b'Overview of the War Powers Resolution\nSummary of previous Office o f Legal Counsel advice concerning the W ar Powers Resolution for\nthe purpose o f providing guidance in future analyses of W ar Powers Resolution problems.\n\nOctober 30, 1984\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nAttorney G\n\neneral\n\nOn a number of occasions during this Administration, this Office has pro\xc2\xad\nvided both written and oral legal advice to you, the Deputy Attorney General,\nthe Counsel to the President and the National Security Council regarding the\nWar Powers Resolution (WPR). This advice has been rendered in connection\nwith the deployment of United States Armed Forces in Lebanon, the provision\nof military assistance and intelligence to our allies in Central America, the\ndeployment of sophisticated radar aircraft in Chad and in the Sinai, responses\nto an armed attack on our armed forces in the Gulf of Siddra, the deployment of\ntroops to Grenada, and in various other circumstances. We have summarized\nthe highlights of that advice and outlined certain historical information in this\nmemorandum in order to provide guidance to you and to our respective succes\xc2\xad\nsors in future analyses of War Powers Resolution problems.\nI. The War Powers Resolution: Summary of Provisions\nA. Stated Constitutional Basis\n\nThe War Powers Resolution became effective on November 7, 1973 after\nCongress overrode President Nixon\xe2\x80\x99s veto of the Resolution.1 It is codified at\n50 U.S.C. \xc2\xa7\xc2\xa7 1541-1548. Section 1 of the WPR sets out the name of the\nenactment; \xc2\xa7 2 of the WPR states its purpose and the constitutional authorities\nupon which it is predicated. Its purpose is said \xe2\x80\x9cto fulfill the intent of the\nframers of the Constitution\xe2\x80\x9d to\n1 President Nixon vetoed the W ar Pow ers R esolution on O ctober 24, 1973. H is veto m essage declared that\nthe autom atic 60 day term ination provision, \xc2\xa7 5(b), and legislative veto provision, \xc2\xa7 5(c), w ere unconstitu\xc2\xad\ntional. The veto w as overridden on N ovem ber 7 by a four vote margin in the House and by a substantial\nm argin in the Senate.\nS enator Javits, one o f the p nncipal sponsors o f the WPR, had hoped to avoid a veto. He felt that a W PR\nwhich was enacted w ith the approval o f the President would constitute a \xe2\x80\x9ccom pact" between Congress and the\nPresident. Holt, The W ar Powers Resolution: The Role o f Congress in U.S. A rm ed Intervention 1-2 (1978).\n\n271\n\n\x0cinsure that the collective judgment of both the Congress and the\nPresident will apply to the introduction of United States Armed\nForces into hostilities, or into situations where imminent in\xc2\xad\nvolvement in hostilities is clearly indicated by the circumstances,\nand to the continued use of such forces in hostilities or in such\nsituations.\nId. Section 2(b) invokes the Necessary and Proper Clause of the Constitution.\n\nSection 2(c) declares that the President\xe2\x80\x99s constitutional powers as Commanderin-Chief with respect to the introduction of United States Armed Forces into\nhostilities or situations in which hostilities are clearly indicated \xe2\x80\x9care exercised\nonly pursuant to (1) a declaration of war, (2) specific statutory authorization, or\n(3) a national emergency created by attack upon the United States, its territories\nor possessions, or its armed forces.\xe2\x80\x9d\nB. Consultation\n\nSection 3 of the WPR calls for consultation \xe2\x80\x9cwith Congress\xe2\x80\x9d \xe2\x80\x9cin every\npossible instance .. . before introducing United States Armed Forces\xe2\x80\x9d into\nhostile situations and \xe2\x80\x9cregularly\xe2\x80\x9d thereafter until hostilities cease or those\nforces have been removed.\nC. Reporting under the WPR\n\nSection 4(a) of the WPR calls for a report to be filed with Congress within 48\nhours in any case in which troops are introduced\n(1) into hostilities or into situations where imminent involve\xc2\xad\nment in hostilities is clearly indicated by the circumstances;\n(2) into the territory, air space or waters of a foreign nation,\nwhile equipped for com bat. . . ; or\n(3) in numbers which substantially enlarge United States Armed\nForces equipped for combat already located in a foreign nation. . . .\nSection 4(a) provides that the report must set forth: (A) the circumstances\nnecessitating the introduction o f United States Armed Forces; (B) the constitu\xc2\xad\ntional and legislative authority under which the forces have been introduced;\nand (C) the estimated scope and duration of the deployment. Section 4(c)\nrequires the President to report to Congress no less often than every six months,\nas long as the forces remain in the situation giving rise to the report.\nUnder \xc2\xa7 5(a), the report required by \xc2\xa7 4(a)(1) (deployment into hostilities or\nsituations where imminent involvement in hostilities is clearly indicated) must\nbe transmitted to the Speaker o f the House and the President pro tempore of the\nSenate and to the House Committee on Foreign Affairs and the Senate Com\xc2\xad\nmittee on Foreign Relations.\n272\n\n\x0cD. Removal o f Troops\n\nSection 5(b) provides that \xe2\x80\x9c[w]ithin sixty calendar days after a report is\nsubmitted or is required to be submitted pursuant to\xe2\x80\x9d \xc2\xa7 4(a)(1), the President\nmust terminate the use of United States Armed Forces unless Congress has\ndeclared war, enacted a specific authorization for the use of troops, or extended\nthe 60 day period, or unless the President is unable to do so because of an armed\nattack on the United States. The President may extend the 60-day period by 30\ndays if \xe2\x80\x9cunavoidable military necessity respecting the safety o f \xe2\x80\x99 the forces\n\xe2\x80\x9crequires the continued use of such armed forces in the course of bringing about\na prompt removal of such forces.\xe2\x80\x9d\nSection 5(c) contains an unconstitutional legislative veto device purporting\nto authorize Congress, acting by a concurrent resolution not subject to the\nPresident\xe2\x80\x99s veto, to require removal of troops in any situation involving actual\nhostilities. This Administration testified before Congress that this provision\nwas implicitly invalidated by the Court\xe2\x80\x99s decision in INS v. Chadha, 462 U.S.\n919 (1983).2 Congress has not disputed that conclusion. Indeed, the counsel to\nthe House of Representatives came to virtually the same conclusion.3\nE. Miscellaneous Provisions\n\nSection 6 of the WPR sets out expedited procedures for consideration by both\nHouses of joint resolutions extending the time of the deployment of troops\nunder \xc2\xa7 5(b). Section 7 does the same for the unconstitutional concurrent\nresolution procedure under \xc2\xa7 5(c).\nSection 8 of the WPR contains certain other miscellaneous provisions. One\nexpressly provides that authority to introduce United States Armed Forces into\n\xc2\xa7 4(a)(1) situations \xe2\x80\x9cshall not be inferred\xe2\x80\x9d from any provision of law, including\nany appropriations provision, \xe2\x80\x9cunless such provision specifically authorizes the\nintroduction of United States Armed Forces into hostilities .. . and states that it\nis intended to constitute specific statutory authorization within the meaning o f \xe2\x80\x99\nthe WPR. This provision, along with a similar provision negating any similar\ninferences from any treaty, are intended to preclude Executive Branch reliance\nfor deployments of United States Armed Forces on any ambiguous statutes\n(including appropriations laws) or treaties.4 Thus, under \xc2\xa7 8 the President\xe2\x80\x99s\nauthority to deploy armed forces into hostilities must be grounded in his\ninherent constitutional powers unless Congress has specifically provided by\nstatute for such deployment.\nSubsection \xc2\xa7 8(c) states that under the WPR the term \xe2\x80\x9c\xe2\x80\x98introduction of\nUnited States Armed Forces\xe2\x80\x99\xe2\x80\x9d includes the \xe2\x80\x9cassignment of members of such\n2 H earings on the U.S. Suprem e Court D ecision G overning the Legislative Veto, before the H ouse Comm,\non Foreign A ffairs, 98th Cong., 1st Sess. 63 (1983) (rem arks o f D eputy Attorney General SchmuUs).\n3 Hearings, supra note 2, at 36 (agreeing that \xc2\xa7 5(c) is \xe2\x80\x9cnow presum ptively invalid").\n4 Prior to the enactment o f the W PR, m any enactm ents o f Congress, especially appropriations m easures,\ncould justifiably have been regarded by the Executive as constituting im plied authority to continue the\ndeploym ent o f o ur arm ed forces in hostilities\n\n273\n\n\x0carmed forces to command, coordinate, participate in the movement of, or\naccompany the regular or irregular military forces of any foreign country or\ngovernment when such military forces of any foreign country or government\nare engaged, or there exists an imminent threat that such forces will become\nengaged, in hostilities.\xe2\x80\x9d\nII.\nSelected Facts, Historical Information, Analysis and\nConclusions Regarding Applicability of the War Powers Resolution\nA. Executive Interpretation o f the Effect o f WPR\n\nThe Executive Branch has taken the position from the very beginning that\n\xc2\xa7 2(c) of the WPR does not constitute a legally binding definition of Presiden\xc2\xad\ntial authority to deploy our armed forces. The Department of State\xe2\x80\x99s position set\nforth in a letter of November 30, 1973 was that \xc2\xa7 2(c) was a \xe2\x80\x9cdeclaratory\nstatement of policy.\xe2\x80\x9d Were the Executive to concede that \xc2\xa7 2(c) represented a\ncomplete recitation of the instances in which United States Armed Forces could\nbe deployed without advance authorization from Congress, the scope of the\nExecutive\xe2\x80\x99s power in this area would be greatly diminished.5\nAny attempt to set forth all the circumstances in which the Executive has\ndeployed or might assert inherent constitutional authority to deploy United\nStates Armed Forces would probably be insufficiently inclusive and potentially\ninhibiting in an unforseen crisis. However, some efforts have been made to\nitemize examples of such situations. In 1975, the Legal Adviser to the Depart\xc2\xad\nment of State listed six non-exclusive situations in which he contended the\nPresident had constitutional authority as Commander-in-Chief to direct United\nStates Armed Forces into combat without specific authorization from\nCongress:\n1. To rescue Americans;\n2. To rescue foreign nationals where doing so facilitates the\nrescue of Americans;\n3. To protect U.S. Embassies and legations;\n4. To suppress civil insurrection in the United States;\n5. To implement and administer the terms of an armistice or\ncease fire designed to terminate hostilities involving the United\nStates; and\n6. To carry out the terms of security commitments contained\nin treaties.\n5 W h eth er \xc2\xa7 2(c) w as to be viewed as an exhaustive, binding list o f the P resident\'s deploym ent powers was\na m ajor issue betw een the H ouse and S en a te in 1973 and w as resolved by the Senate\xe2\x80\x99s accession to the\nH ouse\xe2\x80\x99s position that \xc2\xa7 2 (c) could only be view ed as a statem ent o f policy. See H.R. Conf. Rep. No. 5 4 7 ,93d\nC ong., 1st Sess. 1 -2 (1 9 7 3 ).\n\n274\n\n\x0cHearings on War Powers: A Test o f Compliance, Before the House Comm, on\nInternational Relations, 94th Cong., 1st. Sess. (Part VI) 90 (1975). The Legal\n\nAdviser went on to state that the Administration did \xe2\x80\x9cnot believe that any single\ndefinitional statement can clearly encompass every conceivable situation in\nwhich the President\xe2\x80\x99s Commander-in-Chief authority could be exercised.\xe2\x80\x9d Id.\nat 90-91.\nThe President\xe2\x80\x99s authority to deploy armed forces has been exercised in a\nbroad range of circumstances during our history; 192 such exercises between\n1798 and 1971 are documented in Emerson, War Powers Legislation, 74 W.\nVa. L. Rev. 53, 70 (1971).\nB. Hostilities\n\nThe House Report on the WPR had used the word \xe2\x80\x9chostilities\xe2\x80\x9d rather than\n\xe2\x80\x9carmed combat\xe2\x80\x9d because the former was considered broader. The term \xe2\x80\x9chostili\xc2\xad\nties\xe2\x80\x9d was said to encompass \xe2\x80\x9ca clear and present danger of armed conflict.\xe2\x80\x9d6\nThe Ford Administration took the position that \xe2\x80\x9chostilities\xe2\x80\x9d meant a situation in\nwhich units of our armed forces are \xe2\x80\x9cactively engaged in exchanges of fire.\xe2\x80\x9d It\nadded that a situation involving \xe2\x80\x9cimminent hostilities\xe2\x80\x9d meant a situation in\nwhich there is a \xe2\x80\x9cserious risk\xe2\x80\x9d from hostile fire to the safety of United States\nArmed Forces. \xe2\x80\x9cIn our view, neither term necessarily encompasses irregular or\ninfrequent violence which may occur in a particular area.\xe2\x80\x9d7\nC. Consultation\nAfter virtually every WPR incident, Members of Congress have complained\nabout the level, extent or timeliness of whatever consultation actually occurred.\nCongress has repeatedly insisted that it have \xe2\x80\x9creal involvement in [the]\ndecisionmaking.\xe2\x80\x9d8 In light of Chadha, there may be some significant constitu\xc2\xad\ntional question regarding how there can be \xe2\x80\x9creal involvement\xe2\x80\x9d of Congress, as\nan institution, in such typically fast-breaking decisionmaking without formal\nlegislative action by both Houses and submission to the President. Notwith\xc2\xad\nstanding this constitutional question, Members of Congress have generally been\nunsatisfied if the \xe2\x80\x9cconsultation\xe2\x80\x9d has not occurred prior to the decisionmaking,\nhas not included participation by the President himself as well as his staff, or\nbecause a perceived insubstantial number of Members have been involved in\nthe consultations.\nBased upon the reactions by Members of Congress to the \xe2\x80\x9cMayaguez\xe2\x80\x9d\nconsultations by President Ford, it seems likely that virtually any level or\ndegree of consultation will leave some Members unsatisfied. After the hostage\n6 H.R. R ep No. 2 8 7 ,93d Cong., 1st. Sess. 7 (1973).\n7 H earings on W ar Powers: A Test o f Compliance, before the H ouse Comm, on International Relations, 94th\nCong., 1st Sess. 3 9 (1 9 7 5 ).\n8 The W ar Pow ers Resolution: A Special Study o f the C om mittee on Foreign A ffairs 2 11 (H ouse Comm, on\nForeign A ffairs 1982) (Foreign Affairs Special Study).\n\n275\n\n\x0crescue mission in Iran, the Senate Committee on Foreign Relations asserted\nthat \xe2\x80\x9cconsultation\xe2\x80\x9d involves \xe2\x80\x9cpermitting Congress to participate in the\ndecisionmaking,\xe2\x80\x9d and that the judgment about whether consultation is required\nin a particular situation \xe2\x80\x9cmust be made jointly by the President and Congress.\xe2\x80\x9d9\nD. Reporting Requirement\n\nEarly in this Administration, the Legal Adviser of the Department of State\ntook the position that the reporting requirement of \xc2\xa7 4(c), which calls for\nperiodic reports \xe2\x80\x9cso long as such armed forces continue to be engaged in such\nhostilities or situation,\xe2\x80\x9d applies only to instances in which a deployment falls\nwithin the \xc2\xa7 4(a)(1) category of report (actual or imminent hostilities). The\nrationale was that the word \xe2\x80\x9csituations\xe2\x80\x9d in \xc2\xa7 4(a)(1) refers to \xe2\x80\x9csituations\xe2\x80\x9d where\n\xe2\x80\x9cimminent involvement in hostilities is clearly indicated by the circumstances.\xe2\x80\x9d\nThus, the Legal Adviser contended that \xe2\x80\x9csituations\xe2\x80\x9d did not include \xc2\xa7 4(a)(2) or\n\xc2\xa7 4(a)(3) circumstances and that the latter conditions did not require a report.\nThis Office disagreed for the following reasons:\n(1) The Executive has never taken the view that the reporting\nprovisions present a constitutional issue and therefore there is no\nlegal need to construe them narrowly to avoid a constitutional\nissue.\n(2) Congress could have specifically limited the requirement\nto \xc2\xa7 4(a)(1) instead of \xc2\xa7 4(a). It did so elsewhere in the WPR.\nThe word \xe2\x80\x9csituations\xe2\x80\x9d is not in itself a limiting one or a term of art.\n(3) The language in the final version of \xc2\xa7 4(c) of the WPR\nappeared for the first time in the Conference Report. The Senate\nbill is clearly limited in its reporting requirement to \xe2\x80\x9chostile\xe2\x80\x9d\nsituations. S. 440, accompanying S. Rep. No. 220, 93d Cong.,\n1st Sess. (1973). Thus, the Senate bill cannot be said to deter\xc2\xad\nmine the meaning of the Conference version, which does not\nhave such a limit in \xc2\xa7 4(c). The debates on the Conference\nReport in the Senate and House suggest nothing about the con\xc2\xad\nstruction of \xc2\xa7 4(c), as applied here. 119 Cong. Rec. 33547 et\nseq.; id. at 33858 et seq.\nThe best support for the Department of State\xe2\x80\x99s position is a sentence in the\nConference Report which states that \xc2\xa7 4 \xe2\x80\x9crequires supplementary reports at\n9 O ne asp ect o f the W P R \xe2\x80\x99s \xe2\x80\x9cconsultation\xe2\x80\x9d provision w orthy o f note here is that, because it does not\nabsolutely require c o n su ltatio n in advance o f deploym ent in all cases (rather it requires consultation only \xe2\x80\x9c in\nevery possible in stan ce\xe2\x80\x9d), the consultation provision does not technically prevent the President from deploy\xc2\xad\ning U nited States A rm ed Forces for any p e rio d o f tim e. Thus, the consultation provision does not go as far as\n\xc2\xa7 1005 o f H .R. 5119, considered during th e 98th C ongress, which, if enacted, w ould have purported to\nprev en t the P resident from deploying arm ed forces in connection w ith jo in t military exercises in Central\nA m erica un til a 3 0 -d a y \xe2\x80\x9cw aiting" period h a d passed after the intent to m ake such a deploym ent had been\ncom m unicated to C ongress.\n\n276\n\n\x0cleast every six months so long as those forces are engaged.\xe2\x80\x9d The use of the\nword \xe2\x80\x9cengaged\xe2\x80\x9d could be interpreted to mean active engagement rather than\ndeployments such as the deployment of the Sinai force. H.R. Rep. No. 547,93d\nCong., 1st Sess. 8 (1973). By itself, this single phrase in the conference report\ndoes not seem to overcome the relatively clear text of \xc2\xa7 4(c).\nOn balance, it seemed to serve no important purpose not to provide Congress\nwith periodic updates regarding the status of troop deployments which have\nbeen reported under \xc2\xa7 4. Finally, taking the position that periodic reports were\nrequired only with respect to \xc2\xa7 4(a)(1) situations would, with respect to deploy\xc2\xad\nments greater than six months duration, require the Executive to take a position\nas to whether any given circumstance fell within \xc2\xa7 4(a)(1) or \xc2\xa7 4(a)(2). This\nAdministration, like its predecessors, has believed it to be important not to have\nto be forced to take such a position with respect to any particular deployment of\nUnited States Armed Forces.\nThis Administration determined to file periodic reports under \xc2\xa7 4(c) in all\nsituations. This practice has generally been followed.\nE. Rescue Operations\n\nAccording to a special study issued by the House Committee on Foreign\nAffairs, the majority of Members of Congress after the \xe2\x80\x9cMayaguez\xe2\x80\x9d incident\nsupported the concept that the President had constitutional authority to use\narmed forces for a rescue operation of the type involved in that incident.\nForeign Affairs Special Study at 216. A staff memorandum to the Chairman of\nthe House Committee on Foreign Affairs even cited historical examples of\nUnited States Armed Forces being used to protect American merchant ships and\nto punish those who interfered with United States shipping. One example cited\nwas President Grant\xe2\x80\x99s decision to send elements of the United States Navy to\nKorea to punish natives for murdering the crew of the American schooner\n\xe2\x80\x9cGeneral Sherman\xe2\x80\x9d and burning the ship. Id.10 In 1980, we concluded that the\nPresident had constitutional authority to send a military expedition to rescue the\nhostages held in Iran or to retaliate against Iran if the hostages were harmed.\n\xe2\x80\x9cPresidential Power to Use the Armed Forces Abroad Without Statutory Autho\xc2\xad\nrization,\xe2\x80\x9d 4A Op. O.L.C. 185 (1980).\nF. Justiciability\n\nDuring this Administration, two attempts to secure judicial resolution of the\napplicability of the WPR have been made by private litigants and have been\nrejected by the courts as presenting nonjusticiable issues. See Crockett v.\nReagan , 558 F. Supp. 893 (D.D.C. 1982), a ffd , 720 F.2d 1355 (D.C. Cir.\n10In D urand v. H o llin s, 8 F. Cas. 111 (C.C.S.D.N .Y . I8 6 0 ) (No. 186), the court upheld the legality o f the\nExecutive\xe2\x80\x99s decision to order the bom bardm ent o f a Nicaraguan town which had refused to pay reparations\nfor an attack by a m ob on the U nited States Consul.\n\n277\n\n\x0c1983); Sanchez Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983), a ffd ,\n770 F. 2d 202 (D.C. Cir. 1985).\nIn addition, some Members of Congress have raised with the Administra\xc2\xad\ntion, including this Office and the Office of the Counsel to the President, the\nquestion of the desirability and feasibility of the filing of litigation by Members\nof Congress to test the constitutionality of several provisions of the WPR. In\nthis Office\xe2\x80\x99s view, the Administration would generally have to resist, on constitu\xc2\xad\ntional and jurisprudential grounds, the bringing of such issues before the federal\ncourts.\nG. Implementation o f the WPR\n\nAttached as an appendix to this memorandum is a chart which itemizes each\ninstance since the enactment o f the WPR in which the provisions of the WPR\nmay arguably have been implicated. This chart shows whether the Executive\nfiled a report under the WPR and describes the type of report filed. The only\n\xc2\xa7 4(a)(1) report which has been filed was in connection with the \xe2\x80\x9cMayaguez\xe2\x80\x9d\nincident, although the Ford Administration conceded after the fact that the\nSaigon evacuation was, in its view, a \xc2\xa7 4(a)(1) situation. See Foreign Affairs\nSpecial Study, supra note 8, at 201.\nIII. Major War Powers Resolution Situations\nDuring this Administration to Date\nA. El Salvador and Nicaragua\n\nAs early as the spring of 1981, questions were raised by Members of Con\xc2\xad\ngress and the media regarding the relationship between the WPR and various\nactions taken by the Executive in El Salvador and Nicaragua. The Administra\xc2\xad\ntion took the position that the WPR had not been triggered by events in El\nSalvador. See Foreign Affairs Special Study at 249-52. On April 16, 1984, the\nAdministration responded to specific questions from Representative Fascell\nregarding the involvement of United States Armed Forces in El Salvador.\nB. Sinai\n\nOn March 19, 1982, the President transmitted to the Speaker and President\np ro tempore a report consistent with \xc2\xa7 4(a)(2) of the WPR covering the intro\xc2\xad\n\nduction into the Sinai of United States Armed Forces as participants in the\nMultinational Force and Observers, a force created to assist in the implementa\xc2\xad\ntion of the 1979 Treaty of Peace between Egypt and Israel. In that letter, the\nPresident stated that this deployment was \xe2\x80\x9cundertaken pursuant to Public Law\nNo. 97-132 of December 29, 1981, and pursuant to the President\xe2\x80\x99s constitu\xc2\xad\ntional authority with respect to the conduct of foreign relations and as Commander-in-Chief of U.S. Armed Forces.\xe2\x80\x9d\n278\n\n\x0cC. Libya\nIn August of 1981, two Libyan jet fighters attacked aircraft of the Sixth\nFleet, which was conducting routine, scheduled operations in the Gulf of\nSiddra. Although Libya claimed that the area in which the attack occurred was\nLibyan airspace, the United States took the position that the airspace was over\ninternational waters. The Sixth Fleet aircraft downed the two Libyan aircraft.\nThe Administration subsequently determined that a report pursuant to the\nWPR was not required because the isolated incident did not rise to the level of\n\xe2\x80\x9chostilities\xe2\x80\x9d as defined in the WPR, and the occasion did not amount to the\n\xe2\x80\x9cintroduction\xe2\x80\x9d of United States Armed Forces into hostilities as required by the\nWPR. The Administration took the position that this incident was an unantici\xc2\xad\npated and unwarranted attack on our aircraft in international territory, and that\nour aircraft defended themselves fully in accord with international law. The\nAdministration expected no repetition of the incident and anticipated no further\naction by Libya to violate the rights of the vessels and aircraft of this Nation to\ntravel in international waters and airspace.\nD. Lebanon\n\nThe WPR was implicated vis-a-vis Lebanon when, in July of 1982, consider\xc2\xad\nation began of a plan to create a multinational military force to be placed in\nLebanon to assume essentially peacekeeping duties. Because United States\nArmed Forces were to comprise a substantial element of the multinational\nforce, we met on several occasions with representatives of the Office of the\nCounsel to the President, the Departments of Defense and State, and the\nNational Security Council to address the issues raised and to prepare in draft the\nappropriate report.\nA report consistent with the WPR was ultimately transmitted to the Speaker\nand President pro tempore by the President on August 24, 1982. That report,\nlike its predecessors, was made \xe2\x80\x9cconsistent with the War Powers Resolution\xe2\x80\x9d\nand did not indicate whether it had been filed pursuant to \xc2\xa7 4(a)(1) of the WPR\n(\xe2\x80\x9chostilities\xe2\x80\x9d) or \xc2\xa7 4(a)(2) (deployment of troops \xe2\x80\x9cequipped for combat\xe2\x80\x9d).11\nBy the time a second six-month report would have been due, the situation in\nLebanon had worsened considerably, with United States Armed Forces increas\xc2\xad\ningly coming under attack. A \xc2\xa7 4(c) report was submitted to the Speaker and\nPresident pro tempore by the President on August 30,1983. By early September\nof 1983, many Members of Congress were taking the position, publicly and\nprivately, that \xc2\xa7 5(b) of the WPR had been triggered because, in their view,\nUnited States Armed Forces were now engaged in \xe2\x80\x9chostilities.\xe2\x80\x9d If \xc2\xa7 5(b) had\nbeen triggered by these events, then \xc2\xa7 5(b)\xe2\x80\x99s 60-day clock on keeping United\nStates Armed Forces in Lebanon would have begun to run. Debate over whether\nn In an exchange o f diplom atic letters betw een the U nited States and the G overnm ent o f Lebanon, the\nLebanese G overnm ent stated: \xe2\x80\x9c In carrying out its m ission, the American force will not engage in com bat. It\nmay, however, exercise the right o f self-defense \xe2\x80\x9d\n\n279\n\n\x0c\xc2\xa7 5(b) had been triggered by those events became academic, however, because\nCongress moved to consider and enact a resolution specifically authorizing the\nretention of United States Armed Forces in Lebanon.\nOn September 26, 1983, the Senate Committee on Foreign Relations re\xc2\xad\nported out a \xe2\x80\x9ccompromise,\xe2\x80\x9d S.J. Res. 159, which had been negotiated with\nCongress by representatives of the President. On September 27, 1983, the\nPresident signed letters to a number of key congressional leaders expressing his\nintention \xe2\x80\x9cto seek Congressional authorization . . . if circumstances require any\nsubstantial expansion in the number or role of United States Armed Forces in\nLebanon.\xe2\x80\x9d On October 19, 1983 the President signed S.J. Res. 159 into law\nand, in doing so, issued a signing statement which carefully reserved judgment\non the several constitutional issues raised by S J. Res. 159.\nE. Chad\n\nOn August 8, 1983, the President transmitted a report, consistent with the\nWPR, to the Speaker and President pro tempore in which he reported the\nintroduction into Chad, at the request of that country\xe2\x80\x99s government, of various\nwarning and fighter aircraft, accompanied by air and ground logistical support\nforces.\nF. Grenada\n\nOn October 25, 1983, the President transmitted to the Speaker and President\npro tempore a report, consistent with the WPR, detailing the deployment to\n\nGrenada and surrounding waters of United States Armed Forces.\nG. Persian G ulf\n\nIn early June of 1984, two Iranian F-4\xe2\x80\x99s penetrated a \xe2\x80\x9chot line\xe2\x80\x9d established by\nthe Government of Saudi Arabia in the Persian Gulf. The Iranian aircraft were\nintercepted and shot down by Saudi F-15s inside the \xe2\x80\x9chot line\xe2\x80\x9d but outside\nSaudi territorial waters. The Saudi F-15s were assisted as to target location and\nrefueling by aircraft operated by United States Armed Forces which were at all\nrelevant times flying in Saudi territorial air space on predetermined courses.\nA Saudi air controller provided the actual targeting information to the Saudi\nF-15s.\nIt was determined subsequently that this one-time, unanticipated incident did\nnot trigger the WPR because of the absence of hostilities.\nT h e o d o r e B. O lso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n280\n\n\x0cAPPENDIX\nPOTENTIAL INVOCATIONS OF THE WAR POWERS RESOLUTION\nWar Powers Report Filed/Not Filed\nIncident\n\nReport\n\nDate\nNixon Administration\n\nEvacuation of Cyprus\n(military evacuation\nof Americans caught\nin hostilities)\n\nJuly 21-23, 1974\n\nNo report filed\n\nCambodia Resupply\nMissions (airdrops)\n\nSummer 1974\n\nNo report filed\n\nFord Administration\n\nCambodian\nReconnaissance\nFlights (isolated\nunanticipated\nfiring)\n\nFall 1974\n\nNo report filed\n\nDanang Sealift\n\nApril 4, 1975\n\nPursuant to\n\xc2\xa7 4(a)(2)12\n\nPhnom Penh\nevacuation\n\nApril 12, 1975\n\nPursuant to \xc2\xa7 4\n(The report said\n\xe2\x80\x9ctaking note of \xc2\xa7 4\xe2\x80\x9d\nwithout specifying a\nsubsection.)\n\n12 This w as the first report ever filed under the WPR. The text o f the report stated that President Ford was\nsending it \xe2\x80\x9cin accordance with my desire to keep Congress fully inform ed on the matter\xe2\x80\x9d and \xe2\x80\x9c taking note o f \xe2\x80\x99\nthe provisions o f the W PR It did not concede the validity, o r accept the authority, of the W PR.\n\n281\n\n\x0cIncident\n\nDate\n\nReport\n\nSaigon evacuation\n(a major military\noperation with hostile\nfire and casualties)\n\nApril 30, 1975\n\nPursuant to \xc2\xa7 4 13\n(The message stated\nthat the \xe2\x80\x9coperation\nwas ordered and\nconducted pursuant\nto the President\xe2\x80\x99s\nconstitutional\nexecutive power and\nhis authority as\nCommander-in-Chief\nof the U.S. Armed\nForces.\xe2\x80\x9d)\n\nMayaguez (Cambodian\nCommunist forces seize\nAmerican merchant ship\n\xe2\x80\x94 U.S. forces sent\non rescue mission; 18\nAmerican troops killed\nor missing and 500\npresumed dead)\n\nMay 12-16, 1975\n\nReport filed in\naccordance with the\nPresident\xe2\x80\x99s \xe2\x80\x9cdesire\nthat Congress be\ninformed on this\nmatter\xe2\x80\x9d and taking\nnote of \xc2\xa7 4(a)(1)\nof the WPR.\n\nLebanon Evacuation\n(Navy used to evacuate\nAmericans from Lebanon)\n\nJune/July 1976\n\nNo report filed14\n\nKorean Tree Cutting\nIncident (troops sent\ninto DMZ to cut tree\nas retaliation for\nincident 3 days earlier\nin which American\ntroops had been killed\nand wounded)\n\nAugust 21, 1976\n\nNo report filed15\n\n13 T he Legal A d v iser o f the Department o f State later conceded in testim ony that this was a \xc2\xa7 4(a)(1)\nsituation, but because the operation was o v e r by the time the report was filed, no specification was necessary.\nSee H earing, supra, at 9 -1 0 .\n14 C ongress seem s to have implicitly co nceded that the W PR did not require a report or consultation in this\nincident.\n15 Som e M em bers o f C ongress reacted w ith antagonism to the D epartm ent o f State\xe2\x80\x99s position that no report\no r con su ltatio n w as required in this incident, but the controversy subsided almost immediately.\n\n282\n\n\x0cIncident\n\nDate\n\nReport\n\nZaire Airlift\n\nMay 1978\n\nNo report filed\n\nIran Rescue\nOperation\n\nApril 26, 1980\n\nPursuant to the WPR\n(The report was\nbased on a desire\nthat Congress be\ninformed, it was\nconsistent with the\nreporting provisions\nof the WPR, and it\nasserted exercise of\nCommander-in-Chief\npowers; no advance\nconsultation was\nmade.)16\n\nReagan Administration\n\nEl Salvador\n(security advisers/\ndefense attaches)\n\nSpring 1981/\nAugust 1984\n\nNo report filed\n(advisers were armed\nbut not \xe2\x80\x9cequipped\xe2\x80\x9d\nfor combat)\n\nGulf of Siddra, Libya\n\nAugust 19, 1981\n\nNo report filed\n\nSinai\n\nMarch 19, 1982\n\nPursuant to \xc2\xa7 4(a)(2)\n\nLebanon\n\nAugust 24, 1982\n\nPursuant to the WPR\n\nLebanon\n\nSept. 29, 1982\n\nPursuant to the WPR\n\nChad\n\nAugust 8, 1983\n\nPursuant to \xc2\xa7 4\n\nLebanon\n\nAugust 30, 1983\n\nPursuant to \xc2\xa7 4\n\nGrenada\n\nOctober 25, 1983\n\nPursuant to \xc2\xa7 4\n\nPersian Gulf\n\nJune 4, 1984\n\nNo report filed\n\n,6 This incident spaw ned Crockett v. Reagan, 558 F. Supp. 893 (D .D C. 1982), a ffd , 720 F.2d 1355 (D.C.\nC ir 1983), which resulted in an opinion by the U nited States D istrict Court for the D istrict o f C olum bia\ndism issing the suit as nonjusticiable. See Part ILF supra.\n\n283\n\n\x0c'


b'M arch 29, 1977\n\n77-15\n\nMEMORANDUM OPINION FOR THE\nSPECIAL ASSISTANT OFFICE OF THE\nSECRETARY OF DEFENSE\nLiability of Government for Retroactive Veterans\xe2\x80\x99\nBenefits Where Discharges Are Upgraded\n\nWe have reviewed the proposed Discharge Review Program sent to\nthe A ttorney General by your letter of March 9, 1977, with regard to\nthe question of the Government\xe2\x80\x99s liability to pay retroactive veterans\xe2\x80\x99\nbenefits to recipients of upgraded discharges who become entitled to\nsuch benefits by reason of their receipt of an upgraded discharge. As\nmore fully explained below, it is our opinion that the issuance of\nupgraded discharges under the Discharge Review Program will not\nimpose any substantial liability on the Government for retroactive vet\xc2\xad\nerans\xe2\x80\x99 benefits.\nSection 3010 of Title 38, United States Code, establishes the basic\nrules for determining the effective dates o f awards of veterans\xe2\x80\x99 benefits.\nIn effect, for purposes of the Discharge Review Program, this section\ndivides all potential recipients of upgraded discharges who are entitled\nto veterans\xe2\x80\x99 benefits into tw o categories: (1) those who have previously\napplied for benefits and have had their claims denied because of the\ncharacter of their discharges; and (2) those who never applied for\nbenefits prior to their receipt of upgraded discharges, presumably be\xc2\xad\ncause they knew they were not entitled to benefits due to the dishonor\xc2\xad\nable character of their discharges.\nA veteran within the first category who becomes eligible for veter\xc2\xad\nans\xe2\x80\x99 benefits by reason of the Discharge Review Program will be\nentitled to benefits commencing on whichever o f the following is later:\n(1) when he files for review of his discharge under the Discharge\nReview Program; or (2) the date when the disallowed claim was filed.\n38 U.S.C. \xc2\xa7 3010(i). Thus, such a veteran would not be entitled to\nretroactive benefits for the period preceding his application for an\nupgraded discharge. Of course, under \xc2\xa7 3010(i) he would be entitled to\nretroactive benefits for the interval between his filing for a discharge\nreview and the award of a discharge qualifying for veterans\xe2\x80\x99 benefits,\n46\n\n\x0cassuming, as would most likely be the case, that his disallowed claim\npreceded his application for review of his discharge. A further limita\xc2\xad\ntion in this subsection provides that no retroactive award may be made\nfor any period more than one year prior to the reopening of the claim;\ni.e., if the newly eligible veteran delays in reopening his claim for\nveterans\xe2\x80\x99 benefits more than one year after he applied for his upgraded\ndischarge, any retroactive benefits awarded will be limited to 1 year.\nWith respect to the second category, benefits generally will be pay\xc2\xad\nable from a time not \xe2\x80\x9cearlier than the date of receipt of application\ntherefor.\xe2\x80\x9d 38 U.S.C. \xc2\xa7 3010(a). Thus, with respect to most new claims\nfor benefits from recipients of upgraded discharges who had not previ\xc2\xad\nously sought benefits, no claim for retroactive benefits will lie. How ev\xc2\xad\ner, certain types of benefits may be awarded retroactive to the event\ngiving rise to the entitlement for benefits provided the claim is filed\nwithin one year of such event. 38 U.S.C. \xc2\xa7 3010(b)-(h), (j)-(l), (n).\nHowever, since the veterans in question all were discharged on or\nbefore March 28, 1973, most of the events giving rise to an entitlement\nfor benefits will have taken place more than a year ago and hence even\nthe limited one-year retroactivity entitlement is barred. In those unusual\ncases where the event giving rise to benefits occurred within the past\nyear, such as where an old service-connected injury resulted in perma\xc2\xad\nnent and total disability within the past year (\xc2\xa7 3010(b)(2)), or when an\nold service-connected injury resulted in death during the past year\n(\xc2\xa7 3010(g)) (assuming that the Discharge Review Program will consider\napplications on behalf of decedents), the possibility exists of an award\nof benefits back to the date of the event, if within 1 year. We\nunderstand that the Veterans Administration estimates that the propor\xc2\xad\ntion of veterans who would be entitled to any such retroactive pay\xc2\xad\nments would be small.\nJohn M. H\n\narmon\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n47\n\n\x0c'