Declarations of War and
Authorizations for the Use of Military Force:
Historical Background and Legal Implications
Jennifer K. Elsea
Legislative Attorney
Matthew C. Weed
Analyst in Foreign Policy Legislation
April 18, 2014
Congressional Research Service
7-5700
www.crs.gov
RL31133
Declarations of War and Authorizations for the Use of Military Force
Congressional Research Service
Summary
From the Washington Administration to the present, Congress and the President have enacted 11
separate formal declarations of war against foreign nations in five different wars. Each
declaration has been preceded by a presidential request either in writing or in person before a
joint session of Congress. The reasons cited in justification for the requests have included armed
attacks on United States territory or its citizens and threats to United States rights or interests as a
sovereign nation.
Congress and the President have also enacted authorizations for the use of force rather than
formal declarations of war. Such measures have generally authorized the use of force against
either a named country or unnamed hostile nations in a given region. In most cases, the President
has requested the authority, but Congress has sometimes given the President less than what he
asked for. Not all authorizations for the use of force have resulted in actual combat. Both
declarations and authorizations require the signature of the President in order to become law.
In contrast to an authorization, a declaration of war in itself creates a state of war under
international law and legitimates the killing of enemy combatants, the seizure of enemy property,
and the apprehension of enemy aliens. While a formal declaration was once deemed a necessary
legal prerequisite to war and was thought to terminate diplomatic and commercial relations and
most treaties between the combatants, declarations have fallen into disuse since World War II.
The laws of war, such as the Hague and Geneva Conventions, apply to circumstances of armed
conflict whether or not a formal declaration or authorization was issued.
With respect to domestic law, a declaration of war automatically triggers many standby statutory
authorities conferring special powers on the President with respect to the military, foreign trade,
transportation, communications, manufacturing, alien enemies, etc. In contrast, no standby
authorities appear to be triggered automatically by an authorization for the use of force, although
the executive branch has argued, with varying success, that the authorization to use force in
response to the terrorist attacks of 2001 provided a statutory exception to certain statutory
prohibitions.
Most statutory standby authorities do not expressly require a declaration of war to be actualized
but can be triggered by a declaration of national emergency or simply by the existence of a state
of war; however, courts have sometimes construed the word “war” in a statute as implying a
formal declaration, leading Congress to enact clarifying amendments in two cases. Declarations
of war and authorizations for the use of force waive the time limitations otherwise applicable to
the use of force imposed by the War Powers Resolution.
This report provides historical background on the enactment of declarations of war and
authorizations for the use of force and analyzes their legal effects under international and
domestic law. It also sets forth their texts in two appendices. The report includes an extensive
listing and summary of statutes that are triggered by a declaration of war, a declaration of national
emergency, and/or the existence of a state of war. The report concludes with a summary of the
congressional procedures applicable to the enactment of a declaration of war or authorization for
the use of force and to measures under the War Powers Resolution. The report will be updated as
circumstances warrant.
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Contents
Introduction...................................................................................................................................... 1
Previous Declarations of War .......................................................................................................... 1
Key Statutory Authorizations for the Use of Military Force ........................................................... 5
France 1798 ............................................................................................................................... 5
Tripoli 1802............................................................................................................................... 6
Algeria 1815.............................................................................................................................. 7
Suppression of Piracy 1819-1823.............................................................................................. 7
Formosa 1955............................................................................................................................ 8
Middle East 1957....................................................................................................................... 8
Southeast Asia 1964 .................................................................................................................. 9
Lebanon 1983.......................................................................................................................... 10
Iraq 1991.................................................................................................................................. 12
Terrorist Attacks against the United States (World Trade Center and the Pentagon)
2001...................................................................................................................................... 14
Authorization for Use of Force Against Iraq 2002.................................................................. 16
Implications Under International Law........................................................................................... 19
Implications Under Domestic Law................................................................................................ 23
The War Powers Resolution ....................................................................................................26
Trading with the Enemy Act and the International Emergency Economic Powers Act .......... 27
Other Economic Authorities....................................................................................................28
Alien Enemy Act ..................................................................................................................... 28
Criminal Law........................................................................................................................... 29
Foreign Intelligence Surveillance............................................................................................33
Assassination........................................................................................................................... 34
The Defense Production Act of 1950 ...................................................................................... 35
Insurance Contracts ................................................................................................................. 37
Military Personnel ................................................................................................................... 38
Itemization of Standby Statutory Authorities................................................................................. 43
(1) Statutory Authorities Triggered by a Declaration of War......................................................... 44
Congressional Budget Act ....................................................................................................... 44
Agricultural Exports................................................................................................................ 44
Armed Forces .......................................................................................................................... 45
Coast Guard............................................................................................................................. 45
Small Business Administration................................................................................................46
Unilateral Trade Sanctions ...................................................................................................... 46
Armed Forces Retirement Home............................................................................................. 46
Statutes of Limitation .............................................................................................................. 46
Tort Claims Against the Federal Government ......................................................................... 46
Deferral of Civil Works Projects .............................................................................................46
Nuclear Regulatory Commission............................................................................................. 47
Alien Enemy Act ..................................................................................................................... 47
National Defense Stockpile ..................................................................................................... 47
National Security Agency (NSA) Personnel Security ............................................................. 47
Chemical and Biological Warfare Agents................................................................................ 47
National Emergencies Act ....................................................................................................... 48
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Foreign Intelligence Surveillance Act (FISA)......................................................................... 48
Selective Service Act............................................................................................................... 48
(2) Statutory Authorities Triggered by the Existence of a State of War (and Thus Also by
a Declaration of War).................................................................................................................. 49
Administrative Procedure........................................................................................................ 49
Federal Employees .................................................................................................................. 49
Aliens....................................................................................................................................... 50
Armed Forces .......................................................................................................................... 50
Reserves................................................................................................................................... 57
Trading with the Enemy Act....................................................................................................58
Coast Guard............................................................................................................................. 58
Federal Energy Regulatory Commission................................................................................. 59
Tennessee Valley Authority ..................................................................................................... 59
Criminal Prosecutions ............................................................................................................. 60
Imports..................................................................................................................................... 60
Student Financial Aid .............................................................................................................. 60
Neutrality................................................................................................................................. 60
Miscellaneous.......................................................................................................................... 60
Accounting and Contracts ....................................................................................................... 61
Contracts.................................................................................................................................. 61
National Guard ........................................................................................................................ 61
Armed Forces .......................................................................................................................... 61
National Oceanic and Atmospheric Administration ................................................................ 62
Ocean Dumping....................................................................................................................... 62
Patents ..................................................................................................................................... 62
Armed Forces .......................................................................................................................... 62
Veterans’ Care.......................................................................................................................... 63
Reemployment Rights ............................................................................................................. 63
Sale of War Supplies to Foreign States.................................................................................... 63
Defense Structures in the District of Columbia....................................................................... 63
Public Contracts....................................................................................................................... 64
Public Health Service .............................................................................................................. 64
Infectious Diseases.................................................................................................................. 64
Nuclear Energy........................................................................................................................ 64
Public Lands............................................................................................................................ 65
Natural Resources.................................................................................................................... 65
Destruction of Records............................................................................................................ 65
Shipping................................................................................................................................... 65
Communications...................................................................................................................... 66
Railroads.................................................................................................................................. 66
Procurement of Ships and Material During War ..................................................................... 66
Protection of Ships and Harbors.............................................................................................. 67
Federal Emergency Management Agency............................................................................... 67
Central Intelligence Agency (CIA) Retirement Plan............................................................... 67
International Emergency Economic Powers............................................................................ 67
Trading with the Enemy Act....................................................................................................67
Selective Service Act............................................................................................................... 68
(3) Statutory Authorities Triggered by Declaration or Existence of National Emergency ............ 68
Federal Employees .................................................................................................................. 68
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Agriculture............................................................................................................................... 69
Armed Services ....................................................................................................................... 70
Fort McHenry.......................................................................................................................... 70
Customs Service...................................................................................................................... 70
Barro Colorado Island ............................................................................................................. 71
Foreign Relations..................................................................................................................... 71
Federal Highways.................................................................................................................... 71
National Oceanographic and Atmospheric Administration..................................................... 71
Basic Pay of the Uniformed Services...................................................................................... 71
Veterans Affairs ....................................................................................................................... 71
Davis-Bacon Act...................................................................................................................... 72
Real Property and Contracts.................................................................................................... 72
Public Health ........................................................................................................................... 72
Ryan White Comprehensive AIDS Resources Emergency Act of 1990.................................. 72
Prohibition of Compensation...................................................................................................73
Relocation................................................................................................................................ 73
Resources................................................................................................................................. 73
Merchant Marine ..................................................................................................................... 73
Airports.................................................................................................................................... 74
Modification of Defense Contracts.......................................................................................... 74
National Emergencies Act ....................................................................................................... 74
International Economic Emergency Powers Act..................................................................... 74
Defense Production Act........................................................................................................... 75
Congressional Procedures for Declaring War or Authorizing the Use of Force............................ 75
Regular Procedures.................................................................................................................. 75
World War I....................................................................................................................... 76
World War II...................................................................................................................... 77
Congressional Procedures Under The War Powers Resolution............................................... 77
Tables
Table 1. Key Dates and Actions Related to Formal U.S. Declarations Of War ............................... 4
Appendixes
Appendix A. Texts of Formal Declarations of War by the United States....................................... 81
Appendix B. Texts of Key Authorizations of Use of Force........................................................... 88
Contacts
Author Contact Information......................................................................................................... 107
Acknowledgments ....................................................................................................................... 107
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Introduction
Article I, Section 8, of the Constitution vests in Congress the power “to declare War.” Pursuant to
that power, Congress has enacted 11 declarations of war during the course of American history
relating to five different wars, the most recent being those that were adopted during World War II.
In addition, Congress has adopted a number of authorizations for the use of military force, the
most recent being the joint resolution enacted on October 16, 2002, authorizing the use of
military force against Iraq. To buttress the nation’s ability to prosecute a war or armed conflict,
Congress has also enacted numerous statutes which confer standby authority on the President or
the executive branch and are activated by the enactment of a declaration of war, the existence of a
state of war, or the promulgation of a declaration of national emergency.
This report examines a number of topics related to declarations of war and authorizations for the
use of military force by the United States. It (1) provides historical background on each of the
declarations of war and on several major authorizations for the use of force that have been
enacted; (2) analyzes the implications of declarations of war and authorizations for the use of
force under both international law and domestic law; (3) lists and summarizes the more than 250
standby statutory authorities that can come into effect pursuant to a declaration of war, the
existence of a state of war, and/or a declaration of national emergency; (4) describes the
procedures in Congress governing the consideration of declarations of war and authorizations for
the use of force, including the procedures under the War Powers Resolution; and (5) sets forth in
two appendices the texts of all of the declarations of war and the major authorizations for the use
of force that have been enacted. The report does not address the issue of the constitutionality of
Presidential uses of military force absent a declaration of war or authorization for the use of force.
The report will be updated as circumstances warrant.
Previous Declarations of War
From the Washington Administration to the present, there have been 11 separate formal
declarations of war against foreign nations enacted by Congress and the President, encompassing
five different wars—the War of 1812 with Great Britain, the War with Mexico in 1846, the War
with Spain in 1898, the First World War, and the Second World War.1
In each case the enactment
of a formal declaration of war has been preceded by a presidential request to Congress for such an
action, either in writing or in person before a joint session of Congress. In each such message
requesting a war declaration, the President has cited what he deemed compelling reasons for
doing so. These reasons have included armed attacks on United States territory or its citizens, and
attacks on or direct threats to United States rights or interests as a sovereign nation. In the 19th
century all declarations of war were passed by the Congress in the form of a bill. In the 20th
century all declarations of war were passed by the Congress in the form of a joint resolution. In
every instance the measures were adopted by majority vote in both the House and the Senate and
were signed into law by the President.2
The last formal declaration of war was enacted on June 5,
1942, against Rumania during World War II.3
1
See Error! Reference source not found. for presidential and congressional actions taken regarding all formal
declarations of war by the United States. See Appendix A for the texts of these declarations.
2
It is beyond the scope of this report to detail the often complex circumstances underlying the nature, motivations, and
timing of presidential requests for war declarations. Those matters have been the subject of important debates among
(continued...)
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The circumstances of President McKinley’s request for a declaration of war against Spain in 1898
stand in singular contrast to all the others. McKinley’s request for a declaration of war on April
25, 1898, was approved by a voice vote of both Houses of Congress on that date. His request was
made after Spain had rejected a U.S. ultimatum that Spain relinquish its sovereignty over Cuba
and permit Cuba to become an independent state. This ultimatum was supported by a joint
resolution of Congress, signed into law on April 20, 1898, that among other things, declared Cuba
to be independent, demanded that Spain withdraw its military forces from the island, and directed
and authorized the President to use the U.S. Army, Navy and militia of the various states to
achieve these ends. The war with Spain in 1898, in short, was not principally based on attacks on
the United States but on a U.S. effort to end the Cuban insurrection against Spain, bring about
Cuban independence, and restore a stable government and order on the island—outcomes that
were believed by the United States to advance its interests.4
In the 20th
century, without exception, presidential requests for formal declarations of war by
Congress were based on findings by the President that U.S. territory or sovereign rights had been
attacked or threatened by a foreign nation. Although President Wilson had tried to maintain U.S.
neutrality after the outbreak of the First World War, he regarded the German decision on February
1, 1917, to engage in unrestricted submarine warfare against all naval vessels in the war zone,
including those of neutral states, to be an unacceptable assault on U.S. sovereign rights which the
German Government had previously pledged to respect. Wilson’s request to Congress for a
declaration of war against Germany on April 2, 1917, stated that war had been “thrust upon the
United States” by Germany’s actions. Congress passed a joint resolution declaring war which the
President signed on April 6, 1917. Wilson delayed requesting a war declaration against AustriaHungary
until December 4, 1917. He did so then because that state, a German ally in the war, had
become an active instrument of Germany against the United States. Congress quickly passed a
joint resolution declaring war which the President signed on December 7, 1917.5
President Franklin D. Roosevelt requested a declaration of war against Japan on December 8,
1941, because of direct military attacks by that nation against U.S. territory, military personnel
and citizens in Hawaii and other outposts in the Pacific area. The House and the Senate passed the
requested declaration and the President signed it into law that same day. After Germany and Italy
each declared war on the United States on December 11, 1941, President Roosevelt asked
Congress to respond in kind by recognizing that a state of war existed between the United States
(...continued)
scholars. The texts of specific presidential messages requesting a declaration of war are found in Richardson, James D.
(ed.) A Compilation of the Messages and Papers of the Presidents (20 vol., Washington, 1897-1917.) as follows:
Madison: Vol. II, pp. 484-490.; Polk: Vol. V, pp. 2287-2293.; McKinley: Vol. XIII, pp. 6296-6297; Wilson: Vol. XVI,
pp. 8226-8233 (for Germany) and Vol. XVI, pp. 8399-8406 (for Austria-Hungary); Rosenman, Samuel I. (comp.) The
Public Papers and Addresses of Franklin D. Roosevelt, 1941. New York, Harper & Brothers, 1950), pp. 514-515 (for
Japan) and pp. 532 (for Germany and Italy); Rosenman, Samuel I. (comp.) The Public Papers and Addresses of
Franklin D. Roosevelt, 1942. New York, Harper & Brothers, 1950), pp. 257 (declarations for Bulgaria, Hungary and
Rumania).
3
Act of Jun. 5, 1942, ch. 325, 56 Stat. 307.
4
Richardson, Messages and Papers of the Presidents, Vol XIII, pp. 6296-6297. Act of Apr. 25, 1898, ch. 189, 30 Stat.
364. Joint Resolution of April 20, 1898, [Res. 24] 30 Stat. 738. An earlier message by McKinley requesting
authorization to use U.S. military force to resolve the Cuban-Spanish conflict was submitted to Congress on April 11,
1898. Richardson, Messages and Papers of the Presidents, Vol. XIII, pp. 6281-6292.
5
Richardson, Messages and Papers of the Presidents, Vol. XVI, pp. 8226-8233. Act of Apr. 6, 1917, ch.1, 40 Stat.1.
[Germany]. Richardson, Messages and Papers of the Presidents, Vol. XVI, pp. 8399-8406. Act of Dec. 7, 1917, ch. 1,
40 Stat. 429.[Austria-Hungary].
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and those two nations. Congress passed separate joint resolutions declaring war on both nations
which the President signed on December 11, 1941.6
On June 2, 1942, President Roosevelt asked
that Congress declare war on Bulgaria, Hungary and Rumania, nations that were under the
domination of Germany, were engaged in active military actions against the United States, and
had themselves declared war on the United States. Congress passed separate joint resolutions
declaring war on each of these nations. The President signed these resolutions on June 5, 1942.7
There is a striking similarity of language in the eight declarations of war passed by the Congress
in the 20th
century. They all declare that a “state of war” exists between the United States and the
other nation. With the one exception of the declaration of war against Austria-Hungary on
December 7, 1917, the other seven declarations characterize the state of war as having been
“thrust upon the United States” by the other nation. All eight of these 20th
century declarations of
war state in identical language that the President is
authorized and directed to employ the entire naval and military forces of the United States
and the resources of the Government to carry on war against [the ‘Government’ of the
particular nation]; and to bring the conflict to a successful termination all of the resources of
the country are hereby pledged by the Congress of the United States.
The complete texts of the 11 declarations of war are set forth in Appendix A.
6
Rosenman, Public Papers of President Roosevelt, 1941, pp. 514-515. Act of Dec. 8, 1941, ch. 561, 55 Stat.
795.[Japan]; Rosenman, Public Papers of President Roosevelt 1941, p. 532. Act of Dec. 11, 1941, ch. 564, 55 Stat.
796. [Germany].Act of Dec. 11, 1941, ch. 565, 55 Stat. 797.[Italy].
7
Rosenman, Public Papers of President Roosevelt, 1942, p. 257. Act of Jun. 5, 1942, ch. 323, 56 Stat. 307. [Bulgaria].
Act of Jun. 5, 1942, ch. 324, 56 Stat. 307.[Hungary]. Act of Jun. 5, 1942, ch. 325, 56 Stat. 307.[Rumania].
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Table 1. Key Dates and Actions Related to Formal U.S. Declarations Of War
1812—Great Britain Madison asked June 1, 1812. House passed on June 4, 1812 (79-49). Senate passed
on June 17, 1812 (19-13). President signed on June 18, 1812. Act of Jun.18, 1812,
ch. 102, 2 Stat. 755. Terminated by Treaty of Ghent, which entered into force on
Feb. 17, 1815. 8 Stat. 218, Treaty Series 109.
1846—Mexico Polk asked May 11, 1846. House passed on May 11, 1846 (174-14). Senate passed on
May 12, 1846 (40-2). President signed on May 13, 1846. Act of May 13, 1846,
ch.16, 9 Stat. 9. Terminated by Treaty of Guadalupe Hidalgo, which entered into
force on May 30, 1848. 9 Stat. 922, Treaty Series 207.
1898—Spain McKinley asked April 25, 1898. Senate and House passed on April 25, 1898, by voice
votes. McKinley signed on April 25, 1898. Act of Apr. 25, 1898, ch. 189, 30 Stat.
364. The bill made the war date retroactive to April 21, 1898. Terminated by Treaty
of Paris, which entered into force on April 11, 1899. 30 Stat. 1754, Treaty Series
343.
1917—World War I
(Germany)
Wilson asked April 2, 1917. Senate passed on April 4, 1917 (82-6). House passed on
April 6, 1917 (373-50). President signed on April 6, 1917. Act of Apr. 6, 1917, ch.1,
40 Stat. 1. Terminated by Act of July 2, 1921, ch. 40, 42 Stat. 105, which declared
the state of war between the U.S. and Germany to be at an end. Formally
recognized by the Treaty on Establishment of Friendly Relations, which entered into
force Nov. 11, 1921. 42 Stat. 1939, Treaty Series 658.
1917—World War I
(Austria-Hungary)
Wilson asked December 4, 1917. House passed on December 7, 1917 (365-1).
Senate passed on December 7, 1917 (74-0). President signed on December 7,
1917. Act of Dec. 7, 1917, ch.1, 40 Stat. 429. Terminated by Act of July 2, 1921, ch.
40, 42 Stat. 105, which declared the state of war between the U.S. and the two
successor states and governments to the Austro-Hungarian monarchy—Austria and
Hungary—to be at an end. Formally recognized by the Treaty on Establishment of
Friendly Relations with Austria, which entered into force Nov. 8, 1921 (42 Stat.
1939, Treaty Series 658 ) and the Treaty on Establishing Friendly Relations with
Hungary, which entered into force Dec. 17, 1921. 42 Stat. 1951, Treaty Series 660.
1941—World War II
(Japan)
Roosevelt asked December 8, 1941. Senate passed on December 8, 1941 (82-0).
House passed on December 8, 1941 (388-1). President signed on December 8,
1941. Act of Dec. 8, 1941, ch. 561, 55 Stat. 795. Terminated by Treaty of Peace
with Japan, which entered into force Apr. 28, 1952. 3 UST 3169, TIAS 2490.
1941—World War II
(Germany)
Roosevelt asked December 11, 1941. Senate passed on December 11, 1941 (88-0).
House passed on December 11, 1941 (393-0). President signed on December 11,
1941. Act of Dec. 11, 1941, ch. 564, 55 Stat. 796. Terminated by Act of October
19, 1951, ch. 519, 65 Stat. 541.
1941—World War II
(Italy)
Roosevelt asked December 11, 1941. Senate passed on December 11, 1941 (90-0).
House passed on December 11, 1941 (399-0). President signed on December 11,
1941. Act of Dec. 11, 1941, ch. 565, 55 Stat. 796. Terminated by Treaty of Peace
with Italy, which entered into force Sept. 15, 1947. 4 UST 311, 61 Stat. 1245.
1942—World War II
(Bulgaria)
Roosevelt asked June 2, 1942. House passed on June 3, 1942 (357-0). Senate passed
on June 4, 1942 (73-0). President signed on June 5, 1942. Act of Jun. 5, 1942, ch.
323, 56 Stat. 307. Terminated by Treaty of Peace with Bulgaria, which entered into
force Sept. 15, 1947. 4 UST 429, 61 Stat. 1915.
1942—World War II
(Hungary)
Roosevelt asked June 2, 1942. House passed on June 3, 1942 (360-0). Senate passed
on June 4, 1942 (73-0). President signed on June 5, 1942. Act of Jun. 5, 1942, ch.
324, 56 Stat. 307. Terminated by Treaty of Peace with Hungary, which entered into
force Sept. 15, 1947. 4 UST 453, 61 Stat. 2065.
1942—World War II
(Rumania)
Roosevelt asked June 2, 1942. House passed on June 3, 1942 (361-0). Senate passed
on June 4, 1942 (73-0). President signed on June 5, 1942. Act of Jun. 5, 1942, ch.
325, 56 Stat. 307. Terminated by Treaty of Peace with Rumania, which entered into
force Sept. 15, 1947. 4 UST 403, 61 Stat. 1757.
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Key Statutory Authorizations for the Use
of Military Force
From the Administration of President John Adams to the present, there have been various
instances when legislation has been enacted authorizing the use of military force by the President
instead of formally declaring war. In most cases such legislation has been preceded by a specific
request by the President for such authority. During the Presidencies of John Adams and Thomas
Jefferson, these Chief Executives noted in messages to Congress that congressional authorizations
for use of force would be appropriate to enable the United States to protect its interests from
predatory actions by foreign powers, in particular attacks on U.S. commercial vessels and persons
on the high seas by France and by Tripoli. Congress responded with specific authorizations for
the use of force under the President’s direction in 1798 against France and in 1802 against Tripoli.
In 1815 President James Madison formally requested that Congress declare war against the
Regency of Algiers in response to its attacks on U.S. citizens and commerce in the Mediterranean.
Congress responded with an act authorizing the President to utilize U.S. armed vessels to be used
against Algerian naval attacks but did not declare war.
In the period following World War II, Presidential requests for authority to use military force,
when made, have usually been for broad authority to use U.S. military force in a specific region
of the world in order to defend U.S. interests or friendly states as the President deems appropriate.
More recently, due to an expansive interpretation of the President’s constitutional authority as
Commander-in-Chief of the Armed Forces and of his inherent powers to use force without
congressional authorization, the President has welcomed support from the Congress in the form
of legislation authorizing him to utilize U.S. military forces in a foreign conflict or engagement in
support of U.S. interests, but has not taken the view that he is required to obtain such
authorization.
What follows is a brief overview of key legislative authorizations of the use of military force by
the President from the Administration of John Adams to the present.8
Appendix B provides the
complete text of these specific authorizations.
France 1798
The United States during the 1790s had remained neutral in the conflict in Europe between
France and Great Britain and had only begun to develop a Navy. During the Administration of
President John Adams, relations with France deteriorated as American commercial ships were
frequently seized by French naval vessels. In response, in his message to Congress on May 16,
1797, President Adams argued that it would be prudent for the Congress to enact legislation that
would address the actions of the French by authorizing, among other things, the use of U.S. naval
vessels to defend against attacks on American shipping and citizens engaged in lawful commerce
8
There have been numbers of scholarly works written that address, in depth, the circumstances surrounding most of the
measures discussed herein. It is beyond the scope of this report to itemize fully the complex diplomatic, political and
military motivations that led to their enactment. For general background see Bemis, Samuel Flagg , A Diplomatic
History of the United States, New York, Holt, Rinehart and Winston, 5th
ed. 1965; DeConde, Alexander, A History of
American Foreign Policy, New York, Charles Scribner’s Sons, 3rd
ed., 2 vol. 1978; Bailey, Thomas A., A Diplomatic
History of the American People, Englewood Cliffs, Prentice Hall, Inc., 10th
ed. 1980.
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abroad. President Adams reiterated, in a message of March 19, 1798, his view of the necessity for
congressional action on his recommendations for the adoption of measures to protect American
seafaring citizens and commerce.9
Congress subsequently responded to the President’s recommendations by passing legislation
“more effectually to protect the Commerce and Coasts of the United States” authorizing the
President to instruct commanders of U.S. armed vessels to act against any “armed vessel” found
to have committed or attempting to commit “depredations on the vessels” belonging to United
States citizens, and to retake any ship or vessel of United States citizens that may have been
captured by non-U.S. armed vessels.10
The legislation was signed into law on May 28, 1798,
Congress passed additional legislation, signed into law on July 9, 1798, that authorized the
President to instruct commanders of U.S. Navy warships to “subdue, seize and take any armed
French vessel which shall be found within the jurisdictional limits of the United States, or
elsewhere, on the high seas....” The President was further granted the authority to grant special
commissions to “owners of private armed ships and vessels of the United States,” to permit them
to lawfully subdue, seize, and capture “any armed French vessel,” and to recapture U.S. vessels,
goods and effects of U.S. citizens with the same authority as U.S. Navy vessels, subject to
instructions given by the President.11
Tripoli 1802
President Thomas Jefferson, in response to attacks on U.S. commercial shipping in the
Mediterranean Sea by vessels under the control of the Bey of Tripoli, noted in his message to
Congress of December 8, 1801, that it would be prudent for Congress to authorize the use of U.S.
Navy forces to protect U.S. shipping against Tripoli, including permitting them to take offensive
action against Tripolitan vessels.12
Congress responded by passing legislation, enacted on
February 6, 1802, that authorized the President to “equip, officer, man, and employ such of the
armed vessels of the United States as may be judged requisite by the President of the United
States, for protecting effectually the commerce and seamen thereof on the Atlantic ocean, the
Mediterranean and adjoining seas.” The President was also authorized to utilize the U.S. Navy “to
subdue, seize and make prize of all vessels, goods and effects belonging to the Bey of Tripoli, or
his subjects ... and to cause to be done all such other acts of precaution or hostility as the state of
war will justify, and may, in his opinion, require.” The President was further granted the authority
to grant special commissions to “owners of private armed vessels of the United States,” to permit
them to lawfully subdue and seize “any Tripolitan vessel, goods or effects” with the same
authority as U.S. Navy vessels, subject to instructions given by the President.13
9
The text of President John Adams’s messages to Congress are found in Richardson, James D. (ed.) A Compilation of
the Messages and Papers of the Presidents (20 vol., Washington, 1897-1917), Vol. I, pp. 223-229, 254-255; also in
Annals of the Congress of the United States, 5th
Congress, 1st
session, pp.54-59,1271-1272.
10
Act of May 28, 1798, ch. 48, 2 Stat. 561.
11
Act of July 9, 1798, ch. 68, 2 Stat. 578.
12
The text of President Thomas Jefferson’s message to Congress is found in Richardson, James D. (ed.) A Compilation
of the Messages and Papers of the Presidents (20 vol., Washington, 1897-1917), Vol. I, pp. 314-320; Also in Annals of
the Congress of the United States, 7th
Congress, 1st
session, pp. 12-16.
13
Act of February 6, 1802, ch. 4, 1 Stat. 129.
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Algeria 1815
President James Madison, after the conclusion of a peace treaty with Great Britain ending the War
of 1812, sought authority to use the U.S. Navy to take action against vessels of the ruler and
Regency of Algeria that had been seizing U.S. commercial vessels in the Mediterranean area. Due
to acts of “overt and direct warfare against the citizens of the United States,” President Madison,
on February 23, 1815, recommended that Congress declare the “existence of a state of war
between the United States and the Dey and Regency of Algiers.”14
Congress did not declare war
but did pass legislation, enacted on March 3, 1815, that authorized the President to use the U.S.
Navy, “as judged requisite by the President” to protect the “commerce and seamen” of the United
States on the “Atlantic Ocean, the Mediterranean and adjoining seas.” The President was also
authorized to utilize the U.S. Navy to seize “all vessels, goods and effects belonging to the Dey of
Algiers, or to his subjects ... and to cause to be done all such other acts of precaution or hostility
as the state of war will justify, and may, in his opinion, require.” The President was further
granted the discretionary authority to grant special commissions to “owners of private armed
vessels of the United States,” to permit them to lawfully subdue, seize, and capture “any Algerine
vessel, goods or effects” with the same authority as U.S. Navy vessels, subject to instructions
given by the President.15
Suppression of Piracy 1819-1823
During the years after the War of 1812, there was a notable increase in the number of attacks on
U.S. commercial shipping vessels in and around the Caribbean and Latin American coastal
waters. Some of this was stimulated by the chaotic conditions attendant to the struggles for
independence by South American colonies of Spain. Pirates attacked not only Spanish vessels in
the region, but vessels of other nations generally. In response to calls for action against these
predatory attacks on their vessels, American shippers petitioned Congress for action to protect
them from pirates. In response, on March 3, 1819, legislation was enacted “to protect the
commerce of the United States, and punish the crime of piracy.” This legislation authorized the
President to employ “the public armed vessels” of the United States as he deemed necessary to
protect “the merchant vessels of the United States and their crews from piratical aggressions and
depredations.” This legislation further authorized the President to instruct the commanders of the
“public armed vessels of the United States” to take various actions to combat piracy, including
attacking and seizing pirates and their vessels. The legislation also authorized U.S. vessels
attacked by pirates to take actions against their aggressors and seize their ships. The legislation
further established penalties for those that engaged in piracy. This 1819 statute was subsequently
made permanent law on January 30, 1823. It has been amended, but the current text, found in
Title 33 of the United States Code, contains substantially the same language as was enacted in
March of 1819.16
14
The text of President James Madison’s message to Congress is found in Richardson, James D. (ed.) A Compilation of
the Messages and Papers of the Presidents (20 vol., Washington, 1897-1917), Vol. II, p. 539; Also in Annals of the
Congress of the United States, 13th
Congress, 3rd
session, p. 269.
15
Act of March 3, 1815, Chap. 90, 3 Stat. 230.
16
For a detailed treatment of the problem of piracy in the West Indies during the U.S. early national period see Francis
B.C. Bradlee. Piracy in the West Indies and Its Suppression. Salem: The Essex Institute, 1923 [reprinted 1970 by
MacDonald and Janes, London]. Also see chapter 12 in Craig L. Symonds. Navalists and Antinavalists. Newark:
University of Delaware Press, 1980. For recent use of the piracy statute in connection with activity off the coast of
Somalia, see CRS Report R40528, Piracy off the Horn of Africa, by Lauren Ploch Blanchard et al. For criminal
(continued...)
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Formosa 1955
In a message to Congress on January 24, 1955, President Dwight Eisenhower, detailed a series of
“provocative political and military actions” by the Chinese Communist government that he
believed established a “pattern of aggressive purpose.” That purpose was the “conquest of
Formosa.” This situation, said Eisenhower, posed a “serious danger to the security of our country
and of the entire Pacific area and indeed to the peace of the world.” The President believed that
the U.S. should not wait for the United Nations to take steps to deal with the situation but should
be prepared to use its own armed forces “to assure the security of Formosa and the Pescadores.”
President Eisenhower stated that authority for “some of the actions which might be required
would be inherent in the authority of the Commander-in-Chief.” He noted that, pending
congressional action, he “would not hesitate, so far as my Constitutional powers extend, to take
whatever emergency action might be forced upon us to protect the rights and security of the
United States.” However, he stated that a “suitable Congressional resolution would clearly and
publicly establish the authority of the President as Commander-in-Chief to employ” the U.S.
armed forces “promptly and effectively” as he deemed necessary to deal with the circumstances.
Such a resolution would “make clear the unified and serious intentions of our Government, our
Congress and our people.”17
In response to the President’s request, Congress passed legislation on January 29, 1955, that
authorized the President to “employ the Armed Forces of the United States as he deems necessary
for the specific purpose of securing and protecting Formosa, and the Pescadores against armed
attack....” The President was also authorized to take “such other measures as he judges to be
required or appropriate in assuring the defense of Formosa and the Pescadores.” The resolution
stated that it would expire when the President determined and reported to Congress that the
“peace and security of the area is reasonably assured....”18
The resolution was subsequently
repealed in 1974.19
Middle East 1957
In a special message to Congress on January 5, 1957, President Dwight D. Eisenhower requested
congressional support for a program of military and economic cooperation with nations in the
general area of the Middle East to “deal with the possibility of Communist aggression, direct or
indirect” against nations in that region. As one component of this military and economic
assistance program, President Eisenhower sought authority to employ the “armed forces of the
United States to secure and protect the territorial integrity and political independence of such
nations, requesting such aid, against overt armed aggression from any nation controlled by
International Communism.” The President emphasized that such authority would not be utilized
by him “except at the desire of the nation attacked.”20
(...continued)
prosecutions of accused pirates, see CRS Report R41455, Piracy: A Legal Definition, by R. Chuck Mason.
17
Public Papers of the Presidents of the United States. Dwight D. Eisenhower. 1955, Washington. U.S. Government
Printing Office, 1959, pp. 207-211.
18
P.L. 84-4, 69 Stat. 7, January 29, 1955. The House passed H.J.Res. 159 by a vote of 410-3 on January 25, 1955; the
Senate passed the joint resolution by a vote of 85-3 on January 28, 1955.
19
P.L. 93-475, § 3, 88 Stat. 1439, October 26, 1974.
20
Public Papers of the Presidents of the United States. Dwight D. Eisenhower. 1957, Washington. U.S. Government
(continued...)
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In response, the Congress passed legislation, enacted on March 9, 1957, that, among other things,
authorized the President “to undertake, in the general area of the Middle East, military assistance
programs with any nation or group of nations of that area desiring such assistance.” The joint
resolution further provided that “if the President determines the necessity thereof, the United
States is prepared to use armed forces to assist any such nation or group of such nations
requesting assistance against armed aggression from any country controlled by international
communism: Provided, that such employment shall be consonant with the treaty obligations of
the United States and with the Constitution of the United States.” The President was also to report
to Congress on his action under the joint resolution between January and July of each year. The
joint resolution further provided that it would expire when the President determined that the
“peace and security of the nations in the general area of the Middle East” was “reasonably
assured” or should Congress terminate it earlier by passage of a concurrent resolution.21
The
resolution has not been formally repealed.22
Southeast Asia 1964
In the early 1960s the United States had been providing military assistance and support to the
government of South Vietnam. Over time tensions, associated with the U.S. military presence in
Southeast Asia and support for the South Vietnamese government, grew between the U.S. and the
communist government of North Vietnam. On August 2, 1964, a U.S. destroyer, the U.S.S.
Maddox, while in international waters off the coast of North Vietnam (the Gulf of Tonkin) was
attacked by North Vietnamese torpedo boats. The attack was repulsed. The State Department
protested to the North Vietnamese government and noted that grave consequences would follow
additional offensive actions against U.S. forces. Subsequently, on August 4, further attacks by
North Vietnamese vessels against U.S. destroyers were reported to Washington. President Lyndon
Johnson responded on August 4 by sending U.S. military aircraft to bomb “gunboats and certain
supporting facilities” in North Vietnam that had allegedly been used in the actions against U.S.
naval vessels. After meeting with congressional leaders, President Johnson on August 5, 1964,
formally requested a resolution of Congress that would “express the support of the Congress for
(...continued)
Printing Office, 1958, pp. 6, 11-15.
21
P.L. 85-7, 71 Stat. 5 March 9, 1957 [H.J.Res. 117]. The Senate Committees on Foreign Relations and Armed
Services, in a joint report, noted that in considering the legislation various strongly held views had been “vigorously
expressed” regarding the constitutional powers of the President and of the Congress, as well as the proper constitutional
procedure to be followed in the situation contemplated by the legislation. The final legislative language adopted
reflected this debate. This language had, the Senate committees said, “the virtue of remaining silent on the question of
the relationship between the Congress and the President with respect to the use of the Armed Forces for the objectives
stated in the resolution.” The Senate committees also argued that although there was sharp division as to the “proper
constitutional processes” to follow in support of the President’s request, there was none regarding the substantive
policy involved. They stated that “the clear statement of policy in section 2 of the resolution as reported is preferable to
a blanket authorization to the President to use the Armed Forces in this area.” U.S. Congress. Senate. Committees on
Foreign Relations and Armed Services, 85th
Congress, 1st
session, S.Rept. 70, February 14, 1957 [to accompany S.J.
Res. 19], pp. 1, 8-9. The text of the Senate bill was adopted by the Congress in lieu of that of the House bill. The Senate
passed the joint resolution, H.J.Res. 117, as amended, by a vote of 72-19 on March 5, 1957; the House passed H.J.Res.
117 with the Senate amendments by a vote of 350-60 on March 7, 1957. The joint resolution was signed on March 9,
1957.
22
The resolution is codified at 22 U.S.C.A. §§ 1961-65.
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all necessary action to protect our armed forces and to assist nations covered by the SEATO
Treaty.”23
Congress responded to President Johnson’s request by passing a joint resolution to “promote the
maintenance of international peace and security in southeast Asia.” This legislation has come to
be popularly known as the “Gulf of Tonkin resolution.” This joint resolution, enacted on August
10, 1964, stated that “the Congress approves and supports the determination of the President, as
Commander-in-Chief, to take all necessary measures to repel any armed attack against the forces
of the United States and to prevent further aggression.” The joint resolution further stated that
“[c]onsonant with the Constitution of the United States and the Charter of the United Nations and
in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United
States is, therefore, prepared, as the President determines, to take all necessary steps, including
the use of armed force, to assist any member or protocol state of the Southeast Asia Collective
Defense Treaty requesting assistance in defense of its freedom.” The joint resolution stated that it
would expire whenever the President determined that the “peace and security of the area is
reasonably assured” or if Congress chose to terminate it earlier by concurrent resolution.24
Congress repealed the resolution in 1971.25
Lebanon 1983
On July 6, 1982, President Ronald Reagan announced he would send a small contingent of U.S.
troops to participate in a multinational force for temporary peacekeeping in Lebanon. When the
forces began to land on August 25, President Reagan reported this action to Congress but did not
cite section 4(a)(1) of the War Powers Resolution,26
and said the agreement with Lebanon ruled
out any combat responsibilities. After overseeing the departure of the Palestine Liberation
Organization force, the U.S. Marines in the first Multinational Force left Lebanon on September
10, 1982. The second dispatch of Marines to Lebanon began on September 20, 1982. President
Reagan announced that the United States, France, and Italy had agreed to form a new
multinational force to return to Lebanon for a limited period of time to help maintain order until
the lawful authorities in Lebanon could discharge those duties. The action followed three events
that took place after the withdrawal of the first group of U.S. Marines: the assassination of
Lebanon President-elect Bashir Gemayel, the entry of Israeli forces into West Beirut, and the
massacre of Palestinian civilians by Lebanese Christian militiamen.
On September 29, 1982, President Reagan submitted a report to Congress that 1,200 Marines had
begun to arrive in Beirut, but again he did not cite section 4(a)(1), of the War Powers Resolution,
stating that the American force would not engage in combat. As a result of incidents in which
U.S. Marines were killed or wounded, there was controversy in Congress on whether the
President’s report should have been filed under section 4(a)(1). In mid-1983 Congress passed the
Lebanon Emergency Assistance Act of 1983 requiring statutory authorization for any substantial
23
Public Papers of the Presidents of the United States. Lyndon B. Johnson. 1963-64, Washington. U.S. Government
Printing Office, 1965, pp. 927, 930-932.
24
P.L. 88-408, 78 Stat. 384, August 10, 1964. The House passed H.J.Res. 1145 on August 7, 1964, by a vote of 414-0;
the Senate passed it on August 7, 1964 by a vote of 88-2. This joint resolution was later repealed in 1971 by P.L. 91-
672, § 12, 84 Stat. 2053 (1971).
25
P.L. 91-672, § 12, 84 Stat. 2055, January 12, 1971.
26
For an explanation of the requirements of the War Powers Resolution, see infra at 27-28.
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expansion in the number or role of U.S. Armed Forces in Lebanon. It also included a section that
stated:
Nothing in this section is intended to modify, limit, or suspend any of the standards and
procedures prescribed by the War Powers Resolution of 1973.27
President Reagan reported on the Lebanon situation again on August 30, 1983, still not citing
section 4(a)(1), after fighting broke out between various factions in Lebanon and two Marines
were killed. The level of fighting heightened; and as the Marine casualties increased and the
action enlarged, there were more calls in Congress for invocation of the War Powers Resolution.
Several Members of Congress said the situation had changed since the President’s first report and
introduced legislation that took various approaches. Senator Charles Mathias introduced S.J.Res.
159 stating that the time limit specified in the War Powers Resolution had begun on August 31,
1983, and authorizing the forces to remain in Lebanon for a period of 120 days after the
expiration of the 60-day period. Representative Thomas Downey introduced H.J.Res. 348
directing the President to report under section 4(a)(1) of the War Powers Resolution. Senator
Robert Byrd introduced S.J.Res. 163 finding that section 4(a)(1) of the War Powers Resolution
applied to the present circumstances in Lebanon. The House Appropriations Committee approved
an amendment to the continuing resolution for FY1984 (H.J.Res. 367), sponsored by
Representative Clarence Long, providing that after 60 days, funds could not be “obligated or
expended for peacekeeping activities in Lebanon by United States Armed Forces,” unless the
President had submitted a report under section 4(a)(1) of the War Powers Resolution. A similar
amendment was later rejected by the full body, but it reminded the Administration of possible
congressional actions.
On September 20, 1983, congressional leaders and President Reagan agreed on a compromise
resolution invoking section 4(a)(1) of the War Powers Resolution and authorizing the Marines to
remain for 18 months. The Multinational Force in Lebanon Resolution became the first
legislation to be handled under the expedited procedures of the War Powers Resolution. On
September 28 the House passed H.J.Res. 364 by a vote of 270 to 161. On September 29 the
Senate passed S.J.Res. 159 by a vote of 54 to 46. The House accepted the Senate bill by a vote of
253 to 156 later the same day. The President signed the joint resolution into law on October 12,
1983. As passed, the joint resolution contained four occurrences that would terminate the
authorization before eighteen months: (1) the withdrawal of all foreign forces from Lebanon,
unless the President certified continued U.S. participation was required to accomplish specified
purposes; (2) the assumption by the United Nations or the Government of Lebanon of the
responsibilities of the Multinational Force; (3) the implementation of other effective security
arrangements; or (4) the withdrawal of all other countries from participation in the Multinational
Force. Congress also determined in the joint resolution that the requirements of section 4(a)(1) of
the War Powers Resolution became operative on August 29, 1983.28
In a statement made on signing S.J.Res. 159 on October 12, 1983, President Reagan expressed
appreciation for the support for the U.S. presence and policies in Lebanon he believed were
embodied in the legislation. He sharply differed, however, with various “findings, determinations,
and assertions” by the Congress on certain matters. He stated his concerns about the practical
problems associated with section 4(a)(1) of the War Powers Resolution, and the wisdom and
27
P.L. 98-43, 97 Stat. 214, June 27, 1983 [S. 639].
28
P.L. 98-119, 97 Stat. 805, October 12, 1983 [S.J.Res. 159].
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constitutionality of section 5(b). President Reagan noted that in signing the Lebanon resolution it
was important for him to state
that I do not and cannot cede any of the authority vested in me under the Constitution as
President and as Commander in Chief of United States Armed Forces. Nor should my
signing be viewed as any acknowledgment that the President’s constitutional authority can
be impermissibly infringed by statute, that congressional authorization would be required if
and when the period specified in section 5(b) of the War Powers Resolution might be
deemed to have been triggered and the period had expired, or that section 6 of the
Multinational Force in Lebanon Resolution may be interpreted to revise the constitutional
authority to deploy United States Armed Forces.29
Iraq 1991
On August 2, 1990, Iraqi troops under the direction of President Saddam Hussein invaded
Kuwait, seized its oil fields, installed a new government in Kuwait City, and moved toward the
border with Saudi Arabia. A week after the invasion, on August 9, President George H.W. Bush
reported to Congress “consistent with the War Powers Resolution” that he had deployed U.S.
armed forces to the region prepared to take action with others to deter further Iraqi aggression. He
noted that he did not believe involvement in hostilities was imminent. Throughout the rest of
1990, President Bush continued to work to establish an international coalition opposed to Iraq’s
aggression, while continuing to deploy additional U.S. military reinforcements into Saudi Arabia
and the Persian Gulf region. By the end of the year approximately 350,000 U.S. forces had been
deployed to the area.30
As the prospect of a war without congressional authorization increased, on November 20, 1990,
Representative Ron Dellums and 44 other Democratic Members of Congress sought a judicial
order enjoining the President from offensive military operations in connection with Operation
Desert Shield unless he consulted with and obtained an authorization from Congress. On
December 13, Judge Harold Greene of the federal district court in Washington, D.C. denied the
injunction, holding that the controversy was not ripe for judicial resolution because a majority of
Congress had not sought relief and the executive branch had not shown sufficient commitment to
a definitive course of action.31
By January, 1991, President Bush had secured the support of the United Nations and an
international coalition to use force, if necessary, to free Kuwait from Iraqi occupation. U.N.
Resolution 678 of November 29, 1990, authorized all U.N. member states “to use all necessary
means” to implement various U.N. resolutions seeking to end Iraqi occupation of Kuwait. It set a
January 15, 1991 deadline for Iraq to implement fully all relevant U.N. resolutions relating to its
invasion of Kuwait. On January 8, 1991, President George H.W. Bush, in a letter to the
29
Public Papers of the Presidents of the United States. Ronald Reagan. 1983, Washington. U.S. Government Printing
Office, 1985, pp.1444-1445. Shortly afterward, on October 23, 1983, 241 U.S. Marines in Lebanon were killed by a
suicide truck bombing, raising fresh questions in Congress and U.S. public opinion about U.S. participation in the
Lebanon peacekeeping endeavor. On February 7, 1984, President Reagan announced the Marines would be redeployed
and on March 30, 1984, reported to Congress that U.S. participation in the Multinational Force in Lebanon had ended.
30
For an overview of congressional actions during the fall and winter of 1990 as well as the President’s actions in
response to the events in the Persian Gulf, see CRS Report R42699, The War Powers Resolution: After Thirty-Eight
Years, pp. 24-26.
31
Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).
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congressional leaders, requested a congressional resolution supporting the use of all necessary
means to implement U.N. Security Council Resolution 678. He stated that he was “determined to
do whatever is necessary to protect America’s security” and that he could “think of no better way
than for Congress to express its support for the President at this critical time.” It is noteworthy
that the President’s request for a resolution was a request for congressional “support” for his
undertaking in the Persian Gulf, not for “authority” to engage in the military operation. In a press
conference on January 9, 1991, President Bush reinforced this distinction in response to questions
about the use of force resolution being debated in Congress. He was asked whether he thought he
needed the resolution, and if he lost on it would he feel bound by that decision. President Bush in
response stated: “I don’t think I need it .... I feel that I have the authority to fully implement the
United Nations resolutions.” He added that he felt that he had “the constitutional authority—
many attorneys having so advised me.”32
On January 12, 1991, both houses passed the “Authorization for Use of Military Force Against
Iraq Resolution.” Section 2(a) of that joint resolution authorized the President to use U.S. Armed
Forces pursuant to U.N. Security Council Resolution 678 to achieve implementation of the earlier
Security Council resolutions. Section 2(b) required as a precondition that the President would first
have to report to Congress that the United States had used all appropriate diplomatic and other
peaceful means to obtain compliance by Iraq with the Security Council resolution and that those
efforts had not been successful. Section 2(c) stated that it constituted specific statutory
authorization within the meaning of Section 5(b) of the War Powers Resolution. Section 3
required the President to report every 60 days on efforts to obtain compliance of Iraq with the
U.N. Security Council resolution.33
On signing H.J.Res. 77 into law, President Bush said the following:
As I made clear to congressional leaders at the outset, my request for congressional support
did not, and my signing this resolution does not, constitute any change in the long-standing
positions of the executive branch on either the President’s constitutional authority to use the
Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers
Resolution.
He added that he was pleased that “differences on these issues between the President and many in
the Congress have not prevented us from uniting in a common objective.”34
On January16, 1991,
President Bush made the determination required by P.L. 102-1 that diplomatic means had not and
would not compel Iraq to withdraw from Kuwait. On January 18, he reported to Congress
32
Public Papers of the Presidents of the United States. George Bush 1991. Washington, U.S. Government Printing
Office, 1992, pp. 13-14, 19-20.
33
The House passed H.J.Res. 77 by a vote of 250 to 183. The Senate passed S.J.Res. 2 and then accepted the language
in H.J.Res. 77. The Senate vote was 52 to 47. P.L. 102-1, 105 Stat. 3, January 14, 1991. On January 12, to emphasize
the congressional power to declare war, the House also adopted by a vote of 302 to 131 H.Con.Res. 32 expressing the
sense that Congress must approve any offensive military actions against Iraq; the Senate did not act on the measure.
34
Public Papers of the Presidents of the United States. George Bush 1991. Washington, U.S. Government Printing
Office, 1992, p. 40. Subsequently, on June 20,1992, President Bush reiterated his view of his constitutional authority
during remarks to the Texas State Republican Convention in Dallas, Texas. On that occasion President Bush said:
“Some people say, why can’t you bring the same kind of purpose and success to the domestic scene as you did in
Desert Shield and Desert Storm? And the answer is: I didn’t have to get permission from some old goat in the United
States Congress to kick Saddam Hussein out of Kuwait. That’s the reason.” Public Papers of the Presidents of the
United States. George Bush 1992-93. Washington, U.S. Government Printing Office, 1993, p. 995.
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“consistent with the War Powers Resolution” that he had directed U.S. forces to commence
combat operations on January 16.35
Terrorist Attacks against the United States (World Trade Center and
the Pentagon) 2001
On September 11, 2001, terrorists hijacked four U.S. commercial airliners, crashing two into the
twin towers of the World Trade Center in New York City, and another into the Pentagon building
in Arlington, Virginia. The fourth plane crashed in Shanksville, Pennsylvania near Pittsburgh,
after passengers struggled with the highjackers for control of the aircraft. The death toll from
these incidents was nearly 3,000. President George W. Bush characterized these attacks as more
than acts of terror. “They were acts of war,” he said. He added that “freedom and democracy are
under attack,” and he asserted that the United States would use “all of our resources to conquer
this enemy.”36
In the days immediately after the September 11 attacks, the President consulted with the leaders
of Congress on appropriate steps to take to deal with the situation confronting the United States.
One of the things that emerged from discussions was the concept of a joint resolution of the
Congress authorizing the President to take military steps to deal with the parties responsible for
the attacks on the United States. Between September 13 and 14, draft language of such a
resolution was discussed and negotiated by the President’s representatives and the House and
Senate leadership of both parties. Other members of both Houses suggested language for
consideration. On Friday, September 14, 2001, the text of a joint resolution was introduced. It was
first considered and passed by the Senate in the morning of September 14, as Senate Joint
Resolution 23, by a vote of 98-0. The House of Representatives passed it later that evening, by a
vote of 420-1, after tabling an identical resolution, H.J.Res. 64, and rejecting a motion to
recommit by Representative John Tierney that would have had the effect, if passed and enacted,
of requiring a report from the President on his actions under the resolution every 60 days.37
President Bush signed the measure into law on September 18, 2001.38
The joint resolution
authorizes the President
to use all necessary and appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in order to prevent any
future acts of international terrorism against the United States by such nations, organizations
or persons.
35
Public Papers of the Presidents of the United States. George Bush 1991. Washington, U.S. Government Printing
Office, 1992, p. 42, 52. Emphasis added.
36
Presidential statement of September 12, 2001. Office of the White House Press Secretary, available at
http://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010912-4.
37
For background on discussions regarding the resolution see Washington Post, September 13, 2001, p.A3; CQ Daily
Monitor, September 13, 2001, p.2, 6; CQ Daily Monitor, September 14, 2001, p.2; Washington Post, September 14,
2001, p. A30; The New York Times, September 14, 2001, p.A19; Roll Call, September 20, 2001, p.17; and
Abramowitz, David, “The President, the Congress, and Use of Force: Legal and Political Considerations in Authorizing
Use of Force Against International Terrorism,” 43 Harvard International Law Journal 71 (2002). The debate on
S.J.Res. 23 is found in 107 CONG. REC. S9416-S9421 and H5638-H5683 (daily edition September 14, 2001).
38
P.L. 107-40 (September 18, 2001); 115 Stat. 224.
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The joint resolution further states that Congress declares that this resolution is intended to
“constitute specific statutory authorization within the meaning of section 5(b) of the War Powers
Resolution.” Finally, the joint resolution also states that “[n]othing in this resolution supersedes
any requirement of the War Powers Resolution.”
A notable feature of P.L. 107-40 is that, unlike all other major legislation authorizing the use of
military force by the President, this joint resolution authorizes military force against not only
nations but also organizations and persons linked to the September 11, 2001, attacks on the
United States. This authorization of military action against organizations and persons is
unprecedented in American history, with the scope of its reach yet to be determined. The
authorization of use of force against unnamed nations is more consistent with some previous
instances where authority was given to act against unnamed states as appropriate when they
became aggressors or took military action against the United States or its citizens.
President George W. Bush in signing S.J.Res. 23 on September 18, 2001, stated that the Congress
had acted “wisely, decisively, and in the finest traditions of our country.” He thanked the
“leadership of both Houses for their role in expeditiously passing this historic joint resolution.”
He noted that he had had the “benefit of meaningful consultations with members of the Congress”
since the September 11 attacks and that he would “continue to consult closely with them as our
Nation responds to this threat to our peace and security.” President Bush also asserted that
S.J.Res. 23 “recognized the authority of the President under the Constitution to take action to
deter and prevent acts of terrorism against the United States.” He also stated that “in signing this
resolution, I maintain the longstanding position of the executive branch regarding the President’s
constitutional authority to use force, including the Armed Forces of the United States, and
regarding the constitutionality of the War Powers Resolution.”39
The Bush Administration interpreted P.L. 107-40 broadly, to confirm the President’s authority as
Commander-in-Chief to conduct antiterrorism operations anywhere in the world, including within
the United States.40
In 2004, the Supreme Court affirmed the President’s powers to detain “enemy
combatants” captured in Afghanistan as part of the necessary force authorized by Congress, but
found that detainees could challenge their detention in federal court.41
In light of the Supreme
Court decisions, the Bush Administration interpreted the joint resolution to authorize any
measures that can be characterized as fundamental incidents of the conduct of war, even where
such measures are otherwise prohibited by statute (at least so long as the statute in question
contemplates a statutory exception). Thus, the Administration cited the joint resolution to support
the President’s power to detain persons he has deemed to be “enemy combatants” (whether
citizens or aliens and without regard to the location or circumstances of their capture)42
and to
conduct electronic surveillance of communications within the United States without following the
procedures prescribed in FISA.43
The Supreme Court in 2006 held that P.L. 107-40 does not
39
Statement of the President on September 18, 2001. President Signs Authorization for Use of Military Force bill.
Office of the White House Press Secretary. September 18, 2001, available at http://georgewbush-
whitehouse.archives.gov/news/releases/2001/09/20010918-10.html.
40
For a detailed legislative history of the joint resolution addressing its intended scope, see CRS Report RS22357,
Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History.
41
For an overview of the 2004 Supreme Court decisions regarding the authorization to use military force, see CRS
Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions Related to Detainees in the War
on Terrorism, by Jennifer K. Elsea.
42
See CRS Report RL31724, Detention of American Citizens as Enemy Combatants, by Jennifer K. Elsea.
Declarations of War and Authorizations for the Use of Military Force
Congressional Research Service 16
override the Uniform Code of Military Justice (UCMJ) as it pertains to the trial of captured
combatants for violations of the law of war.44
Authorization for Use of Force Against Iraq 2002
In the summer of 2002, the Bush Administration made public its views regarding what it deemed
a significant threat to U.S. interests and security posed by the prospect that Iraq had or was
acquiring weapons of mass destruction. Senior members of the Bush Administration cited a
number of violations of U.N. Security Council resolutions by Iraq regarding the obligation
imposed at the end of the Gulf War in 1991 to end its chemical, biological and nuclear weapons
programs. On September 4, 2002, President Bush met with congressional leadership and stated
that he would seek congressional support, in the near future, for action deemed necessary to deal
with the threat posed to the United States by the regime of Saddam Hussein. The President also
indicated that he would speak to the United Nations shortly and set out his concerns about Iraq.
On September 12, 2002, President Bush addressed the U.N. General Assembly, explaining U.S.
concerns about Iraq’s actions since the end of the 1991 Gulf War, including numerous instances
when Iraq had violated various U.N. Security Council resolutions, including those related to
disarmament. He stated that the United States would work with the U.N. Security Council to
address the threat to international peace and security posed by Iraq. He emphasized, however, that
if Iraq refused to fulfill its obligations to comply with U.N. Security Council resolutions, the
United States would see that those resolutions were enforced.45
Subsequently, on September 19, 2002, the White House proposed legislation to authorize the use
of military force against Iraq. This draft would have authorized the President to use military force
not only against Iraq but “to restore international peace and security in the region.” Subsequently
introduced as S.J.Res. 45 on September 26, the Senate from October 3 to October 11 debated the
desirability, necessity, and scope of the proposed legislation.
The President’s proposal was not formally introduced in the House. Instead, Speaker of the House
Dennis Hastert and Minority Leader Richard Gephardt introduced H.J.Res. 114 on October 2,
2002, which included generally accepted modifications to the President’s proposal. The House
International Relations Committee reported out a slightly amended version of the joint resolution
on October 7, 2002 (H.Rept. 107-721). The House adopted the rule governing debate on the joint
resolution (H.Res. 474) on October 8, 2002; and debated the measure until October 10, when it
passed H.J.Res. 114 by a vote of 296-133. Subsequently, the Senate passed the House version of
(...continued)
43
U.S. Department of Justice White Paper on NSA Legal Authorities (“Legal Authorities Supporting the Activities of
the National Security Agency Described by the President”) (“DOJ White Paper”) (January 19, 2006),
http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf. For an analysis of the Administration position as
presented prior to the DOJ White Paper, see CRS Report R40888, Presidential Authority to Conduct Warrantless
Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea.
44
Hamdan v. Rumsfeld, 548 U.S. 557 (2006), rev’g 415 F.3d 33 (D.C. Cir. 2005). For a summary and analysis, see
CRS Report RS22466, Hamdan v. Rumsfeld: Military Commissions in the “Global War on Terrorism”, by Jennifer K.
Elsea.
45
White House, “President’s Remarks at the United Nations General Assembly,” press release, September 12, 2002,
http://georgewbush-whitehouse.archives.gov/news/releases/2002/09/print/20020912-1.html; White House, “President
Discusses Iraq, Domestic Agenda with Congressional Leaders,” press release, September 18, 2002,
http://georgewbush-whitehouse.archives.gov/news/releases/2002/09/print/20020918-1.html.
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H.J.Res. 114 on October 11 by a vote of 77-23, and President Bush signed the Authorization for
Use of Military Force against Iraq Resolution of 2002 into law on October 16, 2002.46
In signing H.J.Res. 114 into law, President Bush stated that by passing this legislation the
Congress had demonstrated that “the United States speaks with one voice on the threat to
international peace and security posed by Iraq.” He added that the legislation carried an important
message that “Iraq will either comply with all U.N. resolutions, rid itself of weapons of mass
destruction, and ... its support for terrorists, or will be compelled to do so.” While the President
noted he had sought a “resolution of support” from Congress to use force against Iraq, and
appreciated receiving that support, he also stated that “... my request for it did not, and my signing
this resolution does not, constitute any change in the long-standing positions of the executive
branch on either the President’s constitutional authority to use force to deter, prevent, or respond
to aggression or other threats to U.S. interests or on the constitutionality of the War Powers
Resolution.”
President Bush went on to state that on the “important question of the threat posed by Iraq,” his
views and goals and those of the Congress were the same. He further observed that he had
extensive consultations with the Congress in the past months, and that he looked forward to
“continuing close consultation in the months ahead.” He stated his intent to submit written reports
to Congress every 60 days on matters “relevant to this resolution.”47
The central element of P.L. 107-243 is the authorization for the President to use the armed forces
of the United States “as he determines to be necessary and appropriate in order to—(1) defend the
national security of the United States against the continuing threat posed by Iraq; and (2) enforce
all relevant United Nations Security Council resolutions regarding Iraq.”
As predicates for the use of force, the statute requires the President to communicate to Congress
his determination that the use of diplomatic and other peaceful means will not “adequately protect
the United States ... or ... lead to enforcement of all relevant United Nations Security Council
resolutions” and that the use of force is “consistent” with the battle against terrorism. Like P.L.
102-1 and P.L. 107-40, the statute declares that it is “intended to constitute specific statutory
authorization within the meaning of section 5(b) of the War Powers Resolution.” It also requires
the President to make periodic reports to Congress “on matters relevant to this joint resolution.”
Finally, the statute expresses Congress’s “support” for the efforts of the President to obtain
“prompt and decisive action by the Security Council” to enforce Iraq’s compliance with all
relevant Security Council resolutions.
P.L. 107-243 clearly confers broad authority on the President to use force. In contrast to P.L. 102-
1, the authority granted is not limited to the implementation of previously adopted Security
Council resolutions concerning Iraq but includes “all relevant ... resolutions.” Thus, it appears to
have incorporated resolutions concerning Iraq that were subsequently adopted by the Security
Council at least up to the expiration of the UN mandate on December 31, 2008, as well as those
46
P.L. 107-243; 116 Stat. 1498. For a detailed side-by-side comparison of the House and Senate versions of the
authorization of force against Iraq legislation and proposed amendments see CRS Report RL31596, Iraq: Authorization
of Use of U.S. Armed Forces—Side-By-Side Comparison of Public Law 107-243 and Selected Legislative Proposals, by
Dianne E. Rennack.
47
George W. Bush: "Statement on Signing the Authorization for Use of Military Force Against Iraq Resolution of
2002," October 16, 2002, available online by Gerhard Peters and John T. Woolley, The American Presidency Project.
http://www.presidency.ucsb.edu/ws/?pid=64386.
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resolutions adopted prior to the enactment of P.L. 107-243. The authority also appears to extend
beyond compelling Iraq’s disarmament to implementing the full range of concerns expressed in
those resolutions. Unlike P.L. 107-40, the President’s exercise of the authority granted is not
dependent upon a finding that Iraq was associated in some direct way with the September 11,
2001, attacks on the United States. Moreover, the authority conferred can be used for the broad
purpose of defending “the national security of the United States against the continuing threat
posed by Iraq.” Nevertheless, P.L. 107-243 is narrower than P.L. 107-40, as well as President
Bush’s originally proposed authorization, in that it limits the authorization for the use of force to
Iraq. It also requires as a predicate for the use of force that the President determine that peaceful
means cannot suffice and that the use of force against Iraq is consistent with the battle against
terrorism.48
P.L. 107-243 further limits the force used to that which the President determines is
“necessary and appropriate.” Finally, as with P.L. 107-40, the statutory authorization for use of
force granted to the President in P.L. 107-243 is not dependent for its exercise upon prior
authorization by the U.N. Security Council.
The Bush and Obama Administrations relied on P.L. 107-243’s authorities to maintain the
presence of U.S. armed forces and to conduct military operations in Iraq until the withdrawal of
U.S. armed forces in December 2011. After initial invasion operations and the removal of the
Saddam Hussein regime from power, U.S. military operations in Iraq continued under P.L. 107-
243 authority. Both the Bush and Obama Administrations considered Iraq a continuing threat to
U.S. national security interests; in addition, U.S. armed forces were enforcing relevant U.N.
Security Council resolutions regarding Iraq. Relevant U.N. resolutions included the creation in
2003 of the Multinational Force in Iraq (MNF-I), of which U.S. armed forces made up the
significant majority. The United Nations Security Council ultimately terminated the MNF-I on
December 1, 2008.49
Beginning January 1, 2009, U.S. armed forces remained in Iraq pursuant to
an agreement between Iraq and the United States that set the date for withdrawal of such forces
on December 31, 2011.50
At the time of the U.S.-Iraq agreement, it was argued that the end of the
U.N. mandate required a new authorization for continued U.S. military presence in Iraq, and that
the agreement itself needed congressional approval either by submission to the Senate as a treaty
for advice and consent, or by general legislative approval.51
Congress continued to provide funds
for military operations in Iraq, however, and legislative efforts to repeal P.L. 107-243 or otherwise
bring about an end to the U.S. military presence in Iraq did not succeed.52
48
In March 2003, President George W. Bush reported to Congress the determination that was required by P.L. 107-243
regarding his exercise of authority for military operations against Iraq. House Document 108-50. March 19, 2003. A
report in connection with Presidential Determination under P.L. 107-243. Communication from the President of the
United States transmitting a report consistent with Section 3(b) of the Authorization for Use of Military Force Against
Iraq Resolution of 2002.
49
See UNSC Resolution 1511 (Oct. 16, 2003), UNSC Resolution 1546 (June 8, 2004), UNSC Resolution 1637
(November 8, 2005), UNSC Resolution 1723 (November 28, 2006), and UNSC Resolution 1790 (December 18, 2007).
50
Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United States
Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, Article 12,
November 17, 2008 [hereinafter Withdrawal Agreement], http://www.state.gov/documents/organization/122074.pdf.
For a more comprehensive overview of the Withdrawal Agreement, see CRS Report R40011, U.S.-Iraq
Withdrawal/Status of Forces Agreement: Issues for Congressional Oversight, by R. Chuck Mason.
51
See, e.g., U.S. Congress, House Committee on International Relations, Subcommittee on Middle East and South Asia
and the Subcommittee on International Organizations, Human Rights, and Oversight, 110th
Cong., March 4, 2008
(statement of Prof. Oona Hathaway). On this issue, see generally CRS Report RL33837, Congressional Authority to
Limit U.S. Military Operations in Iraq, by Jennifer K. Elsea, Michael John Garcia, and Thomas J. Nicola.
52
President Bush vetoed a supplemental appropriations bill to fund the war that would have set conditions and a
deadline for ending some military operations, arguing in part that some of its provisions are unconstitutional. H.R. 1591
(continued...)
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P.L. 107-243 does not include provision for automatic termination of its use of force
authorization, and Congress has not repealed the legislation. Thus P.L. 107-243 remains current
U.S. law, although its continued effectiveness is questionable. Arguably, the President could rely
on P.L. 107-243 to reintroduce U.S. armed forces into Iraq if he determined that Iraq once again
posed a threat to U.S. national security, or in order to enforce relevant U.N. resolutions, as the
legislation provides in its authorization language. Nevertheless, any presidential decision to again
utilize the authority for use of military force in P.L. 107-243 would likely meet renewed
resistance from some Members of Congress, as well as other observers who have argued for
repeal of open-ended use of force authorizations such as this.
Implications Under International Law
Traditionally, peace and war have been deemed under international law to be distinctive forms of
relations between states. Thus, peace has been defined as “a condition in which States maintain
order and justice, solve their problems by cooperation, and eliminate violence. It is a condition in
which States respect each other’s sovereignty and equality, refrain from intervention and the
threat or use of force and cooperate with one another in accordance with the treaties which they
have concluded.”53
War, in contrast, has been described as “a condition of armed hostility between States,”54
“a
contention, through the use of armed force, between states, undertaken for the purpose of
overpowering another.”55
War has been said to terminate or suspend the laws and customs that
prevail in peacetime and to substitute for them the laws of war. Under the traditional laws of war
enemy combatants can be killed, prisoners of war taken, the enemy’s property seized or
destroyed, enemy aliens interned, and other measures necessary to subdue the enemy and impose
the will of the warring state taken.56
Moreover, the existence of a state of war traditionally has
(...continued)
(110th
Cong.). For a description of the vetoed bill, see CRS Report RL33837, Congressional Authority to Limit U.S.
Military Operations in Iraq, by Jennifer K. Elsea, Michael John Garcia, and Thomas J. Nicola.
Other efforts in the 110th
Congress included H.R. 1460 (to repeal 2002 resolution); H.R. 1262 (same); S. 679 (to
declare that objectives of 2002 resolution had been achieved, and require redeployment of forces from Iraq); S.J.Res. 3
(to establish expiration date for 2002 resolution); S. 670 (to require new military authorization unless certain objectives
are met); H.R. 930 (to repeal 2002 resolution); H.R. 508 (same); H.R. 413 (same). Efforts in the 111th
Congress
included H.R. 335 (to prohibit entry into force of security arrangement with Iraq that was not made with Senate advice
and consent), H.R. 66 (to repeal 2002 resolution and require troop withdrawal), H.Res. 72 (sense of the House that the
Withdrawal Agreement is not legally binding).
53
Skubiszewski, Krzysztof, “Peace and War,” Encyclopedia of Public International Law, Vol 4 (1982), at 74-75.
54
Hyde, Charles Cheney, International Law Chiefly as Interpreted and Applied by the United States, Vol. 3 (1945), at
1686.
55
von Glahn, Gerhard, Law Among Nations (6th
ed.) (1992), at 669.
56
In his treatise Law of Nations (1858), at 346, Emmerich de Vattel stated the general principles governing the conduct
of war as follows:
As soon, therefore, as we have declared war, we have a right to do against the enemy whatever we
find necessary for the attainment of that end—for the purpose of bringing him to reason, and
obtaining justice and security from him.
The lawfulness of the end does not give us a real right to anything further than barely the means
necessary for the attainment of that end. Whatever we do beyond that, is reprobated by the law of
nature, is faulty, and condemnable at the tribunal of conscience. Hence it is that the right to such or
such acts of hostility varies according to circumstances. What is just and perfectly innocent in war,
(continued...)
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been deemed to terminate diplomatic and commercial relations and most of the treaty obligations
existing between the warring States.57
A state of war also has brought into play the law of
neutrality with respect to relations between the belligerent and non-belligerent States.
In this traditional understanding a declaration of war has been deemed, in and of itself, to have
the effect of creating a state of war and changing the relationship between the states involved
from one of peace to one of war. That has been the case even if no hostilities actually occur. Some
question exists as to whether international law traditionally deemed a declaration of war to be a
necessary prerequisite to the existence of a state of war;58
but it is clear that under international
law a declaration of war has been viewed as “creating the legal status of war ... [and giving]
evidence that peace has been transmuted into war, and that the law of war has replaced the law of
peace.”59
Authorizations for the use of force, in contrast, have not been seen as automatically creating a
state of war under international law. The U.S. Court of Claims, in construing the statutes
authorizing the limited use of force against France in 1798, described how their effects differed
from those that followed in the wake of a war:
[Our naval vessels] might seize armed vessels only, and only those armed vessels which had
already committed depredations, or those which were on our coast for the purpose of
(...continued)
in one particular situation, is not always so on other occasions. Right goes hand in hand with
necessity and the exigency of the case, but never exceeds them.
57
Cushman K. Davis, A Treatise on International Law (1901), at 141 stated:
War abrogates all treaties between the belligerents; its suspends all commercial intercourse and
relations between their respective subjects, and makes them unlawful; it dissolves all partnerships
between subjects of the belligerents; it suspends the operation of all executory contracts during the
war .... It open a great gulf of non-intercourse between the two nations, and imposes disability upon
the subjects of each to do any kind of civil business with those of the other ....
58
Commentators differ on this issue. Grotius claimed that a declaration was a necessary precondition to the existence
of a war. See Ingrid Detter, The Law of War (2000), at 10. Vattel said a declaration communicated to the enemy was
demanded by “humanity” prior to the inception of a war, served as an inducement to the enemy to “terminate the
difference without the effusion of blood,” and was “the constant practice among the powers of Europe.” Vattel, supra
footnote 56, at 315. But he also stated that “there seems to be no absolute necessity for a formal declaration of war to
render it legal.” Id. at 316. Kent’s Commentary on International Law (1878), at169-171, stated:...
[I]t has become settled by the practice of Europe that war may lawfully exist by a declaration which
is unilateral only, or without a declaration on either side. It may begin with mutual hostilities. Since
the Peace of Versailles in 1763, formal declarations of war of any kind seem to have been
discontinued, and all the necessary and legitimate consequences of war flow at once from a state of
public hostilities, duly recognized, and explicitly announced, by a domestic manifesto or State
paper.”
A legal requirement of a formal declaration of war was included in the Hague Convention (III) Relative to the Opening
of Hostilities, negotiated in 1907 and ratified by 42 countries (including the U.S.), which stated as follows:
The Contracting Powers recognize that hostilities between themselves must not commence without
previous and explicit warning, in the form either of a reasoned declaration of war or of an
ultimatum with conditional declaration of war.
Although this treaty remains in effect for its Parties, its requirement regarding a declaration of war has generally fallen
into desuetude; and a declaration generally is no longer regarded as a legal prerequisite to the use of force. Von Glahn,
supra footnote 55, at 600, states: “ ... [G]eneral opinion has sanctioned a commencement of hostilities without issuing a
declaration of war or other formal notice of intent to resort to the use of force.”
59
Eagleton, Clyde, “The Form and Function of the Declaration of War,” 38 American Journal of International Law 19,
21 (1938).
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committing depredations, and they might retake an American vessel captured by such an
armed vessel. This statute is a fair illustration of the class of laws enacted at this time; they
directed suspension of commercial relations until the end of the next session of Congress, not
indefinitely ...; they gave power to the President to apprehend the subjects of hostile nations
whenever he should make “public proclamation” of war ..., and no such proclamation was
made; they gave him authority to instruct our armed vessels to seize French “armed,” not
merchant, vessels ..., together with contingent authority to augment the army in case war
should break out or in case of imminent danger of invasion ....
If war existed, why authorize our armed vessels to seize French armed vessels? War itself
gave that right, as well as the right to seize merchantmen which the statutes did not permit. If
war existed why empower the President to apprehend foreign enemies? War itself placed that
duty upon him as a necessary and inherent incident of military command. Why, if there was
war, should a suspension of commercial intercourse be authorized, for what more complete
suspension of that intercourse could there be than the very fact of war?
There was no declaration of war; the tribunals of each country were open to the other—an
impossibility were war in progress; diplomatic and commercial intercourse were admittedly
suspended; but during many years there was no intercourse between England and Mexico,
which were not at war; there was retaliation and reprisal, but such retaliations and reprisals
have often occurred between nations at peace; there was a near approach to war, but at no
time was one of the nations turned into an enemy of the other in such manner that every
citizen of the one became the enemy of every citizen of the other; finally, there was not that
kind of war which abrogated treaties and wiped out, at least temporarily, all pending rights
and contracts, individual and national.60
Whether this traditional understanding of war and of the effect of a declaration of war continues
to be viable is a matter of considerable dispute among scholars. The right of a state to initiate war,
many contend, has been outlawed by such international agreements as the Kellogg-Briand Peace
Pact and the Charter of the United Nations. In the Kellogg-Briand Peace Pact,61
for instance, the
Parties stated that they “condemn recourse to war for the solution of international controversies,
and renounce it as an instrument of national policy in their relations with one another.”62
After
World War II the Nuremberg Tribunal gave teeth to this commitment by ruling that the Pact
rendered aggressive war illegal under international law and makes those who plan and wage such
a war guilty of a crime.63
The Charter of the United Nations, in turn, states one of its purposes to
be “to save succeeding generations from the scourge of war,” and it requires its Members “to
refrain from the threat or use of force against the territorial integrity or political independence of
any State, or in any other manner inconsistent with the Purposes of the United Nations.”64
Moreover, it provides for a system of collective security through the Security Council as the
60
Gray v. United States, 21 Ct.Cl. 340, 373 (1886).
61
Treaty Providing for the Renunciation of War As an Instrument of National Policy, 46 Stat. 2343 (1929); TS 796; 2
Bevans 732.
62
Id., Art. I.
63
The Tribunal stated:
In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy
necessarily involves the proposition that such a war is illegal in international law; and that those
who plan and wage such a war, with its inevitable and terrible consequences, are committing a
crime in so doing.
See “International Military Tribunal (Nuremberg): Judgment and Sentences,” 41 American Journal of International
Law 172, 218 (1947).
64
UN Charter, 59 Stat. 1031, Preamble and Article 2(4).
Declarations of War and Authorizations for the Use of Military Force
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primary means of maintaining or restoring international peace and security.65
Both instruments, it
is contended, recognize that the concept of war as a legal right of states, except in self-defense,66
has been superseded. (The United States, of course, is a Party not only to the Charter but also to
the Pact, and it still regards the latter as continuing to be in force.67
) Whether the traditional
concept of war remains valid has been further complicated by the increasing participation in
armed conflict of non-State actors such as insurgents, freedom fighters, and terrorists.
The clarity of the consequences of a state of war in traditional international law has also become
muddied in the modern era. Most States since 1945, even when engaged in armed conflict, have
resisted describing the conflict as a war.68
States so engaged have not always automatically
terminated diplomatic and commercial relationships,69
and the discontinuance of treaty
obligations has increasingly been deemed to require a treaty-by-treaty examination.70
Moreover,
conventions that attempt to regulate the means used to wage war, such as the Hague Conventions
and other more recent agreements,71
and those that attempt to ameliorate the consequences of war
for certain categories of persons, such as the Geneva Conventions,72
are deemed to apply to
armed conflicts regardless of what label the Parties attach to them. A state of war still gives rise to
“a mutual right to kill in battle,”73
triggers application of the various conventions regulating the
65
Id. Ch. VII.
66
The right of self-defense is explicitly recognized in Article 51 of the Charter, which states that “Nothing in the
present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against
a Member of the United Nations ....”
67
Department of State, Treaties in Force: A List of Treaties and other International Agreements of the United States in
Force on January 1, 2002 (Aug. 2002), at 454.
68
Dieter Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts (1995), at 39.
69
The modern codification of the law of diplomatic relations—the Vienna Convention on Diplomatic Relations, 23
UST 3227 (1972)—does not specifically address the effect of a declaration of war or of an authorization for the use of
force but does address what is required in cases of “armed conflict.” Whenever diplomatic relations are broken, the
Convention requires that diplomatic privileges and immunities not cease until the diplomat leaves the country and that
the receiving state assist diplomats and their families in leaving “at the earliest possible moment, ... even in case of
armed conflict” (Articles 38 and 44). The Convention also requires that a state respect and protect the premises of a
diplomatic mission and its property and archives during any time in which diplomatic relations have been broken,
including “in the case of armed conflict” (Article 45(a)).
70
The modern tendency appears to be to deem treaties as remaining in effect to the greatest extent possible. See
generally, von Glahn, Gerhard, Law Among Nations (1992), at 715-716.
71
See The Hague Convention Respecting the Laws and Customs of War on Land, 32 Stat. 1803 (1902); the Hague
Convention (III) Relative to the Opening of Hostilities, 36 Stat. 2259 (1910); the Hague Convention (IV) Respecting
the Laws and Customs of War on Land, 36 Stat. 2277 (1910); the Hague Convention (V) Respecting the Rights and
Duties of Neutral Powers and Persons in Case of War on Land, 36 Stat. 2310 (1910); the Hague Convention (VII)
Relative to the Laying of Automatic Submarine Contact Mines, 36 Stat. 2332 (1910); the Hague Convention (IX)
Concerning Bombardment by Naval Forces in Time of War, 36 Stat. 2351 (1910); the Hague Convention (XI) Relative
to Certain Restrictions With Regard to the Exercise of the Right of Capture in Naval War, 36 Stat. 2396 (1910); the
Hague Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War, 36 Stat. 2415 (1910); The
Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological
Methods of Warfare, 26 UST 571 (1975) and The Convention on the Prohibition of Military or Any Other Hostile Use
of Environmental Modification Techniques, 31 UST 333 (1980). The United States is a Party to all of these
conventions.
72
The four Geneva Conventions apply to the treatment of those in the armed forces who are wounded and sick in the
field, those who are shipwrecked, prisoners of war, and civilian populations. See Convention (I) for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field, 6 UST 3114 (1956); Convention (II) for the
Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 6 UST 3217
(1956); Convention (III) Relative to the Treatment of Prisoners of War, 6 UST 3316 (1956); and Convention (IV)
Relative to the Protection of Civilian Persons in Time of War, 6 UST 3516 (1956).
73
Alexander Hamilton, “The Examination No. 1,” (Dec. 17, 1801), reprinted in 25 The Papers of Alexander Hamilton
(continued...)
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means of waging war as well as of the general principles of necessity and proportionality, and
brings into play the Geneva Conventions. But its other legal consequences seemingly have
become less determinate.
Perhaps as a consequence of these developments, declarations of war have fallen into disuse and
are virtually never issued in modern conflicts. One commentator asserts that since 1945 “[t]here
are no cases of a formal declaration of war having been delivered by one state to another through
diplomatic channels....”74
As noted above, the United States last declared war in 1942 against
Rumania and has since adopted only authorizations for the use of force.
Thus, declarations of war may have become anachronistic in contemporary international law. The
legal right of States to engage in war has seemingly become constrained (for other than defensive
purposes), and the most salient international laws regarding the means of waging war and the
protection of certain categories of persons apply to the circumstance of armed conflict regardless
of whether war has been declared. That circumstance can arise in the wake of an authorization to
use force as well. States likely still retain a right to issue declarations of war, at least in exercising
the right of self-defense; and such a declaration seemingly would still automatically create a state
of war. But it is not clear that the legal consequences under international law that would flow
from a declaration differ dramatically from those that occur if an armed conflict comes into being
pursuant to an authorization for the use of force.
Implications Under Domestic Law
Early American jurisprudence drew a distinction between general, or perfect, war and limited, or
imperfect, war, and understood a declaration of war under Article I, § 8, of the Constitution to
commit the nation to a general war. Justice Washington, in Bas v. Tinghy,75
described the
distinction as follows:
It may, I believe, be safely laid down, that every contention by force between two nations, in
external matters, under the authority of their respective governments, is not only war, but
public war. If it be declared in form, it is called solemn, and is of the perfect kind; because
one whole nation is at war with another whole nation; and all the members of the nation
declaring war are authorised to commit hostilities against all the members of the other, in
every place, and under every circumstance. In such a war all the members act under a general
authority, and all the rights and consequences of war attach to their condition.
... [H]ostilities may subsist between two nations more confined in its nature and extent; being
limited as to places, persons, and things; and this is more properly termed imperfect war;
because not solemn, and because those who are authorised to commit hostilities, act under
special authority, and can go no farther than to the extent of their commission. Still,
(...continued)
455 (Syrett, ed., 1977), quoted in J. Gregory Sidak, “To Declare War,” 41 Duke Law Journal 27 (1991), at 62. The full
quote reads: “War, of itself, gives to the parties a mutual right to kill in battle .... This is a rule of natural law; a
necessary and inevitable consequence of the state of war.”
74
Id. at 203.
75
U.S. (4 Dall.) 37, 40 (1800).
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however, it is public war, because it is an external contention, by force, between some of the
members of the two nations, authorised by the legitimate powers.76
Justice Chase, more simply, stated: “Congress is empowered to declare a general war, or congress
may wage a limited war; limited in place, in objects, and in time.”77
Thus, at least in the 18th
and 19th
centuries, authorizations for the use of force were understood to
be included within Congress’s power to declare war and to have narrower legal consequences
than declarations of war. Declarations were reserved for general war against particular countries
and empowered the President “to use the whole land and naval force of the United States”
(United Kingdom in 1812), “to employ the militia, naval, and military forces of the United
States” (Mexico in 1846), or “to use the entire land and naval forces of the United States” (Spain
in 1898) to prosecute the war. Authorizations, in contrast, allowed the President to use the
American navy against the vessels of France, the Bey of Tripoli, and the Dey of Algiers, or
against piracy generally.
In the modern era authorizations have sometimes been quite broad78
; and some have, arguably,
been equivalent in scope to a declaration of war. But the domestic legal consequences that flow
from such authorizations still are substantially more limited than those that would flow from a
declaration of war.
Both declarations of war and authorizations for the use of force have the effect of eliminating the
time limits otherwise imposed on the President’s use of the armed forces under the War Powers
Resolution; and both may legitimate the killing of foreign officials that might otherwise be
prohibited by the executive order on assassinations. The capture of enemy combatants on the
battlefield and their detention until hostilities have subsided is implied in an authorization to use
ground forces,79
just as it would be included in a formal declaration of war.
But a declaration of war automatically brings into effect a number of statutes that confer special
powers on the President and the Executive Branch, especially concerning measures that have
domestic effect. A declaration, for instance, activates statutes that empower the President to
interdict all trade with the enemy, order manufacturing plants to produce armaments and seize
them if they refuse, control transportation systems in order to give the military priority use, and
command communications systems to give priority to the military. A declaration triggers the
Alien Enemy Act, which gives the President substantial discretionary authority over nationals of
an enemy state who are in the United States. It activates special authorities to use electronic
surveillance for purposes of gathering foreign intelligence information without a court order
under the Foreign Intelligence Surveillance Act. It automatically extends enlistments in the armed
76
Id.
77
Id. at 43.
78
See, e.g., P.L. 107-40 (Sept. 18, 2001) (authorizing the President to use “all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001 ....”) and P.L. 107-243 (Oct. 16, 2002) (authorizing the President to the use the armed
forces “as he determines to be necessary and appropriate in order to—(1) defend the national security of the United
States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council
resolutions regarding Iraq.”
79
See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (O’Connor, J., plurality opinion); id. at588-589 (Thomas, J.,
dissenting). The plurality interpreted the AUMF as authorizing the detention of a U.S. citizen captured in Afghanistan
as a “fundamental incident of waging war,” and was thus a statute authorizing detention within the meaning of the NonDetention
Act, 18 U.S.C.A. § 4001(a), which prohibits the detention of any citizen absent an act of Congress.
Declarations of War and Authorizations for the Use of Military Force
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forces until the end of the war, can make the Coast Guard part of the Navy, gives the President
substantial discretion over the appointment and reappointment of commanders, and allows the
military priority use of the natural resources on the public lands and the continental shelf.
An authorization for the use of force does not automatically trigger any of these standby statutory
authorities. Some of them can come into effect if a state of war in fact comes into being after an
authorization for the use of force is enacted; and the great majority of them, including many of
the most sweeping ones, can be activated if the President chooses to issue a proclamation of a
national emergency. But an authorization for the use of force, in itself and in contrast to a
declaration of war, does not trigger any of these standby authorities.
On the other hand, the authorization to use force in response to the terrorist attacks of 2001 has
been asserted as legal authority for executive actions in the domestic context, the validity of
which remains unresolved. The executive branch asserted that the authorization permits detention
without trial of persons arrested in the United States on suspicion of Al Qaeda related terrorism,
which it regarded as bolstered by the Supreme Court’s Hamdi decision finding the detention of
enemy combatants captured in Afghanistan to be authorized as “a fundamental incident of waging
war.”80
While there is limited authority to support military trials of enemy soldiers captured
within the United States, in previous wars the Alien Enemy Act would likely have been the chief
means of interning suspected enemies domestically.81
Under the executive branch view, the
authorization to use force could be construed as broader than a declaration of war in that it is seen
to authorize detention powers without any of the few rules or restrictions specified in the Alien
Enemy Act, and to authorize the detention of U.S. citizens as an exception to the Non-Detention
Act.82
Similarly, the executive branch argued that the authorization to use force must also be read
to permit the conduct of certain types of electronic surveillance outside of the strictures of the
Foreign Intelligence Surveillance Act, even though that act provides for only a two-week
exception triggered by a declaration of war.83
Accordingly, it is possible that any similarly broad
authorization to use force may be read to authorize any power that may properly be regarded as
“a fundamental incident of waging war” under the circumstances, at least as implied exceptions to
statutes that admit of statutory exception.
80
Hamdi, 542 at 519.
81
For a historical overview of wartime detention in the United States, see CRS Report R42337, Detention of U.S.
Persons as Enemy Belligerents, by Jennifer K. Elsea.
82
18 U.S.C. § 4001(a) provides that “No citizen shall be imprisoned or otherwise detained by the United States except
pursuant to an Act of Congress.” The 4th
Circuit Court of Appeals validated the detention of a U.S. citizen on the basis
of his presence during hostilities in Afghanistan, but the government transferred the petitioner to federal court for trial
on terrorism charges before the Supreme Court could take the case on appeal. Padilla v. Hanft, 423 F.3d 386 (4th
Cir.),
motion to vacate denied 432 F.3d 582 (4th
Cir. 2005), cert. denied 547 U.S. 1062 (2006). A plurality of the 4th
circuit
sitting en banc upheld the detention of a non-citizen suspected of being a “sleeper agent” for Al Qaeda, although the
court did not agree on a definition of “enemy combatant,” or individual subject to detention. The Supreme Court
vacated the decision at the request of the government after the petitioner was transferred to federal court for trial on
terrorism charges. Al-Marri v. Pucciarelli, 534 F.3d 213 (4th
Cir. 2008)(per curiam), vacated and remanded sub nom.
Al-Marri v. Sapagone, 129 s.Ct. 1545 (2009). For more background on these cases, see CRS Report R41156, Judicial
Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by Jennifer K. Elsea and Michael John
Garcia; CRS Report R42337, Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.
83
The Bush Administration argued that intelligence collection is authorized as an incident to the use of force, and that
restrictions under FISA therefore did not apply to electronic surveillance conducted for anti-terrorism purposes because
section 109 of FISA provides an exception to the criminal prohibition against electronic surveillance unless “authorized
by statute.” (50 U.S.C.A. § 1809, prior to 2008 amendment to clarify meaning of “authorized by statute”). Congress
passed the Protect America Act , P.L. 110-55, to provide additional authority for electronic surveillance.
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The following subsections give an overview of some of the more salient domestic legal
consequences of a declaration of war or authorization for the use of force. They are followed by a
section setting forth a detailed list of the standby statutory authorities that can be triggered by a
declaration of war, a state or war, and/or a proclamation of national emergency.
The War Powers Resolution
Both a declaration of war and an authorization for the use of force have significant implications
with respect to the War Powers Resolution (WPR).84
The WPR was enacted over President
Nixon’s veto in 1973 purportedly to restore a congressional role in authorizing the use of force
that was thought by many to have been lost in the Cold War and the Vietnam War. To that end the
WPR mandates that the President consult with the Congress “in every possible instance” prior to
introducing U.S. armed forces into hostilities and regularly afterwards. Section 4(a) of the WPR
further requires the President, “in the absence of a declaration of war,” to report to Congress
within 48 hours in any case in which United States Armed 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 of a foreign nation, while equipped for combat,
except for deployments which relate solely to supply, replacement, repair, or training of such
forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat
already located in a foreign nation.
Section 5(b) of the Resolution, in turn, requires that if a report has been submitted or was required
to be submitted under § 4(a)(1) above, the President shall terminate the involvement of U.S.
forces unless Congress
(1) has declared war or has enacted a specific authorization for such use of United States
Armed Forces;
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States.85
Thus, congressional enactment of either a declaration of war or an authorization for the use of
force pursuant to § 5(b) has the effect of tolling the 60-90 day withdrawal mandate of the WPR.
Each of the last three authorizations for the use of force enacted—the 1991 Gulf War
authorization, the September 18, 2001, authorization with respect to terrorist attacks, and the
October 16, 2002, authorization with respect to Iraq—have explicitly stated that they constitute
the authorization required by § 5(b) of the WPR. Each, in other words, has tolled the 60-90 day
limitation that the WPR otherwise would impose on the use of military force by the President. All
three authorizations have further specified that “[n]othing in this resolution supersedes any
84
50 U.S.C.A. § 1541 et seq.
85
Id., § 1544(b).
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requirement of the War Powers Resolution.” That appears to mean that the consultation and
reporting requirements of the WPR still apply.
Trading with the Enemy Act and the
International Emergency Economic Powers Act
Two related statutes, the Trading With the Enemy Act86
(TWEA) and the International Emergency
Economic Powers Act87
(IEEPA), grant the President extraordinary powers to control foreignowned
property and foreign trade transactions with designated countries under certain exceptional
circumstances. TWEA comes into effect upon a declaration of war or the existence of a state of
war, while IEEPA is triggered solely by a presidential declaration of national emergency. Neither
statute is triggered by an authorization for the use of force (unless, in the case of TWEA, the
authorization eventually leads to the existence of a state of war). IEEPA is the authority most
commonly invoked to freeze or block the assets of foreign states, companies, or individuals
located within the jurisdiction of the United States.
Until 1977 the broad range of economic authorities granted by TWEA could be exercised both in
times of war and in times of national emergency. However, in 1977 Congress limited the
prospective application of TWEA to times of declared or undeclared war only and enacted IEEPA
to apply during times of a national emergency declared by the President. Under TWEA the
President may
(A) investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit
or payments or payments between, by, through, or to any banking institution, and the
importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion,
currency or securities, and
(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any
acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or
exportation of, or dealing in, or exercising any right, power, privilege with respect to, or
transactions involving, any property in which any foreign country or a national thereof has
any interest, by any person, or with respect to any property, subject to the jurisdiction of the
United States; and any property or interest of any foreign country or national thereof shall
vest, when, as, and upon the terms, directed by the President, in such agency or person as
may be designated from time to time by the President, and upon such terms and conditions as
the President may prescribe such interest or property shall be held, used, administered,
liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United
States ....88
IEEPA replicates many of TWEA’s powers to regulate international transactions,89
but it does not
include TWEA authorities relative to purely domestic transactions, the regulation of bullion, and
seizure of records.90
It also does not contain TWEA’s general authority to take title to foreign
86
50 U.S.C. App. §§ 1 et seq.
87
50 U.S.C. §§ 1701 et seq.
88
50 U.S.C.A. Appx. § 5(b).
89
50 U.S.C.A. § 1702, as amended by P.L. 107-56, Title I, § 106 (Oct. 26, 2001).
90
See 50 U.S.C.A. Appx. § 5(b). For an overview of TWEA and IEEPA and how their authorities compare, see Staff of
the House Ways and Means Committee, 111th
Cong., Overview and Compilation of U.S. Trade Statutes, ch. 5 (WMCP
111-6, 2010).
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assets. But Congress did amend IEEPA in the “USA PATRIOT Act” in 2001 to authorize the
President to confiscate and take title to
any property, subject to the jurisdiction of the United States, of any foreign person, foreign
organization, or foreign country that he determines has planned, authorized, aided or engaged
in ... hostilities or attacks against the United States....91
Congress further amended both IEEPA and TWEA in the “Terrorism Risk Insurance Act of 2002”
to provide that the assets of foreign terrorist states that have been frozen in the U.S. pursuant to
either statute may be used to satisfy certain civil judgments against them.92
As noted, IEEPA is triggered solely by a declaration of national emergency, while TWEA applies
in time of war. Thus, TWEA is not dependent upon a declaration of war, but it can be triggered by
such a declaration. Neither appears to be triggered by an authorization for the use of force, unless
and until, in the case of TWEA, a state of war actually develops.
Other Economic Authorities
As noted, a declaration of war gives the President full authority over trade relations with the
enemy. Other statutes triggered by a declaration give the President the authority to order plants to
convert to the production of armaments and to seize those that refuse to do so,93
to take control of
the Tennessee Valley Authority in order to manufacture explosives or for other military
purposes,94
to assume control of transportation systems for military purposes,95
to condemn land
for military uses,96
to have the right of first refusal over natural resources,97
and to take control of
communications facilities.98
It also gives the President full power over agricultural exports.99
An
authorization for the use of force, in itself, does not trigger any of these authorities.
Alien Enemy Act
First enacted in 1798, the Alien Enemy Act100
broadly authorizes the President to deport, detain,
or otherwise condition the stay of alien enemies in the U.S. in cases of “declared war” or “any
invasion or predatory incursion ... perpetrated, attempted, or threatened against the territory of the
United States by any foreign nation or government ....” The act implements the internationally
recognized right of every nation to protect itself during times of war from individuals whose
primary allegiance lies with a hostile foreign power. Given this premise, the Supreme Court has
91
P.L. 107-56, Title I, § 106 (Oct. 26, 2001).
92
P.L. 107-297, Title II, § 201 (Nov. 26, 2002).
93
10 U.S.C.A. § 2538.
94
16 U.S.C.A. § 831s.
95
10 U.S.C.A. § 2644.
96
10 U.S.C.A. § 2663(a).
97
43 U.S.C.A. § 1314(b).
98
47 U.S.C.A. § 606(a).
99
7 U.S.C.A. § 5712(c).
100
50 U.S.C. §§ 21 et seq.
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observed that “[e]xecutive power over enemy aliens, undelayed and unhampered by litigation, has
been deemed, throughout our history, essential to war-time security.”101
The President must publicly proclaim the event that gives rise to activation of the act and make
regulations regarding the treatment of those aliens. But once he does so, his power to “apprehend,
restrain, secure, and remove” enemy aliens extends to all “natives, citizens, denizens, or subjects
of the hostile nation or government, being of the age of fourteen years and upward, who shall be
in the United States and not actually naturalized.”102
The President may intern or remove enemy
aliens or set lesser restraints on them, and may adopt any “regulations which are found necessary
in the premises and for the public safety.”103
Thus, President Woodrow Wilson, for example,
barred alien enemies during World War I from possessing firearms and explosives, coming within
a half a mile of a military facility or munitions factory, residing in certain areas, possessing
certain communications equipment, and publishing certain types of materials. President Franklin
D. Roosevelt authorized similar restrictions during World War II and, additionally, set up over
100 community hearing boards to make internment recommendations to the Attorney General.104
The procedural rights of aliens who are subject to the Alien Enemy Act are drastically restricted
compared with those that aliens otherwise enjoy, including hearing rights under the removal
provisions of the Immigration and Nationality Act.105
The scope of judicial review is equally
circumscribed.106
Among the few rights recognized under the act, alien enemies subjected to
removal may, if not chargeable with “actual hostility” or other crime against public safety, be
entitled to the time allowed by applicable treaty or order to wind up his or her affairs here.107
A
very limited right to judicial review under a petition for a writ of habeas corpus also is
recognized. Generally, however, the power of the President to control alien enemies under the act
is extraordinary.
As noted, the act does not appear to be triggered solely by an authorization for the use of force.
Criminal Law
There are a number of civilian federal criminal law provisions that apply explicitly to specified
conduct in time of war. They do not appear to distinguish between circumstances involving a
declaration of war and other situations in which a state of war may exist absent a declaration of
war, although courts (and Congress) have in some cases construed “time of war” or “at war” to
require a formal declaration by Congress. Thus, these statutes may be triggered by a declaration
of war, but they also may apply in circumstances where a state of war is deemed to exist.
101
Johnson v. Eisentrager, 339 U.S. 763, 774 (1950).
102
50 U.S.C. § 21.
103
Id.
104
See J. Gregory Sindak, War, Liberty, and Enemy Aliens, 67 N.Y.U.L. Rev. 1402, 1412-1419 (1992). President
Roosevelt also ordered thousands of Japanese-American citizens interned; but he did not rely explicitly on the Alien
Enemy Act to do so.
105
8 U.S.C. §§ 1101 et seq. See, e.g., 8 U.S.C. § 240.
106
See Ludecke v. Watkins, 335 U.S. 160 (1948) (“The very nature of the President’s power to order the removal of all
enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion.”).
107
50 U.S.C.A. § 22.
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Consequently, these criminal prohibitions do not appear to be triggered by an authorization for
the use of force, unless and until a state of war develops. These statutes include, for example:108
(a) 18 U.S.C.A. § 443 (willful secreting, mutilating, obliterating or destroying records of a
war contractor, that is, a holder of a prime or subcontract connected with or related to the
prosecution of a war);
(b) 18 U.S.C.A. § 757 (procuring the escape of a prisoner of war held by the United States or
any of its allies or the escape of an apprehended or interned enemy alien held by the United
States or its allies; aiding or assisting such escape or assisting the prisoner of war or enemy
alien after his escape; or attempting or conspiring to do any of the above);
(c) 18 U.S.C.A. § 792 (harboring or concealing persons known or believed to have
committed or to be about to commit an offense under 18 U.S.C. §§ 793 or 794);
(d) 18 U.S.C.A. § 793 (gathering, transmitting or losing information related to the national
defense with the intent or reason to believe that it is to be used to the injury of the United
States or to the benefit of a foreign nation. Includes, among other things, such actions with
respect to information on any place in which any vessel, aircraft, arms, munitions, or other
materials or instruments for use in time of war are being prepared, repaired, stored, or are the
subject of research or development; or with respect to any prohibited place so designated by
the President by proclamation in time or war or in case of national emergency in which
anything for the use of the Army, Navy, or Air Force is being prepared, constructed, or
stored);
(e) 18 U.S.C.A. § 794 (gathering or delivering information relating to the national defense
with the intent or reason to believe that it is to be used to the injury of the United States or to
the advantage of a foreign nation. Subsection (b) deals with recording, publishing, or
communicating or attempting to elicit information regarding movements, numbers, condition
or disposition of Armed Forces, ships, aircraft or war materials, with the intent that the
information be communicated to the enemy in time of war. It also covers communicating to
the enemy in time of war information on plans or conduct of naval or military operations or
defense measures.)109
(f) 18 U.S.C.A. § 1038 (making a false statement, with intent to convey false or misleading
information, about the death, injury, capture, or disappearance of a member of the Armed
Forces of the United States during a war or armed conflict in which the United States is
engaged);
(g) 18 U.S.C.A. § 1091 (genocide in time of peace or in time of war);
(h) 18 U.S.C.A. § 1653 (aliens who are found and taken on the sea making war against the
United States or engaging in piracy against U.S. vessels or property);
(i) 18 U.S.C.A. § 2153 (when the United States is at war or when a national emergency has
been declared, willful destruction of war material, war premises, or war utilities, with intent
108
This list is intended to provide examples, rather than to be exhaustive.
109
It should be noted that other espionage provisions in 18 U.S.C.A. §§ 793-799 do not explicitly require a state or time
of war to apply, but would presumably apply in wartime as well as peacetime. Unlawful communication of, receipt of,
tampering with, or disclosure of restricted data with respect to special nuclear material is addressed in 42 U.S.C.A. §§
2274-77. Here again, wartime is not distinguished from other times in the application of these provisions.
Declarations of War and Authorizations for the Use of Military Force
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or reason to believe that such actions may injure, interfere with, or obstruct the United States
or associate nations in their war or defense activities; and conspiracy to do so);
(j) 18 U.S.C.A. § 2154 (in times of war or national emergency, willfully producing defective
war material, war premises, or war utilities with intent to injure, interfere with, or obstruct
the war or defense activities of the United States or associate nations);
(k) 18 U.S.C.A. § 2381 and U.S. Constitution, Art. 3, Sec. 3, Cl. 1 (while owing allegiance to
the United States, levying war against the United States or adhering to its enemies, giving
them aid and comfort. Constitution requires confession in open court or testimony of two
witnesses to the same overt act to convict for treason);
(l) 18 U.S.C.A. § 2382 (misprision of treason);
(m) 18 U.S.C.A. § 2384 (seditious conspiracy to overthrow or destroy by force the
Government of the United States or to levy war against the United States);
(n) 18 U.S.C.A. § 2388 (willfully engaging in certain activities in time of war with intent to
adversely affect armed forces of the United States or to obstruct enlistment or recruitment;
conspiracy to do so; harboring a person knowing or having reason to believe that the person
has engaged in such conduct);
(o) 18 U.S.C.A. § 2389 (recruiting soldiers or sailors within U.S. jurisdiction to engage in
armed hostilities against the United States); and
(p) 18 U.S.C.A. § 2441 (war crimes).
It should also be noted that other federal and state criminal law provisions,110
which do not draw
distinctions between conduct in time of war and at other times, also apply during wartime.111
For
example, 18 U.S.C.A. § 175 prohibits knowing development, stockpiling, acquisition, possession
or retention of any biological agent, toxin, or delivery system for use as a weapon, or knowing
assistance to a foreign state to do so. 18 U.S.C.A. § 229, with certain exceptions, prohibits similar
conduct with respect to chemical weapons. 18 U.S.C.A. § 831 prohibits specific transactions or
actions involving nuclear materials, while 42 U.S.C.A. § 2284 deals with sabotage of nuclear
facilities or fuel. 18 U.S.C.A. § 2332a prohibits certain uses of weapons of mass destruction.
Other explosives offenses are covered in 18 U.S.C.A. § 844. Hostage-taking is addressed in 18
U.S.C.A. § 1203, while kidnapping is covered by 18 U.S.C.A. § 1201. 18 U.S.C.A. § 1116 deals
with murder or manslaughter of foreign officials, official guests, or internationally protected
persons. 18 U.S.C.A. § 1114 addresses the murder or attempted murder of federal officers and
employees, including members of the uniformed services, while they are engaged in or on
account of the performance of official duties. It also covers murder or attempted murder of any
110
The provisions noted in this paragraph are intended as examples, rather than as an exhaustive list.
111
There are also a number of provisions in 18 U.S.C.A. §§ 958-67 that may be triggered by conduct during wars
involving other nations with whom the United States is at peace or during wars in which the United States is neutral.
These deal, for example, with: enlisting in the service of a foreign government to serve in war against a nation with
whom the United States is at peace; taking part in or facilitating a military or naval expedition against a friendly nation;
strengthening the armed vessel of a foreign nation which is at war with a nation with whom the United States is at
peace; arming a vessel to be used against a friendly nation; authorizing the taking out or attempting to take out of a U.S.
port a detained vessel of a belligerent nation; delivering an armed vessel to a belligerent nation in a conflict in which
the United States is neutral; or authorizing the taking out or attempting to take out of a U.S. port a vessel the departure
of which has been prohibited in aid of neutrality.
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person assisting an officer or employee of the United States in the performance of those duties or
on account of that assistance.112
Statutes of limitations, which preclude prosecutions after a specific amount of time has lapsed
(typically five years), may also be affected during wartime. When the United States “is at war” or
Congress has authorized the use of military force within the meaning of the War Powers
Resolution, the Wartime Suspension of Limitations Act (“Suspension Act”), codified at 18 U.S.C.
§ 3287, extends the statute of limitations for the prosecution of certain crimes against the United
States for five years beyond the termination of hostilities. Originally enacted during World War II,
the Suspension Act previously extended the statute of limitations in relevant cases until three
years after the end of hostilities only “when the United States is at war.” One court had construed
this language to refer only to a war declared by Congress, and held that the 1990-91 Persian Gulf
conflict, although authorized by Congress, did not qualify.113
Apparently also construing the
phrase “is at war” to mean pursuant to a declaration of war,114
Congress amended the provision in
2008115
to trigger its application also upon the enactment of an authorization to use military force
112
Some of these statutes are among a number of federal statutes which implicitly or explicitly have extraterritorial
application. This raises a question as to whether or to what extent the existence of a state of open hostilities or a
declaration of war would affect the availability of extraterritorial application of such provisions. An exploration of this
issue is beyond the scope of this report. For a general discussion of extraterritorial application of federal criminal law,
including appendices addressing federal criminal laws which enjoy express extraterritorial application and federal
crimes subject to federal prosecution when committed overseas, see, CRS Report 94-166, Extraterritorial Application
of American Criminal Law, by Charles Doyle.
113
United States v. Shelton, 816 F. Supp. 1132, 1135 (W.D. Tex. 1993). A later case held that the authorizations to use
force in connection with Iraq and Afghanistan sufficed to toll the limitations period, United States v. Prosperi, 573 F.
Supp. 2d 436, 442 (D. Mass. 2008), applying a four-part test to determine whether the United States was “at war”
within the meaning of the statute:
1) the extent of the authorization given by Congress by the President to act; 2) whether the conflict
is deemed a “war” under accepted definitions of the term and the rules of international law; 3) the
size and scope of the conflict (including the cost of the related procurement effort); and 4) the
diversion of resources that might have been expended on investigating frauds against the
government.
Id. at 449.
The Prosperi court determined that the war in Iraq ended on May 1, 2003, when President Bush declared that “major
combat operations” had ended there. Prosperi, 573 F. Supp. 2d at 455.
114
U.S. Congress, Senate Committee on the Judiciary, Wartime Enforcement of Fraud Act of 2008, Report to
Accompany S. 2892, 110th
Cong., 2nd
sess., July 25, 2008, S.Rept. 110-431. The Report explains that:
Technically, Section 3287 only applies to declared wars, not circumstances where Congress has
authorized the use of military force, as in the recent wars in Iraq and Afghanistan. The amendment
to Section 3287 specifically tracks the text of the Congressional authorizations for the use of the
Armed Forces in Iraq and Afghanistan and refers only to those authorizations described in the War
Powers Resolution (50 U.S.C. 1544(b)). As a result, only significant military actions requiring
Congressional action would trigger this suspension of the statute of limitations. This amendment is
not intended to apply to peacekeeping missions under the auspices of the United Nations or military
actions not specifically authorized by Congress pursuant to the War Powers resolution. This
language is intended to apply the suspension of statute of limitations to the wars in Iraq and
Afghanistan.
Id. at 5.
The language of S. 2892 (110th
Cong.) was later incorporated into the Consolidated Security, Disaster Assistance, and
Continuing Appropriations Act, 2009, H.R. 2638, and Duncan Hunter National Defense Authorization Act for Fiscal
Year 2009, S. 3001. Both were enacted, but the later-enacted version was subsequently repealed retroactively, P.L.
111-84, Div. A, Title VIII, § 1073(c)(7) (repealing § 855 of P.L. 110-417).
115
P.L. 110-329, title VIII, § 8117. The amended provision also requires notice to Congress if hostilities are ended
pursuant to presidential proclamation.
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“as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544 (b)).”116
(The
military counterpart to the provision, found in 10 U.S.C. § 843(f), was not amended. It continues
to suspend the applicable statute of limitations for three years beyond the end of hostilities, and
applies “when the United States is at war.”)
There are other criminal law provisions applicable to the military in the Uniform Code of Military
Justice, 10 U.S.C.A. §§ 801 et seq. Some of these provisions apply specifically in times of war.
These will be treated separately in the subsequent section of this report on “Military
Personnel.”117
Foreign Intelligence Surveillance
The Foreign Intelligence Surveillance Act (FISA), as amended, in pertinent part, authorizes
electronic surveillance, physical searches, and the use of pen registers and trap and trace devices
to gather foreign intelligence information and sets out the procedures and circumstances under
which each of these investigative tools may be used.118
In the event of a declaration of war, FISA
authorizes the use of each of these investigative tools to gather foreign intelligence for up to 15
days without a court order. For electronic surveillance subsequent to a declaration of war, FISA
provides, at 50 U.S.C.A. § 1811, that:
Notwithstanding any other law, the President, through the Attorney General, may authorize
electronic surveillance without a court order under this subchapter to acquire foreign
intelligence information for a period not to exceed fifteen calendar days following a
declaration of war by the Congress.
In the context of physical searches, 50 U.S.C.A. § 1829 includes language similar to that in
§ 1811:
Notwithstanding any other provision of law, the President, through the Attorney General,
may authorize physical searches without a court order under this subchapter to acquire
foreign intelligence information for a period not to exceed 15 calendar days following a
declaration of war by the Congress.
116
In a case subsequent to the enactment of the amendment but involving offenses that occurred earlier, the court
dismissed some counts of a complaint as time-barred based on the absence of a formal declaration of war. United States
v. Western Titanium, Inc., 2010 WL 2650224 (S.D. Cal. 2010). The court explained that its initial inclination was to
adopt the Prosperi approach to determine whether the United States was at war when the offenses were committed, it
ultimately concluded that the “extensive post-hoc factual determinations required by Prosperi render its application too
ambiguous and uncertain in the context of a criminal statute of limitation.” Id. at *3. The court further remarked that:
Whatever Congress intended by the phrase “at war” in the WSLA, it cannot have meant a definition
not capable of determination until a court conducts a subjective analysis years after the commission
of an offense.
Id.
117
Moreover, by operation of the Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C.A. §§ 3261-3267,
contractors and other civilians who accompany American armed forces overseas are subject to federal prosecution for
the commission of various common law crimes such as murder (18 U.S.C.A. § 1111), rape (18 U.S.C.A. § 2241),
assault (18 U.S.C.A. § 113), kidnaping (18 U.S.C.A. § 1201), and the like.
118
Electronic surveillance under FISA is addressed at 50 U.S.C.A. §§ 1801 et seq.; foreign intelligence physical
searches are addressed at 50 U.S.C. §§ 1821 et seq.; and pen registers and trap and trace devices under FISA are dealt
with at 50 U.S.C. §§ 1841 et seq.
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For pen registers and trap and trace devices, 50 U.S.C.A. § 1844 provides that:
Notwithstanding any other provision of law, the President, through the Attorney General,
may authorize the use of a pen register or trap and trace device without a court order under
this subchapter to acquire foreign intelligence information for a period not to exceed 15
calendar days following a declaration of war by Congress.
None of these provisions appears to be triggered by an authorization for the use of force or the
existence of a state of war under any authority other than a congressional declaration of war.119
In addition to the foregoing provisions, FISA has been amended to authorize the use of these
investigative tools without a court order for foreign intelligence purposes in “emergency”
circumstances as determined by the Attorney General. To do so the Attorney General must (1)
find that an emergency exists, (2) determine that the factual basis for the issuance of an order to
approve such surveillance, physical search, or pen register or trap and trace device also exists, (3)
advise a judge of the U.S. Foreign Intelligence Surveillance Court (FISC) that a decision to use
the emergency authority has been made, and (4) apply to the FISC judge so notified for a court
order as soon as practicable (but no later than within 72 hours in the case of an electronic
surveillance or physical search or 48 hours in the case of a pen register or trap and trace
device).120
These provisions do not expressly address the question of whether such emergency
procedures might be triggered either by an authorization for the use of force or by a congressional
declaration of war. However, depending upon the circumstances involved, these emergency
powers, or other provisions within FISA,121
might be utilized.
Assassination
As noted in the foregoing discussion of criminal law, 18 U.S.C.A. § 1116 makes it a crime to kill
or attempt to kill a “foreign official, official guest, or internationally protected person.” The term
“foreign official” includes, among others, a Chief of State or the political equivalent thereof while
he or she is in the United States. “Internationally protected person” covers, among others, a Chief
of State or the political equivalent thereof, whenever such person is in a country other than his or
her own. This criminal provision does not apply to the killing or attempted killing of an
119
The Bush Administration took the position that the authorization to use force in response to the 9/11 attacks, P.L.
107-40, implicitly authorized wiretaps without judicial order without time limits as a fundamental incident of waging
war, notwithstanding the existence of these provisions. See DOJ White Paper, supra footnote 43; CRS Report R40888,
Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by
Elizabeth B. Bazan and Jennifer K. Elsea.
120
For pertinent criteria and procedures applicable to such emergency situations, see 50 U.S.C. §§ 1805(e) (electronic
surveillance), 1824(e) (physical search), or 1843 (pen register or trap and trace device. This authority is applicable only
to gathering foreign intelligence information not concerning a United States person or information to protect against
international terrorism or clandestine intelligence activities, provided that such an investigation of a U.S. person may
not be conducted solely on the basis of First Amendment protected activities).
121
See, e.g., 50 U.S.C. § 1802 (electronic surveillance directed solely at acquisition of communications, not involving
U.S. persons, of a foreign government or governments or components thereof, factions of a foreign nation or nations
not substantially composed of U.S. persons, or entities openly acknowledged to be directed and controlled by a foreign
government or governments, without a court order for periods up to one year in specific circumstances; this provision
also covers electronic surveillance directed solely at acquisition of technical intelligence, other than spoken
communications of individuals, from property or premises of such foreign governments, factions, or entities). For a
more detailed discussion of FISA, see CRS Report RL30465, The Foreign Intelligence Surveillance Act: An Overview
of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence
Surveillance Court of Review Decisions, by Elizabeth B. Bazan.
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internationally protected person in his or her own country. The United States courts may exercise
jurisdiction over the killing or attempted killing of internationally protected persons in violation
of 18 U.S.C. § 1116 committed outside the United States where the victim is a representative,
officer, employee or agent of the United States; where a perpetrator is a U.S. national; or where
an offender is later found in the United States.
In addition, Part 2.11 of Executive Order 12333 forbids any person employed by or acting on
behalf of the United States Government from engaging in, or conspiring to engage in,
assassination. Part 2.12 of that executive order further prohibits any agency of the Intelligence
Community from participating in or requesting any person to undertake activities forbidden by
the order. The executive order does not define “assassination,” nor does either the criminal statute
or the executive order specifically address the applicability of the prohibition to an armed conflict
in which the U.S. is engaged. However, in times of war, the targeting of an enemy’s command
and control structures may be regarded as strategically important, is lawful under international
law, likely is not intended to be barred by E.O. 12333, and does not appear to be covered by 18
U.S.C. § 1116. Hence, a declaration of war, because it creates a state of war regardless of whether
actual hostilities have occurred, arguably creates a situation where such an act is not prohibited by
domestic law. Less clear is the effect of an authorization for the use of force. Once a state of war
comes into existence following such an authorization, then the legal situation appears to be the
same as with a declaration. But prior to that development, the legal effect of an authorization for
the use of force on the assassination ban appears somewhat ambiguous.
An executive order may be revoked by the President through another executive order. To the
extent that an executive order is issued pursuant to authority granted by statute, Congress may
repeal it or terminate the underlying statutory authority upon which it rests. The assassination ban
is part of an executive order issued by President Reagan in 1981 under both statutory and
constitutional authority. The order does not indicate the nature of the authority underlying the
assassination ban in particular. If one were to argue that a statutory basis for the ban exists, then
one might contend that an authorization for a use of force would, by implication, modify the ban
or repeal it with respect to the context in which the use of force was authorized.
The Defense Production Act of 1950
Conversely, declarations of war or authorizations for the use of force do not appear to have any
particular consequences for the broad authorities conferred by the Defense Production Act of
1950 (DPA), as amended.122
The DPA was first enacted in 1950 to mobilize the nation’s
productive capacity after the outbreak of the Korean War. It currently plays a key role in enabling
the United States to maintain a national defense/military readiness capability that will support a
rapid and effective response to any threat to U.S. national security, including “an attack on the
United States.” The DPA has been reauthorized and amended a number of times, most recently in
2009. The original 1950 act contained seven titles, four of which were rescinded in 1953.123
Currently, three titles of the DPA are in effect, and they are due to expire on September 30, 2014,
unless renewed.124
The authorities contained in the act are not triggered by any particular event
122
50 U.S.C.A. App. §§ 2061 et seq.
123
Titles II, IV, V, and VI pertained to Korean War-era economic stabilization measures (controlling prices, wages,
credit, etc.).
124
P.L. 111-67, § 2 (Sep. 30, 2009) extended the sunset date for these provisions from September 30, 2009 to
September 30, 2014.
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but are continuously available “to ensure the national defense preparedness, which is essential to
national security ....”125
Title I (Priorities and Allocations)
This title126
provides the President with the authority to require the priority performance of
defense contracts and to allocate scarce critical and strategic materials essential to the national
defense. This authority may also be extended to support the military requirements of allied
nations when such extension is in the U.S. national defense interest. Priority contract
performance, especially as implemented with respect to industrial resources, is intended to ensure
sources of supply and timely delivery of required items for defense purposes.127
The post-Cold War use of this authority includes the 1990-1991 operations in the Persian Gulf
(Desert Shield/Storm). During this operation, such items as computer and communications
equipment, Global Positioning System receivers, chemical warfare protective clothing, and
medical supplies were urgently required by both U.S. and Allied nation forces. More recently,
DPA authority has been used to ensure timely delivery of critically needed items to support the
deployment of U.S. and NATO troops in Bosnia and nearby areas and the availability of natural
gas in California’s energy crisis in December, 2000, and January, 2001.
Title I contains a section that prohibits the President from exercising his priorities and allocations
authority unless he makes certain findings supporting the need for such action. Additional
sections provide the President with authority relating to the hoarding of designated materials,
penalties for the violation of any provision of Title I, small business preferences, etc.
Title III (Expansion of Productive Capacity and Supply)
This title128
is used only in cases where domestic sources are required and domestic firms cannot,
or will not, act on their own to meet a national defense production need. Because private firms
may be reluctant to invest in production capabilities for a new material unless a near-term demand
for the material is relatively certain, Title III authorizes the use of financial incentives to expand
defense-related productive capacity of critical components, critical technology items, and
industrial resources “essential to the national defense.” These financial incentives include loan
guarantees, direct federal loans, purchases, purchase guarantees, and installation of equipment in
contractor facilities. The authorities conferred in this title become broader in times of a national
emergency declared by the President or Congress.
125
50 U.S.C.A. App. § 2062.
126
Id. §§ 2071-2078.
127
Similar authority to require the priority performance of defense contracts, including those for the Nuclear
Regulatory Commission, if the President determines that “it is in the interest of national security” to do so, is conferred
by 50 U.S.C.A. App. § 468. That statute also authorizes the President to take immediate possession of any plant, mine,
or other facility that fails to honor such a priority requirement, including steel production facilities that fail to honor
priority directives regarding the apportionment of steel to entities producing steel products or materials for the armed
forces.
128
Id. §§ 2077 and 2091-2099.
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Title VII (General Provisions)
This title129
includes various provisions with relevance to defense industrial preparedness.
Examples include (a) Section 708, which authorizes the President to provide antitrust defenses to
private firms participating in voluntary agreements aimed at solving production and distribution
problems involving national defense preparedness; (b) Section 710, which establishes a National
Defense Executive Reserve (NDER) composed of recognized experts from various segments of
the private sector and government (except full-time federal) employees for training for possible
employment in the federal government in the event of an emergency; and (c) Section 721, a
provision popularly known as the “Exon-Florio Amendment,” which authorizes the President to
suspend or prohibit the acquisition, merger, or takeover of a domestic firm by a foreign firm if
such action would threaten to impair national security.130
Insurance Contracts
Another domestic legal issue implicated by declarations of war and authorizations for the use of
force is their effect, if any, on insurance contracts, particularly with respect to clauses that exclude
coverage for “acts of war.” The overwhelming characterization of the events of September 11,
2001, as an “act of war” by public officials, sovereigns, international organizations, and the
media, for instance, caused concern that insurance companies and the courts would interpret so
called “war risk” exclusion clauses in the pertinent insurance contracts to deny claims related to
the attacks. However, even a declaration of war by Congress does not appear to have an
authoritative effect upon the construction of material terms contained in private contracts.131
The
intent of the parties, not the description of Congress, is what is most relevant to understanding
whether the events of September 11 or any future terrorist attacks constitute “acts of war” within
the meaning of private contracts,132
and it is not uncommon for such exclusion clauses in
insurance contracts to be given narrow constructions in order to allow recovery to the insured.133
In the leading case in this area, Pan American World Airways, Incorporated v. Aetna Casualty and
Surety Company,134
a jet was hijacked and destroyed by political dissidents in the Middle East.
“Notwithstanding the obvious political overtones of the event,” the court ruled that “the hijacking
129
Id, §§ 2151- 2170.
130
For a more extensive discussion of the act, see CRS Report RS20587, Defense Production Act: Purpose and Scope,
by Daniel H. Else (available upon request).
131
There is an older line of cases in which courts apply a technical meaning to the term “war” to hold that only
formally and constitutionally declared wars meet the definition. See 10A COUCH ON INSURANCE CONTRACTS § 152:3
(2012).
132
Under New York law, insurance policies are to be interpreted in accordance with their terms. See Continental
Insurance Company v. Arkwright Mutual Insurance Company, 102 F.3d 30 (2d Cir. 1996). See also Shneiderman v.
Metropolitan Casualty, 14 A.D.2d 284 (N.Y. 1961) (holding that “an insurance policy is generally a contract with the
average man who presumably is unfamiliar with the existence of a state of war from the strictly political, military
and/or legal standpoint.”)
133
See, e.g., Hammond v. National Life and Accident Insurance Co., 243 So.2d 902 (La. App.), cert. den., 258 La. 347,
246 So.2d 196 (La. 1971) (war exclusion clauses in two accidental death policies held not to preclude payment of
double indemnity benefits for the death of a U.S. sailor on board an aircraft carrier in the Tonkin Gulf caused by crew
error rather than hostile action on the grounds the phrase “in time of war” in the policies was ambiguous and, therefore,
should be construed against the insurer).
134
505 F.2d 989 (2nd
Cir. 1974).
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was too contained to come under the war or insurrection exclusion.”135
A rule of causation and a
rule of identity informed this conclusion. According to the Pan Am decision, when a court
interprets an insurance policy excluding from coverage any injuries “caused by” a certain class of
conditions, “the causation inquiry stops at the efficient physical cause of the loss; it does not trace
events back to their metaphysical beginnings.”136
In the Pan Am case, the court examined contract
language excluding from coverage losses caused by a “military or usurped power” and stated that
an act causing such a loss “must be at least that of a de facto government.”137
On the facts of the
case, the court then found that the terrorist organization that highjacked the Pan Am airplane “was
not a de facto government in the sky over London when the 747 was taken”138
and held that the
exclusion clause, therefore, did not apply.
This issue will not likely arise with respect to any future acts of terrorism on U.S. territory. In the
aftermath of September 11, 2001, Congress enacted the Terrorism Risk Insurance Act to ensure
the availability of commercial insurance coverage for losses due to acts of terrorism.139
Military Personnel
A number of provisions of the U.S. Code concern crimes under the Uniform Code of Military
Justice, the activation of the reserves, the role of the Coast Guard, tax benefits for military
personnel, and disability and death as the result of combat duty. None appear necessarily to
require a declaration of war to be applicable, but a declaration can trigger their application.
Crimes Under the UCMJ
Various crimes defined under the Uniform Code of Military Justice (“UCMJ,” 10 U.S.C.A.
§§ 801 et seq.) occur either primarily or exclusively in the context of states of hostilities (e.g.,
“misbehavior before the enemy” under section 899; “subordinate compelling surrender” under
section 900; “improper use of countersign” under section 901; “forcing a safeguard” under
section 902; “aiding the enemy” under section 904; “misconduct as prisoner” under section 905;
and rules concerning “spies” under section 906). Several of these crimes either only occur or
occur in aggravated form “in time of war.”
The Manual for Courts Martial sets out Rules for Court Martial. Rule 103(19) defines the
expression “time of war,” as follows:
For purpose [sic] of ... implementing the applicable paragraphs of Parts IV and V of this
Manual only, “time of war” means a period of war declared by Congress or the factual
determination by the President that the existence of hostilities warrants a finding that a “time
of war” exists for purposes of ... Parts IV and V of this manual.140
135
Id. at 1009. Jefferey W. Stempel, LAW OF INSURANCE CONTRACT DISPUTES § 1.02[a] (2001)
136
Pan Am, 505 F.2d at 1006. See also Kimmins Indus. Service Corp. v. Reliance Ins. Co., 19 F.3d 78, 81 (2nd
Cir.
1994), Album Realty Co. v. American Home Assurance Co., 176 A.D.2d at 514, quoting Home Insurance Co. v.
American Insurance Co., 147 A.D.2d 353, 354 (1989).
137
Pan Am, 505 F.2d at 1006.
138
Id.
139
For an overview, see CRS Report RS21979, Terrorism Risk Insurance: An Overview, by Baird Webel.
140
Part IV of the Manual for Courts-Martial implements the punitive articles of the UCMJ; Part IV implements non-
(continued...)
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Thus, a congressional declaration is not indispensable to prosecutions of these crimes but can
trigger their application. They do not appear to be triggered by an authorization for the use of
force unless a state of war develops. In the absence of a presidential or congressional declaration,
military courts have applied a variety of pragmatic tests to determine whether a “time of war”
existed in connection with specific offenses.141
For some offenses, the statutes of limitations may be tolled in “time of war.”142
When the United
States is “at war,” the statute of limitations on offenses involving fraud against the United States
or offenses committed in connection with U.S. property or procurement of contracts related to the
prosecution of the war is suspended until three years after the termination of hostilities (10
U.S.C.A. § 843(f)).143
These provisions have been held to apply during hostilities that were
initiated without a declaration of war or congressional authorization to use force.144
The jurisdiction of the military expands during time of war. Prior to 2006, the UCMJ permitted
trial by court-martial of “persons serving with or accompanying an armed force in the field” in
time of war (10 U.S.C.A. § 802(a)(10)).When faced with the court-martial of civilians, courts
interpreted the phrase “in time of war” to mean only during wars declared by Congress.145
However, Congress amended 10 U.S.C.A. § 802(a)(10) to extend military jurisdiction in “time of
declared war or a contingency operation.”146
The provision has reportedly resulted in one
(...continued)
judicial punishment under art. 15, UCMJ.
141
See Joseph Romero, “Of War and Punishment: ‘Time of War’ In Military Jurisprudence and a Call for Congress to
Define its Meaning,” 51 Naval Law Review 1, 8-38 (2005).
142
10 U.S.C.A. § 843(a) eliminates the statute of limitations for absence without leave or missing movement in time of
war. Under 10 U.S.C.A. § 843(e),the President may extend the statute of limitations for any offense until six months
after hostilities end by certifying to the Secretary of Defense that a trial would be “detrimental to the prosecution of the
war or inimical to the national security.”
143
Military courts have not required a declaration of war in order for the suspension to apply, but rather, have applied
various tests to determine probable congressional intent in the context of the statute.
144
United States v. Bancroftt, 3 C.M.A. 3 (C.M.A. 1953) (Korean conflict counted as “time of war” in order to make
sleeping on post a capital offense); United States v. Ayers, 4 C.M.A. 220 (C.M.A. 1953) (statute of limitations tolled for
absence without leave in time war where offense was committed in the continental United States during the Korean
conflict); United States v. Taylor, 4 C.M.A. 232 (C.M.A. 1954) (statute of limitations tolled during Korean conflict
with respect to charge of fraud against the United States under 10 U.S.C.A. § 843(f).
145
Robb v. United States, 456 F.2d 768 (Ct. Cl. 1972); United States v. Averette, 41 C.M.R. 363 (C.M.A. 1968),
146
P.L. 109-364, § 552 (Oct. 17, 2006). “Contingency operation” is defined under 10 U.S.C. § 101(a)(13) to mean a
military operation that:
(A) is designated by the Secretary of Defense as an operation in which members of the armed
forces are or may become involved in military actions, operations, or hostilities against an enemy
of the United States or against an opposing military force; or
(B) results in the call or order to, or retention on, active duty of members of the uniformed services
under section 688, 12301 (a), 12302, 12304, 12305, or 12406 of [title 10], chapter 15 of [title 10],
or any other provision of law during a war or during a national emergency declared by the
President or Congress.
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conviction of a civilian contractor in Iraq,147
a non-U.S. citizen whose Iraqi citizenship precluded
jurisdiction under the Military Extraterritorial Jurisdiction Act.148
In time of war or conditions of martial law, military commissions may provide a special venue for
trying persons not otherwise subject to the UCMJ.149
Military jurisdiction expands during war to
cover civilians accused of violating sections 904 or 906 (aiding the enemy and spying), as well as
other “offenders or offenses that by ... the law of war may be tried by military commissions,
provost courts, or other military tribunals” (§ 821), at least insofar as the Constitution permits.150
The Military Commissions Act of 2009, chapter 47A of Title 10, U.S. Code, permits the trial by
military commission of “alien unprivileged enemy belligerents” suspected of committing
violations against the law of war or “other offenses triable by military commission.”151
The
commissions may try such persons for offenses committed “before, on, or after September 11,
2001,”152
without any requirement for the authorization for the use of force in response to the
terrorist attacks of that date to have been in effect at the time the offense was committed. The
definition of “unprivileged enemy belligerent” is restricted to those who engaged in or
substantially supported hostilities against the United States or its coalition partners, except that
those who were members of Al Qaeda at the time of the offense need not have such a connection
to hostilities.153
Thus, offenses defined by or under the jurisdiction of the Military Commissions
Act do not depend on a declaration of war or authorization to use force.
Activation of Reserves
Chapter 1209 of title 10 of the United States Code (10 U.S.C.A. §§ 12301 et seq.) relates
generally to activation of reserve forces. The Ready Reserve forces include members of the Army
National Guard and the Air National Guard (see 10 U.S.C.A. § 10145(b)). The authority
conferred under sections 12302 through 12304 can be exercised without a congressional
declaration of war or national emergency; but those sections only allow reserve forces to be called
to active duty for fixed statutory periods (i.e., up to 24 consecutive months under sections 12302
and 12303 and up to 270 days under section 12304). By contrast, the authority conferred under
section 12301 can be exercised “[i]n time of war or of national emergency declared by Congress”
and allows reserve forces to be called to active duty “for the duration of the war or national
emergency and for six months thereafter.” The Standby Reserve (as distinguished from the Ready
Reserve and Selected Reserve forces) can only be called to active service under the authority
147
See Press Release, Multi-National Corps—Iraq PAO Civilian contractor convicted at a court-martial, June 23,
2008, available online at http://www.mnf-iraq.com/index.php?option=com_content&task=view&id=20671&Itemid=
128. The defendant was sentenced to five months’ confinement (time served) for wrongful appropriation of a knife,
obstruction of justice, and making a false official statement to military investigators.
148
Military Extraterritorial Jurisdiction Act of 2000 (MEJA), P.L. 106-523, 114 Stat. 2488 (2000), codified at 18
U.S.C. § 3261-67. For more information about criminal jurisdiction over civilian contractors in connection with
military operations, see CRS Report R40991, Private Security Contractors in Iraq and Afghanistan: Legal Issues, by
Jennifer K. Elsea.
149
See CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military
Commissions, by Jennifer K. Elsea (providing a general background of U.S. history of military commissions).
150
See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
151
10 U.S.C.A. § 948b.
152
10 U.S.C.A. § 948d.
153
10 U.S.C.A. § 948a.
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conferred by section 12301 (see section 12306). While the Retired Reserve can be called to active
service for up to 12 months under 10 U.S.C.A. § 688, it can be called to service “for the duration”
under the authority conferred by section 12301 (see section 12307). So-called “stop loss”
authority is conferred under section 12305. This authority allows the President, whenever persons
are called to active service under sections 12301, 12302, or 12304, to “suspend any provision of
law relating to promotion, retirement, or separation” with respect to any member of the armed
forces who the President determines is essential to the national security of the United States. This
means that, when persons have been called to active service under the authority conferred by
section 12301 “for the duration” of a war or national emergency declared by Congress, otherwise
applicable rules concerning promotions, retirements, and separations may not apply. Moreover,
under section 671a, the “period of active service” of any servicemember is extended to six
months beyond the duration of any war in which the United States is engaged, unless the
Secretary concerned terminates the period at an earlier date. Thus, for all of these sections, a
declaration of war is not a necessary predicate, but it can trigger the application of section 12301
and related provisions. Reemployment rights for reservists called to active duty available under
the Uniformed Services Employment and Reemployment Rights Act (USERRA, 38 U.S.C.A.
§§ 4301 et seq.) and benefits available through the Servicemembers Civil Relief Act
(50 U.S.C.A. App. §§ 501—596) do not require a declaration of war, but depend generally on the
authority under which the call to active duty was made, and may vary according to whether
service was rendered during a period of war.
Coast Guard
Section 3 of title 14 of the United States Code specifies that “[u]pon the declaration of war if
Congress so directs in the declaration or when the President directs, the Coast Guard shall operate
as a service in the Navy ....”154
Thus, a congressional declaration of war is not indispensable to
bring the Coast Guard under the control of the Navy, but it would have that effect.
Tax Provisions
There are several provisions of the Internal Revenue Code which apply to taxpayers involved
directly or indirectly with war. A congressional declaration of war is not needed to render any of
these provisions applicable.
Perhaps the most significant relevant provision of the Internal Revenue Code is section 112 under
which some or all of the pay received by members of the uniformed services for active service in
a combat zone is excluded from gross income (i.e., is received tax-free). The same exemption
applies to military pay received by service members hospitalized due to injuries sustained while
serving in a combat zone, subject to a two-year limitation. The term “combat zone” is specially
defined for purposes of this rule and means an area so designated by the President of the United
States in an Executive Order, and such an Executive Order must be issued to make the tax
exemption apply. No reference is made in this provision to any declaration by Congress of the
existence of a state of war and, by its express terms, it applied to service in the Korean and
Vietnam conflicts.
The pay of POWs and those listed as “missing in action” is also exempt (see (IRC § 112(d)).
154
The language “if Congress so directs in the declaration” was added by P.L. 109-241 (2006).
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In addition, pay received tax-free because of IRC § 112 is exempt from federal income-tax
withholding under IRC § 3401(a)(1). Qualified military benefits are exempt from tax under IRC §
134, and these include bonus payments made by a state or its political subdivision to a current or
former member of the Armed Forces, or to his or her dependents, by reason of service in a combat
zone designated under § 112. Due dates for filing returns and for paying taxes, according to IRC §
7508, are deferred for members of the uniformed services serving in a combat zone designated by
the President for purposes of IRC § 112. Telephone calls originating from combat zones
designated under IRC § 112 are exempt from the federal excise tax that would otherwise apply
(see IRC § 4253(d)). The so-called “additional estate tax” does not apply in the case of the estate
of a member of the Armed Forces who is killed in action in a combat zone designated under IRC
§ 112 or who dies as a result of wounds, disease, or injury suffered in such a combat zone (see
IRC § 2201).
An exemption from federal income tax for the current taxable year and any prior taxable year
ending on or after the first day of service in a combat zone and the preceding taxable year is
allowed under IRC § 692 for a member of the Armed Forces who dies in a combat zone
designated under IRC § 112 or who dies as a result of wounds, disease, or injury suffered in such
a combat zone. In addition, any unpaid taxes owed at the time of death will be forgiven. A similar
exemption is also allowed in the case of a civilian federal employee killed in any military action
involving the United States (see IRC § 692).
Special rules for spouses of persons who become missing in action also appear in the Code (see
IRC §§ 2(a)(3) and 6013).
Disability and Death
Subchapter II of chapter 11 of title 38 of the United States Code (38 U.S.C. §§ 1110 et seq.)
relates to “wartime disability compensation.” Relevant disability must result from personal injury
suffered or disease contracted in the line of duty in active military, naval, or air service “during a
period of war.”155
Thus, there is no explicit requirement of a congressional declaration of war. On
the other hand, such a declaration would obviously assure that the particular period of hostilities
in question is indeed a period of war. Some other veterans’ benefits depend on whether the person
seeking benefits served during a period of war.
Chapter 13 of title 38 of the United States Code (38 U.S.C.A. §§ 1301 et seq.) relates to serviceconnected
deaths. Compensation in connection with such deaths is accorded without regard to
whether or not they occurred during or as a result of a war declared by Congress.
Rules under 38 U.S.C.A. § 2402 relating to the eligibility of members of the Armed Forces who
die while on active duty to be buried in national cemeteries (including Arlington National
Cemetery) and other rules concerning burial benefits are not contingent on a congressional
declaration of war.
155
For a list of “periods of war,” see CRS Report RS21405, U.S. Periods of War and Dates of Current Conflicts, by
Barbara Salazar Torreon. For information about requirements to qualify for veterans’ benefits, see CRS Report
R42324, “Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits, by Umar Moulta-Ali.
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Itemization of Standby Statutory Authorities
Under ordinary circumstances the President exercises the powers conferred on him by the
Constitution and by statutes enacted by Congress. As noted in the preceding section, in
extraordinary circumstances a number of additional statutory powers may become available; and
his Constitutional powers are likely to be given a generous interpretation by the courts. The
standby statutory authorities potentially available to the President and the executive branch
number in the hundreds. Some are triggered by a declaration of war, some by the existence of a
state of war (and, thus, also by a declaration of war), and some pursuant to a declaration or the
existence of national emergency. Most can be triggered by one or more of the foregoing
circumstances. None of these special authorities appears to be triggered by an authorization for
the use of force (unless and until it leads to a state of war). With respect to those statutes that are
triggered by the existence of a national emergency or of a state or time of war, the determination
of whether such a condition exists would be made in the first instance by the executive branch,
unless the statute provides otherwise.
Those authorities that require a declaration of national emergency as a predicate for coming into
effect are not automatically activated by such a declaration. National emergency powers can be
exercised only pursuant to the strictures of the National Emergencies Act.156
In addition to
requiring that the President publicly declare a national emergency, that act requires that he specify
the emergency statutory authorities that he intends to use prior to their use and that he publish that
information in the Federal Register and report it to Congress.157
(On September 14, 2001,
President Bush, for example, took this step by issuing a “Declaration of National Emergency by
Reason of Certain Terrorist Attacks” and specifying 10 statutory authorities that he intended to
use.158
) Moreover, the act provides that Congress can terminate a declared emergency at any time
by joint resolution and that, in any event, the emergency declaration and any statutory powers
activated pursuant to it expire after one year unless the President specifically renews the
declaration.159
The following subsections identify the standby authorities that become available to the President
and the executive branch upon (1) a declaration of war, (2) the existence of a state of war, and (3)
pursuant to a declaration of national emergency.160
It is important to emphasize that a declaration
of war activates not only the statutes listed in the first subsection but also—because a declaration
of war automatically creates a state of war—those listed in the second section. The latter statutes
are listed separately because they can come into effect even if a declaration of war is never
adopted.
156
50 U.S.C.A. § 1601 et seq.
157
Id. §§ 1621 and 1631.
158
Proclamation 7463 (Sept. 14, 2001); 66 Fed. Reg. 48199 (Sept. 18, 2001).
159
50 U.S.C.A. § 1622.
160
These lists was compiled based on several LEXIS searches using the search terms “national w/2 emergency,” “state
or time w/2 war,” and “declaration w/2 war,” compared to, and supplemented by, a study done under contract for the
Office of Mobilization Preparedness in the Federal Emergency Management Agency in 1992 by the System Planning
Corporation—Emergency Executive Authorities (Contract EMW-91-C-3644). The lists were revised and updated based
on a Westlaw search (NATIONAL W/2 EMERGENCY) ((DUR* STATE TIME DECLAR!) W/5 (WAR
HOSTILITIES)) and are current as of December 18, 2012.
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Within each subsection, the statutes are listed generally in the order in which they appear in the
U.S. Code. The lists exclude the statutes detailed above concerning criminal law and taxes as well
as the disaster relief authorities contained in the “Robert T. Stafford Disaster Relief and
Emergency Assistance Act.”161
(1) Statutory Authorities Triggered by a
Declaration of War
Many of following provisions can be triggered by circumstances other than a declaration of war.
But all would come into effect upon enactment of a declaration of war:
Congressional Budget Act
2 U.S.C.A. § 198(b)—provides that the rule mandating that Congress adjourn sine die by
July 31 of each year unless each House adopts a concurrent resolution, “shall not be
applicable in any year if on July 31 of such year a state of war exists pursuant to a
declaration of war by the Congress.”
2 U.S.C.A. § 641—provides that the requirement that amendments to a reconciliation bill not
increase budget outlays or decrease budget outlay reductions, revenues, or revenue increases
unless they include offsetting budget outlay reductions or revenue increases does not apply
“if a declaration of war by the Congress is in effect.”
2 U.S.C.A. § 642(a)—provides that the requirement making bills, amendments, motions, and
conference reports which provide new budget authority that would exceed what Congress
has set forth in the concurrent resolution on the budget for that fiscal year or that would
reduce revenues below what has been set forth in that concurrent resolution out of order in
the House does not apply “when a declaration of war by the Congress is in effect.”
2 U.S.C.A. § 643(b)(2)—provides that the requirement making any bill, amendment, motion,
or conference report that exceeds the discretionary spending limits set forth in 2 U.S.C.A.
App. 901(c) out of order in the Senate does not apply “if a declaration of war by the
Congress is in effect or a joint resolution pursuant to section 258 of the Balanced Budget and
Emergency Deficit Control Act of 1985 [2 U.S.C.A. § 907a] has been enacted”
2 U.S.C.A. § 907a(b-c)—states that sequestration reports and orders and certain other
requirements of the Budget Act are precluded or suspended “upon the enactment of a
declaration of war” but that the sequestration procedures are restored “effective with the first
fiscal year that begins in the session after the state of war is concluded by Senate ratification
of the necessary treaties ....”
Agricultural Exports
7 U.S.C.A. § 5712(c)—allows the President to prohibit or curtail the export of any
agricultural commodity “during a period for which the President has declared a national
emergency or for which the Congress has declared war.”
161
42 U.S.C.A. §§ 5121 et seq.
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Armed Forces
10 U.S.C.A. § 123b—provides that the President may waive the statutory ceiling placed on
the number of members of the armed forces who may be stationed abroad in any fiscal year
“if the President declares an emergency” and that the ceiling “does not apply in the event of a
declaration of war or an armed attack on any member nation of the North Atlantic Treaty
Organization, Japan, the Republic of Korea, or any other ally of the United States.”
10 U.S.C.A. § 802(a)—subjects “persons serving with or accompanying an armed force in
the field ... in time of declared war or a contingency operation” to the Uniform Code of
Military Justice.
10 U.S.C.A. § 2350j(e)(3)(A)—allows the Secretary of Defense to carry out a military
construction project financed by contributions from designated countries or regional
organizations without prior explanation and justification to Congress if the project is
necessary to support the armed forces “by reason of a declaration of war, or a declaration by
the President of a national emergency pursuant to the National Emergencies Act that is in
force at the time of the commencement of the project.”
10 U.S.C.A. § 2662(g)—provides that the congressional notice and wait provisions
governing certain real property transactions by the Secretary of a military department and by
the GSA for the Department of Defense do not apply, inter alia, if the transaction results
from “a declaration of war ... or a declaration of a national emergency by the President
pursuant to the National Emergencies Act.”
10 U.S.C.A. § 2808(a)—provides that the Secretary of Defense and the Secretaries of the
military departments, with his authorization, may “without regard to any other provision of
law” undertake military construction projects “not otherwise authorized by law” if necessary
to support the use of the armed forces “in the event of a declaration of war or the declaration
by the President of a national emergency under the National Emergencies Act that requires
use of the armed forces.”
10 U.S.C.A. § 12311—provision for the Secretaries of the military departments to permit a
member of a reserve component to serve on active duty for a period of five years does not
apply “in time of war declared by Congress.”
10 U.S.C.A. § 12521—provides that the Ready Reserve Mobilization Income Insurance
Program includes in “covered service” any period of more than 30days on active duty in
support of forces activated “during a period of war declared by Congress or a period of
national emergency declared by the President or Congress.”
Coast Guard
14 U.S.C.A. § 3—provides that the Coast Guard shall operate as a service in the Navy “upon
the declaration of war if Congress so directs in the declaration or when the President directs
... .”
14 U.S.C.A. § 661—provides that the President may, if there is in effect a declaration of war
or national emergency at the end of any fiscal year, suspend any end-strength limitation
prescribed by law for any military or civilian component of the Coast Guard for a period not
to exceed 6 months after the end of the war or national emergency.
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14 U.S.C.A. § 724—provides that the President may, if there is in effect a declaration of war
or national emergency at the end of any fiscal year, suspend any end-strength limitation
prescribed by law for the number of officers in the Coast Guard Reserve for a period not to
exceed 6 months after the end of the war or national emergency.
Small Business Administration
15 U.S.C.A. § 636(n)—provides for the deferral of the repayment of interest and principal on
direct loans by the SBA to a member of a reserve component who is ordered to active duty
during a “period of military conflict,” defined to mean “a period of war declared by Congress
[or] a period of national emergency declared by the Congress or the President ....”
Unilateral Trade Sanctions
22 U.S.C.A. § 7203—provides that the prohibition in the “Trade Sanctions Reform and
Export Enhancement Act of 2000” barring the President from imposing new unilateral
agricultural or medical sanctions without the approval of Congress does not apply with
respect to the imposition of such a sanction against a foreign country or entity “(A) pursuant
to a declaration of war against the country or entity; (B) pursuant to specific statutory
authorization for the use of the Armed Forces of the United States against the country or
entity; (C) against which the Armed Forces of the United States are involved in hostilities; or
(D) where imminent involvement by the Armed Forces of the United States in hostilities
against the country or entity is clearly indicated by the circumstances ... .”
Armed Forces Retirement Home
24 U.S.C.A. § 412—provides that “persons who ... served in a war theater during a time of
war declared by Congress” are eligible to become residents of an Armed Forces Retirement
Home.
Statutes of Limitation
28 U.S.C.A. § 2416(d)—provides that, for the purpose of computing the time limitation
periods for commencing court actions brought by the United States, “there shall be excluded
all periods during which... the United States is in a state of war declared pursuant to Article I,
Section 8, of the Constitution of the United States.”
Tort Claims Against the Federal Government
28 U.S.C.A. § 2680(j)—exempts claims against the United States “arising out of the
combatant activities of the military or naval forces, or the Coast Guard, during time of war”
from the jurisdiction of courts.
Deferral of Civil Works Projects
33 U.S.C.A. § 2293—authorizes the Secretary of the Army, “in the event of a declaration of
war or a declaration by the President of a national emergency in accordance with the
National Emergencies Act that requires or may require use of the Armed Forces,” to
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terminate or defer Army civil works projects that he determines are not essential to the
national defense and to apply the resources to projects that are essential.
Nuclear Regulatory Commission
42 U.S.C.A. § 2138—authorizes the Nuclear Regulatory Commission to suspend any
licenses it has granted relating to the production or use of special nuclear material, to order
the recapture of any such material, and to order the operation of any such facility, “if the
Commission finds it necessary to the common defense and security ... whenever the
Congress declares that a state of war or national emergency exists.”
Alien Enemy Act
50 U.S.C.A. § 21—authorizes the President to “apprehend, restrain, secure, and remove”
alien enemies ... whenever there is a declared war between the United States and any foreign
nation or government, or any invasion or predatory incursion is perpetrated, attempted, or
threatened against the territory of the United States by any foreign nation or government, and
the President makes public proclamation of the event.”
National Defense Stockpile
50 U.S.C.A. § 98f(a)(2)—authorizes any person designated by the President, “(1) at any time
the President determines the release of such materials is required for purposes of the national
defense or (2) in time of war declared by the Congress or during a national emergency,” to
use, sell, or otherwise dispose of materials in the National Defense Stockpile that the
designee determines are “required for purposes of the national defense.”162
National Security Agency (NSA) Personnel Security
50 U.S.C.A. § 832—authorizes the Secretary of Defense, “[d]uring any period of war
declared by the Congress, or during any period when the Secretary determines that a national
disaster exists, or in [other] exceptional cases …,” may authorize the employment,
assignment or detail of personnel to the Agency and grant them temporary access to
classified information pending the completion of a full field investigation, if he determines
that “such action is clearly consistent with the national security.”
Chemical and Biological Warfare Agents
50 U.S.C.A. § 1515—authorizes the President to suspend the provisions of law governing
the production, transportation, location, testing, and disposal of lethal chemical and
biological warfare agents “during the period of any war declared by Congress and during the
period of any national emergency declared by Congress or by the President.”
162
For purposes of this authority, “national emergency” is defined to mean “a general declaration of emergency with
respect to the national defense made by the President or by the Congress. 50 U.S.C.A. § 58h-3.
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National Emergencies Act
50 U.S.C.A. § 1641—requires the President, “when the President declares a national
emergency, or Congress declares war,” to maintain a file and index of all significant orders
issued during such emergency or war, to transmit such orders to the Congress, and to report
to Congress each six months on the total expenditures during that period that are attributable
to the exercise of emergency authorities conferred by such declaration.
Foreign Intelligence Surveillance Act (FISA)
50 U.S.C.A. § 1811—provides that notwithstanding any other law, the President may
authorize electronic surveillance without a court order under FISA “to acquire foreign
intelligence information for a period not to exceed fifteen calendar days following a
declaration of war by the Congress.”
50 U.S.C.A. § 1829—provides that notwithstanding any other law, the President may
authorize physical searches without a court order under FISA “to acquire foreign intelligence
information for a period not to exceed 15 calendar days following a declaration of war by the
Congress.”
50 U.S.C.A. § 1844—provides that notwithstanding any other provision of law, the President
may authorize the use of a pen register or trap and trace device without a court order under
FISA “to acquire foreign intelligence information for a period not to exceed 15 calendar days
following a declaration of war by Congress.”
Selective Service Act
50 U.S.C.A. App. § 454(a)—provides that the President can vary the specified standards for
physical and mental fitness of inductees into the armed forces “except in time of war or
national emergency declared by the Congress”; that those who voluntarily enlist cannot have
their enlistment extended without their consent “until after a declaration of war or national
emergency by the Congress”; and that various exceptions fromrequirements of service in the
reserves or from orders to active duty without consent do not apply “in time of war or
national emergency declared by Congress.”
50 U.S.C.A. App. § 456—provides that various exceptions to liability for induction into the
armed forces for veterans of World War II and members of the Reserves and the National
Guard do not apply “after a declaration of war or national emergency made by the Congress”
and that the exception for those who have had a close relative killed in the line of duty does
not apply “during the period of a war or a national emergency declared by Congress.”
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(2) Statutory Authorities Triggered by the Existence
of a State of War (and Thus Also by a
Declaration of War)
In addition to the statutes that are explicitly triggered by a declaration of war, a number come into
the effect if a state of war, or period of war, or simply “war” exists. Because a declaration of war
automatically creates a state of war, these authorities also are triggered by the enactment of a
declaration of war. But they can come into effect even if no declaration of war is adopted. As is
the case with respect to many of the statutes in the foregoing subsection, many of these statutes
can also be triggered pursuant to a declaration of national emergency, and at least one comes into
play if Congress has enacted a specific authorization for the use of the Armed Forces. The statutes
are set forth in the order in which they appear in the U.S. Code:
Administrative Procedure
5 U.S.C.A. § 551(1)—excludes “military authority exercised in the field in time of war or in
occupied territory” from the definition of “agency” for purposes of general administrative
procedure.
5 U.S.C.A. § 701(b)—excludes “military authority exercised in the field in time of war or in
occupied territory” from the definition of “agency” for purposes of judicial review of
administrative procedure.
Federal Employees
5 U.S.C.A. § 5335(b)—requires that step increases mandated for federal civil service
employees be preserved for those employees whose civilian service is interrupted by “service
with the armed forces or by service in essential non-Government civilian employment during
a period of war or national emergency.”
5 U.S.C.A. § 5343(e)(3)—requires that step increases mandated for federal prevailing rate
employees be preserved for those employees whose civilian service is interrupted by “service
with the armed forces or by service in essential non-Government civilian employment during
a period of war or national emergency.”
5 U.S.C.A. § 8114(e)(3)—prohibits accounting for “bonus or pay for particularly hazardous
service in time of war” when computing pay to compensate government employees for work
injuries.
5 U.S.C.A. § 8332(g)—provides that a civil service employee who leaves his civilian
position to serve in the military “during the period of a war, or of a national emergency as
proclaimed by the President or declared by Congress” is deemed not to be separated from his
civil service position for purposes of determining his or her creditable service for retirement
purposes, unless the military service extends beyond 5 years.
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Aliens
8 U.S.C.A. § 1182(a)(8)—provides that any person “who has departed from or who has
remained outside the United States to avoid or evade training or service in the armed forces
in time of war or a period declared by the President to be a national emergency” is ineligible
to receive a visa and inadmissible into the United States, and is thus ineligible for
citizenship.
8 U.S.C.A. § 1231(b)(2)—provides that when the Attorney General decides that it is
“impracticable, inadvisable, inconvenient, or impossible” to remove an alien to the country
where the alien is a citizen or subject because the “United States is at war,” the alien may be
removed to the “country that is host to a government in exile of the country of which the
alien is a citizen or subject” or to “a country... that is very near to the country that is host to a
government in exile of the country of which the alien is a citizen or subject” or to “a country
... that is very near to the country of which the alien is a citizen or subject.”
8 U.S.C.A. § 1425—makes any person who deserted or shall desert the armed forces or left
the United States with the intent to avoid the draft at “any time during which the United
States has been or shall be at war” ineligible to become a naturalized citizen of the United
States.
8 U.S.C.A. § 1438—authorizes the Attorney General to naturalize former United States
citizens who lost citizenship by serving “in the military, air, or naval forces of any country at
war with a country with which the United States was at war after December 7, 1941, and
before September 2, 1945.”
8 U.S.C.A. § 1442(a)—authorizes the Attorney General to naturalize an alien froma country
with which the United States is at war after the alien’s loyalty to the United States is
established if the alien’s application for naturalization was “pending at the beginning of the
state of war and the applicant is otherwise entitled to admission to citizenship.”
8 U.S.C.A. § 1455(d)—prohibits the Attorney General from charging or collecting a
naturalization fee “during the time when the United States is at war” from an alien in the
military, air, or naval service of the United States for filing an application for naturalization
or issuing a certificate of naturalization upon admission to citizenship.
8 U.S.C.A. § 1481(a)(3) and (6)—provides that a person who is a national of the United
States whether by birth or naturalization shall lose his nationality by serving in the armed
forces of a foreign state “if such armed forces are engaged in hostilities against the United
States” and by voluntarily making “a formal written renunciation of nationality ... whenever
the United States shall be in a state of war” and the Attorney General approves such
renunciation as “not contrary to the interests of national defense.”
Armed Forces
10 U.S.C.A. § 123—authorizes the President to “suspend the operation of any provision of
law relating to the promotion, involuntary retirement, or separation of commissioned officers
of the Army, Navy, Air Force, Marine Corps, or Coast Guard Reserve ... in time of war, or of
a national emergency declared by Congress or the President” until one year after the war or
national emergency terminates.
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10 U.S.C.A. § 123a—authorizes the President to defer any end-strength limitation prescribed
by law for any military or civilian component of the armed forces if “there is in effect a war
or national emergency” until six months after the war or national emergency terminates.
10 U.S.C.A. § 152(a)—provides that “in time of war there is no limit on the number of
reappointments” the President may make of the same person to the two-year position of
Chairman of the Joint Chiefs of Staff.
10 U.S.C.A. § 154(a)—provides that “in time of war there is no limit on the number of
reappointments” the President may make of the same person to the two-year position of Vice
Chairman of the Joint Chiefs of Staff.
10 U.S.C.A. § 155(f)(4)—lifts the four-year limitation on the tours of duty of officers
assigned or detailed to duty on the Joint Staff of the Joint Chiefs of Staff “in time of war; or
during a national emergency declared by the President or Congress.”
10 U.S.C.A. § 194(e)—lifts the caps on the number of armed forces and civilian employees
that can be assigned or detailed to permanent duty in management headquarters activities or
otherwise in the Defense Agencies and DOD Field Activities “in time of war; or during a
national emergency declared by the President or Congress.”
10 U.S.C.A. § 351—authorizes the President to “arm, have armed, or allowto be armed” any
watercraft or aircraft used as a means of transportation “on, over, or under water” during a
“war and at any other time when the President determines that the security of the United
States is threatened by the application, or the imminent danger of application, of physical
force by any foreign government or agency against the United States, its citizens, the
property of its citizens, or their commercial interests.”
10 U.S.C.A. § 519—provides that “in time of war or of national emergency declared by
Congress” enlistments in the armed forces shall be for the duration of the war or emergency
plus six months.
10 U.S.C.A. § 527—allows the President to suspend the limitations placed on the number of
general officers in the Army, Air Force, and Marines and of flag officers in the Navy, and the
number of such officers who may be designated in various ranks, “in time of war, or of
national emergency declared by Congress or the President” until up to one year after the war
or national emergency terminates.
10 U.S.C.A. § 603—allows the President to appoint “any qualified person” to any officer
grade in the Army, Navy, Air Force, and Marines up to major general or rear admiral “in
time of war, or of national emergency declared by the Congress or the President” for up to 2
years or 6 months after the war or national emergency has terminated, whichever occurs first.
10 U.S.C.A. § 620(d)—allows the Secretary of a military department to exclude a reserve
officer ordered to active duty “during a war or national emergency” from the active duty
roster of officers.
10 U.S.C.A. § 671—provides that “in time of war or a national emergency declared by
Congress or the President” basic training may not be less than 12 weeks (except for certain
health care professionals).
10 U.S.C.A. § 688(f)—waives the 12-month limitation on the period for which retired
members of the armed forces can be recalled to active duty and the prohibition on recalling
certain categories of retired officers to active duty “in time of war or of national emergency
declared by Congress or the President.”
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10 U.S.C.A. § 690(c)—waives the limitation on the number of retired general officers and
flag officers who may be on active duty at any one time “in time of war or of national
emergency declared by Congress or the President.”
10 U.S.C.A. § 708(d)—allows the Secretary of a military department to cancel a leave of
absence granted for educational purposes “in time of war, or of national emergency declared
by Congress or the President.”
10 U.S.C.A. § 712—allows the President to detail members of the armed forces to any
foreign country he deems advisable to assist in military matters “during a war or a declared
national emergency.”
10 U.S.C.A. § 772(e)—authorizes a person not on active duty who served honorably “in time
of war” in the Army, Navy, Air Force, or Marine Corps to bear the title, and, “when
authorized by regulations prescribed by the President,” wear the uniform, of the “highest
grade held by him during that war.”
10 U.S.C.A. § 843—provides that a person charged with “absence without leave or missing
movement in time of war,” or with murder or rape, or any offense punishable by death, may
be tried and punished at any time without limitation and that a person charged with an
“offense the trial of which in time of war is certified to the President by the Secretary
concerned to be detrimental to the prosecution of the war or inimical to the national security”
may be tried and punished up to “six months after the termination of hostilities as proclaimed
by the President or by a joint resolution of Congress.”
10 U.S.C.A. § 843(f)—when the United States is “at war,” suspends the statute of limitations
until three years after the termination of hostilities for offenses under the UCMJ that involve
fraud against the United States, as well as those committed “in connection the acquisition,
care, handling, custody, control, or disposition of any [U.S.] real or personal property,” or
committed “in connection with the negotiation, procurement, award, performance, payment,
interim financing, cancellation, or other termination or settlement, of any contract,
subcontract, or purchase order which is connected with or related to the prosecution of the
war, or with any disposition of termination inventory by any war contractor or Government
agency.”
10 U.S.C.A. § 871(b)—allows the Secretary of a military department to commute a courtmartial
sentence of dismissal to a reduction in grade “in time of war or national emergency.”
10 U.S.C.A. § 885(c)—provides that any person found guilty of desertion or attempt to
desert the armed forces shall be punished, “if the offense is committed in time of war,” by
death or “such other punishment as a court-martial may direct.”
10 U.S.C.A. § 890—provides that any member of the armed forces who “willfully disobeys a
lawful command of his superior commissioned officer” shall be punished, “if the offense is
committed in time of war,” by death or “such other punishment as a court-martial may
direct.”
10 U.S.C.A. § 901—provides that any person subject to the UCMJ who “in time of war
discloses the parole or countersign to any person not entitled to receive it” or who gives to
another who is entitled to receive and use the parole or countersign a “different parole or
countersign from that which, to his knowledge, he was authorized and required to give,”
shall be punished by death or such other punishment as a court-martial may direct.
10 U.S.C.A. § 905—provides that any person subject to the UCMJ who, “while in the hands
of the enemy in time of war,” acts to the detriment of other prisoners to receive favorable
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treatment or maltreats his fellow prisoners without justifiable cause shall be punished as a
court-martial may direct.
10 U.S.C.A. § 906—provides that “any person who in time of war is found lurking as a spy
or acting as a spy” with respect to the armed forces or defense entities shall be tried by a
court-martial and, if convicted, be punished by death.
10 U.S.C.A. § 913—provides that any sentinel or look-out who is found drunk or sleeping at
his post, or who leaves it before he is relieved, shall be punished by death if the offense is
committed “in time of war” and by such other punishment as a court-martial may direct at
other times.
10 U.S.C.A. § 978(e)—allows the President to suspend the requirement that persons seeking
to enlist in the armed forces be tested for drug and alcohol use and dependency “in time of
war, or time of emergency declared by Congress or the President.”
10 U.S.C.A. § 1104(d)—provides that members of the armed forces on active duty “during
and immediately following a period of war, or during and immediately following a national
emergency involving the use of the armed forces in armed conflict” may receive health-care
services from the Department of Veterans Affairs.
10 U.S.C.A. § 1161(a)—provides that no commissioned officer may be dismissed from any
armed force except by sentence of a general court-martial, in commutation of a sentence of a
general court-martial, or “in time of war, by order of the President.”
10 U.S.C.A. §§ 1201(b) and 1203(b)—provides that the Secretary of a military department
may allow a member of his armed force to retire on disability even though the disability is
less than 30 percent under the standard schedule of rating disabilities used by the Department
of Veterans Affairs if the member has at least 20 years of service and the disability was
incurred “in line of duty in time of war or national emergency.”
10 U.S.C.A. § 1491(e)—allows the Secretary of Defense to waive the requirement that a
funeral honors detail be provided for the funeral of any veteran if “necessary ... to meet the
requirements of war, national emergency, or a contingency operation or other military
requirements.”
10 U.S.C.A. § 1580—allows the Secretary of Defense or of the military department
concerned to designate any employee of DOD as an emergency essential employee if they
provide immediate support to combat operations in a combat zone “in connection with a war,
a national emergency declared by Congress or the President, or the commencement of
combat operations of the armed forces in the zone.”
10 U.S.C.A. § 2208—allows the Secretary of Defense to waive the requirement that
Congress be given written notification of the advance billing of a customer of a workingcapital
fund “during a period of war or national emergency.”
10 U.S.C.A. § 2366(c)—authorizes the President to suspend the operation of any provision
related to the survivability testing and lethality testing required before full-scale production
of any major systems and munitions programs “in time of war or mobilization.”
10 U.S.C.A. § 2457(b)—states as policy the dispersal of manufacturing facilities and
standardization of equipment among North Atlantic Treaty Organization members to
“minimize potential economic hardship to parties to the agreements and increase the
survivability, in time of war.”
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10 U.S.C.A. § 2461(e)—provides that the conditions and prerequisites to the privatization of
a DOD commercial or industrial type function do “not apply during war or during a period of
national emergency declared by the President or Congress.”
10 U.S.C.A. § 2538—authorizes the President, through the head of any department, to seize
any plant that is “equipped to manufacture, or that in the opinion of the head of that
department is capable of being readily transformed into a plant for manufacturing, arms or
ammunition, parts thereof, or necessary supplies for the armed forces” and to manufacture
products at such plant “in time of war or when war is imminent,” if the head of the plant
refuses to cooperate with an order for arms or supplies.
10 U.S.C.A. § 2539—provides that the Secretary of Defense may maintain a list of privately
owned plants in the United States that have a capacity “sufficient to warrant conversion into
ammunition plants in time of war or when war is imminent,” and may obtain complete
information as to the equipment of each of those plants.
10 U.S.C.A. § 2552—provides that the Secretary of a military department may lend
equipment under the jurisdiction of that department that is on hand, and that can be
temporarily spared, to “any organization formed by the American National Red Cross that
needs it for instruction and practice for the purpose of aiding the Army, Navy, or Air Force
in time of war.”
10 U.S.C.A. § 2632—allows the Secretary of a military department to provide transportation
for employees working in a private plant that is manufacturing material for that department
“during a war or a national emergency declared by Congress or the President.”
10 U.S.C.A. §2644—authorizes the Secretary of Defense in “time of war” to take possession
and assume control of all or part of any system of transportation to transport troops, war
material, and equipment, or “for other purposes related to the emergency.”
10 U.S.C.A. § 2663(b)—provides that, “in time of war or when war is imminent,” the United
States may, immediately upon the filing of a petition for condemnation, acquire any interest
in land, including temporary use, needed for the site, construction, or operation of
fortifications, coast defenses, or military training camps, the construction and operation of
plants for the production of nitrate and other compounds and the manufacture of explosives
or other munitions of war, or the development and transmission of power for the operation of
these production plants.
10 U.S.C.A. § 2733(b)—extends the time that a claim brought against the United States for
damage to or loss of real property, damage to or loss of personal property, or personal injury
or death caused by an officer, employee, or a member of the Army, Navy, Air Force, Marine
Corps, or Coast Guard that arose in “time of war or armed conflict, or if such a war or
conflict intervened,” from two years after it accrues to two years after the war or armed
conflict is terminated.
10 U.S.C.A. § 2734(b)—limits claims “in the case of a national of a country at war with the
United States, or of any ally of that country,” to those in which the claims commission or
local military commander determines the claimant is friendly to the United States.
10 U.S.C.A. § 3014(f)(4)—provides that the ceilings on the number of members of the
armed forces, civilians, officers, and general officers that may be assigned or detailed for
duty in the Office of the Secretary of the Army and on the Army Staff “do not apply in time
of war or during a national emergency declared by the President or Congress.”
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10 U.S.C.A. § 3033(a)(1)—allows the President to reappoint a Chief of Staff of the Army for
an additional term of four years “in time of war or during a national emergency declared by
Congress.”
10 U.S.C.A. § 3063(b)—allows the Secretary of the Army to discontinue or consolidate the
basic branches of the Army designated by statute “for the duration of any war, or of any
national emergency declared by Congress.”
10 U.S.C.A. § 3691—provides that officers of the Army who have aeronautical ratings as
observers may be rated as flying officers in “time of war.”
10 U.S.C.A. § 4780(a)—authorizes the Secretary of the Army to acquire by lease any
building, or part of a building, in the District of Columbia that may be needed for military
purposes in “time of war or when war is imminent.”
10 U.S.C.A. § 5014(f)(4)—provides that the ceilings on the number of members of the
armed forces, civilians, officers, and general and flag officers that may be assigned or
detailed for duty in the Office of the Secretary of the Navy, the Office of the Chief of Naval
Operations, and the Headquarters Marine Corps “do not apply in time of war or during a
national emergency declared by the President or Congress.”
10 U.S.C.A. § 5033—allows the President to reappoint a Chief of Naval Operations for an
additional term of four years “in time of war or during a national emergency declared by
Congress.”
10 U.S.C.A. § 5043—allows the President to reappoint a Commandant of the Marine Corps
for an additional term of four years “in time of war or national emergency declared by
Congress.”
10 U.S.C.A. § 5133(c)—provides that “except in time of war, any officer of a staff corps
who has served as a chief of bureau for a full term is exempt from sea duty.”
10 U.S.C.A. § 5450—provides that the limitation to ten on the number of retired flag officers
who may be on active duty at any one time in the Regular Navy does not apply “in time of
war or national emergency.” 10 U.S.C.A. § 5451—authorizes the President to suspend any
provision of the “preceding sections” during a war or national emergency. (The only relevant
preceding section that has not been repealed has its own exception for war or national
emergency.)
10 U.S.C.A. § 5540(b)—provides that, “except in time of war,” each member of the Navy
and Marine Corps who is serving on a naval vessel, whose term of enlistment has expired,
and who desires to return to the United States but is retained by a senior officer “as essential
to the public interest,” is entitled to an increase in basic pay of 25 percent.
10 U.S.C.A. § 6408—provides that “No officer who holds the grade of warrant officer, W–1,
may be dismissed from the Navy or the Marine Corps except in time of war, by order of the
President.”
10 U.S.C.A. § 6485—provides that members of the Fleet Reserve and Fleet Marine Corps
Reserve may be ordered to active duty “in time of war or national emergency declared by
Congress, for the duration of the war or national emergency and for six months thereafter,
(and) in time of national emergency declared by the President ....”
10 U.S.C.A. § 6486—provides that the Secretary of the Navy may not release a member of
the Fleet Reserve or the Fleet Marine Corps Reserve from active duty “in time of war or
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national emergency declared by Congress or by the President” unless certain conditions are
met.
10 U.S.C.A. § 6911(b)—provides that “except in time of war or emergency declared by
Congress,” 20 percent of the aviation cadets procured in each fiscal year shall be procured
from qualified enlisted members of the Regular Navy and the Regular Marine Corps.
10 U.S.C.A. § 6972—provides that the crypt and window spaces of the Naval Academy
Chapel may be used only for memorials to officers of the Navy who have successfully
commanded a fleet or squadron in battle or who have “received the thanks of Congress for
conspicuously distinguished services in time of war.”
10 U.S.C.A. § 7224—authorizes the Secretary of the Navy to designate persons who can be
transported and subsisted on naval vessels at government expense “in time of war or during a
national emergency declared by the President.”
10 U.S.C.A. § 7225—provides that the Secretary of the Navy shall prescribe a suitable flag
to be known as the Navy Reserve flag to be flown by a seagoing merchant vessel designated
by the Secretary as “suitable for service as a naval auxiliary in time of war.”
10 U.S.C.A. § 7226—provides that the Secretary of the Navy shall prescribe a suitable
pennant to be known as the Naval Reserve yacht pennant to be flown by a yacht or similar
vessel if “the vessel has been designated by the Secretary, under such regulations as he
prescribes, as suitable for service as a naval auxiliary in time of war.”
10 U.S.C.A. § 7722—provides that “whenever in time of war” the Secretary of the Navy
certifies to a court, or to a judge of a court, that the prosecution of a suit would tend to
endanger the security of naval operations in the war, or would tend to interfere with those
operations, all further proceedings in the suit shall be stayed.
10 U.S.C.A. § 7724—provides that, “if in time of war, with respect to any claim against the
United States on which a suit would lie,” the Secretary of the Navy certifies to the court in
which proceedings are pending for the taking of certain depositions, that the proceedings
would tend to endanger or interfere with the security of the United States, “then the
proceedings may not be started or, if they have been started, they shall, when the certificate
is filed, be stayed.” The Secretary may extend or shorten such a stay by filing a new
certificate. 10 U.S.C.A. § 7725.
10 U.S.C.A. § 8014(f)(4)—provides that the ceilings on the number of members of the
armed forces, civilians, officers, and general officers that can be assigned or detailed for duty
in the Office of the Secretary of the Air Force do not apply “in time of war or during a
national emergency declared by the President or Congress.”
10 U.S.C.A. § 8033(a)(1)—allows the President to reappoint the Chief of Staff of the Air
Force for an additional term of four years “in time of war or during a national emergency
declared by Congress.”
10 U.S.C.A. § 8257(d)—provides that, “except in time of war or of emergency declared by
Congress,” at least 20 percent of the aviation cadets designated in each fiscal year shall be
selected from members of the Regular Air Force or the Regular Army who are eligible and
qualified.
10 U.S.C.A. § 8691—provides that officers of the Air Force who have aeronautical ratings as
observers may be rated as flying officers in “time of war.”
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10 U.S.C.A. § 9773(c)—provides that in selecting sites for air bases and depots and in
determining the alteration or enlargement of existing air bases or depots, the Secretary of the
Air Force shall consider the need “to permit, in time of peace, training and effective planning
in each strategic area for the use and expansion of commercial, municipal, and private flying
installations in time of war.”
10 U.S.C.A. § 9780(a)—authorizes the Secretary of the Army to acquire by lease any
building, or part of a building, in the District of Columbia that may be needed for military
purposes in “time of war or when war is imminent.”
Reserves
10 U.S.C.A. § 10102—states the purpose of the reserves to be “to provide trained units and
qualified persons available for active duty in the armed forces, in time of war or national
emergency, and at such other times as the national security may require.”
10 U.S.C.A. § 12006—allows the President, “in time of war, or of national emergency,” to
suspend the statutory ceilings placed on the number of reserve commissioned officers,
reserve general officers, and rear admirals in the Army, Navy, Air Force, and Marine Corps
reserves for up to one year beyond the end of the war or national emergency,
notwithstanding the earlier termination date prescribed by the National Emergencies Act.
10 U.S.C.A. § 12103—extends enlistments in the reserves that are in effect “at the beginning
of a war or of a national emergency declared by Congress,” or that are entered into during
such a war or emergency, and that would otherwise expire, until six months after the war or
emergency has ended, unless earlier terminated by the Secretary concerned.
10 U.S.C.A. § 12243—allows the President to suspend any law relating to the promotion or
mandatory retirement or separation of permanent reserve warrant officers “in time of war, or
of emergency declared after May 29, 1954, by Congress or the President.”
10 U.S.C.A. § 12301—allows the Secretary of a military department, “in time of war or of
national emergency declared by Congress, or when otherwise authorized by law,” to order
any reserve unit or member to active duty without their consent for the duration of the war or
emergency and up to six months thereafter, and allows reserves on inactive or retired status
to be called up if those on active status or in the inactive National Guard are insufficient.
10 U.S.C.A. § 12311—provides that if an agreement between the Secretary and a member of
the reserves specifying a set term of active duty expires “during a war or during a national
emergency declared by Congress or the President,” the Reserve may be kept on active duty
without his consent.
10 U.S.C.A. § 12313—limits the discretion of the Secretary concerned to release a Reserve
from active duty “in time of war or of national emergency declared by Congress or the
President ....”
10 U.S.C.A. § 12316—provides that a Reserve who is called up “for a period of more than
30 days in time of war or national emergency” and who is otherwise entitled to a pension,
retired or retainer pay, or disability compensation shall receive either that compensation, if it
is greater, or the pay and allowances prescribed for the duty he is performing.
10 U.S.C.A. § 14317—provides that reserve officers not on the active-duty list when ordered
to active duty “in time of war or national emergency” may be considered for promotion by a
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mandatory or special selection board; or in the case of an officer who “is serving on active
duty in support of a contingency operation, by a vacancy promotion board.”
10 U.S.C.A. § 16163—provides educational assistance to reservists who “served on active
duty in support of a contingency operation for 90 consecutive days or more” after September
11, 2001, and to members of the National Guard who “performed full time National Guard
duty under section 502 (f) of title 32 for 90 consecutive days or more when authorized by the
President or Secretary of Defense for the purpose of responding to a national emergency
declared by the President and supported by Federal funds.”
10 U.S.C.A. § 16201—provides that the Secretary of each military department may provide
financial assistance to persons in training for degrees in medicine or dentistry or other health
professions specialties “critically needed in wartime” in exchange for a commitment to
subsequent service in the Ready Reserve, including the possibility of being ordered to active
duty “in time of war or national emergency.”
10 U.S.C.A. § 18235—bars the Secretary of Defense from disposing or allowing the use of
facilities for the reserves in any manner that would interfere with their use “in time of war or
national emergency, by other units of the armed forces or by the United States for any other
purpose.”
10 U.S.C.A. § 18236—bars a state from disposing or allowing the use of facilities
constructed for the reserves with the help of a federal grant in any manner that would
interfere with their use “in time of war or national emergency, by other units of the armed
forces or by the United States for any other purpose.”
19 U.S.C.A. § 2293(i) (temporarily added by P.L. 111-5, extended to January 21, 2014, by
P.L. 112-40)—authorizes waivers of requirements for receiving trade readjustment
allowances and related benefits for adversely affected workers who are reservists and were
called to active duty under 32 U.S.C.A. § 502(f).
Trading with the Enemy Act
12 U.S.C.A. § 95a—authorizes the President, “during the time of war ... through any agency
that he may designate,” to investigate, regulate, or prohibit, any transactions in foreign
exchange, or transactions “involving any property in which any foreign country or a national
thereof has any interest.”
Coast Guard
14 U.S.C.A. § 2—provides that the Coast Guard “shall maintain a state of readiness to
function as a specialized service in the Navy in time of war, including the fulfillment of
Maritime Defense Zone responsibilities.”
14 U.S.C.A. § 275—allows the President, “in time of war, or of national emergency declared
by the President or Congress,” to suspend any section of this chapter with respect to the
selection, promotion, or involuntary separation of Coast Guard officers and to promote to the
next higher grade any officer serving on active duty in the grade of ensign or above and any
warrant officer serving on active duty in a grade below chief warrant officer, until up to six
months after the end of the war or national emergency.
14 U.S.C.A. § 331—allows the Secretary to order any regular officer of the Coast Guard on
the retired list to active duty “in time of war or national emergency.”
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14 U.S.C.A. § 359—allows the Commandant to order any enlisted member of the Coast
Guard on the retired list to active duty “in times of war or national emergency.”
14 U.S.C.A. § 367—allows an enlisted member of the Coast Guard to be detained beyond
the term of his enlistment “during a period of war or national emergency as proclaimed by
the President, and, in the interest of national defense,” for up to six months after the end of
the war or emergency.
14 U.S.C.A. § 371—requires that at least 20 percent of the aviation cadets procured in each
fiscal year be qualified enlisted members of the Coast Guard, “except in time of war or
national emergency.”
14 U.S.C.A. § 508—provides that any “person who is convicted by court martial for
desertion from the Coast Guard in time of war” and is consequently dismissed or
dishonorably discharged, shall afterwards not be enlisted, appointed or commissioned in any
military or naval service under the United States “unless he is restored to duty in time of
war.”
14 U.S.C.A. § 636—allows commissioned and warrant officers of the Coast Guard to
perform all of the functions of a notary public “in time of war or national emergency.”
14 U.S.C.A. § 652—provides that legal changes lifting restrictions on the Navy “for the
duration of a war or national emergency proclaimed by the President,” including those
regarding procurement and personnel, shall automatically apply to the Coast Guard.
14 U.S.C.A. § 660(a)—allows the Secretary to provide transportation to and from work for
persons employed by a private plant manufacturing material for the Coast Guard “during a
war or during a national emergency declared by Congress or the President.”
14 U.S.C.A. § 722—allows the President to suspend any part of the subchapter concerning
commissioned officers in the Coast Guard Reserve “in time of war or national emergency
declared by Congress.”
Federal Energy Regulatory Commission
16 U.S.C.A. § 824a(c)—allows the Federal Energy Regulatory Commission to order the
temporary connection of electric energy facilities and such generation, delivery, interchange,
or transmission of electric energy as in its judgment will best meet the emergency and serve
the public interest “during the continuance of any war in which the United States is engaged,
or whenever the Commission determines that an emergency exists by reason of a sudden
increase in the demand for electric energy, or a shortage of electric energy, or of fuel or
water for generating facilities, or other causes.”
Tennessee Valley Authority
16 U.S.C.A. § 831d(g)—directs the Tennessee Valley Authority to maintain a plant “for the
production of explosives in the event of war or a national emergency” unless Congress
releases it from the obligation.
16 U.S.C.A. § 831s—reserves to the government the right, “in case of war or national
emergency,” to take control of the TVA “for the purpose of manufacturing explosives or for
other war purposes.”
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Criminal Prosecutions
18 U.S.C. § 3287—whenever the United States is at war or Congress has authorized the use
of force, suspends the statute of limitations with respect to prosecution of fraud against the
United States or certain crimes related to U.S. real or personal property, as well as offenses
committed in relation to contracts or purchase orders related to the use of the U.S. armed
forces, until five years after the end of hostilities as proclaimed by the President or Congress
by concurrent resolution.
Imports
19 U.S.C.A. § 1318—allows the Secretary of the Treasury, “whenever the President shall by
proclamation declare an emergency to exist by reason of a state of war, or otherwise,” to
have additional time to perform any act prescribed by the Tariff Act of 1930, as amended,
and to permit the import of food, clothing, and medical supplies for use in emergency relief
work free of duty. (This function was transferred to the Secretary of Commerce, to be
exercised in consultation with the Secretary of the Treasury, under Reorganization Plan No.
3 of 1979, 19 U.S.C.A. § 2171 note, and therefore does not appear to be subject to delegation
to the Secretary of Homeland Security pursuant to 6 U.S.C.A. § 212).
Student Financial Aid
20 U.S.C.A. § 1098bb—authorizes the Secretary of Education to waive or modify statutory
and regulatory provisions applicable to student financial aid programs as he deems necessary
“in connection with a war or other military operation or national emergency” for the relief of
an “affected individual” as defined in 20 U.S.C.A. § 1098ee(2) to mean one who is “serving
on active duty during a war or other military operation or national emergency [declared by
the President]” or “is performing qualifying National Guard duty during a war or other
military operation or national emergency,” among other things.
Neutrality
22 U.S.C.A. § 441—provides that when the President finds that there exists “a state of war
between foreign states,” the President shall issue a proclamation naming the states involved
and shall revoke such proclamation when the “state of war ... shall have ceased.” As a result
of such a proclamation, it becomes illegal for persons within the United States to conduct
financial transactions with the warring parties, unless the United States is “at war.” 22
U.S.C.A. § 447.
Miscellaneous
22 U.S.C.A. § 1623—provides that a commission authorized to settle international claims
“shall have jurisdiction to receive, examine, adjudicate, and render a final decision” with
respect to claims between the United States government and a foreign government
“exclusive of governments against which the United States declared the existence of a state
of war during World War II.”
22 U.S.C.A. § 1974—provisions protecting U.S. vessels from seizure by a foreign country
do not apply with respect to a “seizure made by a country at war with the United States.”
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22 U.S.C.A. § 4056(f)—deems that a member of the Foreign Service who has left the
Service to enter military service “during a period of war, or national emergency proclaimed
by the President or declared by the Congress” has not, for retirement benefit purposes, left
the Service unless more than 5 years expire.
Accounting and Contracts
31 U.S.C.A. § 3522(b)(3)—extends the time for the armed forces to submit accounts to the
Comptroller General from the usual 60 days to 90 days “during a war or national emergency
and for 18 months after the war or emergency ends.”
Contracts
31 U.S.C.A. § 3726—excludes a “time of war” from the three-year deadline for federal
agencies to file claims with the Administrator of General Services related to transportation or
freight forwarding or to deduct from amounts subsequently owed to carriers or freight
forwarders the amount paid on a bill in excess of the allowable rates.
31 U.S.C.A. § 3727—allows a contract with DOD, the General Services Administration, and
the Department of Energy to provide, or to be changed without consideration to provide, that
a future payment under a contract to an assignee is not subject to reduction or setoff “during
a war or national emergency proclaimed by the President or declared by law and ended by
proclamation or law.”
National Guard
32 U.S.C.A. § 104—authorizes the President, in time of peace, to detail a commissioned
officer of the Regular Army to perform the duties of chief of staff for each fully organized
division of the Army National Guard in order “to insure prompt mobilization of the National
Guard in time of war or other emergency.”
32 U.S.C.A. § 111—permits the President to suspend various statutory provisions relating to
federal recognition of promotions in the Army and Air National Guard “in time of war, or of
emergency declared by Congress.”
Armed Forces
32 U.S.C.A. § 703(b)—provides that “in time of actual or threatened war, the United States
may requisition for military use” supplies and military publications bought by a state or
territory “for cash, at cost plus transportation” from the Army or Air Force.
32 U.S.C.A. § 715(b)—provides that “in time of war or armed conflict or if such a war or
armed conflict intervenes within two years after it accrues, and if good cause is shown,” the
time within which a claim against the United States for property loss, personal injury or
death caused by the National Guard must be filed is extended from two years from the time
the claim accrued to “two years after the war or armed conflict is terminated.”
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National Oceanic and Atmospheric Administration
33 U.S.C.A. § 854a-1—provides that the laws that pertain to the temporary appointment or
advancement of commissioned officers “in time of war or national emergency” in the Navy
shall also apply to personnel in National Oceanic and Atmospheric Administration (NOAA).,
subject to a few limitations.
33 U.S.C.A. § 3030—provides that the laws that pertain to the temporary appointment or
advancement of commissioned officers “in time of war or national emergency” in the Navy
shall also apply to officers of the NOAA, subject to a few limitations.
33 U.S.C.A. § 3033—allows the President, “in time of emergency declared by the President
or by the Congress, and in time of war,” to suspend all or any part of the laws pertaining to
the promotion of commissioned officers in the NOAA.
33 U.S.C.A. § 3063—provides that the Secretaries of Defense and Commerce shall prescribe
regulations governing the duties to be performed by NOAA “in time of war” and providing
for the cooperation of NOAA with the military departments “in time of peace in preparation
for its duties in time of war.”
Ocean Dumping
33 U.S.C.A. § 1902—states that provisions applying pollution control standards derived
from the MARPOL Protocol to warships, naval auxiliaries, and vessels owned by the United
States, other than submersibles, shall not apply “during time of war or a declared national
emergency.”
33 U.S.C.A. § 2503—lifts the prohibition on the ocean dumping of potentially infectious
medical waste by public vessels “during time of war or a declared national emergency.”
Patents
35 U.S.C.A. § 181—provides that an order by the Commissioner of Patents that a patent or
patent application be kept secret for national security reasons, which otherwise must be
renewed each year, shall remain in effect “during a time when the United States is at war”
and for one year following the cessation of hostilities and “during a national emergency
declared by the President” and for six months thereafter.
Armed Forces
37 U.S.C.A. § 202—entitles an officer in the Coast Guard who holds a permanent
appointment as rear admiral (lower half) on the retired list, and who “in time of war or
national emergency has served satisfactorily on active duty for two years in that grade or in a
higher grade,” to the pay of a rear admiral when on active duty.
37 U.S.C.A. § 301(d)—provides that “in time of war, the President may suspend the
payment of incentive pay” to members of a uniformed service for certain hazardous duties.
37 U.S.C.A. § 301a(c)—provides that “in time of war, the President may suspend the
payment of aviation career incentive pay” to members of a uniformed service.
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37 U.S.C.A. § 304(e)—provides that “in time of war, the President may suspend the payment
of diving duty pay” to members of a uniformed service.
37 U.S.C.A. § 477(d)—provides that the exceptions to the prohibition on members of the
uniformed services receiving more than one dislocation allowance a year “does not apply in
time of national emergency or in time of war.”
37 U.S.C.A. § 901—provides that “in time of war, an officer of an armed force who is
serving with troops operating against an enemy and who exercises, under assignment in
orders issued by competent authority, a command above that pertaining to his grade,” is
entitled to the pay and allowances “appropriate to the command so exercised.”
37 U.S.C.A. § 909—authorizes the continuation of special pay or incentive pay for members
of the armed forces who are involuntarily retained on duty under §§ 123 or 12305 of Title 10
unless “in time of war” the President suspends the authority under which the special pay or
incentive pay was given.
Veterans’ Care
38 U.S.C.A. § 8111A—authorizes the Secretary of the Department of Veterans Affairs to
provide hospital care, nursing home care, and medical services to members of the Armed
Forces on active duty “during and immediately following a period of war, or a period of
national emergency declared by the President or the Congress that involves the use of the
Armed Forces in armed conflict.”
Reemployment Rights
38 U.S.C.A. § 4303(16))—includes within the definition of “uniformed services” for
purposes of entitlement to the reemployment and other rights protected by the statute “the
Armed Forces, the Army National Guard and the Air National Guard ..., the commissioned
corps of the Public Health Service, and any other category of persons designated by the
President in time of war or national emergency.”
38 U.S.C.A. § 4312(c))—limits the reemployment rights of those absent from their jobs
because of service in the uniformed service to five years unless a longer absence is because
the individual, inter alia, was “ordered to or retained on active duty (other than for training)
under any provision of law because of a war or national emergency declared by the President
or Congress, as determined by the Secretary concerned.”
Sale of War Supplies to Foreign States
40 U.S.C.A. § 1310—authorizes the President to sell war supplies, materials, and equipment,
and the buildings, plants, and equipment necessary for their production, “to any foreign State
or Government, engaged in war against any Government with which the United States is at
war.”
Defense Structures in the District of Columbia
40 U.S.C.A. § 8722(b)(2)—excludes from the consultation procedures mandated for federal
and D.C. agencies with the National Capital Planning Commission for construction projects
in D.C. “structures erected by the Department of Defense during wartime or national
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emergency within existing military, naval, or Air Force reservations, except that the
appropriate defense agency shall consult with the Commission as to any developments which
materially affect traffic or require coordinated planning of the surrounding area.”
Public Contracts
41 U.S.C.A. § 1710(e)—provides that requirement for public-private competition prior to the
conversion of an agency function to contractor performance do not apply “during war or
during a period of national emergency declared by the President or Congress.”
Public Health Service
42 U.S.C.A. § 211(k)—allows commissioned officers in the Regular Corps of the Public
Health Service to be recommended for promotion to any higher grade in their category,
including the director grade, whether or not a vacancy exists in such grade, “in time of war or
of national emergency proclaimed by the President.”
42 U.S.C.A. § 213—provides that commissioned officers of the Public Health Service and
their surviving beneficiaries shall, “with respect to active service performed by such officers
... in time of war” be entitled to all rights, privileges, immunities, and benefits now or
hereafter provided “under any law of the United States in the case of commissioned officers
of the Army or their surviving beneficiaries on account of active military service, except
retired pay and uniform allowances.”
42 U.S.C.A. § 217—authorizes the President to use the Public Health Service, “in time of
war, or of emergency proclaimed by the President ... in such manner as shall in his judgment
promote the public interest” and, “in time of war, or of emergency involving the national
defense proclaimed by the President,” to declare the commissioned corps of the Service to be
a military service constituting a branch of the land and naval forces of the United States
subject to the Uniform Code of Military Justice.
Infectious Diseases
42 U.S.C.A. § 266—authorizes the Surgeon General, on recommendation of the National
Advisory Health Council, to “provide by regulations for the apprehension and examination,
in time of war,” of any individual reasonably believed to be infected with a disease that is the
“probable source of infection to members of the armed forces of the United States or to
individuals engaged in the production or transportation of arms, munitions, ships, food,
clothing, or other supplies for the armed forces.”
Nuclear Energy
42 U.S.C.A. § 2165—authorizes the commission that controls information on atomic energy
development in the United States “during the state of war or period of national disaster due
to enemy attack to employ individuals and to permit individuals access to Restricted Data
prior to completion of a security investigation report ... ”
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Public Lands
43 U.S.C.A. § 155—states that the provisions of the Engle Act governing the use of the
public lands of the United States by the Department of Defense for defense purposes shall
not apply “in time of war or national emergency hereafter declared by the President or
Congress.”
Natural Resources
43 U.S.C.A. § 1314 (b)—gives the United States, “in time of war or when necessary for
national defense,” the right of first refusal to purchase any portion of lands and natural
resources which are “specifically recognized, confirmed, established, and vested in and
assigned to the respective States and others.”
43 U.S.C.A. § 1341(b)—provides that, “in time of war,” the United States shall have the
right of first refusal to purchase at the market price all or any portion of “any mineral
produced from the outer Continental Shelf.”
43 U.S.C.A. § 1341(c)—allows the Secretary of the Interior to suspend leases on the outer
Continental Shelf, on the recommendation of the Secretary of Defense, “during a state of war
or national emergency declared by the Congress or the President of the United States after
August 7, 1953.”
43 U.S.C.A. § 1353 (f)—clarifies that “nothing in this section” related to the federal
purchase and disposition of oil and gas shall prohibit the right of the United States to
purchase any oil or gas produced on the outer Continental Shelf “in time of war.”
Destruction of Records
44 U.S.C.A. § 3311—provides that “during a state of war between the United States and
another nation, or when hostile action by a foreign power appears imminent,” the head of an
agency may authorize the destruction of records in his legal custody “situated in a military or
naval establishment, ship, or other depository outside the territorial limits of continental
United States.”
Shipping
46 U.S.C.A. § 5116—provides that a person causing or allowing the alteration, concealment,
or removal of an official mark placed on a vessel by the government, “except to make a
lawful change or to escape enemy capture in time of war,” commits a class A misdemeanor.
46 U.S.C.A. § 7113—provides that a licensed master, mate, pilot, or engineer of a vessel
propelled by machinery or carrying hazardous liquid cargoes in bulk is not “liable to draft in
time of war, except for performing duties authorized by the license.”
46 U.S.C.A. § 52101—provides reemployment rights for certain merchant seamen subject to
certification by the Secretary of Transportation, inter alia, that the individual was employed
on a vessel “that is owned, chartered, or controlled by the United States and used by the
United States for a war, armed conflict, national emergency, or maritime mobilization
need ....”
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46 U.S.C.A. § 53107—requires the Secretary of Transportation to include in each operating
agreement with merchant security fleet contractors an Emergency Preparedness Agreement
providing that, “upon a request by the Secretary of Defense during time of war or national
emergency, or whenever determined by the Secretary of Defense to be necessary for national
security or contingency operation ..., a contractor for a vessel covered by an operating
agreement under this chapter shall make available commercial transportation resources
(including services).”
46 U.S.C.A. § 53902—provides that government war risk insurance may be provided to
vessels only on the condition that the vessel will be available to the government “in time of
war or national emergency.”
46 U.S.C.A. App. § 56102—prohibits, “when the United States is at war or during any
national emergency, the existence of which is declared by proclamation of the President,” the
transfer of any vessel or shipyard to non-citizens without the approval of the Secretary of
Transportation.
46 U.S.C.A..§ 60311—exempts hospital ships in the ports of the United States “in time of
war,” from all tonnage taxes, light money, and pilotage charges in the ports of the United
States” if the vessel is covered by a certain treaty.
Communications
47 U.S.C.A. § 308—allows the Federal Communications Commission to waive the
requirement of a formal written application for construction permits and station licenses, and
modifications and renewals thereof, “during a national emergency proclaimed by the
President or declared by Congress and during the continuance of any war in which the
United States is engaged and when such action is necessary for the national defense or
security or otherwise in furtherance of the war effort.”
47 U.S.C.A. § 606—authorizes the President, “during the continuance of a war in which the
United States is engaged,” to direct that communications carriers give preference or priority
to “such communications as in his judgment may be essential to the national defense and
security”; to use the armed forces to prevent any obstruction of interstate or foreign
communication by radio or wire “during any war in which the United States is engaged”; to
suspend or amend all rules and regulations governing wire communications; to close any
facility or station for wire communication; and to authorize the use or control of any such
facility by the government “upon proclamation ... that there exists a state or threat of war
involving the United States.”
Railroads
49 U.S.C.A. § 11124(a)—authorizes the President, “during time of war or threatened war,”
to direct the Transportation Board to “give preference or priority to the movement of certain
traffic” and to direct all rail carriers within the Board’s jurisdiction to “adopt every means
within their control to facilitate and expedite” military traffic.
Procurement of Ships and Material During War
50 U.S.C.A. § 82—authorizes the President, in time of war, to place orders for ships, modify
or cancel existing contracts, require the owner or occupier of a ship or material
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manufacturing factory to supply specified articles, and to take over for use or operation by
the government any factory, regardless of the existence of contract or agreement.
Protection of Ships and Harbors
50 U.S.C.A. § 191—authorizes the Secretary of Transportation, “whenever the President by
proclamation or Executive order declares a national emergency to exist by reason of actual or
threatened war, insurrection, invasion, or disturbance or threatened disturbance of the
international relations of the United States,” to adopt rules and regulations governing the
anchorage and movement of all vessels, foreign and domestic, in the territorial waters of the
United States and, if necessary, to take possession of such vessels; and also authorizes the
President, “whenever the President finds that the security of the United States is endangered
by reason of actual or threatened war, or invasion, or insurrection or subversive activity, or
of disturbances or threatened disturbances of the international relations of the United States,”
to take steps to safeguard all vessels, harbors, ports, and waterfront facilities in the United
States against destruction, loss, or injury.
Federal Emergency Management Agency
50 U.S.C.A. § 404(b)—provides that one function of the Director of the Federal Emergency
Management Agency is to advise the President about programs for the “effective use in time
of war of the Nation’s natural and industrial resources for military and civilian needs, for the
maintenance and stabilization of the civilian economy in time of war, and for the adjustment
of such economy to war needs and conditions, policies for unifying, in time of war, the
activities of Federal agencies and departments engaged in or concerned with production,
procurement, distribution, or transportation of military or civilian supplies, materials, and
products, and the relationship between potential supplies of, and potential requirements for,
manpower, resources, and productive facilities in time of war.”
Central Intelligence Agency (CIA) Retirement Plan
50 U.S.C.A. § 2083—provides that a participant in the CIA retirement plan who, “during the
period of any war or of any national emergency as proclaimed by the President or declared
by the Congress,” leaves to enter military service shall not be deemed as separated from the
agency for purposes of the retirement plan unless the military service extends beyond five
years.
International Emergency Economic Powers
50 U.S.C.A. § 1702—authorizes the President, “when the United States is engaged in armed
hostilities or has been attacked by a foreign country or foreign nationals, [to] confiscate any
property, subject to the jurisdiction of the United States.”
Trading with the Enemy Act
50 U.S.C.A. App. § 2—defines “the beginning of the war ,” for purposes of the “Trading
with the Enemy Act of 1917,” as “midnight ending the day on which Congress has declared,
or shall declare war or the existence of a state of war.”
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50 U.S.C.A. App. § 5(b)—provides extensive authority to the President, “during the time of
war ... through any agency that he may designate,” to regulate economic transactions with
foreign countries and nationals, including the power to block any enemy property within the
jurisdiction of the United States and to vest title to that property in the United States.
50 U.S.C.A. App. § 9—authorizes the President, “in time of war or during any national
emergency declared by the President,” to sell foreign assets frozen under TWEA
notwithstanding the existence of a suit by a person claiming that the property was improperly
frozen or that he is otherwise legally entitled to the property if “the interest and welfare of
the United States require the sale ....”
50 U.S.C.A. App. § 10—provides that any citizen or corporation of the United States or
corporation desiring to “manufacture, or cause to be manufactured, a machine, manufacture,
composition of matter, or design, or to carry on, or to use any trade-mark, print, label or
cause to be carried on, a process under any patent or copyrighted matter owned or controlled
by an enemy or ally of enemy at any time during the existence of a state of war” may apply
to the President for a license.
50 U.S.C.A. App. § 38—provides that any person in the United States may legally donate
and deliver any article intended to be used solely to relieve human suffering to persons in a
country with which the United States was at war “at any time after the date of cessation of
hostilities.”
Selective Service Act
50 U.S.C.A. App. § 460(e)—provides that the statutory ceiling on the number of armed
forces personnel who may be assigned to the Selective Service System does not apply
“during a time of war or a national emergency declared by Congress or the President” and
mandates that the System be maintained as an active standby organization capable of
immediate operation “in the event of a national emergency.”
(3) Statutory Authorities Triggered by Declaration or
Existence of National Emergency
As noted, many of the statutes in the previous two subsections can also be triggered not only by a
declaration of war or the existence of a state of war but also by a declaration of national
emergency. There are, in addition, a number of statutes that can be triggered only upon a
declaration of national emergency or the existence of such an emergency. These standby
authorities do not automatically come into effect upon the issuance of a declaration of national
emergency but only in conformity with the procedures set forth in the National Emergencies Act.
The statutes, listed generally in the order in which they appear in the U.S. Code Annotated,
include the following:
Federal Employees
5 U.S.C.A. § 3326—allows retired members of the armed forces to be appointed to civil
service positions in the Department of Defense for 180 days after their retirement if “a state
of national emergency exists.”
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5 U.S.C.A. § 5303—allows the President, “because of national emergency or serious
economic conditions affecting the general welfare,” to alter the annual adjustment in pay
schedules that would otherwise be effective.
5 U.S.C.A. § 5304a—allows the President, “because of national emergency or serious
economic conditions affecting the general welfare,” to alter the locality-based comparability
pay increases that would otherwise be effective.
Agriculture
7 U.S.C.A. § 1332(c)—requires the Secretary of Agriculture to increase or terminate a
national marketing quota for wheat in case of “a national emergency or ... a material increase
in the demand for wheat.” (Note: This authority was suspended from 1996 to 2002., 7
U.S.C.A. § 7301(a), and from 2002 to 2007, 7 U.S.C.A. § 7992(a)(1).For earlier suspensions,
see note to 7 U.S.C.A. § 1332.)
7 U.S.C.A. § 1371(b)—requires the Secretary of Agriculture to increase or terminate a
national marketing quota or acreage allotment for cotton or rice, if necessary to meet “a
national emergency or ... a material increase in export demand.”
7 U.S.C.A. § 1444(e)(4)—allows the Secretary of Agriculture to require a set-aside of
cropland if he determines that the “total supply of agricultural commodities will, in the
absence of such a set-aside, be excessive taking into account the need for an adequate
carryover to maintain reasonable and stable supplies and prices and to meet a national
emergency.”
7 U.S.C.A. § 1444(h)(5)(A)(i)—allows the Secretary of Agriculture to limit the acreage
planted to extra long staple cotton if he determines that the “total supply of extra long staple
cotton, in the absence of such limitation, will be excessive taking into account the need for
an adequate carryover to maintain reasonable and stable prices and to meet a national
emergency.”
7 U.S.C.A. § 1736y(3)—declares it to be the policy of the United States that the export of
agricultural commodities and products should not be prohibited or limited except “in time of
a national emergency declared by the President under the Export Administration Act (50
App. U.S.C.A. §§ 2401 et seq.).
7 U.S.C.A. § 1743(a)(6)—allows the Commodity Credit Corporation to dispose of
commodity set-asides “in accordance with the directions of the President ... to meet any
national emergency declared by the President.”
7 U.S.C. § 1982—provides relief from certain agricultural loan obligations for reservists
mobilized under any “provision of law during a war or during a national emergency declared
by the President or Congress.”
7 U.S.C.A. § 4208(b)—provides that the policies stated in the “Farmland Protection Policy
Act (7 U.S.C.A. §§ 4201-4208) do not apply “to the acquisition or use of farmland for
national defense purposes during a national emergency.”
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Armed Services
10 U.S.C.A. § 1064—authorizes members of the National Guard called to duty during a
federally declared disaster or “a national emergency declared by the President or Congress”
to use commissary stores and MWR retail facilities.
10 U.S.C.A. § 1076a—permits the Secretary of Defense, during a “national emergency
declared by the President or Congress,” to waive the charges otherwise payable by a member
of the Selected Reserve of the Ready Reserve or a member of the Individual Ready Reserve
for dental insurance coverage if necessary to ensure readiness for deployment.
10 U.S.C.A. § 2304—allows the Secretaries of the military departments and the Department
of Transportation as well as the Administrator of NASA to exclude a particular source from
a competitive procurement procedure or to solicit bids only from particular sources when it
would be in the interest of national defense in having a facility, producer, manufacturer, or
other supplier “available for furnishing the property or service in case of a national
emergency or industrial mobilization.”
10 U.S.C.A. § 4025—prescribes that “during a national emergency declared by the
President” the regular working hours of laborers producing military supplies or munitions for
the Army are 8 hours a day and 40 hours a week, but allows these limits to be exceeded
under regulations prescribed by the Secretary of the Army.
10 U.S.C.A. § 9025—provides that “during a national emergency declared by the President”
the working hours of laborers and mechanics employed by the Department of the Air Force
are 8 hours a day and 40 hours a week but allows the Secretary of the Air Force to alter these
hours by regulation.
10 U.S.C.A. § 12302—allows the Secretary of a military department, “in time of national
emergency declared by the President after January 1, 1953, or when otherwise authorized by
law,” to order any member or unit of the Ready Reserve to active duty without their consent
for up to 24 months.
Fort McHenry
16 U.S.C.A. § 440—allows Fort McHenry to be closed “in case of a national emergency”
and to be used for military purposes “during the period of the emergency.”
Customs Service
19 U.S.C.A. § 1318(b)—authorizes the Secretary of the Treasury, “when necessary to
respond to a national emergency declared under the National Emergencies Act,” to
temporarily eliminate, consolidate, or relocate any office of the Customs Service, modify its
hours of service or services rendered, and “take any other action necessary to respond
directly to the national emergency ....” (This authority may be delegated to the Secretary of
Homeland Security pursuant to 6 U.S.C.A. § 212)
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Barro Colorado Island
20 U.S.C.A. § 79—directs that Barro Colorado Island in Gatun Lake in the Canal Zone be
left in its natural state for scientific observation and investigation “except in the event of
declared national emergency.”
Foreign Relations163
22 U.S.C.A. § 2318(a)—authorizes the President, if “an unforeseen emergency exists which
requires immediate military assistance to a foreign country or international organization” to
provide up to $100 million in defense articles and services apart from the authority of the
Arms Export Control Act but only upon notice to Congress.
22 U.S.C.A. § 4103(c)—allows the President to suspend any statutory provision relating to
labor-management relations in the Foreign Service “if the President determines in writing
that the suspension is necessary in the interest of national security because of an emergency.”
Federal Highways
23 U.S.C.A. § 127(h)—permits the Secretary of Transportation to waive vehicle weight
limits on the portion of Interstate Route 95 in Maine between Augusta and Bangor for the
purpose of making bulk shipments of jet fuel to the air National Guard Base at the Bangor
International Airport “during a period of national emergency.”
National Oceanographic and Atmospheric Administration
33 U.S.C.A. § 3061—authorizes the President, “whenever in his judgment a sufficient
national emergency exists,” to transfer such vessels, equipment, stations, and commissioned
officers of NOAA to a military department “as he may deem in the best interests of the
country.”
Basic Pay of the Uniformed Services
37 U.S.C.A.§ 1009(e)—permits the President to provide for alternative pay adjustments if he
considers the formula otherwise required by law to be inappropriate because of “national
emergency or serious economic conditions affecting the general welfare,” provided a plan for
such alternative adjustment is submitted to Congress by September 1 of the preceding year.
Veterans Affairs
38 U.S.C.A. § 1721—authorizes the Secretary of the Department of Veterans Affairs to
prescribe rules for good conduct by those receiving services in Department facilities “during
163
It might be noted that 21 U.S.C.A. Section 1901(a) states as a congressional finding that “[t]here is a national
emergency resulting from the activities of international narcotics traffickers and their organizations that threatens the
national security, foreign policy, and economy of the United States”; but it is not clear whether any special authorities
are intended to be triggered by this provision.
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a period of national emergency (other than a period of war or an emergency described in
section 8111A of [title 38]).”
Davis-Bacon Act
40 U.S.C.A. § 3147—allows the President to suspend the requirements of the Davis-Bacon
Act mandating that laborers and mechanics on federal and D.C. construction and public
works projects be paid prevailing wages “in the event of a national emergency.”
Real Property and Contracts
40 U.S.C.A. § 545—allows GSA to negotiate disposal and contracts for disposal of surplus
property without first seeking public bids “but subject to obtaining such competition as is
feasible under the circumstances, if necessary in the public interest during the period of a
national emergency declared by the President or the Congress ....”
40 U.S.C.A. § 905—allows GSA to waive the procedures otherwise applicable to the
disposal or acquisition of real property in urban areas “during any period of national
emergency proclaimed by the President.”
41 U.S.C.A. § 3304)—authorizes executive agencies to use noncompetitive procurement
procedures if “it is necessary to award the contract to a particular source or sources in order
(A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing
property or services in case of a national emergency or to achieve industrial mobilization ....”
Public Health
42 U.S.C.A. § 204—establishes in the Public Health Service a Reserve Corps “for the
purpose of securing a reserve for duty in the Service in time of national emergency,” which
is to “be available and ready for involuntary calls to active duty during national emergencies
and public health crises, similar to the uniformed service reserve personnel.”164
42 U.S.C.A. § 1320b-5—authorizes the Secretary of Health and Human Services to waive or
modify certain requirements of Medicare, Medicaid, State Children’s Health Insurance
programs, and the Health Insurance Portability and Accountability Act, related to
certification or licensing of health care providers, sanctions related to physician referrals,
deadlines and other penalties, in response to an emergency declared by the President
pursuant to the National Emergencies Act.
Ryan White Comprehensive AIDS Resources Emergency Act
of 1990
42 U.S.C.A. § 300ff-83—authorizes the Secretary of Health and Human Services to waive
requirements with respect to certain Human Immunodeficiency Virus programs during an
emergency or disaster declared by the President pursuant to the National Emergencies Act,
among other authorities.
164
This section, as amended by P.L. 111-148, was held unconstitutional as not severable by Florida ex rel. Bondi v.
U.S. Dept. Of Health And Human Services, 2011 WL 285683, *1, (N.D.Fla. Jan 31, 2011).
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Prohibition of Compensation
42 U.S.C.A. § 1712—bars employees of contractors of the U.S. providing services outside of
the U.S. who suffer injury or death from a war hazard from receiving compensation if they
have been “convicted in a court of competent jurisdiction of any subversive act against the
United States or any of its allies, committed after the declaration by the President on May 27,
1941, of the national emergency ....”
Relocation
42 U.S.C.A. § 4625(c)(3)—waives the requirement in the Uniform Relocation Assistance
Act that a person displaced from their dwelling by a project of a federal agency or one
undertaken with federal financial assistance not be required to move until afforded a
reasonable opportunity to relocate to a comparable dwelling in the case of “a national
emergency declared by the President.”
Resources
42 U.S.C.A. § 6393(a)(2)(A)—waives the requirement that a minimum of 30 days be
allowed for comment on proposed rules and regulations to implement the domestic supply
availability and standby energy authorities of the Energy Policy and Conservation Act “if the
President finds that such waiver is necessary to act expeditiously during an emergency
affecting the national security of the United States.”
Merchant Marine
46 U.S.C.A. § 7507—permits the Secretary of the department in which the Coast Guard is
operating to extend a license of certificate of registry for not more than one year in response
to a national emergency or natural disaster.
46 U.S.C.A. § 8103(h)(1)—allows the President to suspend the citizenship requirements that
otherwise apply to the officers and seamen on documented vessels of the U.S. “during a
proclaimed national emergency.”
46 U.S.C.A. § 8301(d)—allows the Secretary of the Department in which the Coast Guard is
operating to suspend the requirements relating to the number of licensed individuals that
vessels subject to inspection must have “during a national emergency proclaimed by the
President.”
46 U.S.C.A. § 57521—permits the Secretary of Transportation to terminate any charter of
DOT vessels “whenever the President shall proclaim that the security of the national defense
makes it advisable, or during any national emergency declared by proclamation of the
President.”
46 U.S.C.A. § 56301—authorizes the Secretary of Transportation to requisition or purchase
any vessel or other watercraft owned by citizens of the United States “whenever the
President shall proclaim that the security of the national defense makes it advisable or during
any national emergency declared by proclamation of the President” and to transfer the
possession or control of any such vessel or watercraft to any other department or agency of
the government.
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Airports
49 U.S.C.A. § 114—gives the Under Secretary of Transportation responsible for the
Transportation Security Administration the authority “during a national emergency” to
coordinate all domestic transportation and oversee the transportation-related responsibilities
of other non-military federal departments and agencies but states that this authority “shall not
supersede” the authority of other federal departments and agencies related to transportation.
49 U.S.C.A. § 40101 note, as added by P.L. 107-71, § 127 (Nov. 19, 2001)—authorizes the
Secretary of Transportation “during a national emergency affecting air transportation or
intrastate air transportation” to grant complete or partial waivers fromrestrictions that would
otherwise apply regarding the carriage by aircraft of freight, mail, emergency medical
supplies, personnel, or patients.
49 U.S.C.A. § 47152(5)—provides that the United States, “during a national emergency
declared by the President or Congress,” is entitled to use, control, or possess any part of a
public airport that is on surplus property donated by the government.
50 U.S.C.A. § 196—provides that at any time vessels can be requisitioned under 46 U.S.C.A.
§ 1242, supra, which can come into effect “whenever the President shall proclaim that the
security of the national defense makes it advisable or during any national emergency
declared by proclamation of the President,” the President may also purchase or requisition
merchant vessels not owned by U.S. citizens and lying idle in U.S. waters “which the
President finds necessary to the national defense.”
Modification of Defense Contracts
50 U.S.C.A. § 1435—provides that the President’s authority to modify defense contracts in
order to “facilitate the national defense” without regard to other provisions of law regarding
the making, performance, amendment, or modification of contracts is effective “only during
a national emergency declared by Congress or the President” and for six months after the
termination thereof.
National Emergencies Act
50 U.S.C.A. § 1631—requires the President, whenever he “declares a national emergency,”
to specify in the declaration or by subsequent executive orders published in the Federal
Register and transmitted to Congress which emergency statutory authorities he or other
officers will exercise, prior to their exercise.
International Economic Emergency Powers Act
50 U.S.C.A. § 1701—authorizes the President to exercise the extensive powers with respect
to the property of, and economic transactions with, a foreign country or entity granted by the
International Emergency Economic Powers Act (IEEPA) “to deal with any unusual and
extraordinary threat, which has its source in whole or substantial part outside the United
States, to the national security, foreign policy, or economy of the United States, if the
President declares a national emergency with respect to such threat.”
50 U.S.C.A. § 1702—exempts from any economic embargo imposed under IEEPA
donations of articles such as food, clothing, and medicine intended to relieve human
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suffering unless the President determines, inter alia, that such donations “would seriously
impair his ability to deal with any national emergency declared under section 1701 of this
title.”
50 U.S.C.A. § 1706—provides that foreign assets frozen pursuant to IEEPA may remain
frozen beyond the date of the termination of the national emergency if necessary “on account
of claims involving such country or its nationals.”
Defense Production Act
50 U.S.C.A. App. § 2091(a)(2)—provides that certain conditions that are prerequisite to the
President’s exercise of the authority under Title III to provide guarantees for the financing of
contracts or other operations deemed necessary for the “procurement of materials or
performance of services for the national defense” do not apply “during periods of national
emergency declared by Congress or the President.”
50 U.S.C.A. App. § 2091(d)(1)(B)—provides that the aggregate ceiling of $50 million on the
total amount of financing guarantees that can be outstanding under Title III and certain other
conditions may be waived “during a period of national emergency declared by the Congress
or the President.”
50 U.S.C.A. App. § 2092—provides that certain Presidential determinations that are
prerequisite to the making of direct federal loans under Title III for the expansion of
productive capacity and supply for the national defense do not apply and that the aggregate
ceiling of $50 million on such loans and certain other procedural requirements may be
waived “during periods of national emergency declared by the Congress or the President.”
50 U.S.C.A. App. § 2093—provides that a number of conditions and prerequisites to the
exercise of the authority under Title III to expand the productive capacity and supply of
private industry for national defense purposes by means of purchase and resale of an
industrial resource, a critical technology item, or a critical and strategic raw material may be
waived “during periods of national emergency declared by the Congress or the President.”
Congressional Procedures for Declaring War
or Authorizing the Use of Force
The following section discusses how Congress would act on a joint resolution or bill to declare
war or authorize the use of force if the House and Senate were to consider that measure under the
regular procedures of each house. It also describes how a measure declaring war or authorizing
the use of force would be considered under the procedures contained in the War Powers
Resolution of 1973.165
Regular Procedures
The Senate’s published precedents do not suggest that a measure proposing to declare war or
authorize the use of force, if considered outside the framework of the War Powers Resolution,
165
P.L. 93-148. 87 Stat. 555 et. seq. 50 U.S.C. §§ 1541 et. seq.
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would be immune from the potentially laborious process to which other bills and joint resolutions
are subject (except those that benefit from special expedited procedures under rule-making
statutes). For example, a joint resolution declaring war or authorizing the use of force presumably
would not be eligible for immediate floor consideration at the time it is introduced, and it
presumably would be subject to possible delays resulting from the Senators’ exercise of their right
to debate at length.
Similarly, the precedents of the House apparently do not grant privilege to a joint resolution
declaring war or authorizing the use of force either under the “leave to report” authority that
House rules and precedents give to certain House committees or as a question of the privileges of
the House. Concerning the latter, former House Parliamentarian Wm. Holmes Brown has
observed that “Rule IX [on questions of privilege] is concerned not with the privileges of the
Congress as a legislative branch, but only with the privileges of the House itself.” Thus, neither
the enumeration of legislative powers in Article I, sec. 8 of the Constitution nor the prohibition of
that article against any withdrawal from the Treasury except by enactment of an appropriation
renders a measure purporting to exercise or limit those powers a question of the privileges of the
House.166
Because a joint resolution declaring war or authorizing the use of force proposes to exercise a
constitutional power of “the Congress as a legislative branch,” not of the House alone, it would
seem, therefore, not to qualify as a question of privilege. If so, the House would consider the joint
resolution according to its established procedures for dealing with other legislative measures,167
unless the proposed declaration or authorization were to be considered under the terms of the War
Powers Resolution.
Congress has adopted eight declarations of war during the 20th
century—two at the outset of U.S.
involvement in World War I and six in the course of World War II. House and Senate
consideration of the initial declarations in each of these wars is illustrative of the process that
Congress followed. On both occasions, the House and Senate acted to declare war in response to
urgent presidential requests made personally before joint sessions of Congress. In light of the
importance that most Members attached to these requests, it is not surprising that, in both cases,
the two houses acted on the joint resolutions quickly and without following all their regular
legislative procedures.
By way of illustration, the following is a brief summary of how the House and Senate considered
the initial joint resolutions to declare war in 1917 and 1941.
World War I
Congress convened on April 2, 1917, and on that evening, President Wilson addressed both
houses to request that Congress declare war against Germany. Immediately after the President’s
address, Senator Martin introduced S.J.Res. 1, to declare war, which was referred to the
Committee on Foreign Relations. Also on April 2, Representative Flood introduced a companion
resolution, H.J.Res 24, which was referred to the Committee on Foreign Affairs.
166
Wm. Holmes Brown, House Practice: A Guide to the Rules, Precedents and Procedures of the House. Washington,
U.S. Govt. Print. Off., 1996, p. 692.
167
The House floor discussion on April 4, 1917, concerning procedures for considering H.J.Res. 24, supports this
interpretation by implication.
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The Senate committee reported S.J.Res. 1 with an amendment on the following day. Senator
LaFollette objected to a unanimous consent request that the Senate consider the measure
immediately. Consequently, the joint resolution had to lie over for a day, pursuant to paragraph
4(a) of Senate Rule XVII. On April 4, the Senate agreed by unanimous consent to consider the
joint resolution, agreed to the committee amendment, and, after considerable debate, passed the
joint resolution by a roll call vote of 82-6.
The House committee reported H.J.Res. 24 on April 4, and the House then agreed, by unanimous
consent, to consider the measure on the following day “under the general rules of the House.”
Because the joint resolution, once reported, was placed on the Union Calendar, “the general rules
of the House” required that it be considered in Committee of the Whole. Consequently, when the
House convened on April 5, Representative Flood moved that the House resolve into Committee
of the Whole to consider H.J.Res. 24. Before the House agreed to his motion, however, it also
agreed to Representative Flood’s unanimous consent request that the House instead consider
S.J.Res. 1, which the Senate already had passed. After much debate, and after rejecting two
amendments in Committee of the Whole and a motion to recommit with instructions in the
House, the House passed S.J. Res. 1 by a roll call vote of 373-50.
World War II
On December 8, 1941, President Franklin D. Roosevelt addressed a joint session of Congress and
asked for a declaration of war against Japan. Immediately after the joint session ended, the Senate
reconvened and, following a live quorum call, Senator Connolly introduced a joint resolution
declaring war. At Senator Connolly’s request, and by unanimous consent, the Senate agreed to
consider the joint resolution immediately, without committee consideration. Within minutes, and
after brief statements by Senators Connolly and Vandenberg, the Senate passed the joint
resolution by a roll call vote of 82-0.
Also immediately after the President’s address, the House acted by considering and agreeing to
Representative McCormack’s motion to suspend the rules and pass H.J.Res. 254, which
Representative McCormack introduced at that time. December 8 being a Monday, suspension
motions were in order on that day. Immediately after the House passed H.J.Res. 254 by a roll call
vote of 388-1, the House received a message from the Senate that it already had passed its joint
resolution, now numbered S.J. Res. 116. The House then agreed to Representative McCormack’s
unanimous consent request that the House take the Senate joint resolution from the Speaker’s
table and agree to it. This action was necessary in order for both houses to pass the same measure,
making it eligible to be presented to the President for his signature.
Congressional Procedures Under The War Powers Resolution
Enactment of the War Powers Resolution in November 1973 created special expedited procedures
by which the House and Senate can act on joint resolutions or bills to declare war or authorize the
use of force, if those measures are considered in accordance with the other, related provisions of
that law.168
168
These expedited procedures are ambiguous in several respects. The description presented here should not be
considered a substitute for consultations with the House or Senate Parliamentarian.
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These expedited procedures were enacted into law as part of the War Powers Resolution as an
exercise of the constitutional rule-making powers of the House and Senate. Article I of the
Constitution empowers each house to set its own rules. When Congress enacts into law provisions
that affect only the internal operations of the House or Senate, or both, those provisions are
known as rule-making provisions of law that are enacted pursuant to this grant of power under
Article I. Such rule-making provisions have exactly the same force and effect as provisions
contained in the Standing Rules of the House and Senate.169
Consequently, the house to which
certain rule-making provisions apply may enforce, ignore, waive, suspend, supplement, or amend
them by its own unilateral action, as it sees fit. For example, the House could adopt a special rule,
or the Senate could agree to a unanimous consent request, that would supersede some or all of the
procedures described here.
Section 4(a) of the War Powers Resolution directs the President to submit a report to Congress
within 48 hours after U.S. armed forces are introduced “into hostilities or into situations where
imminent involvement in hostilities is clearly indicated by the circumstances.”170
Section 5(a)
provides for the receipt and for the referral to committee of any such presidential report. Under
Section 5(b), the President is required to terminate use of the armed forces within 60 calendar
days (90 days in some circumstances) after submitting his report unless Congress takes any one
of several actions. One of these actions is to declare war; another is to “enact a specific
authorization for such use of United States Armed Forces” as an alternative to declaring war.
Under another section of the War Powers Resolution, Congress can also adopt a bill or joint
resolution at any time requiring the President to remove the armed forces unless a declaration of
war or statutory authorization has been enacted.171
Section 6 of the War Powers Resolution contains the expedited, or “fast-track,” procedures that
were included in the law to enable the House and Senate to act within the 60 calendar-day period
on a bill or joint resolution contemplated by Section 5(b).172
If, under Section 6(a), such a measure is introduced at least 30 calendar days before the end of the
60-day period, the measure is referred to the House Foreign Affairs Committee or the Senate
Foreign Relations Committee, as the case may be. That committee is required to report one such
measure, with its recommendations, not later than 24 calendar days before the end of the 60-day
period. This provision suggests that the committee can report the measure with the committee’s
proposed amendments, if any. The subsection also provides that its provisions are to govern
“unless such House shall otherwise determine by the yeas and nays.” In other words, the House or
Senate can, by a rollcall vote decided by a simple majority, release its committee from the
obligation to report a measure proposing to declare war or to take some other action enumerated
in Section 5(b).
169
Other examples of rule-making provisions of law are the various congressional procedures enacted as part of the
Congressional Budget and Impoundment Control Act of 1974 and related laws, and the “fast-track” provisions found in
the Trade Act of 1974 and related laws.
170
Presidential reports also are required under two other conditions enumerated in Sec. 4(a).
171
Prior to 1983, the WPR provided that Congress could mandate the removal of U.S. armed forces by adopting a
concurrent resolution. Given the virtual certainty that this procedure was unconstitutional following the Supreme
Court’s decision in June, 1983, in INS v. Chadha, 462 U.S. 919 (1983), Congress added a new provision to the War
Powers Resolution later in 1983 providing for expedited procedures for a bill or joint resolution to require the removal
of U.S. armed forces. See 50 U.S.C.A. § 1546a.
172
A subsequent section of the WPR mandates expedited procedures for House and Senate consideration of a bill or
joint resolution requiring the removal of U.S. armed forces. See 50 U.S.C.A. §1546a.
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If the House or Senate committee does report, it is not required to report the measure favorably.
Instead, it may report it unfavorably or without recommendation. But what if either the Senate or
House committee fails to report a covered bill or joint resolution within the time permitted? The
Senate Parliamentarian has stated that the Senate Foreign Relations Committee would be
automatically discharged if it failed to report as required by this subsection. The House
Parliamentarian has stated that, should the House Foreign Affairs Committee fail to report in a
timely manner, a privileged motion to discharge that committee would be in order on the House
floor.
Section 6(b) governs initial House and Senate floor consideration of a joint resolution reported
from committee pursuant to Section 6(a). Under Section 6(b), the bill or joint resolution, once
reported (or once the committee is discharged), “shall become the pending business” of the House
or Senate, as the case may be. By making a covered measure the pending business on the House
or Senate floor, the War Powers Resolution evidently makes the measure privileged for floor
consideration in the House (without the need for the Rules Committee to report a special rule for
that purpose), or obviates the need for a motion (that usually is debatable) to proceed to the
measure’s consideration in the Senate. Because Section 6(b) contains no provisions to the
contrary, the measure presumably would be amendable on the floor of either house to the same
extent as any other bill or joint resolution that house considers, or could be tabled.
Section 6(b) goes on to require that the House or Senate vote on final passage of the measure
within three calendar days after having become the pending business, “unless such House shall
otherwise determine by yeas and nays.” The effect of this subsection probably is more significant
for the Senate than the House, because it is designed to preclude a filibuster on the Senate floor.
In addition, the last provision of the subsection evidently gives either house options to adjust the
timing and length of floor consideration by adopting any of several conceivable motions by
rollcall vote. For example, either house might agree by motion to postpone consideration of the
measure to a date certain. Alternatively, either house might dispose of the measure by a rollcall
vote in favor of a motion to table or recommit it or to postpone its consideration indefinitely.
Under the same authority, the House or Senate also might be able to shorten the debate to less
than three calendar days or to extend the time for debate.
Sections 6(c) and 6(d) address the process for the House and Senate to reach agreement when
each has passed a measure covered by Section 5(b). In summary, Section 6(c) provides for
expedited committee and floor action in one house on a covered measure that the other house
already has passed. Finally, Section 6(d) states that if a conference is necessary to reach a
compromise between House and Senate versions of a covered measure, the conferees are to be
appointed “promptly,” the conferees are to report in either agreement or disagreement within
specified time periods, and the two houses are to act on the conference report before the end of
the 60-day period.
These last two subsections raise the problem that no rules or rule-making statute can compel the
House and Senate to reach agreement. All that expedited procedures can do is to require that the
conferees report, and that the House and Senate act on their report, by a time certain. The War
Powers Resolution cannot ensure that both houses will agree on the same position by the end of
the 60-day period. If the two houses were unable to agree by the end of the 60 days, that situation
presumably would be reflected in (1) votes by one or both houses to reject a conference report in
agreement, or (2) votes by both houses to agree to a conference report in disagreement (in other
words, votes in each house to accept the report of the conferees that they were unable to reach
agreement within the time allotted them). In either case, there is nothing in the statute that would
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preclude the two houses from appointing a new conference committee that might present a new
conference report in agreement at some later date. However, a conference report filed in the
Senate after the expiration of the 60-day period might well be subject to extended debate because,
presumably, consideration of the report no longer would be governed by Section 6. Instead, the
report would be considered under the Senate’s regular procedures.
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Appendix A. Texts of Formal Declarations of War
by the United States
War with Great Britain 1812
(Act of Jun. 18, 1812, ch. 102, 2 Stat 755)
CHAP. CII.—An Act declaring War between the United Kingdom of Great Britain and Ireland
and the dependencies thereof, and the United States of America and their territories.
Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled, That war be and the same is hereby declared to exist between the United
Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of
America and their territories; and that the President of the United States is hereby authorized to
use the whole land and naval force of the United States to carry the same into effect, and to issue
to private armed vessels of the United States commissions or letters of marque and general
reprisal, in such form as he shall think proper, and under the seal of the United States, against the
vessels, goods, and effects of the government of the said United Kingdom of Great Britain and
Ireland, and the subjects thereof.
APPROVED, June 18, 1812.
[Terminated by Treaty of Ghent, entered into force Feb. 17, 1815. 8 Stat. 218, Treaty Series 109.]
War with Mexico 1846
(Act of May 13, 1846, ch. 16, 9 Stat. 9)
CHAP. XVI.—An Act providing for the Prosecution of the existing War between the United States
and the Republic of Mexico.
Whereas, by the act of the Republic of Mexico, a state of war exists between that Government
and the United States:
Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled, That, for the purpose of enabling the government of the United States to
prosecute said war to a speedy and successful termination, the President be, and he is hereby,
authorized to employ the militia, naval, and military forces of the United States, and to call for
and accept the services of any number of volunteers, not exceeding fifty thousand, who may offer
their services, either as cavalry, artillery, infantry, or riflemen, to serve twelve months after they
shall have arrived at the place of rendezvous, or to the end of the war, unless sooner discharged,
according to the time for which they shall have been mustered into service; and that the sum of
ten millions of dollars, out of any moneys in the treasury, or to come into the treasury, not
otherwise appropriated, be, and the same is hereby, appropriated for the purpose of carrying the
provisions of this act into effect.
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SEC. 2. And be it further enacted, That the militia, when called into the service of the United
States by virtue of this act, or any other act, may, if in the opinion of the President of the United
States the public interest requires it, be compelled to serve for a term not exceeding six months
after their arrival at the place of rendezvous, in any one year, unless sooner discharged.
SEC. 3. And be it further enacted, That the said volunteers shall furnish their own clothes, and if
cavalry, their own horses and horse equipments; and when mustered into service shall be armed at
the expense of the United States.
SEC. 4. And be it further enacted, That said volunteers shall, when called into actual service, and
while remaining therein, be subject to the rules and articles of war, and shall be, in all respects
except as to clothing and pay, placed on the same footing with similar corps of the United States
army; and in lieu of clothing every non-commissioned officer and private in any company, who
may thus offer himself, shall be entitled, when called into actual service, to receive in money a
sum equal to the cost of clothing of a non-commissioned officer or private (as the case may be) in
the regular troops of the United States.
SEC 5. And be it further enacted, That the said volunteers so offering their services shall be
accepted by the President in companies, battalions, squadrons, and regiments, whose officers
shall be appointed in the manner prescribed by law in the several States and Territories to which
such companies, battalions, squadrons, and regiments, shall respectively belong.
SEC. 6. And be it further enacted, That the President of the United States be, and he is hereby,
authorized to organize companies so tendering their service into battalions or squadrons,
battalions and squadrons into regiments, regiments into brigades, and brigades into divisions, as
soon as the number of volunteers shall render such organization, in his judgment, expedient; and
the President shall, if necessary, apportion the staff, field, and general officers among the
respective States and Territories from which the volunteers shall tender their services as he may
deem proper.
SEC 7. And be it further enacted, That the volunteers who may be received into the service of the
United States by virtue of the provisions of this act, and who shall be wounded or otherwise
disabled in the service, shall be entitled to all the benefit which may be conferred on persons
wounded in the service of the United States.
SEC 8. And be it further enacted, That the President of the United States be, and he is hereby,
authorized forthwith to complete all the public armed vessels now authorized by law, and to
purchase or charter, arm, equip, and man, such merchant vessels and steam boats as, upon
examination, may be found fit, or easily converted into armed vessels fit for the public service,
and in such number as he may deem necessary for the protection of the seaboard, lake coast, and
the general defense of the country.
SEC. 9. And be it further enacted, That whenever the militia or volunteers are called and received
into the service of the United States, under the provisions of this act, they shall have the
organization of the army of the United States, and shall have the same pay and allowances; and
all mounted privates, non-commissioned officers, musicians, and artificers, shall be allowed 40
cents per day for the use and risk of their horses, except of horses actually killed in action; and if
any mounted volunteer, private, non-commissioned officer, musician, or artificer, shall not keep
himself provided with a serviceable horse, the said volunteer shall serve on foot.
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APPROVED, May 13, 1846.
[Terminated by Treaty of Guadalupe Hidalgo, entered into force May 30, 1848.
9 Stat. 922, Treaty Series 207.]
War with Spain 1898
(Act of Apr. 25, 1898, ch. 189, 30 Stat. 364)
CHAP. 189.—An Act Declaring that war exists between the United States of America and the
Kingdom of Spain.
Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled, First. That war be, and the same is hereby, declared to exist, and that war
has existed since the twenty-first day of April, anno Domini eighteen hundred and ninety-eight,
including said day, between the United States of America and the Kingdom of Spain.
Second. That the President of the United States be, and he hereby is, directed and empowered to
use the entire land and naval forces of the United States, and to call into the actual service of the
United States the militia of the several States, to such extent as may be necessary to carry this Act
into effect.
APPROVED, April 25, 1898.
[Terminated by Treaty of Paris, entered into force Apr. 11, 1899. 30 Stat. 1754, Treaty Series
343.]
War with Germany 1917
(Act of Apr. 6, 1917, ch. 1, 40 Stat. 1)
CHAP. 1.—Joint Resolution Declaring that a state of war exists between the Imperial German
Government and the Government and the people of the United States and making provision to
prosecute the same.
Whereas the Imperial German Government has committed repeated acts of war against the
Government and the people of the United States of America: Therefore be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That the state of war between the United States and the Imperial German Government
which has thus been thrust upon the United States is hereby formally declared; and that the
President be, and he is hereby, authorized and directed to employ the entire naval and military
forces of the United States and the resources of the Government to carry on war against the
Imperial German Government; and to bring the conflict to a successful termination all of the
resources of the country are hereby pledged by the Congress of the United States.
APPROVED, April 6, 1917.
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[Terminated by Act of July 2, 1921, [S.J.Res. 16] ch. 40, 42 Stat. 105 which declared the state of
war between the U.S. and Germany to be at an end. Recognized by Treaty on Establishment of
Friendly Relations, entered into force Nov. 11, 1921. 42 Stat. 1939, Treaty Series 658.]
War with Austria-Hungary 1917
(Act of Dec. 7, 1917, ch. 1, 40 Stat. 429)
CHAP. 1—Joint Resolution Declaring that a state of war exists between the Imperial and Royal
Austro-Hungarian Government and the Government and the people of the United States, and
making provision to prosecute the same.
Whereas the Imperial and Royal Austro-Hungarian Government has committed repeated acts of
war against the Government and the people of the United States of America: Therefore be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That a state of war is hereby declared to exist between the United States of America
and the Imperial and Royal Austro-Hungarian Government; and that the President be, and he is
hereby, authorized and directed to employ the entire naval and military forces of the United States
and the resources of the Government to carry on war against the Imperial and Royal AustroHungarian
Government; and to bring the conflict to a successful termination all the resources of
the country are hereby pledged by the Congress of the United States.
APPROVED, December 7, 1917.
[Terminated by Act of July 2, 1921, [S.J. Res. 16] ch. 40, 42 Stat. 105 which declared the state of
war between the U.S. and Austria, a successor state and government to the Austro-Hungarian
monarchy, to be at an end. 42 Stat. 105. This was recognized by a Treaty on Establishment of
Friendly Relations, entered into force Nov. 8, 1921. 42 Stat. 1939, Treaty Series 658. The Act of
July 2, 1921, also declared the state of war between the U.S. and Hungary, a successor state and
government to the Austro-Hungarian monarchy, to be at an end. This was recognized by a Treaty
on Establishing Friendly Relations, entered into force Dec. 17, 1921. 42 Stat. 1951, Treaty Series
660.]
War with Japan 1941
(Act of Dec. 8, 1941, ch. 561, 55 Stat. 795)
[Chapter 561]
JOINT RESOLUTION
Declaring that a state of war exists between the Imperial Government of Japan and the
Government and the people of the United States and making provisions to prosecute the same.
Whereas the Imperial Government of Japan has committed unprovoked acts of war against the
Government and the people of the United States of America: Therefore be it
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Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That the state of war between the United States and the Imperial Government of Japan
which has thus been thrust upon the United States is hereby formally declared; and the President
is hereby authorized and directed to employ the entire naval and military forces of the United
States and the resources of the Government to carry on war against the Imperial Government of
Japan; and, to bring the conflict to a successful termination, all of the resources of the country are
hereby pledged by the Congress of the United States.
APPROVED, December 8, 1941, 4:10 p.m., E.S.T.
[Terminated by Treaty of Peace with Japan, entered into force Apr. 28, 1952. 3 UST 3169, TIAS
2490.]
War with Germany 1941
(Act of Dec. 11, 1941, ch. 564, 55 Stat. 796)
[CHAPTER 564]
JOINT RESOLUTION
Declaring that a state of war exists between the Government of Germany and the Government
and the people of the United States and making provision to prosecute the same.
Whereas the Government of Germany has formally declared war against the Government and the
people of the United States of America: Therefore be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That the state of war between the United States and the Government of Germany
which has thus been thrust upon the United States is hereby formally declared; and the President
is hereby authorized and directed to employ the entire naval and military forces of the United
States and the resources of the Government to carry on war against the Government of Germany;
and, to bring the conflict to a successful termination, all of the resources of the country are hereby
pledged by the Congress of the United States.
APPROVED, December 11, 1941, 3:05 p.m., E.S.T.
[Terminated by [H.J.Res. 289] Act of October 19, 1951, ch. 519, 65 Stat. 541]
War with Italy 1941
(Act of Dec. 11, 1941, ch. 565, 55 Stat. 797)
[CHAPTER 565]
JOINT RESOLUTION
Declaring that a state of war exists between the Government of Italy and the Government and the
people of the United States and making provision to prosecute the same.
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Whereas the Government of Italy has formally declared war against the Government and the
people of the United States of America: Therefore be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That the state of war between the United States and the Government of Italy which
has thus been thrust upon the United States is hereby formally declared; and the President is
hereby authorized and directed to employ the entire naval and military forces of the United States
and the resources of the Government to carry on war against the Government of Italy; and, to
bring the conflict to a successful termination, all of the resources of the country are hereby
pledged by the Congress of the United States.
APPROVED, December 11, 1941, 3:06 p.m., E.S.T.
[Terminated by Treaty of Peace with Italy, entered into force Sept. 15, 1947. 4 UST 311, 61 Stat.
1245.]
War With Bulgaria 1942
(Act of Jun. 5, 1942, ch. 323, 56 Stat. 307)
[CHAPTER 323]
JOINT RESOLUTION
Declaring that a state of war exists between the Government of Bulgaria and the Government and
the people of the United States and making provisions to prosecute the same.
Whereas the Government of Bulgaria has formally declared war against the Government and the
people of the United States of America: Therefore be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That the state of war between the United States and the Government of Bulgaria
which has thus been thrust upon the United States is hereby formally declared; and the President
is hereby authorized and directed to employ the entire naval and military forces of the United
States and the resources of the Government to carry on war against the Government of Bulgaria;
and, to bring the conflict to a successful termination, all of the resources of the country are hereby
pledged by the Congress of the United States.
APPROVED, June 5, 1942.
[Terminated by Treaty of Peace with Bulgaria, entered into force Sept. 15, 1947.
4 UST 429, 61 Stat. 1915.]
War with Hungary 1942
(Act of Jun. 5, 1942, ch. 324, 56 Stat. 307)
[CHAPTER 324]
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JOINT RESOLUTION
Declaring that a state of war exists between the Government of Hungary and the Government and
the people of the United States and making provisions to prosecute the same.
Whereas the Government of Hungary has formally declared war against the Government and the
people of the United States of America: Therefore be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That the state of war between the United States and the Government of Hungary
which has thus been thrust upon the United States is hereby formally declared; and the President
is hereby authorized and directed to employ the entire naval and military forces of the United
States and the resources of the Government to carry on war against the Government of Hungary;
and, to bring the conflict to a successful termination all of the resources of the country are hereby
pledged by the Congress of the United States.
APPROVED, June 5, 1942.
[Terminated by Treaty of Peace with Hungary, entered into force Sept. 15, 1947.
4 UST 453, 61 Stat. 2065.]
War with Rumania 1942
(Act of Jun. 5, 1942, ch. 325, 56 Stat. 307)
[CHAPTER 325]
JOINT RESOLUTION
Declaring that a state of war exists between the Government of Rumania and the Government and
the people of the United States and making provisions to prosecute the same.
Whereas the Government of Rumania has formally declared war against the Government and the
people of the United States of America: Therefore be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That the state of war between the United States and the Government of Rumania
which has thus been thrust upon the United States is hereby formally declared; and the President
is hereby authorized and directed to employ the entire naval and military forces of the United
States and the resources of the Government to carry on war against the Government of Rumania;
and, to bring the conflict to a successful termination, all of the resources of the country are hereby
pledged by the Congress of the United States.
APPROVED, June 5, 1942.
[Terminated by Treaty of Peace with Rumania, entered into force Sept. 15, 1947.
4 UST 403, 61 Stat. 1757.]
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Appendix B. Texts of Key Authorizations of Use
of Force
Protection of the Commerce and Coasts of the United States
(Act of May 28, 1798, ch. 48, 1 Stat. 561)
CHAP. XLVIII.—An Act more effectually to protect the Commerce and Coasts of the United
States.
Whereas armed vessels sailing under authority or pretence [sic] of authority from the Republic of
France, have committed depredations on the commerce of the United States, and have recently
captured the vessels and property of citizens thereof, on and near the coasts, in violation of the
law of nations, and treaties between the United States and the French nation. Therefore:
Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled, That it shall be lawful for the President of the United States, and he is
hereby authorized to instruct and direct the commanders of the armed vessels belonging to the
United States to seize, take and bring into any port of the United States, to be proceeded against
according to the laws of nations, any such armed vessel which shall have committed or which
shall be found hovering on the coasts of the United States, for the purpose of committing
depredations on the vessels belonging to citizens thereof;—and also to retake any ship or vessel,
of any citizen or citizens of the United States which may have been captured by any such armed
vessel.
APPROVED, May 28, 1798.
Protection of the Commerce of the United States
(Act of July 9, 1798, ch. 68, 1 Stat. 578)
CHAP. LXVIII.—An Act further to protect the Commerce of the United States.
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, That the President of the United States shall be, and he is hereby
authorized to instruct the commanders of the public armed vessels which are, or which shall be
employed in the service of the United States, to subdue, seize and take any armed French vessel,
which shall be found within the jurisdictional limits of the United States, or elsewhere, on the
high seas, and such captured vessel, with her apparel, guns and appurtenances, and the goods or
effects which shall be found on board the same, being French property, shall be brought within
some port of the United States, and shall be duly proceeded against and condemned as forfeited;
and shall accrue and be distributed, as by law is or shall be provided respecting the captures
which shall be made by the public armed vessels of the United States.
SEC. 2. And be it further enacted, That the President of the United States shall be, and he is
hereby authorized to grant to the owners of private armed ships and vessels of the United States,
who shall make application thereof, special commissions in the form which he shall direct, and
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under the seal of the United States; and such private armed vessels, when duly commissioned, as
aforesaid, shall have the same license and authority for the subduing, seizing and capturing any
armed French vessel, and for the recapture of the vessels, goods and effects of the people of the
United States, as the public armed vessels of the United States may by law have; and shall be, in
like manner, subject to such instructions as shall be ordered by the President of the United States,
for the regulation of their conduct. And the commissions which shall be granted, as aforesaid,
shall be revocable at the pleasure of the President of the United States.
SEC. 3. Provided, and be it further enacted, That every person intending to set forth and employ
an armed vessel, and applying for a commission, as aforesaid, shall produce in writing the name,
and a suitable description of the tonnage and force of the vessel, and the name and place of
residence of each owner concerned therein, the number of the crew and the name of the
commander, and the two officers next in rank appointed for such vessel; which writing shall be
signed by the person or persons making such application, and filed with the Secretary of State, or
shall be delivered to any other officer or person who shall be employed to deliver out such
commissions, to be by him transmitted to the Secretary of State.
SEC. 4. And provided, and be it further enacted, That before any commission, as aforesaid, shall
be issued, the owner or owners of the ship or vessel for which the same shall be requested, and
the commander thereof, for the time being, shall give bond to the United States, with at least two
responsible sureties, not interested in such vessel, in the penal sum of seven thousand dollars; or
if such vessel be provided with more than one hundred and fifty men, then in the penal sum of
fourteen thousand dollars; with condition that the owners, and officers, and crews who shall be
employed on board of such commissioned vessel, shall and will observe the treaties and laws of
the United States and the instructions which shall be given them for the regulation of their
conduct: And will satisfy all damages and injuries which shall be done or committed contrary to
the tenor thereof, by such vessel, during her commission, and to deliver up the same when
revoked by the President of the United States.
SEC. 5. And be it further enacted, That all armed French vessels, together with their apparel, guns
and appurtenances, and any goods or effects which shall be found on board the same, being
French property, and which shall be captured by any private armed vessel or vessels of the United
States, duly commissioned, as aforesaid, shall be forfeited, and shall accrue to the owners thereof,
and the officers and crews by whom such captures shall be made; and on due condemnation had,
shall be distributed according to any agreement which shall be between them; or in failure of such
agreement, then by the discretion of the court before whom such condemnation shall be.
SEC. 6. And be it further enacted, That all vessels, goods and effects, the property of any citizen
of the United States, or person resident therein, which shall be recaptured, as aforesaid, shall be
restored to the lawful owners, upon payment by them, respectively, of a just and reasonable
salvage, to be determined by the mutual agreement of the parties concerned, or by the decree of
any court of the United States having maritime jurisdiction according to the nature of each case:
Provided, that such allowance shall not be less than one eighth, or exceeding one half of the full
value of such recapture, without any deduction. And such salvage shall be distributed to and
among the owners, officers and crews of the private armed vessel or vessels entitled thereto,
according to any agreement which shall be between them; or in case of no agreement, then by the
decree of the court who shall determine upon such salvage.
SEC. 7. And be it further enacted, That before breaking bulk of any vessel which shall be
captured, as aforesaid, or other disposal or conversion thereof, or of any articles which shall be
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found on board the same, such capture shall be brought into some port of the United States, and
shall be libelled and proceeded against before the district court of the same district; and if after a
due course of proceedings, such capture shall be decreed as forfeited in the district court, or in the
circuit court of the same district, in the case of any appeal duly allowed, the same shall be
delivered to the owners and captors concerned therein, or shall be publicly sold by the marshal of
the same court, as shall be finally decreed and ordered by the court. And the same court, who
shall have final jurisdiction of any libel or complaint of any capture, as aforesaid, shall and may
decree restitution, in whole or in part, when the capture and restraint shall have been made
without just cause, as aforesaid; and if made without probable cause, or otherwise unreasonably,
may order and decree damages and costs to the party injured, and for which the owners, officers
and crews of the private armed vessel or vessels by which such unjust capture shall have been
made, and also such vessel or vessels shall be answerable and liable.
SEC. 8. And be it further enacted, That all French persons and others, who shall be found acting
on board any French armed vessel, which shall be captured, or on board of any vessel of the
United States, which shall be captured, or on board of any vessel of the United States, which shall
be recaptured, as aforesaid, shall be reported to the collector of the port in which they shall first
arrive, and shall be delivered to the custody of the marshal, or of some civil or military officer of
the United States, or of any state in or near such port; who shall take charge for their safe keeping
and support, at the expense of the United States.
APPROVED, July 9, 1798.
Protection of the Commerce and Seamen of the United States
Against the Tripolitan Cruisers
(Act of February 6, 1802, ch. 4, 2 Stat.129)
CHAP. IV.—An Act for the protection of the Commerce and Seamen of the United States, against
the Tripolitan Cruisers.
Whereas the regency of Tripoli, on the coast of Barbary, has commenced a predatory warfare
against the United States:
Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled, That it shall be lawful fully to equip, officer, man, and employ such of the
armed vessels of the United States as may be judged requisite by the President of the United
States, for protecting effectually the commerce and seamen thereof on the Atlantic ocean, the
Mediterranean and adjoining seas.
SEC. 2. And be it further enacted, That it shall be lawful for the President of the United States to
instruct the commanders of the respective public vessels aforesaid, to subdue, seize and make
prize of all vessels, goods, and effects, belonging to the Bey of Tripoli, or to his subjects, and to
bring or send the same into port, to be proceeded against, and distributed according to the law;
and also to cause to be done all such other acts of precaution or hostility as the state of war will
justify, and may, in his opinion, require.
SEC. 3. And be it further enacted, That on the application of, the owners of private armed vessels
of the United States, the President of the United States may grant to them special commissions, in
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the form which he shall direct, under the seal of the United States; and such private armed
vessels, when so commissioned, shall have the like authority for subduing, seizing, taking, and
bringing into port, any Tripolitan vessel, goods or effects, as the before-mentioned public armed
vessels may by law have; and shall therein be subject to the instruction which may be given by
the President of the United States for the regulation of their conduct; and their commissions shall
be revocable at his pleasure. Provided, that before any commission shall be granted, as aforesaid,
the owner or owners of the vessel for which the same may be requested, and the commander
thereof, for the time being, shall give bond to the United States, with at least two responsible
sureties, not interested in such vessel, in the penal sum of seven thousand dollars; or, if such
vessel be provided with more than one hundred and fifty men, in the penal sum of fourteen
thousand dollars, with condition for observing the treaties and laws of the United States, and the
instructions which may be given, as aforesaid; and also, for satisfying all damages and injuries
which shall be done, contrary to the tenor thereof, by such commissioned vessel; and for
delivering up the commission, when revoked by the President of the United States.
SEC. 4. And be if further enacted, That any Tripolitan vessel, goods or effects, which shall be so
captured and brought into port, by any private armed vessel of the United States, duly
commissioned, as aforesaid, may be adjudged good prize, and thereupon shall accrue to the
owners and officers, and men of the capturing vessel, and shall be distributed according to the
agreement which shall have been made between them, or, in failure of such agreement, according
to the discretion of the court having cognizance of the capture.
SEC. 5. And be it further enacted, That the seamen may be engaged to serve in the navy of the
United States for a period not exceeding two years; but the President may discharge the same
sooner, if in his judgment, their services may be dispensed with.
APPROVED, February 6, 1802.
[Repealed by P.L. 1028, 84th
Congress, 2d Sess (August 10, 1956); 70A Stat. 644, sec. 53(b)]
Protection of the Commerce and Seamen of the United States
Against the Algerine Cruisers
(Act of March 3, 1815, ch. 90, 3 Stat. 230)
CHAP. XC.—An Act for the protection of the commerce of the United States against the Algerine
cruisers.
Whereas the Dey of Algiers, on the coast of Barbary, has commenced a predatory warfare against
the United States—
Be it enacted by the Senate and House of Representatives of the United States of America, in
Congress assembled, That it shall be lawful fully to equip, officer, man and employ such of the
armed vessels of the United States as may be judged requisite by the President of the United
States for protecting effectually the commerce and seamen thereof on the Atlantic Ocean, the
Mediterranean and adjoining seas.
SEC. 2. And be it further enacted, That it shall be lawful for the President of the United States to
instruct the commanders of the respective public vessels aforesaid, to subdue, seize, and make
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prize of all vessels, goods and effects of or belonging to the Dey of Algiers, or to his subjects, and
to bring or send the same into port, to be proceeded against and distributed according to law; and,
also, to cause to be done all such other acts of precaution or hostility, as the state of war will
justify, and may in his opinion require.
SEC. 3. And be it further enacted, That on the application of the owners of private armed vessels
of the United States, the President of the United States may grant them special commissions in the
form which he shall direct under the seal of the United States; and such private armed vessels,
when so commissioned, shall have the like authority for subduing, seizing, taking and bringing
into port any Algerine vessel, goods or effects, as the before-mentioned public armed vessels may
by law have; and shall therein be subject to the instructions which may be given by the President
of the United States for the regulation of their conduct; and their commissions shall be revokable
at his pleasure. Provided, That before any commission shall be granted as aforesaid, the owner or
owners of the vessels of which the same may be requested, and the commander thereof for the
time being shall give bond to the United States, with at least two responsible sureties, not
interested in such vessel, in the penal sum of seven thousand dollars, or if such vessel be provided
with more than one hundred and fifty men, in the penal sum of fourteen thousand dollars, with
condition for observing the treaties and laws of the United States, and the instructions which may
be given as aforesaid, and also for satisfying all damages and injuries which shall be done
contrary to the tenor thereof by such commissioned vessel, and for delivering up the commission
when revoked by the President of the United States.
SEC. 4. And be if further enacted, That any Algerine vessel, goods, or effects which may be so
captured and brought into port, by any private armed vessel, of the United States, duly
commissioned as aforesaid, may be adjudged good prize, and thereupon shall accrue to the
owners, and officers, and men of the capturing vessel, and shall be distributed according to the
agreement which shall have been made between them, or, in failure of such agreement, according
to the discretion [of] the court having cognisance of the capture.
APPROVED, March 3, 1815.
[Repealed by P.L. 1028, 84th
Congress, 2d Sess (August 10, 1956); 70A Stat. 644, sec. 53(b)]
Suppression of Piracy
(33 U.S.C. §§ 381-387. R.S.§§ 4293-4299. R.S.§ 4293, 4294, and 4295 are derived from the Acts
of Mar. 3, 1819, ch. 77, 3 Stat. 510 and 512; Jan. 30, 1823, 3 Stat. 513, ch. 7, 3 Stat. 721. R.S.§
4296 is derived from the Acts of March 3, 1819, ch. 77, 3 Stat. 513; Jan. 30, 1823, ch. 7, 3 Stat.
721; Aug. 5, 1861, ch. 48, 12 Stat. 314. R.S.§§ 4297, 4298, and 4299 are derived from the Act of
Aug. 5, 1861, ch. 48, 12 Stat. 315.)
TITLE 33. CHAPTER 7.
§381. Use of public vessels to suppress piracy
The President is authorized to employ so many of the public armed vessels as in his judgement
the service may require, with suitable instructions to the commanders thereof, in protecting the
merchant vessels of the United States and their crews from piratical aggressions and depredations.
§ 382. Seizure of piratical vessels generally
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The President is authorized to instruct the commanders of the public armed vessels of the United
States to subdue, seize, take, and send into any port of the United States, any armed vessel or
boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or
committed any piratical aggression, search, restraint, depredation, or seizure, upon any vessel of
the United States, or of the citizens thereof, or upon any other vessel; and also to retake any
vessel of the United States, or its citizens, which may have been unlawfully captured upon the
high seas.
§ 383. Resistance of pirates by merchant vessels
The commander and crew of any merchant vessel of the United States, owned wholly, or in part,
by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation,
or seizure, which shall be attempted upon such vessel, or upon any other vessel so owned, by the
commander or crew of any armed vessel whatsoever, not being a public armed vessel of some
nation in amity with the United States, and may subdue and capture the same; and may also
retake any vessel so owned which may have been captured by the commander or crew of any
such armed vessel, and send the same into any port of the United States.
§ 384. Condemnation of piratical vessels
Whenever any vessel, which shall have been built, purchased, fitted out in whole or in part, or
held for the purpose of being employed in the commission of any piratical aggression, search,
restraint, depredation, or seizure, or in the commission of any other act of piracy as defined by the
law of nations, or from which any piratical aggression, search, restraint, depredation, or seizure
shall have been first attempted or made, is captured and brought into or captured in any port of
the United States, the same shall be adjudged and condemned to their use, and that of the captors
after due process and trial in any court having admiralty jurisdiction, and which shall be holden
for the district into which such captured vessel shall be brought; and the same court shall
thereupon order a sale and distribution thereof accordingly, and at its discretion.
§ 385. Seizure and condemnation of vessels fitted out for piracy
Any vessel built, purchased, fitted out in whole or in part, or held for the purpose of being
employed in the commission of any piratical aggression, search, restraint, depredation, or seizure,
or in the commission of any other act of piracy, as defined by the law of nations, shall be liable to
be captured and brought into any port of the United States if found upon the high seas, or to be
seized if found in any port or place within the United States, whether the same shall have actually
sailed upon any piratical expedition or not, and whether any act of piracy shall have been
committed or attempted upon or from such vessel or not; and any such vessel may be adjudged
and condemned, if captured by a vessel authorized as hereinafter mentioned [33 USCS § 386] to
the use of the United States, and to that of the captors, and if seized by a collector [the Secretary
of the Treasury], surveyor or marshal, then to the use of the United States.
§ 386. Commissioning private vessels for seizure of piratical vessels
The President is authorized to instruct the commanders of the public armed vessels of the United
States, and to authorize the commanders of any other armed vessels sailing under the authority of
any letters of marque and reprisal granted by Congress, or the commanders of any other suitable
vessels, to subdue, seize, take, and, if on the high seas, to send into any port of the United States,
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any vessel or boat built, purchased, fitted out, or held as mentioned in the preceding section [33
USCS § 385].
§ 387. Duties of officers of customs and marshals as to seizure
The collectors of the several ports of entry [the Secretary of the Treasury] the surveyors of the
several ports of delivery [the Secretary of the Treasury] and the marshals of the several judicial
districts within the United States, shall seize any vessel or boat built, purchased, fitted out, or held
as mentioned in section forty-two hundred and ninety-seven [33 USCS § 385], which may be
found within their respective ports or districts, and to cause the same to be proceeded against and
disposed of as provided by that section.
Authorization for the President To Employ the Armed Forces of the
United States for Protecting the Security of Formosa, the
Pescadores, and Related Positions and Territories of That Area
(Act of January 29, 1955, ch.4, 69 Stat. 7. [H.J.Res. 159, P.L. 84-4])
P.L. 4, CHAPTER 4—Joint Resolution authorizing the President to employ the Armed Forces of
the United States for protecting the security of Formosa, the Pescadores and related positions and
territories of that area.
Whereas the primary purpose of the United States, in its relations with all other nations, is to
develop and sustain a just and enduring peace for all; and
Whereas certain territories in the West Pacific under the jurisdiction of the Republic of China are
now under armed attack, and threats and declarations have been and are being made by the
Chinese Communists that such armed attack is in aid of and in preparation for armed attack on
Formosa and the Pescadores,
Whereas such armed attack if continued would gravely endanger the peace and security of the
West Pacific Area and particularly of Formosa and the Pescadores; and
Whereas the secure possession by friendly governments of the Western Pacific Island chain, of
which Formosa is a part, is essential to the vital interests of the United States and all friendly
nations in or bordering upon the Pacific Ocean; and
Whereas the President of the United States on January 6, 1955, submitted to the Senate for its
advice and consent to ratification a Mutual Defense Treaty between the United States of America
and the Republic of China, which recognizes that an armed attack in the West Pacific area
directed against territories, therein described, in the region of Formosa and the Pescadores, would
be dangerous to the peace and safety of the parties to the treaty: Therefore be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That the President of the United States be and he hereby is authorized to employ the
Armed Forces of the United States as he deems necessary for the specific purpose of securing and
protecting Formosa, and the Pescadores against armed attack, this authority to include the
securing and protection of such related positions and territories of that area now in friendly hands
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and the taking of such other measures as he judges to be required or appropriate in assuring the
defense of Formosa and the Pescadores.
This resolution shall expire when the President shall determine that the peace and security of the
area is reasonably assured by international conditions created by action of the United States or
otherwise, and shall so report to the Congress.
APPROVED, January 29, 1955, 8:42 a.m.
[Repealed by P.L. 93-475 [S. 3473] Oct. 26, 1975. 88 Stat. 1439]
Promotion of Peace and Stability in the Middle East
(P.L. 85-7, 71 Stat. 5, March 9, 1957 [H.J.Res. 117])
P.L. 85-7—Joint Resolution, To promote peace and stability in the Middle East.
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That the President be and hereby is authorized to cooperate with and assist any nation
or group of nations in the general area of the Middle East desiring such assistance in the
development of economic strength dedicated to the maintenance of national independence.
SEC. 2. The President is authorized to undertake, in the general area of the Middle East, military
assistance programs with any nation or group of nations of that area desiring such assistance.
Furthermore, the United States regards as vital to the national interest and world peace the
preservation of the independence and integrity of the nations of the Middle East. To this end, if
the President determines the necessity thereof, the United States is prepared to use armed forces
to assist any such nation or group of such nations requesting assistance against armed aggression
from any country controlled by international communism: Provided, That such employment shall
be consonant with the treaty obligations of the United States and with the Constitution of the
United States.
SEC. 3. The President is hereby authorized to use during the balance of fiscal year 1957 for
economic and military assistance under this joint resolution not to exceed $200,000,000 from any
appropriation now available for carrying out the provisions fo the Mutual Security Act of 1954, as
amended, in accord with the provisions of such Act: Provided, That, whenever the President
determines it to be important to the security of the United States, such use may be under the
authority of section 401 (a) of the Mutual Security Act of 1954, as amended (except that the
provisions of section 105 (a) thereof shall not be waived), and without regard to the provisions of
section 105 of the Mutual Security Appropriation Act, 1957: Provided further, That obligations
incurred in carrying out the purposes of the first sentence of section 2 of this joint resolution shall
be paid only out of appropriations for military assistance, and obligations incurred in carrying out
the purposes of the first section of this joint resolution shall be paid only out of appropriations
other than those for military assistance. This authorization is in addition to other existing
authorizations with respect to the use of such appropriations. None of the additional authorization
contained in this section shall be used until fifteen days after the Committee on Foreign Relations
of the Senate, the Committee on Foreign Affairs of the House of Representatives, the Committees
on Appropriations of the Senate and the House of Representatives and, when military assistance
is involved, the Committees on Armed Services of the Senate and the House of Representatives
have been furnished a report showing the object of the proposed use, the country for the benefit of
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which such use is intended, and the particular appropriation or appropriations for carrying out the
provisions of the Mutual Security Act of 1954, as amended, from which the funds are proposed to
be derived: Provided, That funds available under this section during the balance of fiscal year
1957 shall, in the case of any such report submitted during the last fifteen days of the fiscal year,
remain available for use under this section for the purposes stated in such report for a period of
twenty days following the date of submission of such report. Nothing contained in this joint
resolution shall be construed as itself authorizing the appropriation of additional funds for the
purpose of carrying out the provisions of the first section or of the first sentence of section 2 of
this joint resolution.
SEC. 4. The President should continue to furnish facilities and military assistance, within the
provisions of applicable law and established policies, to the United Nations Emergency Force in
the Middle East, with a view to maintaining the truce in that region.
SEC. 5. The President shall within the months of January and July of each year report to the
Congress his action hereunder.
SEC. 6. This joint resolution shall expire when the President shall determine that the peace and
security of the nations in the general area of the Middle East are reasonably assured by
international conditions created by action of the United Nations or otherwise except that it may be
terminated earlier by a concurrent resolution of the two Houses of Congress.
APPROVED, March 9, 1957.
Maintenance of International Peace and Security in Southeast Asia
(P.L. 88-408, 78 Stat. 384, August 10, 1964 [H.J.Res. 11450])
P.L. 88-408, 78 Stat.—Joint Resolution, To promote the maintenance of international peace and
security in southeast Asia.
Whereas naval units of the Communist regime in Vietnam, in violation of the principles of the
Charter of the United Nations and of international law, have deliberately and repeatedly
attacked the United States naval vessels lawfully present in international waters, and have
thereby created a serious threat to international peace; and
Whereas these attacks are part of a deliberate and systematic campaign of aggression that the
Communist regime in North Vietnam has been waging against its neighbors and the nations
joined with them in the collective defense of their freedom; and
Whereas the United States is assisting the peoples of southeast Asia to protect their freedom and
has no territorial, military or political ambitions in that area, but desires only that these
peoples should be left in peace to work out their own destinies in their own way: Now,
therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled, That the Congress approves and supports the determination of the President, as
Commander in Chief, to take all necessary measures to repel any armed attack against the forces
of the United States and to prevent further aggression.
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SEC. 2. The United States regards as vital to its national interest and to world peace the
maintenance of international peace and security in southeast Asia. Consonant with the
Constitution of the United States and the Charter of the United Nations and in accordance with its
obligations under the Southeast Asia Collective Defense Treaty, the United States is, therefore,
prepared, as the President determines, to take all necessary steps, including the use of armed
force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty
requesting assistance in defense of its freedom.
SEC. 3. This resolution shall expire when the President shall determine that the peace and
security of the area is reasonably assured by international conditions created by action of the
United Nations or otherwise, except that it may be terminated earlier by concurrent resolution of
the Congress.
APPROVED, August 10, 1964
[Repealed by P.L. 91-672 [H.R. 15628] January 12, 1971. 84 Stat. 2053]
Multinational Force in Lebanon
(P.L. 98-119, 97 Stat. 805, October 12, 1983 [S.J.Res. 159])
P.L. 98-119, 97 Stat. 805—Joint Resolution providing statutory authorization under the War
Powers Resolution for continued United States participation in the multinational peacekeeping
force in Lebanon in order to obtain withdrawal of all foreign forces from Lebanon.
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled,
SHORT TITLE
SECTION 1. This joint resolution may be cited as the “Multinational Force in Lebanon
Resolution.”
FINDINGS AND PURPOSE
SEC. 2. (a) The Congress finds that—
(1) the removal of all foreign forces from Lebanon is an essential United States foreign policy
objective in the Middle East;
(2) in order to restore full control by the Government of Lebanon over its own territory, the
United States is currently participating in the multinational peacekeeping force (hereafter in
this resolution referred to as the “Multinational Force in Lebanon”) which was established in
accordance with the exchange of letters between the Governments of the United States and
Lebanon dated September 25, 1982;
(3) the Multinational Force in Lebanon better enables the Government of Lebanon to
establish its unity, independence, and territorial integrity;
(4) progress toward national political reconciliation in Lebanon is necessary; and
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(5) United States Armed Forces participating in the Multinational Force in Lebanon are now
in hostilities requiring authorization of their continued presence under the War Powers
Resolution.
(b) The Congress determines that the requirements of section 4(a)(1) of the War Powers
Resolution became operative on August 29, 1983. Consistent with section 5(b) of the War Powers
Resolution, the purpose of this joint resolution is to authorize the continued participation of the
United States Armed forces in the Multinational Force in Lebanon.
(c) The Congress intends this joint resolution to constitute the necessary specific statutory
authorization under the War Powers Resolution for continued participation by United States
Armed Forces in the Multinational Force in Lebanon.
AUTHORIZATION FOR CONTINUED PARTICIPATION OF UNITED STATES ARMED
FORCES IN THE MULTINATIONAL FORCE IN LEBANON
SEC. 3. The President is authorized, for purposes of section 5(b) of the War Powers Resolution, to
continue participation by United States Armed Forces in the Multinational Force in Lebanon,
subject to the provisions of section 6 of this joint resolution. Such participation shall be limited to
performance of the functions, and shall be subject to the limitations, specified in the agreement
establishing the Multinational Force in Lebanon as set forth in the exchange of letters between the
Governments of the United States and Lebanon dated September 25, 1982, except that this shall
not preclude such protective measures as may be necessary to ensure the safety of the
Multinational Force in Lebanon.
REPORTS TO THE CONGRESS
SEC. 4. As required by section 4(c) of the War Powers Resolution, the President shall report
periodically to the Congress with respect to the situation in Lebanon, but in no event shall he
report less often than once every three months. In addition to providing the information required
by that section on the status, scope, and duration of hostilities involving the Unites States Armed
Forces, such reports shall describe in detail—
(1) the activities being performed by the Multinational Force in Lebanon;
(2) the present composition of the Multinational Force in Lebanon, including a description of
the responsibilities and deployment of the armed forces of each participating country;
(3) the results of efforts to reduce and eventually eliminate the Multinational Force in
Lebanon;
(4) how continued United States participation in the Multinational Force in Lebanon is
advancing United States foreign policy interests in the Middle East; and
(5) what progress has occurred toward national political reconciliation among all Lebanese
groups.
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STATEMENTS OF POLICY
SEC. 5. (a) The Congress declares that the participation of the armed forces of other countries in
the Multinational Force in Lebanon is essential to maintain the international character of the
peacekeeping function in Lebanon.
(b) The Congress believes that it should continue to be the policy of the United States to promote
continuing discussions with Israel, Syria, and Lebanon with the objective of bringing about the
withdrawal of all foreign troops from Lebanon and establishing an environment which will permit
the Lebanese Armed Forces to carry out their responsibilities in the Beirut area.
(c) It is the sense of the Congress that, not later than one year after the date of enactment of this
joint resolution and at least once a year thereafter, the United States should discuss with the other
members of the Security Council of the United Nations the establishment of a United Nations
peacekeeping force to assume the responsibilities of the Multinational Force in Lebanon. An
analysis of the implications of the response to such discussions for the continuation of the
Multinational Force in Lebanon shall be included in the reports required under paragraph (3) of
section 4 of this resolution.
DURATION OF AUTHORIZATION FOR UNITED STATES PARTICIPATION IN THE
MULTINATIONAL FORCE IN LEBANON
SEC. 6. The participation of United States Armed Forces in the Multinational Force in Lebanon
shall be authorized for purposes of the War Powers Resolution until the end of the eighteenmonth
period beginning on the date of enactment of this resolution unless the Congress extends
such authorization, except that such authorization shall terminate sooner upon the occurrence of
any one of the following:
(1) the withdrawal of all foreign forces from Lebanon, unless the President determines and
certifies to the Congress that continued United States Armed Forces participation in the
Multinational Force in Lebanon is required after such withdrawal in order to accomplish the
purposes specified in the September 25, 1982, exchange of letters providing for the
establishment of the Multinational Force in Lebanon; or
(2) the assumption by the United Nations or the Government of Lebanon of the
responsibilities of the Multinational Force in Lebanon; or
(3) the implementation of other effective security arrangements in the area; or
(4) the withdrawal of all other countries from participation in the Multinational Force in
Lebanon.
INTERPRETATION OF THIS RESOLUTION
SEC. 7. (a) Nothing in this joint resolution shall preclude the President from withdrawing United
States Armed Forces participation in the Multinational Force in Lebanon if circumstances
warrant, and nothing in this joint resolution shall preclude the Congress by joint resolution from
directing such a withdrawal.
(b) Nothing in this joint resolution modifies, limits or supersedes any provision of the War
Powers Resolution or the requirement of section 4(a) of the Lebanon Emergency Assistance Act
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of 1983, relating to congressional authorization for any substantial expansion in the number or
role of United States Armed Forces in Lebanon.
CONGRESSIONAL PRIORITY PROCEDURES FOR AMENDMENTS
SEC. 8. (a) Any joint resolution or bill introduced to amend or repeal this Act shall be referred to
the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign
Relations of the Senate, as the case may be. Such joint resolution or bill shall be considered by
such committee within fifteen calendar days and may be reported out, together with its
recommendations, unless such House shall otherwise determine pursuant to its rules.
(b) Any joint resolution or bill so reported shall become the pending business of the House in
question (in the case of the Senate the time for debate shall be equally divided between the
proponents and the opponents) and shall be voted on within three calendar days thereafter, unless
such House shall otherwise determine by the yeas and nays.
(c) Such a joint resolution or bill passed by one House shall be referred to the committee of the
other House named in subsection (a) and shall be reported out by such committee together with
its recommendations within fifteen calendar days and shall thereupon become the pending
business of such House and shall be voted upon within three calendar days, unless such House
shall otherwise determine by the yeas and nays.
(d) In the case of any disagreement between the two Houses of Congress with respect to a joint
resolution or bill passed by both Houses, conferees shall be promptly appointed and the
committee of conference shall make and file a report with respect to such joint resolution within
six calendar days after the legislation is referred to the committee of conference. Notwithstanding
any rule in either House concerning the printing of conference reports in the Record or
concerning any delay in the consideration of such reports, such report shall be acted on by both
Houses not later than six calendar days after the conference report is filed. In the event the
conferees are unable to agree within forty-eight hours, they shall report back to the respective
Houses in disagreement.
APPROVED, October 12, 1983.
Authorization of the Use of U.S. Armed Forces Pursuant to
U.N. Security Council Resolution 678 with Respect to Iraq
(P.L. 102-1, 105 Stat. 3, January 14, 1991 [H.J.Res. 77])
P.L. 102-1, 105 Stat. 3—To authorize the use of United States Armed Forces pursuant to United
Nations Security Council Resolution 678.
Whereas the Government of Iraq without provocation invaded and occupied the territory of
Kuwait on August 2, 1990;
Whereas both the House of Representatives (in H.J.Res. 658 of the 101st
Congress) and the
Senate (in S.Con.Res. 147 of the 101st
Congress) have condemned Iraq’s invasion of Kuwait
and declared their support for international action to reverse Iraq’s aggression;
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Whereas, Iraq’s conventional, chemical, biological, and nuclear weapons and ballistic missile
programs and its demonstrated willingness to use weapons of mass destruction pose a grave
threat to world peace;
Whereas the international community has demanded that Iraq withdraw unconditionally and
immediately from Kuwait and that Kuwait’s independence and legitimate government be
restored;
Whereas the United Nations Security Council repeatedly affirmed the inherent right of individual
or collective self-defense in response to the armed attack by Iraq against Kuwait in
accordance with Article 51 of the United Nations Charter;
Whereas, in the absence of full compliance by Iraq with its resolutions, the United Nations
Security Council in Resolution 678 has authorized member states of the United Nations to
use all necessary means after January 15, 1991, to uphold and implement all relevant Security
Council resolutions and to restore international peace and security to the area; and
Whereas Iraq has persisted in its illegal occupation of, and brutal aggression against Kuwait:
Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the “Authorization for Use of Military Force Against Iraq
Resolution.”
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION.—The President is authorized, subject to subsection (b), to use United
States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order
to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667,
669, 670, 674, and 677.
(b) REQUIREMENT FOR DETERMINATION THAT USE OF MILITARY FORCE IS
NECESSARY.—Before exercising the authority granted in subsection (a), the President shall
make available to the Speaker of the House of Representatives and the President pro tempore of
the Senate his determination that—
(1) the United States has used all appropriate diplomatic and other peaceful means to obtain
compliance by Iraq with the United Nations Security Council resolution cited in subsection
(a); and
(2) that those efforts have not been and would not be successful in obtaining such
compliance.
(c) WAR POWERS RESOLUTION REQUIREMENTS.—
(1) SPECIFIC STATUTORY AUTHORIZATION.—Consistent with section 8(a)(1) of the
War Powers Resolution, the Congress declares that this section is intended to constitute
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specific statutory authorization within the meaning of section 5(b) of the War Powers
Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS.—Nothing in this resolution
supersedes any requirement of the War Powers Resolution.
SEC. 3. REPORTS TO CONGRESS.
At least once every 60 days, the President shall submit to the Congress a summary on the status
of efforts to obtain compliance by Iraq with the resolutions adopted by the United Nations
Security Council in response to Iraq’s aggression.
APPROVED, January 14, 1991.
Authorization of the Use of U.S. Armed Forces Against Those
Responsible for the Recent Attacks Launched Against the
United States
(P.L. 107-40, 115 Stat. 224, September 18, 2001 [S. J. Res. 23])
To authorize the use of United States Armed Forces against those responsible for the recent
attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United
States and its citizens, and
Whereas, such acts render it both necessary and appropriate that the United States exercise its
rights to self-defense and to protect United States citizens both at home and abroad, and
Whereas, in light of the threat to the national security and foreign policy of the United States
posed by these grave acts of violence, and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security
and foreign policy of the United States,
Whereas the President has authority under the Constitution to take action to deter and prevent acts
of international terrorism against the United States.
Resolved by the Senate and the House of Representatives of the United States of America in
Congress assembled.
SECTION 1. SHORT TITLE
This joint resolution may be cited as the “Authorization for Use of Military Force”
SECTION 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES
(a) That the President is authorized to use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized, committed, or aided the
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terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,
in order to prevent any future acts of international terrorism against the United States by such
nations, organizations or persons.
(b) War Powers Resolution Requirements
(1) SPECIFIC STATUTORY AUTHORIZATION - Consistent with section 8(a)(1) of the War
Powers Resolution, the Congress declares that this section is intended to constitute specific
statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS - Nothing in this resolution supercedes
any requirement of the War Powers Resolution.
APPROVED, September 18, 2001.
Authorization of the Use of Force Against Iraq Resolution of 2002
(P.L. 107-243, 116 Stat. 1498, October 16, 2002 [H.J.Res. 114])
To authorize the use of United States Armed Forces against Iraq.
Whereas in 1990 in response to Iraq’s war of aggression against and illegal occupation of Kuwait,
the United States forged a coalition of nations to liberate Kuwait and its people in order to defend
the national security of the United States and enforce United Nations Security Council resolutions
relating to Iraq;
Whereas after the liberation of Kuwait in 1991, Iraq entered into a United Nations sponsored
cease-fire agreement pursuant to which Iraq unequivocally agreed, among other things, to
eliminate its nuclear, biological, and chemical weapons programs and the means to deliver and
develop them, and to end its support for international terrorism;
Whereas the efforts of international weapons inspectors, United States intelligence agencies, and
Iraqi defectors led to the discovery that Iraq had large stockpiles of chemical weapons and a large
scale biological weapons program, and that Iraq had an advanced nuclear weapons development
program that was much closer to producing a nuclear weapon than intelligence reporting had
previously indicated;
Whereas Iraq, in direct and flagrant violation of the cease-fire, attempted to thwart the efforts of
weapons inspectors to identify and destroy Iraq’s weapons of mass destruction stockpiles and
development capabilities, which finally resulted in the withdrawal of inspectors from Iraq on
October 31, 1998;
Whereas in P.L. 105-235 (August 14, 1998), Congress concluded that Iraq’s continuing weapons
of mass destruction programs threatened vital United States interests and international peace and
security, declared Iraq to be in “material and unacceptable breach of its international obligations”
and urged the President “to take appropriate action, in accordance with the Constitution and
relevant laws of the United States, to bring Iraq into compliance with its international
obligations”;
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Whereas Iraq both poses a continuing threat to the national security of the United States and
international peace and security in the Persian Gulf region and remains in material and
unacceptable breach of its international obligations by, among other things, continuing to possess
and develop a significant chemical and biological weapons capability, actively seeking a nuclear
weapons capability, and supporting and harboring terrorist organizations;
Whereas Iraq persists in violating resolution of the United Nations Security Council by
continuing to engage in brutal repression of its civilian population thereby threatening
international peace and security in the region, by refusing to release, repatriate, or account for
non-Iraqi citizens wrongfully detained by Iraq, including an American serviceman, and by failing
to return property wrongfully seized by Iraq from Kuwait;
Whereas the current Iraqi regime has demonstrated its capability and willingness to use weapons
of mass destruction against other nations and its own people;
Whereas the current Iraqi regime has demonstrated its continuing hostility toward, and
willingness to attack, the United States, including by attempting in 1993 to assassinate former
President Bush and by firing on many thousands of occasions on United States and Coalition
Armed Forces engaged in enforcing the resolutions of the United Nations Security Council;
Whereas members of al Qaida, an organization bearing responsibility for attacks on the United
States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are
known to be in Iraq; Whereas Iraq continues to aid and harbor other international terrorist
organizations, including organizations that threaten the lives and safety of United States citizens;
Whereas the attacks on the United States of September 11, 2001, underscored the gravity of the
threat posed by the acquisition of weapons of mass destruction by international terrorist
organizations;
Whereas Iraq’s demonstrated capability and willingness to use weapons of mass destruction, the
risk that the current Iraqi regime will either employ those weapons to launch a surprise attack
against the United States or its Armed Forces or provide them to international terrorists who
would do so, and the extreme magnitude of harm that would result to the United States and its
citizens from such an attack, combine to justify action by the United States to defend itself;
Whereas United Nations Security Council Resolution 678 (1990) authorizes the use of all
necessary means to enforce United Nations Security Council Resolution 660 (1990) and
subsequent relevant resolutions and to compel Iraq to cease certain activities that threaten
international peace and security, including the development of weapons of mass destruction and
refusal or obstruction of United Nations weapons inspections in violation of United Nations
Security Council Resolution 687 (1991), repression of its civilian population in violation of
United Nations Security Council Resolution 688 (1991), and threatening its neighbors or United
Nations operations in Iraq in violation of United Nations Security Council Resolution 949 (1994);
Whereas in the Authorization for Use of Military Force Against Iraq Resolution (P.L. 102-1),
Congress has authorized the President “to use United States Armed Forces pursuant to United
Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security
Council Resolution 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677”;
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Whereas in December 1991, Congress expressed its sense that it “supports the use of all
necessary means to achieve the goals of United Nations Security Council Resolution 687 as being
consistent with the Authorization of Use of Military Force Against Iraq Resolution (P.L. 102-1),”
that Iraq’s repression of its civilian population violates United Nations Security Council
Resolution 688 and “constitutes a continuing threat to the peace, security, and stability of the
Persian Gulf region,” and that Congress, “supports the use of all necessary means to achieve the
goals of United Nations Security Council Resolution 688”;
Whereas the Iraq Liberation Act of 1998 (P.L. 105-338) expressed the sense of Congress that it
should be the policy of the United States to support efforts to remove from power the current Iraqi
regime and promote the emergence of a democratic government to replace that regime;
Whereas on September 12, 2002, President Bush committed the United States to “work with the
United Nations Security Council to meet our common challenge” posed by Iraq and to “work for
the necessary resolutions,” while also making clear that “the Security Council resolutions will be
enforced, and the just demands of peace and security will be met, or action will be unavoidable”;
Whereas the United States is determined to prosecute the war on terrorism and Iraq’s ongoing
support for international terrorist groups combined with its development of weapons of mass
destruction in direct violation of its obligations under the 1991 cease-fire and other United
Nations Security Council resolutions make clear that it is in the national security interests of the
United States and in furtherance of the war on terrorism that all relevant United Nations Security
Council resolutions be enforced, including through the use of force if necessary;
Whereas Congress has taken steps to pursue vigorously the war on terrorism through the
provision of authorities and funding requested by the President to take the necessary actions
against international terrorists and terrorist organizations, including those nations, organizations,
or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such persons or organizations;
Whereas the President and Congress are determined to continue to take all appropriate actions
against international terrorists and terrorist organizations, including those nations, organizations,
or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such persons or organizations;
Whereas the President has authority under the Constitution to take action in order to deter and
prevent acts of international terrorism against the United States, as Congress recognized in the
joint resolution on Authorization for Use of Military Force (P.L. 107-40); and
Whereas it is in the national security interests of the United States to restore international peace
and security to the Persian Gulf region: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the “Authorization for Use of Military Force Against Iraq
Resolution of 2002.”
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Congressional Research Service 106
SEC. 2. SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS.
The Congress of the United States supports the efforts by the President to—
(1) strictly enforce through the United Nations Security Council all relevant Security Council
resolutions regarding Iraq and encourages him in those efforts; and
(2) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its
strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant
Security Council resolutions regarding Iraq.
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) Authorization.—The President is authorized to use the Armed Forces of the United States as
he determines to be necessary and appropriate in order to—
(1) defend the national security of the United States against the continuing threat posed by
Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
(b) Presidential Determination.—In connection with the exercise of the authority granted in
subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may
be feasible, but no later than 48 hours after exercising such authority, make available to the
Speaker of the House of Representatives and the President pro tempore of the Senate his
determination that—
(1) reliance by the United States on further diplomatic or other peaceful means alone either
(A) will not adequately protect the national security of the United States against the
continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant
United Nations Security Council resolutions regarding Iraq; and
(2) acting pursuant to this joint resolution is consistent with the United States and other
countries continuing to take the necessary actions against international terrorist and terrorist
organizations, including those nations, organizations, or persons who planned, authorized,
committed or aided the terrorist attacks that occurred on September 11, 2001.
(c) War Powers Resolution Requirements.—
(1) Specific statutory authorization.—Consistent with section 8(a)(1) of the War Powers
Resolution, the Congress declares that this section is intended to constitute specific statutory
authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) Applicability of other requirements.—Nothing in this joint resolution supersedes any
requirement of the War Powers Resolution.
SEC. 4. REPORTS TO CONGRESS.
(a) Reports.—The President shall, at least once every 60 days, submit to the Congress a report on
matters relevant to this joint resolution, including actions taken pursuant to the exercise of
authority granted in section 3 and the status of planning for efforts that are expected to be
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required after such actions are completed, including those actions described in section 7 of the
Iraq Liberation Act of 1998 (P.L. 105-338).
(b) Single Consolidated Report.—To the extent that the submission of any report described in
subsection (a) coincides with the submission of any other report on matters relevant to this joint
resolution otherwise required to be submitted to Congress pursuant to the reporting requirements
of the War Powers Resolution (P.L. 93-148), all such reports may be submitted as a single
consolidated report to the Congress.
(c) Rule of Construction.—To the extent that the information required by section 3 of the
Authorization for Use of Military Force Against Iraq Resolution (P.L. 102-1) is included in the
report required by this section, such report shall be considered as meeting the requirements of
section 3 of such resolution.
APPROVED, October 16, 2002.
Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
Matthew C. Weed
Analyst in Foreign Policy Legislation
mweed@crs.loc.gov, 7-4589
Acknowledgments
CRS analysts and attorneys in addition to the listed authors have contributed to various parts of this report:
Richard F. Grimmett, David Ackerman, Elizabeth Bazan, Richard Beth, and Charles Doyle.