Mediterranean Quarterly 11.1 (2000) 1-7
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Kosovo--An Unconstitutional War
There was a war in Yugoslavia. It lasted seventy-nine days. The United States and most of its North Atlantic Treaty Organization allies conducted this war against Yugoslavia in the airspace above the province of Kosovo. That province was recognized by the United States as part of sovereign Yugoslavia. These are uncontestable facts, and, I believe, they are the basis from which any fair scholar or interpreter of the U.S. Constitution can reach the conclusion that the war was not conducted consistent with U.S. law.
My premise is this: No inherent power of the president as commander-in-chief gives him or her the authority to declare war where there was no attack on the United States, no summons from an ally under attack, or no emergency that prevented congressional deliberation. This power rests solely with Congress. Article I, Section 8 of the Constitution specifically states that only Congress has the power to declare war. In addition, the War Powers Resolution (WPR), passed in 1973 over President Richard Nixon's veto, mandates the withdrawal of U.S. armed forces after sixty days of hostilities when there exists neither a declaration of war nor specific statutory authority from Congress to continue hostilities.
Because the president did not follow either the Constitution or the WPR when he began the air war against the Federal Republic of Yugoslavia on 24 March 1999, I introduced two resolutions on 12 April 1999: one to withdraw our troops from Kosovo (H.Con.Res. 82) and another to declare war against Yugoslavia (H.J.Res. 44). These allowed Congress to choose whether it wished the country to be at war or not. Prior to the vote, two additional bills [End Page 1] were introduced: one to approve the ongoing air war (S.Con.Res. 20) and another to prohibit the president from introducing ground troops in the region without the prior authorization of Congress (H.R. 1569).
On 28 April 1999, the House of Representatives voted not to approve the air war against Yugoslavia, not to declare war against Yugoslavia, and not to allow the president to send ground troops to the region without the approval of Congress. Although Congress also voted not to withdraw our troops from Kosovo, this did not grant any affirmative authority to the president to continue to engage those armed forces in hostilities. Despite these clear messages from Congress, the president showed no sign of discontinuing the war. To the contrary, the air war escalated.
That is why thirty-one members of Congress--including myself and Democratic Congressman Dennis Kucinich of Ohio--filed a bipartisan lawsuit on 30 April 1999 to require the president to obtain either a declaration of war or specific statutory authorization from Congress in order to continue the war in Yugoslavia. The Federal District Court for the District of Columbia heard this case, and on 8 June 1999, Judge Paul Friedman dismissed our lawsuit on the technical ground that we, as members of Congress, did not have standing to sue because Congress had voted to appropriate funding for the war and had failed to vote to withdraw. This case is currently on appeal to the United States Court of Appeals for the District of Columbia Circuit. Oral argument on our appeal was held on 22 October 1999, and a decision was expected within a few months.
Congressional War Powers Authority
Article 1, Section 8 of the Constitution lists a compendium of powers delegated to Congress, including "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, to declare war [emphasis added], grant letters of mark and reprisal and make rules concerning captures on land and water, to raise and support arms." The founders themselves thus wished Congress--the people's representatives--to decide when the United States, and its sons and daughters, should go to war.
Alexander Hamilton, in Federalist 75, said, with regard to the intermixture of powers between Congress and the president, that "certain interests [End Page 2...