4. President Clinton and the War Powers Act (Continued)

f. Intervention into the Kosovo-Yugoslav War (Continued)

On the evening of March 24, 1999, NATO launched "Operation Allied Force," the 78-day aerial war against the Serbs. The objectives of the operation were to induce Milosevic to agree to--

      Immediate cessation of the Yugoslav/Serbian milirary
      offensive against the Kosovans;

      Withdrawal of Yugoslav/Serbian military, paramilitary,
      and security-police forces from Kosovo;

      Restoration of Kosovo's autonomy, to be exercised by
      a democratically elected provincial government--
      elected by the adult inhabitants of the province;

      Deployment of a NATO-led multinational peacekeeping
      force in Kosovo;

      Uncoditionally allowing the safe and peaceful return
      of all refugees and displaced persons to Kosovo;

      Unimpeded access of humanitarian-aid organizations
      to the returning refugees and displaced persons;

      Accredible guarantee of Serbia's willingness to work
      for a Kosovo political settlement based on the
      Rambouillet agreement and in compliance with inter-
      national law and the United Nations Charter.

The foregoing objectives were also the conditions for ending the aerial assault on the Serbs. NATO was ready and willing to terminate Operation Allied Force as soon as Milosevic clearly and unambiguously agreed to these conditions and the Western alliance had confirmed that Yugoslav/Serbian forces were being withdrawn from Kosovo in accordance with an exact and expeditious schedule.

The opening phase of Operation Allied Force included air strikes on Serb air-defense positions and installations throughout the former Yugoslavia and a limited number of additional military targets in Kosovo and the southern part of Serbia. When it became evident that this initial phase of the war was not having the desired impact on Milosevic's behavior, that the air strikes were failing to induce him to yield to NATO's demands, the range of attacks were broadened to include carefully chosen targets throughout Serbia--targets that were of appreciable military value to the Serbs and the Milosevic regime.

At the beginng of Operation Allied Force, NATO military aircraft flying over Serbia and Kosovo operated under orders that did not permit the planes to fly at levels lower than 15,000 feet, due to the danger presented by Serb air-defense systems, which included numerous small arms, shoulder-launched missiles, and anti-aircraft artillery units. As the Serb air-defense systems were damaged and put out of commission, however, NATO orders were modified, easing restrictions on aircraft operating height. During the second half of Operation Allied Force, some NATO warplanes operated at levels as low as 6,000 feet, when necessary for purposes of target identification and weapons delivery profile.

Throughout the 78-day war, from the beginning of the aerial bombardment on March 24 to its formal suspension on June 10, NATO warplanes struck well over 400 stationary targets, more than 75 percent of which sustained medium to extreme damage. While air strikes against Serb field forces were, to some extent, successful in restricting their operations, the air strikes did not prevent Milosevic from continuing and drastically escalating the ethnic-cleansing and genocidal campaign against the Kosovans.

During Operation Allied Force, NATO aircraft flew more than 35,000 sorties, an average of approximately 450 a day. Involved in the opening phase of the operation were approximately 400 aircraft, only one of which was lost to Serb anti-aircraft fire--a U.S. F-117 Nighthawk Stealth fighter shot down near Belgrade on March 27. No combat fatalities were suffered by NATO, but two U.S. soldiers were killed in an accident on May 5, when their Apache helicopter crashed in Albania during a training exercise.

The U.S.A. bore the greater part of the burden of the aerial war. Of the approximately 400 NATO aircraft involved in the earlier phase of the war, about 200 were U.S. aircraft-- including a Navy carrier air wing--and senior U.S. Defense Department officials planned to deploy 300 additional aircraft to the war zone. Approximately 22,000 U.S. Air Force, Navy, and Marine Corps personnel were assigned to the U.S. European Command in support of the NATO mission.

Serb targets were struck by cruise missiles fired from U.S. and British war ships and submarines positioned in the Adriatic Sea. Serb targets were also struck by cruise missiles launched from U.S. B-52 bombers. Other aircraft attacking the Serbs flew from Aviano and other bases in Italy.

By late April, it was apparent that Operation Allied Force was neither slowing down the Serbian offensive in the ground war in Kosovo nor bringing a halt to the ethnic-cleansing campaign being carried out against the Kosovans. The Serbians were continuing their drive into Kosovo and drastically increasing the speed and volume of ethnic cleansing. Serb military and paramilitary forces were subjecting the Kosovans to an accelerating and expanding program of terror and ethnic genocide. On a massive scale, the Kosovans were being driven from their homes and communities. Serb forces were looting the homes of Kosovans, burning down their houses and villages, rounding up and summarily executing Kosovan men and older boys (boys old enough and large enough to bear arms), murdering many women and children, and telling the survivors to leave Kosovo immediately or be killed. Mounting numbers of Kosovan refugees fleeing the Serbs were pouring into Albania, Montenegro, and Macrdonia. According to an estimate by General Wesley Clark on April 27, 700 Kosovans had been driven out of the province since the commencement of Operation Allied Force.

By the end of April, Pristina, the provincial capital of Kosovo, had become virtually a ghost town. On May 5, the U.N. High Commissioner for Refugees reported that Kosovo was being "brutally and methodically" depopulated.

On April 21, however, NATO forces had begun an effort that would eventually bring an end to Milosevic's program of violence, repression, and genocide in Kosovo. On that date, NATO expanded its range of targets to include electric power transformers which supplied military command and control centers close to Belgrade. NATO air strikes destroyed transformers providing electrical power to civilians as well as to military command and control installations. NATO increasingly targeted for attack and destruction primarily civilian aspects of Serbia's infrastructure--roads and bridges, water supplies, electrical power plants, heating plants, factories, communications lines and facilities, etc. As Serbia's infrastructure was progressively demolished and Serbian civilians increasingly suffered the painful consequences of Serbia's military aggression in Kosovo, the internal political pressure on Milosevic became so great that he was persuaded to meet most of NATO's demands and make peace.

On June 2, Russian envoy and former premier Viktor S. Chernomyrdin and Martti Ahtisaari, European Union envoy and President of Finland, met with Milosevic and presented to him a proposed peace plan supported by Major Western powers. The plan stipulated (1) removal of Yugoslav/Serbian police, military, and paramilitary forces from Kosovo, (2) deployment of a NATO-led multinational peacekeeping force in the province, and (3) the safe and peaceful return of Kosovan refugees and displaced persons under the protection of the international peacekeeping force. In agreeing to support the revised peace plan, NATO had (1) dropped its insistence on a referendum by Kosovans to determine their political future and (2) limited the peacekeeping force to Kosovo--i.e., prohibited the peacekeepers from entering other areas of Serbia. On June 3, Milosevic and the Serbian parliament acceded to the plan.

Meeting at Kosovo's border on June 5-9, NATO military officials and the military authorities of Yugoslavia/Serbia concluded the Military Technical Agreement of June 9, 1999. In signing this agreement, the Yugoslav/Serbian authorities (1) pledged that the withdrawal of Yugoslav/Serbian forces from Kosovo would be completed within 11 days and (2) acquiesced in the deployment of the NATO-led multinational peacekeeping force--the Kosovo Force, or KFOR. It was agreed that KFOR would possess and exercise full authority to monitor and enforce the withdrawal of Yugoslav/Serbian forces, maintain peace and order within Kosovo, protect and assist returning refugees, and demilitarize the KLA.

The Military Technical Agreement included the following provisions:

      "To establish a durable cessation of hostilities,
      under no circumstances shall any Forces of the FRY
      [Federal Republic of Yugoslavia] and the Republic
      of Serbia enter into, reenter, or remain within the
      Ground Safety Zone (GSZ) and the Air Safety Zone
      (ASZ) ... without the prior express consent of the
      international security force ('KFOR') commander
      [the commander of the NATO-led multinational peace-
      keeping force].

            [Ground Safety Zone (GSZ)--A five-kilometer
            zone extending beyond the Kosovo province
            border into the rest of FRY territory and
            including the terrain within that five-
            kilometer zone.]

            [Air Safety Zone (ASZ)--A 25-kilometer zone
            extending beyond the Kosovo province border
            into the rest of FRY territory and including
            air space above that 25-kilometer zone.]

      "The FRY Forces [all Federal Republic of Yugoslavia
      and Republic of Servia military personnel and or-
      ganizations] shall immediately, upon entry into
      force (EIF) of this Agreement, refrain from commit-
      ting any hostile or provocative acts of any type
      against any person in Kosovo and will order armed
      forces to cease all such activities.  They shall
      not encourage, organize or support hostile or pro-
      vocative demonstrations.

      "The FRY [Federal Republic of Yugoslavia] agrees to
      a phased withdrawal of all FRY Forces from Kosovo
      to locations in Serbia outside Kosovo.  FRY Forces
      will mark and clear minefields, booby traps and ob-
      stacles.  As they withdraw, FRY Forces will clear
      all lines of communication by removing all mines,
      demolitions, booby traps, obstacles, and charges.
      They will also mark all sides of all minefields.

      "The authorities of FRY and the Republic of Serbia
      will cooperate fully with the international secur-
      ity force ('KFOR') in its verification of the with-
      drawal of forces from Kosovo and [their redeploy-
      ment to locations] beyond the ASZ/GSZ.

      "... the State Governmental authorities of the FRY
      and Republic of Serbia understand and agree that
      the international security force ('KFOR') will de-
      ploy and operate without hindrance within Kosovo
      and with the authority to take all necessary action
      to establish and maintain a secure environment for
      all citizens of Kosovo.

      "The international security force ('KFOR') commander
      shall have the authority, without interference or
      permission, to do all that he judges necessary and
      proper, including the use of military force, to pro-
      tect the international security force ('KFOR'), the
      international civil implementation presence, and to
      carry out the responsibilities inherent in this
      Military Technical Agreement and the Peace Settle-
      ment which it supports.

      "International security force ('KFOR') shall have
      the right ... to monitor and ensure compliance with
      this Agreement and to respond promptly to any viola-
      tions and restore compliance, using military force
      if required.  This includes necessary actions to
      ... enforce withdrawals of FRY forces.

      "... the Parties [to this agreement] understand and
      agree that international security force ('KFOR')
      commander has the right and is authorized to compel
      the removal, withdrawal, or relocation of specific
      Forces and weapons, and to order the cessation of
      any activities whenever the international security
      force ('KFOR') commander determines a potential
      threat to either the international security force
      ('KFOR') or its mission, or to another Party.
      Forces failing to redeploy, withdraw, relocate, or
      cease threatening or potentially threatening activ-
      ities following such a demand by the international
      security force ('KFOR') shall be subject to mili-
      tary action by the international security force
      ('KFOR'), including the use of necessary force, to
      ensure compliance.

With Serbia's acceptance of the Technical Military Agreement and with General Clark's confirmation that the withdrawal of Yugoslav/Serbian forces from Kosovo had begun, NATO Secretary-General Solana, on June 10, ordered a temporary suspension of the aerial bombardment campaign.

On the same date, the U.N. Security Council passed Resolution 1244, which (1) outlined KFOR's peacekeeping and other responsibilities in Kosovo and (2) in effect, endorsed the Military Technical Agreement between NATO and the Federal Republic of Yugoslavia/ Republic of Serbia. This resolution was adopted under Chapter VII of the U.N. Charter--the Charter provision permitting (1) a U.N.-sanctioned international peacekeeping force to carry weapons for purposes of its own protection and (2) the U.N. peacekeepers' use of necessary force in implementing the provisions of the relevant U.N. resolution or resolutions. Resolution 1244 authorized "Member States [of the United Nations] and relevant international organizations to establish the international security presence in Kosovo"--an "international security presence with substantial North Atlantic Treaty Organization participation ... deployed under unified command and control and authorized to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees." The international security presence, or KFOR, was to have "all necessary means" to fulfill its responsibilities, as set forth in U.N. Resolution 1244 and the Military Technical Agreement.

On June 12, "Operation Joint Guardian" began, when the first of KFOR's advanced enabling forces entered Kosovo. Once KFOR was fully deployed in Kosovo, the peacekeeping force was to consist of a total of 50,000 military personnel, including 12,000 troops from Britain, 8,500 from Germany, 7,000 from the U.S.A., 7,000 from France, 2,000 from Italy, and an indeterminate number from Russia. Other nations contributing to KFOR were to include Canada, Finland, Greece, Lithuania, Norway, Poland, Portugal, Sweden, and Turkey. British Lieutenant General Michael Jackson was named KFOR commander.

On June 20, after NATO had confirmed that all Yugoslav/Serbian forces had been withdrawan from Kosovo, the aerial bombing campaign was formally terminated.

The involvement of the U.S.A. and its allies in Kosovo, like their involvement in Bosnia and Iraq, is an open-ended engagement. Currently, Operation Joint Guardian is still in progress. KFOR--including U.S. troops--is still in Kosovo, with authority and responsibility for ensuring that Milosevic does not renege on his international commitments and send his military, paramilitary, and security-police forces back into the province, renewing his campaign of anti-Kosovan terrorism and ethnic genocide. KFOR--including U.S. troops--is still striving to maintain order in Kosovo, a responsibility which now entails protecting the minority of Serb inhabitants of Kosovo from being murdered or otherwise victimized by the Kosovan majority, many members of which are former refugees and displaced persons who have returned home and are seeking revenge for the extreme pain and suffering they experienced while in the clutches of Serb forces.

As regards America's involvement in the Kosovo-Yugoslav War, the U.S. Armed Forces participated in the aerial war over Kosovo and Serbia without the formal approval of Congress. On March 23, 16 Republicans and 42 Democrats coalesced to pass U.S. Senate Concurrent Resolution 21, an action that did not have the force of law, but allowed a majority of the senators to go on record as favoring congressional authorization of U.S. participation in the imminent NATO air assault against the Serbs. On the night of March 24, the House of Representatives, on a 424-1 vote, passed U.S. House Resolution 130, a comparatively noncontroversial and legally meaningless action declaring the House's support for American members of the military forces involved in Operation Allied Force. Neither House Resolution 130 nor Senate Concurrent Resolution granted the President any additional authority, as regards sending the U.S. Armed Forces into foreign hostilities.

When the House of Representatives was debating House Resolution 130, Republican members supporting the resolution declared that they supported the U.S. troops sent into military action, but not President Clinton's Balkan policy. Representative Floyd Spence (R-SC), Chairman of the House Armed Services Committee, stated that he had "reservations" about Clinton's policy, but not about congressional support for the men and women in the U.S. Armed Forces--military personnel put in harm's way by implementation of the President's policy. Spence's remark was repeated by other Republicans.

On April 28, the House of Representatives rejected two resolutions brought to the floor of the House by Representative Tom Campbell (R-CA). One of these resolutions, if passed by both chambers of Congress, would have declared that a state of war existed between the United States of America and the Federal Republic of Yugoslavia. The other resolution, U.S. House Concurrent Resolution 82, directed "the President, pursuant to section 5(c) of the War Powers Resolution, to remove United States Armed Forces from their positions in connection with the present operations against the Federal Republic of Yugoslavia. Campbell called on Congress to follow the U.S. Constitution, either clearly and unambiguously declaring war against Yugoslavia/Serbia or using the War Powers Act to force the President to withdraw U.S. forces from military engagement with the Serbs. However, the House of Representatives was unwilling to take either of these actions, both of which the majority of the chamber perceived to be highly controversial and fraught with great political risks. Hence, the House refused to go on record supporting either a declaration of war against the FRY or a move to compel the President to remove U.S. forces from the war zone.

Later on the same day, the House refused to pass an appropriations bill providing funds for the deployment of American ground forces in Kosovo or elsewhere in the FRY. That evening, the House, on a 213-213 tie vote, failed to adopt a resolution supporting the aerial campaign against the Serbs. In refusing to fund deployment of U.S. ground troops and in failing to pass a resolution supporting Operation Allied Force, House merbers were again seeking to avoid controversy and political risks.

In the eyes of House members, who serve very short terms of two years, the next election is always looming large on the horizon. Therefore, avoiding controversies and risks that might cause a House member to lose the next election is nearly always the primary consideration in deciding how he or she will vote on a divisive issue before the House--if the issue is divisive within his or her congressional district, with the constituents almost evenly divided on the issue.

In making their own narrow political interests their primary concern and seeking to insulate themselves from the political pitfalls associated with being honest and forthright with the voters, the members of the House, on April 28, sent to the American public and the world at large a jumble of conflicting messages, as regards House support for U.S. involvement in an ongoing military conflict abroad.

Making it even more difficult for the world outside of Congress to understand the position of the House of Representatives regarding U.S. involvement in the conflict, that chamber, on April 29, voted 311-105 to pass a bill appropriating $13 billion to fund U.S. military involvement in the Balkans during the remainder of the fiscal year. The $13 billion appropriated was twice the amount requested by President Clinton.

On April 20, five weeks after the commencement of Operation Allied Force, the issue of congressional support for U.S. participation in the air war over Kosovo and Serbia was brought before the Senate. On that date, a coalition of Republican and Democratic senators led by Senator John McCain (R-AZ) sought to force the hand of Congress on the issue, launching a drive to obtain Senate passage of U.S. Senate Joint Resolution 20. S.J. Res. 20, introduced into the Senate by Senator McCain, provided that--

      "... the President is authorized to use all necessary
      force and other means, in concert with United States
      allies, to accomplish United States and North Atlantic
      Treaty Organization objectives in the Federal Republic
      of Yugoslavia (Serbia and Montenegro)."

If this joint resolution had been passed by both houses of Congress, it would have had the force of law, giving the President full legal authority to "use all necessary force" in the Kosovo-Yusoslav conflict to accomplish the objectives of the U.S.A. and NATO in that conflict.

The Senate referred S.J. Res. 20 to the Senate Foreign Relations Committee, which acted in accord with the wishes of the Republican and Democratic leadership in the chamber and delayed consideration of the proposed joint resolution. When, on April 30, the Foreign Relations Committee got around to considering the resolution, the committee voted 14-4 to report S.J. Res. 20 to the full Senate, but without a recommendation for or against the Senate's passage of the measure. The members of the Foreign Relations Committee took this action, knowing that the prospects for Senate passage of the resolution were zero. They were well aware that the Senate leadership had already decided to table S.J. Res. 20 when it reached the floor of the Senate.

Both Senate Majority Leader Trent Lott (R-MS) and Senate Minority Leader Thomas Daschle (D-SD) indicated that they wanted the proposed resolution tabled. Senator Daschle stated:

      "I will be joining Senator Lott in voting to table
      that resolution because I believe we need to post-
      pone without prejudice any further debate on involve-
      ment in the Balkans."

Both Majority Leader Lott and Minority Leader Daschle said that, while floor debate on S.J. Res. 20 would be opened, they favored indefinite postponement of the Senate's decision on final passoge.

On May 3, Senate Joint Resolution 20 reached the Senate floor and debate on the measure began. The next day, however, the Senate, on a 78-22 vote, postoned indefinitely further consideration of the resolution.

The overall significance of the foregoing Senate and House votes is that, by early May, a congressional majority supporting President Clinton's military policy in Kosovo and Serbia had not been formed. And since that time, no such majority in Congress has materialized.

All along, the Clinton Presidency has held the position that the President does not need from Congress a war declaration or joint resolution authorizing his involvement of the U.S. Armed Forces in the Kosovo-Yugoslav conflict or in any other situation of foreign hostilities. President Clinton, like many of his predecessors (including all modern presidents), contends that the President can take such action on the basis of his own constitutional authority.

In a January, 1999, letter to Representative Tom Campbell, National Security Adviser Sandy Berger stated:

      "This administration, like previous administrations,
      takes the view that the president has broad authority,
      as commander-in-chief and under his authority to con-
      duct foreign relations, to authorize the use of force
      in the national interest."

Obviously, the prerogative theory of presidential power is still alive and healthy. And American presidents are still conducting themselves in accordance with the theory. Independent presidential warmaking goes on, inspite of the War Powers Act.