conflict in Kosovo: A constitutional war?, The

Georgetown Law Journal, Jul 2001 by Hahn, Michael

INTRODUCTION

On March 24, 1999, President Clinton ordered air strikes against the Federal Republic of Yugoslavia (FRY)1 after that nation's repression of Albanian Kosovars reached alarmingly high levels. The immediate catalyst of the U.S.-led North Atlantic Treaty Organization (NATO) mission was Yugoslav President Slobodan Milosevic's refusal to accept Western-backed settlement proposals, as well as his failure to keep Serbian police and paramilitary forces within previously agreed upon limits.2 The air war lasted until June 10, 1999, at which time President Milosevic agreed to remove his forces from Kosovo and accept a NATO-led peacekeeping operation.3 The United States obtained a "victory" in Operation Allied Force, but this fact obscures a vital issue: Was the President authorized to conduct an eleven-week air war against the FRY?

In order to answer this question, this Note first examines the constitutional framework relating to war powers.4 Part I explores whether the Constitution requires congressional approval before the President initiates a military action. This question is debated at length among constitutional scholars and foreign affairs experts. On one hand, pro-Executive scholars generally argue that the President does not need prior approval to initiate hostilities. On the other hand, pro-Congress scholars generally argue that congressional approval is a necessary predicate for offensive military action taken by the executive branch-at least when military action rises to the level of "war."5 They also contend that the commencement of lower level hostilities must be approved by Congress. Part I concludes that the pro-Congress model is the better reasoned school of thought.

Part II posits that wars may be classified as "perfect wars,"6 "imperfect wars,"7 or something less intense. Classifying the conflict in Kosovo is necessary in order to determine whether and how the Constitution's war powers provisions apply. It is also necessary to determine what type of congressional authorization is required. This Part argues that the conflict in Kosovo should have been classified as an imperfect war, which required prior congressional consent through either a declaration of war or statutory authorization.

Part III sets forth two models used to determine congressional consent. The first is a functional approach that assesses whether Congress, despite not satisfying the bicameral and presentment process8 and not passing a declaration of war, has approved the initiation of a military conflict.9 The second is a formalist approach, which determines that congressional authorization for war exists only if the formal legislative process10 or an explicit declaration of war are enacted.11 While the formalist approach is the better reasoned of the two models, this Part demonstrates that Congress did not approve the war in Kosovo under either method, thereby rendering President Clinton's use of force unconstitutional.

Part IV assesses the federal courts' attempt to resolve the resulting constitutional dispute in Campbell v. Clinton.12 It explains how the district and appellate courts failed to address the substantive issue of the war's constitutionality when they held that the plaintiffs did not have standing. This Part also demonstrates that Congress should use its powers to assert itself in the war-making process, but absent this, courts should take on a greater role in preventing the executive branch from exercising the nation's war-making power beyond constitutionally permissible bounds.

In sum, President Clinton was not constitutionally authorized to order air strikes against the FRY on March 24, 1999. He did not have prior congressional approval from both houses of Congress. Furthermore, in Campbell v. Clinton, the district and appellate courts denied standing to several congressmen who challenged the legality of the President's actions. Both courts mistakenly interpreted standing in this context as requiring a direct confrontation between the branches. Consequently, the courts abdicated their judicial responsibility to "say what the law is"13 with respect to the Constitution's war powers provisions.

I. DOES CONGRESS HAVE THE SOLE POWER TO INITIATE A MILITARY CONFLICT?

The U.S.-led military campaign in Kosovo continued for eleven weeks despite many journalists and prominent public figures questioning whether the United States and NATO could stop the "ethnic cleansing"14 and establish Kosovo as a semi-autonomous entity within the Yugoslav state. Many of these individuals also questioned whether U.S. and NATO actions were in accordance with international law. Remarkably, absent from the debate was whether the President was constitutionally authorized to initiate the military campaign in Kosovo. In order to address this concern, it must first be discerned whether Congress has the sole power to initiate military conflicts. This question has created a deep divide among scholars.15

A. PRO-EXECUTIVE

On one side of the debate, pro-Executive scholars argue that the Constitution's grant to Congress of the power to "declare [w]ar"16 did not give Congress the sole power to initiate hostilities.17 Rather, it gave Congress the ability to classify conflicts under international law.18 Dean Rostow supports this point when he argues that the Framers were influenced by old international law treatises,19 which stated that under international law wars could begin without formal declarations.20 Thus, if military actions could occur without legislative authorization, then the logical conclusion is that the Framers could not have meant that the declare-war provision vested Congress with the sole power to initiate conflicts. Instead, Rostow argues that declarations of war served the limited purpose of changing the relationship between belligerents: Aliens were interned or expelled, enemy property was frozen or taken, and diplomatic relations were ended.21 One scholar summarized Rostow's pro-Executive view regarding the role of declarations of war: