraft engaged Bosnian-Serb air­
craft and gunners in defense of UNPROFOR personnel who had come under
attack in Gorazde. On November 21, 1994, NATO conducted airstrikes involving
thirty-nine United States and allied aircraft in response to Serb air attacks that
had threatened 1,200 UNPROFOR troops in Bihac. The President reported each
of these incidents by formal letters to Congress.
In a radio address of February 19, 1994, the President outlined the support the
United States had given as of that time to the United Nations’ effort in the former
Yugoslavia:
We have participated in the enforcement of economic sanctions
against Serbia. We initiated airdrops o f food and medicine and
participated in the Sarajevo airlift, a massive effort, running longer
than the Berlin airlift, which has relieved starvation and suffering
for tens of thousands of Bosnians. Together with our NATO allies,
we began enforcement o f a no-fly zone to stop the parties from
spreading the war with aircraft.
We have warned Serbia against increasing its repression of the
Albanian ethnic minority in Kosovo. We have contributed 300
American troops to the United Nations force that is helping to
ensure that the war does not spread to the former Yugoslav
Republic of Macedonia, which lies between Bosnia and Greece.
And we have worked with our allies to ensure that NATO is pre­
pared to help solve this crisis.
1 Pub. Papers of William J. Clinton 284 (1994).
More recently, after the Bosnian Serbs assaulted Srebenica and Zepa, which
the United Nations had designated as safe areas, the United States organized an
agreement with our NATO allies to take decisive military measures against any
further attacks on safe areas. When the Bosnian Serbs later shelled a marketplace
in Sarajevo, American pilots took part in a NATO bombing campaign designed
to prevent the repetition of such offenses and ensure the withdrawal of heavy
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weapons from around Sarajevo. Throughout this period, the President has
informed Congress of the United States’ involvement in supporting the
UNPROFOR, including the episodes of combat that have occurred.1
In the past few months, the United States initiated an intensive diplomatic effort
that produced a peace agreement among the warring parties in Bosnia. The United
States had earlier assisted those parties in reaching a cease-fire. The peace agree­
ment itself came out of negotiations that took place on American soil, under the
guidance of the Department of State. The United Nations Security Council has
indicated its support of the agreement. The parties to the agreement have made
clear that their confidence in the strength of the accord depends on the presence
of an international military force that would maintain the cease-fire and the separa­
tion of forces. It is anticipated that the United States would contribute 20,000
ground troops to the force and that our NATO allies, as well as such non-NATO
countries as Russia, would provide twice that number.2
The President has determined that, without this substantial contingent of United
States troops, the NATO force is unlikely to be able to prevent renewed fighting
in Bosnia. The President bases this conclusion on (among other things) the rep­
resentations of the parties and in particular of the Bosnians. A failure to carry
out the terms of the peace accord, in the President’s judgment, would injure Amer­
ica’s national interests, as well as once again consigning the Bosnians to violence
and atrocities of a sort not seen in Europe since the end of the Second World
War. See, e.g.. Letter for Honorable Newt Gingrich, Speaker of the House of
Representatives, from President William J. Clinton (Nov. 13, 1995) (“ November
13 Letter” ). The precise level of risk to United States troops is, of course, impos­
sible to specify. As the President has stated, “ America’s role will not be about
fighting a war. It will be about helping the people of Bosnia to secure their own
peace agreement.” The risk o f casualties cannot be dismissed; “ [t]here may be
accidents in the field or incidents with people who have not given up their
hatred.” 2 Pub. Papers of William J. Clinton 1784, 1786 (1995). However,
because of the size of the Implementation Force (“ IFOR” ) and its rules of engage­
ment, as well as the high quality of United States and NATO troops, training,
and equipment, we would have created conditions that would offer the minimum
possible risks to our soldiers.
1Congress has from time to time enacted legislation (or expressed its sense) on the United States' policy and
role in the Bosnian conflict. See, e.g.. Department o f Defense Appropriations A ct, FY 1995, Pub. L No. 103—
335, §8100, 108 Stat. 2599, 2643 (1994) (sense o f Congress that none o f funds appropriated under Act be available
to deploy United States Armed Forces to participate in Bosnian peace settlement); National Defense Authorization
Act, FY 1995, Pub. L. No. 103-337, § 1404, 108 Stat. 2663, 2910 (1994) (sense o f Congress that President terminate
arms embargo against Bosnia if certain conditions obtain); Foreign Operations, Export Financing, and Related Pro­
grams Appropriations Act, FY 1995, Pub. L. No. 103-306, §546, 108 Stat. 1608, 1641 (1994) (same); Foreign
Relations Authorization Act, FY 1994 & 1995, Pub. L. No. 103-236, §520(c), 108 Stat. 382, 472 (1994) (President
should provide military assistance to Bosnia if that nation requests it under Article 51 of United Nations Charter).
2 Additional United States forces would also be deployed to areas outside Bosnia to support the ground troops
inside the country.
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II. Legal Analysis
In 1980, we noted that
[t]he power to deploy troops abroad without the initiation of hos­
tilities is the most clearly established exercise of the President’s
general power as a matter o f historical practice. Examples of such
actions in the past include the use of the Navy to “ open up” Japan,
and President Johnson’s introduction of the armed forces into the
Dominican Republic in 1965 to forestall revolution.
Presidential Power to Use the Armed Forces Abroad Without Statutory Authoriza­
tion, 4A Op. O.L.C. 185, 187 (1980). Today, American soldiers are deployed at
many places around the world. Although these forces are not presently engaged
in ongoing hostilities, in some instances they deal with conditions of appreciable
danger. Indeed, continuously for the last forty years, American forces have been
deployed under such conditions. The United States, for example, has maintained
large military forces in Europe. At times, these troops have faced a genuine risk
of war, as during the Berlin Airlift. More recently, they have been subjected to
attacks by terrorists. On the other side of the globe, American forces are deployed
(for example) in South Korea, and even after the end of the Korean War, North
Korean forces have sometimes assaulted American soldiers.
The proposed deployment to Bosnia, therefore, is no innovation. As Commander
in Chief, the President exercises “ the power to dispose of troops and equipment
in such manner and on such duties as best to promote the safety of the country.”
Training o f British Flying Students in the United States, 40 Op. Att’y Gen. 58,
62 (1941) (Robert H. Jackson, A tt’y Gen.). Nevertheless, some have questioned
the President’s authority to order the deployment. We first explain why the Presi­
dent has authority under the Constitution to order the deployment. We then review
the War Powers Resolution and suggest that it should be read as reflecting
Congress’s understanding that the President, even absent specific statutory
authorization, may deploy military forces abroad and may, in some circumstances,
order them into situations in which conflict may arise.
A. The Declaration o f War Clause
The Constitution vests in Congress the power “ [t]o declare War.” U.S. Const,
art. I, § 8 , cl. I I . 3 The scope and limits of that power are not well defined by
3 The D eclaration o f W ar Clause is not the only constitutional text relevant to either Congress's or the President's
war powers. As Justice Robert Jackson pointed out, "o u t o f seventeen specific paragraphs o f congressional power
[in article I, § 8 ], eight o f them are devoted in whole or in part to specification of powers connected with w arfare.”
Johnson v. Eisentrager, 339 U.S. 763, 788 (1950). The President also has inherent war powers as C hief Executive.
U.S. Const, art. n , § 1, cl. 1, as Commander in Chief, id. § 2 , cl. 1, and under other clauses.
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constitutional text, case law, or statute. Rather, the relationship o f Congress’s
power to declare war and the President’s authority as Commander in Chief and
Chief Executive has been clarified by 200 years of practice. See Harold H. Koh,
The National Security Constitution 70-71 (1990) (historical precedent serves as
“ quasi-constitutional custom” in foreign affairs). In ruling on constitutional ques­
tions involving foreign relations, the Supreme Court has often shown itself willing
to rely on the evolved practice and custom of the political branches. See, e.g.,
Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); Haig v. Agee, 453 U.S.
280, 292-93(1981).
Historical practice supplies numerous cases in which Presidents, acting on the
claim of inherent power, have introduced armed forces into situations in which
they encountered, or risked encountering, hostilities, but which were not “ wars”
in either the common meaning or the constitutional sense. As the Supreme Court
observed in 1990, “ [t]he United States frequently employs Armed Forces outside
this country— over 200 times in our history— for the protection of American
citizens or national security.” United States v. Verdugo-Urquidez, 494 U.S. 259,
273 (1990). In at least 125 instances, the President acted without express
authorization from Congress. See Leonard C. Meeker, Legal Adviser, Dept, of
State, The Legality o f United States Participation in the Defense o f Viet-nam, 54
Dep’t St. Bull. 474, 484-85 (1966); see also Authority o f the President to Repel
the Attack in Korea, 23 Dep’t St. Bull. 173 (1950).4 In reliance on this historical
practice and understanding, our Office recently took the position that the President
had the inherent authority to deploy up to 20,000 troops into Haiti on the invitation
of that country’s legitimate government. We argued that “ [i]n deciding whether
prior Congressional authorization for the Haitian deployment was constitutionally
necessary, the President was entitled to take into account the anticipated nature,
scope, and duration of the planned deployment, and in particular the limited ante­
cedent risk that United States forces would encounter significant armed resistance
or suffer or inflict substantial casualties as a result of the deployment.” D eploy­
ment o f United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 179 (1994)
(“ OLC Haiti Letter” ) .5
4 This understanding o f Executive power has early antecedents. ” [B]oth Secretary (of War] Knox and [President]
Washington himself seemed to think this [Commander in Chief] authority extended to offensive operations undertaken
in retaliation for Indian atrocities.” David P. Currie, The Constitution in Congress: Substantive Issues in the First
Congress, 1789-1791, 61 U. Chi. L. Rev. 775, 816 (1994). On the other hand, Washington also wrote in 1793
that “ no offensive expedition o f importance can be undertaken [against the Creek Indians] until after [Congress]
shall have deliberated upon the subject, and authorized such a m easure.” 33 The Writings o f George Washington
73 (John C. Fitzpatrick ed., 1940).
5 In fact, past Administrations have made, and acted upon, far broader claims of unilateral Executive authority
to order troops into hostile situations than underlay the deployment in Haiti, either as it actually occurred or as
it was planned before the military leadership agreed to leave peacefully. For example, President Bush ordered United
States troops into Panama in December, 1989, for the purpose (among others) of overthrowing the regime o f General
Manuel Noriega. President Bush consulted with congressional leaders, but did not seek or receive C ongress’s
authorization. See 2 Pub. Papers o f George Bush 1722-23 (1990). The boldest claim of Executive authority to wage
war without congressional authorization was made at the time o f the Korean W ar— a conflict that ultimately lasted
for three years and caused over 142,000 American casualties. Such sweeping claims of inherent Executive authority
Continued
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In deciding whether the proposed deployment of ground troops into Bosnia
would amount to a “ war” in the constitutional sense, considerable weight should
be given to the consensual nature and protective purposes of the operation. The
deployment is intended to be a limited mission that will ensure stability while
the peace agreement is put into effect. Because the mission is in support of an
agreement that the warring parties have reached and is at the invitation of those
parties, it is reasonably possible that little or no resistance to the deployment will
occur. The operation does not aim at the conquest or occupation of territory nor
even, as did the planned Haitian intervention, at imposing through military means
a change in the character of a political regime. Although combat conceivably may
occur during the course of the operation, it is not likely that the United States
will find itself involved in extensive or sustained hostilities. Moreover, as the
President has made clear, the Allies agree that if there were a total breakdown
in compliance, IFOR would be withdrawn.
We believe that the President has ample authority to undertake the planned oper­
ation. As noted above, the President as Commander in Chief has “ the power to
dispose o f troops and equipment in such manner and on such duties as best to
promote the safety of the country.” 40 Op. Att’y Gen. at 62; cf. Maul v. United
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
perform any duty o f the service” ). His “ authority has long been recognized as
extending to the dispatch of armed forces outside of the United States . . . for
the purpose o f protecting American lives or property or American interests.” 40
Op. Att’y Gen. at 62 (emphasis added).
The American interests at stake here are clear. The United States has worked
closely and intimately with its NATO partners for several years in attempting
to carry out United Nations peacekeeping efforts in Bosnia and other parts of
the former Yugoslavia.6 United States military activities in the air and at sea
have complemented the UNPROFOR’s peacekeeping efforts on the ground.
Indeed, the United States has already engaged in combat on several occasions
in UNPROFOR’s defense. The proposed deployment of a NATO force to imple­
ment the peace agreement would be consistent with the pattern of inter-allied
cooperation and assistance that has been established over recent years. It would
serve significant national security interests, by preserving peace in the region and
have been sharply criticized. See Louis Fisher, The Korean War: On What Legal Basis Did Truman Act?, 140
Cong. Rec. 19,811-16 (1994); cf. Holtzman v. Schlesinger, 414 U.S. 1304, 1311-12 (1973) (Marshall, J., sitting
as C ircuit Justice); but see Robert F. Turner, War and the Forgotten Executive Power Clause o f the Constitution:
A Review Essay o f John Hart Ely's War and Responsibility, 34 Va. J. Int’l L. 903, 949-59 (1994). It is unnecessary
to consider such broad assertions in the present case.
6 It should also be noted that Congress has expressed its sense that “ old threats to the security of the United
States and its allies in the North Atlantic Treaty Organization having greatly diminished, and new, more diverse
challenges having arisen ( including ethno-religious conflict in Central and Eastern Europe . . .), NA TO 's mission
must be redefined so that it may respond to such challenges to its m em bers’ security even when those challenges
emanate from beyond the geographic boundaries o f its m em bers’ territories.” National Defense Authorization Act.
FY 1994, Pub. L. No. 103-160, § 1411(b), 107 Stat. 1547, 1827 (1993) (emphasis added).
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Proposed Deployment o f United States Armed Forces into Bosnia
forestalling the threat of a wider conflict. As the President stated in his November
13 Letter, “ [t]his Administration, and that of previous Democratic and Republican
Presidents, have been firmly committed to the principle that the security and sta­
bility of Europe is of fundamental interest to the United States.” November 13
Letter at 1. If the war in the former Yugoslavia resumes, “ there is a very real
risk that it could spread beyond Bosnia, and involve Europe’s new democracies
as well as our NATO allies.” Id. Furthermore, as we explained in concluding
that President Bush had authority to deploy United States forces in Somalia,
“ maintaining the credibility of United Nations Security Council decisions, pro­
tecting the security of United Nations and related relief efforts, and ensuring the
effectiveness of United Nations peacekeeping operations can be considered a vital
national interest.” Authority to Use United States Military Forces in Somalia,
16 Op. O.L.C. 6, 11 (1992). This argument applies equally to a NATO operation
that carries out a peace agreement supported by the United Nations. Indeed, there
is here the additional consideration that “ [f]or almost 50 years, the [NATO] Alli­
ance has been the anchor of America’s and Europe’s common security,” and “ [i]f
we do not do our part in a NATO mission, we would weaken the Alliance and
jeopardize American leadership in Europe.” November 13 Letter at 2. Accord­
ingly, in these circumstances, the President would have legal authority to order
the deployment, in order to further important national interests.
Several circumstances of the proposed deployment have led some to take a dif­
ferent view of this question. Unlike the Haitian intervention, this operation
arguably is not a case where “ the risk of sustained military conflict [is] neg­
ligible.” OLC Haiti Letter, 18 Op. O.L.C. at 173, 176. With the exception of
the limited commitment of ground troops to Macedonia, the United States’ pre­
vious military involvement in the Yugoslav theater has been undertaken only by
its naval or aerial forces. The deployment of 20,000 troops on the ground is an
essentially different, and more problematic, type of intervention: it raises the risk
that the United States will incur (and inflict) casualties. Disengagement of ground
forces can be far more difficult than the withdrawal of forces deployed for air
strikes or naval interdictions. Because of the difficulties of disengaging ground
forces from situations of conflict, and the attendant risk that hostilities will esca­
late, arguably there is a greater need for approval at the outset for the commitment
of such troops to such situations; otherwise, Congress may be confronted with
circumstances in which the exercise of its power to declare war is effectively
foreclosed.
Nevertheless, we do not believe that these arguments against the President’s
unilateral authority to deploy forces into Bosnia are persuasive. The deployment
would be in aid of a peace agreement that will be guaranteed by NATO and
the United Nations Security Council. The parties to the agreement already are
in substantial, though perhaps not total, compliance with an earlier cease-fire
agreement, and have invited the deployment of NATO forces and guaranteed their
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safety. To send United States forces to the region, in these circumstances, does
not constitute “ war” in any sense of the word.7 Historical practice reinforces
the most natural reading of the constitutional language: at the least, the President
may deploy United States forces here without express authorization to protect the
national interests, even if the deployment is not without some risk.
B. The War Powers Resolution
The War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (“ the
WPR” or “ the Resolution” ), codified at 50 U.S.C. §§1541-1548, is intended
“ to fulfill the intent o f the framers of the Constitution of the United States and
insure that the collective judgment of both the Congress and the President will
apply to the introduction of United States Armed Forces into hostilities, or into
situations where imminent involvement in hostilities is clearly indicated by the
circumstances, and to the continued use of such forces in hostilities or in such
situations.” 50 U.S.C. § 1541(a). To carry out that goal, the Resolution provides
that the President is to report to Congress when United States forces are introduced
(1) “ into hostilities or into situations where imminent involvement in hostilities
is clearly indicated by the circumstances,” (2) “ into the territory, airspace or
waters o f a foreign nation, while equipped for combat’ ’ (except for certain speci­
fied operations), or (3) “ in numbers which substantially enlarge United States
Armed Forces equipped for combat already located in a foreign nation.” Id.
§ 1543. After a report about the introduction of forces into imminent or actual
hostilities, the Resolution would require the President to withdraw those forces
within sixty days (or ninety days if military necessity requires), unless Congress
has authorized continued operations.
The Resolution necessarily presupposes the President’s authority, even in the
absence of express authorization by Congress, to deploy troops in circumstances
such as those here. Where (as here) the President would be ordering United States
forces into foreign territory while equipped for combat, the Resolution requires
a report to Congress. The Resolution thus assumes that the President sometimes
may order such deployments without prior statutory authorization. Indeed,
although section 8(d)(2) of the Resolution provides that the Resolution shall 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
w herein involvement in hostilities is clearly indicated by the circumstances,” 50
U.S.C. § 1547(d)(2), there is no similar reservation against construing the Resolu­
tion to authorize deployments o f troops equipped for combat in other situations.
At uie least, even if the Resolution does not add to the President’s authority,
7 Wo do not suggest that any deployment o f United States troops that could be characterized as defensive or
pioiective would not, for that reason alone, amount to “ w ar.” A t best, the protective purpose o f the planned deploy­
ment is but one factor tending to show that our intervention would not amount to “ w ar” ; it does not, in itself,
establish that conclusion.
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it takes for granted that he may make deployments in situations where hostilities
are not actual or imminent, without purporting to limit the circumstances in which
such deployments may be made, cf. id. § 1541(c) (listing circumstances for intro­
ducing troops into actual or imminent hostilities), and without placing any restric­
tion on the time during which the deployments may continue.
In our view, the Resolution lends support to the broader conclusion that the
President has authority, without specific statutory authorization, to introduce
troops into hostilities in a substantial range of circumstances. Although the Resolu­
tion asserts that “ [t]he constitutional powers of the President as Commander-in-
Chief” to introduce armed forces into actual or indicated hostilities are limited
to three specific circumstances (i.e., when undertaken pursuant to a declaration
of war or specific statutory authorization, or in a national emergency created by
an attack on the United States, its territories or its armed forces), id. the Resolution
also declares that nothing in it “ is intended to alter the constitutional authority
. . . of the President.” Id. § 1547(d)(1). The executive branch has traditionally
taken the position that the President’s power to deploy armed forces into situations
of actual or indicated hostilities is not restricted to the three categories specifically
marked out by the Resolution.8 Furthermore, as we have recently argued,
the structure of the War Powers Resolution (“ WPR” ) 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 cir­
cumstances.’ 50 U.S.C. § 1543(a)(1). The WPR requires that, in the
absence of a declaration of war, the President must report to Con­
gress within forty-eight hours of introducing armed forces into such
circumstances 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 prior authorization by the Congress: the WPR
regulates such action by the President and seeks to set limits to
it.
OLC Haiti Letter at 175-76.9
8 See, e.g., Overview o f the War Powers Resolution, 8 Op. O.L.C. 271, 274-75 (1984); War Powers: A Test
o f Compliance: Hearings Before the Subcomm. on International Security and Scientific Affairs o f the House Comm,
on International Relations, 94th Cong. 90 (1975) (statement o f Monroe Leigh, Legal Adviser, Department o f State).
9 We do not understand the Resolution, in itself, to provide statutory authorization for introducing troops into
hostilities; section 8(d)(2) o f the Resolution itself expressly disclaims any interpretation that it confers such authority.
See 50 U.S.C. § 1547(d)(2).
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Conclusion
We believe that the President has the authority to order the proposed deployment
of United States forces in Bosnia, under the circumstances contemplated, without
express statutory authorization.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
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