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The New American Interventionism: Essays from Political Science Quarterly
Demetrios James Caraley (ed.)
1999
A New Imperial Presidency? Insights from U.S. Involvement in Bosnia
William C. Banks and Jeffrey D. Straussman
In August 1995, President Bill Clinton caught a lucky break. A few days after Congress voted with veto-proof majorities to lift the arms embargo on Bosnia, the Croatian government launched an offensive against its dissident Serbian minority. Neither the Serb government in Belgrade nor Western nations responded, despite the fact that this Croatian operation was similar to the earlier Serbian “ethnic cleansing” that had received such negative attention in the Western news media. With the “clean” ethnic borders more or less in place, Serbia and Croatia appeared finally ready to move toward a settlement that had plagued the two countries since the breakup of Yugoslavia in 1991. However, when the Serbs continued to attack Muslim military positions in Sarajevo, Clinton was able to advance his alternative to congressional pressure to lift the arms embargo to the Western allies—namely, air strikes against the Serbs. The air strikes had the dual impact of blunting the efforts to override the vote on lifting the arms embargo and providing the military muscle to bring the warring sides in the Bosnian conflict to the bargaining table.
After several weeks of U.S.-sponsored negotiations at Wright-Patterson Air Force Base in Dayton, Ohio, the principals representing the three factions in Bosnia—Croats, Serbs, and Muslims—initialed a peace agreement on 21 November 1995. A few days after the formal signing of the Dayton Peace Accords in Paris on 14 December, President Clinton ordered the deployment of more than 20,000 United States troops as part of a NATO-led Implementation Force (IFOR) of 60,000, which was charged with patrolling and enforcing a cease-fire and a zone of separation between the newly created semiautonomous entities in Bosnia—the Muslim-Croat Federation and the Serb Republic Srpska. More or less lost in all the attention given to the Dayton settlement was a missing and essential element of the U.S. participation in IFOR: there was neither congressional authorization nor an appropriation in support of the deployment of U.S. ground forces to Bosnia. How could such a commitment of U.S. troops to enforce the peace in Bosnia have been made unilaterally by the president?
This article explains how the Bosnia commitment was made, and it assesses its legality. Part one provides a primer on the defense appropriations power, emphasizing the evolution from the original understanding of the Constitution to the practical executive dominance in the post-Korean War era. Part two describes the events from the breakup of Yugoslavia to the creation of IFOR in the immediate aftermath of the Dayton Peace Accords. Part three assesses the funding dimensions of U.S. participation in IFOR. Part four notes the continuing U.S. presence in Bosnia and draws some lessons about the contemporary dynamics of the elected branches in planning and implementing national security operations.
A Primer on the Power of the Purse in National Security Affairs
In December 1995 hearings before the Senate Appropriations Subcommittee on Defense regarding the U.S. commitment to Bosnia, Chairman Ted Stevens (R-AK) stated: “I oppose this deployment, but... it is [not] our prerogative here to debate... with the President.... The President has ordered the deployment... we have no way to prevent that.” 1 If James Madison or Thomas Jefferson could have witnessed Senator Stevens’s remarks, they would have been puzzled at this position taken by a member of the Senate and the chairman of the Senate Appropriations Defense Subcommittee that opposition to the commitment of U.S. forces to a military operation abroad is not even a question for the Congress to debate, much less decide.
Jefferson or Madison would say that Stevens put it exactly backwards: the president would propose the military operation, debate in Congress would follow, and, depending on the outcome of a vote in Congress, the president would begin the operation or not. In 1789, Jefferson wrote to Madison that “[w]e have already given... one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.” 2
Jefferson was referring, of course, to the Framers’ decision to vest the power to declare war in the Congress. But he also was celebrating their strategy of cementing the congressional primacy over committing the nation to war through conferring on Congress the power of appropriating money for the exercises of the war power, in the Spending, Army, Navy, and Necessary and Proper Clauses of the Constitution. The package of controls was completed in the Appropriations Clause and its prohibition on spending of public revenues without appropriation, and the Statement and Account Clause and its requirement of a periodic accounting of how public money is spent. Thus, the system put into place by the Framers separated the purse from the sword. The power of the purse supplemented the declaration power by allowing Congress to specify or restrict military spending ex ante. In the event that such controls failed, Congress was also given the power of supply, permitting Congress to determine through appropriations the magnitude and duration of U.S. involvement in military engagement.
The Framers’ overarching national security objective was to make it difficult for the United States to engage in war. It was not that the Framers believed that the Congress would be more expert than the president in national security affairs. Rather, it was assumed that peace would more likely predominate if the Constitution placed obstacles in the path toward war. The Congress thus supplied a deliberative buffer to hasty action, while its role assured that the gravest decisions made by the nation would be made by those most accountable to the people. The process prescribed by the Framers in the Constitution, stated simply, requires presidents to request from Congress authority to commit the U.S. to a military operation where the use of force is likely. The commander in chief may act without congressional authorization only in defense of sudden attack or to effect a rescue of Americans. 3
The history of how the United States made commitments to use military force abroad before 1950 was relatively consistent and mostly in keeping with the constitutional design outlined above. While there were occasional instances of unconstitutional engagements by commanders in chief, most involved minor skirmishes and none purported to usurp the congressional war power. The exceptional breach of the rules normally was based on a false claim of statutory authority and resulted in a contrite admission of error by the president. 4 Even President Franklin D. Roosevelt’s pre-World War II sympathies toward the plight of Europe and his pre-declaration efforts to aid the allies were couched in the authorities Congress had granted. For example, Roosevelt answered the French appeal for military assistance this way: “Only the Congress can make such commitments.” 5
The constitutional design began to erode with President Harry Truman’s unilateral commitment to send U.S. troops to fight a war in Korea. Commanders in chief following Truman cited their supposed independent constitutional authority (employing Korea as precedent) to deny the congressional primacy in initiating war, sometimes even denying that Congress is empowered to stop a president determined to act. They claimed that fast-breaking crises do not permit the luxury of congressional deliberation and cited the United Nations and other treaty-based obligations as authorization for their military actions. In addition, changes in the technology and speed of modern warfare have compromised the ability and perhaps the will of Congress to exercise its power over war before the use of force abroad. Precipitously, Congress has been relegated to the role of spectator in national security decision making.
As the actual power over national security shifted to the president after the Korean War and Congress increasingly ceded the initiative, the congressional role in deciding to commit the United States to war shifted from authorization to appropriations, from deciding in advance to grant the authority to act to ratifying or restricting ex post. The ex ante check on war making became an opportunity for ex post review and reaction. While some members of Congress carped about their subservience to unilateral executive decisions, occasionally national security commitments were influenced after the fact. In the Southeast Asia War, for example, appropriations restrictions were employed—first to limit the scope of the war through area and use restrictions, and later to bring it to an end.
In the waning years of the Southeast Asia War, Congress managed to beat back an already weakened President Richard Nixon and enact over his veto the War Powers Resolution (WPR) of 1973. Billed as a measure intended to restore congressional primacy in national security through requirements that the president consult Congress before and report to them after deploying troops where hostilities may be imminent, the WPR had no realistic chance of doing any such thing. First, the political compromises that shaped the final bill resulted in a statute that arguably enhanced rather than reined in presidential power. Second, once the weakened Nixon was gone, presidents since have routinely sidestepped its limited prescriptions while refusing to concede the act’s constitutionality. Later attempts by Congress to curtail military operations through appropriations restrictions had mixed results, at best. These included U.S. operations in Angola through the Clark-Tunney Amendment, in Nicaragua through the Boland Amendments, and in Somalia through a compromise measure arrived at with President Clinton. 6 At other times, members of Congress tried but failed to muster the votes to curtail a military operation that they may not have authorized.
One reason that the president has assumed the dominant role in making national security commitments is that contemporary situations may present crises unimaginable to the Framers that call for prompt action; both the speed and destructive capacity of weaponry may justify some presidential discretion to act unilaterally, not after deliberation by 535 representatives. Indeed, if the president fails to act in a high stakes, contemporary national security crisis, unilaterally or as part of a multinational force, he may fail to meet his independent constitutional obligations as commander in chief and as chief executive to “preserve, protect, and defend” the Constitution. Although this justification for unilateral presidential action remains almost entirely hypothetical, 7 the possibility of such a crisis has facilitated the accretion of power to the president.
Another reason for presidential hegemony, however, has nothing to do with crises in a fast-moving world. Since Truman’s move to deploy a massive force to Korea, Congress has demonstrated that it prefers not to take the risk of authorizing or forbidding risky national security ventures. If the president leads, Congress may remain silent and permit the president to act for the nation. Or, members may either applaud or chastise the president, short of making legislation, depending on how the operation pans out.
Today, national security commitments are not made pursuant to widely shared policy objectives. Indeed, allowing for the accretion of the power to the president over the past forty-five years, our nation’s commitments of military forces are often not even made following policies clearly articulated by the president, much less those favored by the Congress. Instead deployments are made, no-fly zones are enforced, bombing raids are executed, peace is enforced—all generally following a pattern of vague, shifting, and imprecise policies, shaped to avoid alienating any important domestic or foreign constituency. A by-product of this process of nonpolicy making is the avoidance of accountability. What has developed is a sort of game, honed during the years of wrangling over the war in Southeast Asia and U.S. support for the Nicaraguan contras, now played with considerable skill by executive and legislative players.
In the contemporary crucible of the defense appropriations process, the policy questions of whether the United States should engage in this or that military operation become fiscal questions: How much should be spent in furtherance of an activity for which a commitment has already been made by the president? Thus, the national security commitments made by the United States in the former Yugoslavia have been made following a familiar pattern: The president decides to undertake a national security operation, be it a humanitarian relief in a dangerous setting; participation in peacekeeping, peace enforcement, or peacemaking; or the removal of a tyrannical leader or regime from power. The president does not seek authorization from Congress nor seek a specific appropriation to fund the operation.
According to the Framers’ theory of appropriation, the commander in chief should be disabled from beginning the military operation because he lacks the appropriated funds. In fact, he has customarily claimed and exercised discretion to spend from large, lump sum accounts and to spend reprogrammed, transferred, emergency, and contingency funds without prior specific appropriation from Congress. From Nixon’s use of such accounts to finance hostilities in and over Cambodia during the war in Southeast Asia, to President Ronald Reagan’s use of them to finance the contras in Nicaragua, to President George Bush’s employment of them to fund Operation Desert Shield until Congress made a specific appropriation, modern presidents have exercised what has in fact become a presidential spending power in national security.
From Yugoslavia to IFOR
The collapse of the socialist regimes in Eastern Europe and the former Soviet Union between 1989 and 1991 eventually reached Yugoslavia, which dissolved into five republics—Slovenia, Croatia, Bosnia-Herzegovina, Serbia and Montenegro, and Macedonia. Attempts by the Yugoslav federal army to prevent the breaking away of Slovenia and Croatia precipitated the first hostilities in the region after the end of the cold war. In December 1991, the Muslim Bosnian president asked the European Community to recognize Bosnia-Herzegovina as an independent state, an event that many expected to lead to civil war, given the religious and ethnic makeup of the region—44 percent Muslim, 31 percent Serb, and 17 percent Croat. In April 1992, shortly before formal recognition of the new state by the European Community and the United States, Serb and Yugoslav army forces seized over 70 percent of Bosnia’s territory. Serb leaders stated that their goal was for all Serbs to live in either a small Serb-led Yugoslavia, or in a larger, independent Serbia. Serb attacks in the region were thus fashioned as “ethnic cleansing,” and atrocities against civilian Muslims and Croats were reported in the international press. While Muslims and Croats also fought each other in the early rounds of the conflict, by March 1994, the Bosnian Croats and Muslims agreed to form a federation in Bosnia.
The response to Serbian aggression was effectively set in 1991, when NATO decided not to intervene in what it regarded as a Bosnian civil war. In August 1992, the UN Security Council adopted a resolution calling on nations to take “all measures necessary” to facilitate the delivery of humanitarian assistance to Sarajevo. 8 At about the same time, the Senate passed a resolution stating that no U.S. military personnel should be introduced into hostilities without clearly defined objectives, and the House passed a resolution urging the Security Council to authorize measures, including the use of force, to ensure the delivery of humanitarian relief. 9
The U.S. response to the events in Bosnia evolved slowly and unevenly. In 1993, Clinton ordered U.S. participation in UN and NATO-sponsored relief operations and enforcement of a no-fly zone and an arms embargo. His actions were modest and did not carry a significant risk of the loss of or injury to U.S. personnel; nor did they risk political fallout or failure in the eyes of any large constituency at home. In effect, the United States would act only as part of a multilateral force; ground forces would not be used; and the United States would not take sides in the conflict. Although the president talked of seeking congressional “support,” he sought no authorization or appropriation for these actions.
Congress then considered but failed to enact restrictions on military initiatives in Bosnia. In September 1993, Senator Robert Dole announced his intention to offer a provision stating that no additional U.S. forces should be introduced into Bosnia without prior approval from Congress. Congress acted in the fiscal 1994 Defense Department appropriation, stating the “sense of the Congress” that defense appropriations should not be expended for a deployment in support of a peace settlement in Bosnia-Herzegovina “unless previously authorized by the Congress.” 10 Clinton responded to the proposed restrictions by announcing that he would fight or ignore any attempts to interfere with his foreign policy prerogatives.
When air strikes were contemplated and then initiated in 1994, Clinton made no effort to seek congressional authorization. Instead, he simply noted in a report to Congress that U.S. forces “participate in these actions pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief.” 11 He further noted that the air strikes were “to support NATO’s enforcement of the no-fly zone... as authorized by the U.N. Security Council.” 12 Thus, the policy was made by the UN and NATO, not the United States, and the decision to commit the United States to the operation was made by the president, not Congress. The closest Congress came to making policy on Bosnia in 1994 was to say that if any of $12 billion in supplemental defense funds were spent on Bosnia, Department of Defense (DOD) operations were limited to “enforcement of the no-fly zone relating to Bosnia.” 13
Meanwhile, after considerable Western media attention and public revulsion at the scenes of genocide and stories of rape and barbaric prison camps wrought by Serbian aggression, Congress voted in 1994 in “sense of the Congress” resolutions to lift the arms embargo on Bosnia to permit the Muslim government to defend itself more effectively. As the Defense Department appropriation and authorization bills were passed in the fall of 1994, the most that Congress could distill from its debates on the role of the United States in Bosnia was another nonbinding provision stating the “sense of Congress” that no U.S. funds should be spent on implementation of a peace settlement in Bosnia “unless previously authorized by the Congress.” 14 In 1995, when Congress eventually required that the arms embargo be lifted, Clinton vetoed the bill, asserting that a U.S. decision to lift the embargo would cause the European allies to withdraw their forces from the conflict and, thus, actually make conditions more difficult for the Bosnian Muslims. In his veto message, the president berated Congress for attempting “to regulate by statute matters for which the President is responsible under the Constitution.” 15
As the negotiations toward a peace accord proceeded in Dayton in late summer and fall of 1995, Clinton indicated to Senate Majority Leader Dole that he would welcome a “strong expression of support” from Congress before committing U.S. forces to the implementation of an accord. While at first he phrased his request as one for “authorization,” it was soon modulated to a request for “support” or “approval,” all the while maintaining his “constitutional prerogatives in this area.” In the weeks before and after the signing of the Dayton accords and leading up to the actual deployment of U.S. forces on 20 December 1995, both houses debated whether to support the introduction of U.S. ground forces in Bosnia. The House passed two measures: a nonbinding resolution stating that such forces should not be deployed without congressional approval, and then a flat-out prohibition of the deployment. In the Senate, the debate was heavily influenced by presidential candidate Dole’s statements that the president had the authority to deploy the force to Bosnia. After the Dayton accords were reached, the Senate declined to approve the House prohibition, and it narrowly defeated a resolution expressing opposition to sending troops to Bosnia. As the peace agreement was being readied for signature in Paris, the Senate passed an unusually worded resolution that supported the troops but doubted whether it was wise to send them. Next, the House passed a nonbinding resolution expressing “serious concern and opposition to the President’s policy,” although it also expressed confidence that the U.S. forces would excel at their task.
On 15 December 1995, the day after the peace agreement was signed in Paris, the UN Security Council authorized the multilateral NATO-led implementation force under Chapter VII of the UN Charter. Based on his presumed authority under the Constitution and treaties, Clinton ordered the deployment of 22,000 U.S. ground troops to Bosnia, a decision he explained in a letter to Congress on 21 December as being based on his “constitutional authority to conduct the foreign relations of the United States and as Commander in Chief and Chief Executive.” 16 Clinton vetoed the overall defense package a few days later—the fiscal 1996 Defense Authorization Act, which contained limitations on the president’s use of ground forces in Bosnia and on his discretion to secure funds from operational accounts to pay for unbudgeted contingency operations such as Bosnia. He managed to cause the objectionable provisions to be dropped from the bill that he eventually signed.
Funding U.S. Participation in IFOR
The chronology of U.S. involvement in Bosnia summarized in the previous section emphasized presidential-congressional relations in the conduct of national security policy. A more focused attention on the funding dimensions of U.S. participation in IFOR shows how the Framers’ conception of the relationship between Congress and the president has been radically altered in the post- Korea era. What we find is that significant big-picture policy questions concerning the efficacy of U.S. military activities are in fact resolved through arcane and low-profile spending decisions.
Beginning in summer of 1995, the Clinton administration was searching for creative ways to finance U.S. involvement in implementing a Bosnia peace agreement. One idea was to replicate the pre-Gulf War fundraising approach—a voluntary fund for contributions from governments toward implementing the peace in Bosnia. This, it was thought, would finesse Republican opposition in the congressional budget process and would exploit NATO support for U.S. participation in implementing an eventual agreement. The foreign contributions idea was abandoned, perhaps when the administration recalled that the possibility of financing a national security operation by U.S. forces with donated third-party funds was effectively eliminated by Congress in 1990. In response to the prospect of a “huge defense slush fund” 17 permitting President Bush to bypass Congress in funding Operation Desert Shield, Congress repealed previous authority permitting such gifts to be given to fund the nation’s defense outside the appropriations process. In its place, a Defense Cooperation Account was created, where any contributions to national security activities of the United States must be placed, while the spending of such funds is subject to the requirement of an appropriation.
With the lack of support in Congress for the line of credit approach to funding peace operations and the unavailability of open-ended discretion to spend gifts from foreign governments, the Clinton administration was back to square one on the challenge of how to finance the operation in Bosnia. The obvious path—seek a prior, specific appropriation for the operation from Congress—was politically unpalatable, based on the fear that the funds might not be approved at all. More likely, Congress would attach conditions to the spending that the commander in chief would find unacceptable. As a senior Pentagon official said, funding Bosnia was part of “the dance” with Congress, “forcing them to do something they do not want to do, and do it in a timely fashion.” 18 But how and where would DOD find the money? Fortunately for the president, a combined accident of timing and luck presented a relatively painless path toward funding the operation.
Throughout fall of 1995, while the Dayton negotiations were on-going and members of Congress were debating proposals to restrict any U.S. operation in Bosnia, Congress was also engaged in its consideration and passage of the annual appropriation bills, including the bill for defense. Unrelated to the potential dispute over Bosnia, Congress and the president were locked in a battle over spending, primarily over new or expanded weapons systems favored by members of Congress and viewed as too costly by the president. When Congress passed a $243 billion defense appropriations bill on 16 November, Democratic leaders suggested that Clinton would veto the bill because it contained $7 billion more than he had requested, with the additional funds earmarked for several defense projects he had not requested. At the time, Republican leaders retorted that a veto would in turn produce a cut-off of funding for the Bosnia operation.
However, the Dayton accords were announced the following week, and testimony by Defense Secretary William Perry and Comptroller John Hamre on 1 December provided the first public budget estimate of $2 billion for a twelve-month Bosnia operation. 19 The president reconsidered his options. If he vetoed the spending bill and then requested the $2 billion separately, the Congress would be unlikely to approve the request for the Bosnia funds. If he offered to accept the $243 defense appropriation, he could seek to strike a political bargain with congressional leaders informally to funnel some of the defense funds to the Bosnia operation.
In effect, that is just what occurred when Clinton allowed the bill to become law without his signature on 1 December. Although House Appropriations Committee Chairman Robert L. Livingston stated that “there has been no agreement on where the [Bosnia] funds come from,” 20 it appears that the fat in the fiscal 1996 Pentagon appropriation provided the flexibility for the president to charge DOD officials with finding the funds for Bosnia from within fiscal 1996 accounts and thus avoid, temporarily at least, the need to ask Congress for funds for Bosnia.
When the Bosnia deployment was ordered by the president, Congress had thus neither specifically appropriated funds for the Bosnia initiative nor restricted the use of appropriated funds. As IFOR began, DOD relied on its discretion to draw down lump sum operations accounts. The administration’s plan was to begin to spend for the Bosnia operation by depleting fiscal 1996 funds for operations and maintenance and personnel that would otherwise have been available for obligation later in the fiscal year. The enacted appropriation provided $81.6 billion for military operations and maintenance, $752 million over the president’s request. Thus, the operation could have begun from accounts that were funded above the Department’s request. However, because the draw-down from accounts where funds were added by Congress could conceivably affect specific projects favored by members of Congress, the administration required DOD to find all of the funds for Bosnia without diminishing the funds available for specific projects or activities added by Congress to the DOD budget request, and without the requirement of new funds. Thus, one apparent quid pro quo for the congressional leaders’ commitment not to attempt to deny or formally condition funds for Bosnia in the DOD appropriation or otherwise was the administration’s promise not to spend funds from within lump-sum accounts that had been earmarked for favored projects, and not to come asking for additional funds for Bosnia later in the fiscal year.
By their very nature, lump sums threaten the Framers’ theory of the power of the purse: It was anticipated that the president would be disabled from acting without going to Congress first for specific appropriations. In effect, the use of lump-sum appropriations for national security eliminates the ex ante control over spending and sends Congress to the sidelines when any unanticipated national security operation comes along. However, lump-sum appropriations have been employed for some defense spending since the First Congress, because members found it impossible to estimate necessary expenditures without the help of the executive. Over time, the lump-sum practice replaced the tradition of line itemization in appropriations for defense, although the executive estimates were to some extent and at times incorporated into the statutory text.
If the first Congresses and presidents found lump-sum appropriations unavoidable for the military, no one would seriously contemplate line-item appropriations for a $250 billion defense budget today. Although DOD lump-sum accounts have historically been subject to nonstatutory understandings that sums would be spent in accordance with details in the itemized budget requests, the broad delegations in the statutes of hundreds of millions or even billions for “operations and maintenance, army” leave considerable room for the operation of spending discretion.
To facilitate obtaining replacement funds due to the costs of the Bosnia operation as early as possible and to take advantage of the availability of noncontroversial funding sources, the administration determined to request funding in three phases. IFOR operations in Bosnia (and logistical support in neighboring countries) fell primarily to the army. The army’s estimated FY96 Operations and Maintenance budgetary requirements for Bosnia were $780.2 million. To offset the incremental costs of the Bosnia operation, the president submitted a request in January 1996 to reprogram $991 million in DOD funds, later revised downward to $876 million, financed by projected inflation savings resulting from revised economic assumptions. Thus, the claim was that no net costs would occur because the reprogramming would be “financed” by a downward revision of earlier inflation forecasts.
Reprogramming permits funds in an account to be used for different purposes than those contemplated when the funds were appropriated. In a reprogramming action, funds are shifted from one object to another or from one program element to another within an appropriation. It is thus different from the general discretion to spend from a lump sum account, although the differences are in degree, not kind, and often are based on informal arrangements between congressional committees and spenders. The authority to reprogram is implicit in an agency’s discretion to manage its lump-sum appropriations. Typically, reprogramming is not authorized or prohibited by statute. However, by statute and DOD regulation, most of its requests require the approval of four congressional committees, 21 although this one anticipated no set costs to any program or activity, based on the administration’s downward revision of its earlier inflation forecasts. Although statutes now limit DOD reprogramming to “higher priority items based on unforeseen military requirements,” and by prohibiting the practice “where the item for which reprogramming is requested has been denied by Congress,” 22 reprogramming discretion is of central importance to DOD. Because the DOD appropriation builds in considerable discretion through large lump-sum accounts, and because Congress apparently expects contingencies to occur, reprogramming provides one of the mechanisms through which funding decisions are made as matters of judgment of DOD professionals and others in the political process. DOD also continues to comply with these “prior approval” reprogramming procedures as a courtesy to the congressional committees and as part of the politically powerful set of informal controls on the discretion to spend appropriated funds.
Operations and Maintenance (O&M) funds were reprogrammed first, because these funds make up a large part of the defense budget. Furthermore, if funding was not restored to these funds, there would be an adverse impact on military readiness. This was followed by military personnel costs that have a predictable outlays pattern. The overall strategy was to minimize congressional opposition by financing the Bosnia operations through inflation savings that were known when the operation commenced.
The second phase and next largest piece of the $2.5 billion was found through a virtual gift from the intelligence community—a proposed rescission of $620 million in previously appropriated funds located in an obscure National Reconnaissance Office fund. The NRO funds, substantially in excess of any needs for that agency, were rescinded from the NRO budget and were proposed to be added to DOD as a no-cost supplemental appropriation. Although the supplemental would require bicameral congressional approval, an affirmative appropriation of new funds for Bosnia would not be required.
As the initial reprogramming request was making its way through the four required congressional committees in January and February 1996, the NRO rescission grew from $620 to $820 million and then $858 million, when it was proposed that $200 million be included for civilian peace implementation programs, independent of IFOR. Even though the $820 million was not “new” money, an appropriation was nonetheless required before it could be spent by DOD for IFOR. By early March 1996, political compromises were reached whereby the entire $820 million of NRO funds would be spent on IFOR to assuage members of Congress who balked at spending DOD funds on civilian peace implementation programs, traditionally a State Department responsibility. A supplemental appropriation was prepared, including the $820 million for IFOR along with funding for several domestic programs at levels that Clinton may have vetoed if they were not bound together with the IFOR funds. By the end of March, both houses had approved the supplemental appropriation and the last of four committees had approved the reprogramming request, although not without some reservations. The Senate stipulated that its approval of the supplemental was contingent on not disbursing the funds until the Muslim government in Sarajevo cut its ties with Iran, and House National Security Committee Chair Floyd Spence (R-SC) wrote to Secretary William J. Perry that the practice of using inflation savings as a source of funds for reprogramming “allows the department and services unusually broad discretion to apportion what is in fact an undistributed reduction within each account.” 23 Spence also said he remained concerned with the practice of the administration submitting proposals for funding based on savings from revised economic assumptions to fund unbudgeted activities.
By April, it was clear that the costs of IFOR would exceed DOD’s first revised estimate of $2.2 billion for fiscal year 1996 and $.5 billion for fiscal year 1997. Another round of revised estimates were summarized by Under Secretary of Defense John J. Hamre in mid-April 1996 in a letter to Congressman C. W. Young, chairman of the Subcommittee on National Security, Committee on Appropriations, where he estimated that total costs for the twelve-month Bosnia operation for FY 1996/1997 would be $2.8 billion through December 1996. Some of the revisions were due to intelligence gathering and distribution, and environmental conditions that turned out to be harsher than expected.
In the same letter to Chairman Young, Comptroller Hamre described an attached reprogramming request, the third of three phases of the DOD plan to finance the Bosnia operation. The 15 April request was for $659.6 million, primarily for Bosnia, although it also included modest amounts for contingency operations in Haiti and Cuba. The April request permitted DOD to incorporate its revised cost estimates for the operation in Bosnia. The phased timing also allowed DOD to take advantage of additional inflation savings as resources to fund the reprogramming. The inflation savings, along with some navy program sources, were used to fund the reprogramming for the balance of the anticipated fiscal 1996 costs for U.S. participation in IFOR, as well as some non-IFOR requirements for Bosnia and other non-Bosnia contingencies. The few navy program items reduced in the reprogramming—three Sea Cobra helicopters, the conversion of a few ships, reduced fleet support and maintenance upgrades, and the like—were lined out to make “funds available to finance higher priority items.”
The funding flexibility enjoyed early in a fiscal year shrinks accordingly as the fiscal year enters the third and fourth quarters. As recently as 1995, congressional critics of peacekeeping spending had charged that such spending for unplanned operations was compromising combat-readiness accounts, including training exercises and equipment overhauls planned for the third and fourth quarters of the fiscal year. Although DOD Comptroller Hamre testified to a Senate panel that Clinton would ask Congress to authorize a “line of credit” that the services could use to pay for unbudgeted overseas missions, the administration’s proposal was never given serious consideration. 24 As congressional consideration of the supplemental for DOD peacekeeping illustrated, many members of Congress face a dilemma when they vote on a proposal to fund a peacekeeping deployment in Bosnia, for example, when the spending has already occurred with “borrowed” funds from lump-sum or other accounts. The members who oppose the deployment are hard-pressed to vote against the supplemental, because of the obligation to support troops already in the field and the need to replace funds in the combat-readiness accounts to permit the possibly delayed training or equipment overhaul to be completed. Funding options thus change. While lump-sum spending discretion and reprogramming remain theoretically available as options, there are fewer unobligated funds late in the year.
A Deadline Passes
The Dayton accords called for IFOR to enforce the peace and to provide a secure environment for other parts of the peace plan to take place. The United States was the major force provider to IFOR, and Americans held the key military leadership positions that conducted the operation. The principal military tasks for IFOR were to mark and monitor a four-kilometer-wide zone of separation between the three factions, patrol the zone of separation, and oversee the withdrawal of forces and weapons away from the zone and to containment areas. When the deployment was begun, DOD listed among “[m]ajor threats to IFOR” 25
Secretary Perry and General Shalikashvili testified that we “must be prepared for casualties.” 26 Based on the prior deployment of UN Protection Force (UNPROFOR) personnel in Bosnia, DOD estimated that there would be about fifty casualties in a year’s deployment. Among the risks encountered by the troops were problems in identifying friends and foes, land mines (which claimed a U.S. casualty in February 1996), snipers, checkpoint control, and area and perimeter surveillance and protection. Military personnel deployed to Bosnia in IFOR were eligible to receive imminent danger pay. While no U.S. military were killed in combat in Bosnia during IFOR, the risk of casualties remained throughout the operation.
As the one year anniversary of the deployment approached, it became increasingly clear that it was not realistic to expect that the U.S. ground troops’ presence in Bosnia would end in a year’s time. The decision to delay municipal elections in Bosnia, an integral part of the Dayton accords, and the movement toward a sustained peace merely reflects that little progress has been made in transforming the war zone into some form of nation. Most of the political or economic structures necessary to nation-building are not yet in place in Bosnia, and the enmity and initiation of violence continues among the three factions. For example, in November 1996, the bloodiest postwar clash between Serbs and Muslims left at least one dead and ten people wounded, when a group of 600 Muslim villagers attempted to return to their prewar homes, located on what is now Serb land. NATO officials opined that Bosnian army officers forced the Muslims to return to the Serb-held village in an effort to provoke the Serbs. In an effort to punish both sides for their clash, U.S. troops raided a Muslim army brigade and a Serb police station and seized weapons and armored personnel carriers. Thus, in seeking to carry out the terms of the accords, a new conflict could easily reach a flash point in Bosnia.
A report by the independent International Crisis Group concluded in November that the civilian provisions of the Dayton accords were in danger of collapse. Their report notes that indicted war criminals remain at large; leaders earlier held responsible for the outbreak of war have been given new mandates to govern after fraudulent elections; and repatriation of refugees has failed. The IFOR troops were not charged with resolving these problems, only promoting the stability thought necessary to make solutions possible. As the problems persist, however, the stability forced by armed forces is itself tenuous.
Although no firm commitments were made prior to the November 1996 election day, it seemed likely that only a continuing, probably long-term international ground force would be able to prevent the rekindling of war. The president had likely known that for a long time, as had his defense secretary, his military commanders, and most members of Congress. By contrast, the stated public policy was different. General Shalikashvili said in April 1996 that he was “absolutely convinced” that all U.S. forces would be out of Bosnia by year’s end: “I cannot imagine circumstances changing in such a way that we would remain in Bosnia.” 27 In May, DOD under secretary for policy, Walter B. Slocombe, said that “there’s every reason to believe... that all IFOR forces will be out of Bosnia shortly after 20 December.” 28 Secretary Perry played an additional semantic game with congressional leaders and the media by calling more recently deployed troops part of an “exit protection force.”
In a 15 November 1996 speech, Clinton announced that in place of IFOR, a 8,500 strong Stabilization Force (SFOR) would “in principle” remain in Bosnia until mid-1998. Although Perry admitted that he was wrong one year before in recommending to the president that the objectives of the Dayton accords could be met in one year, he expressed confidence that the mid-1998 withdrawal target could be met. His convoluted explanation of his “error in judgment” in setting the exit deadline was, he said, “right in the sense that all of the specific tasks spelled out we did do in 12 months; it was not right in the sense that those tasks were enough to allow us to safely leave the country.” 29
Less than a month after the reelection of Clinton, the administration officially announced the extension of U.S. military involvement in Bosnia. In a letter to congressional leaders, Clinton wrote: “In order to contribute further to a secure environment necessary for the consolidation of peace throughout Bosnia and Herzegovina, NATO has approved, and I have authorized U.S. participation in, an IFOR follow-on force to be known as the Stabilization Force (SFOR). SFOR’s tasks are to deter or prevent a resumption of hostilities or new threats to peace, to consolidate IFOR’s achievements, to promote a climate in which the civilian-led peace process can go forward. Subject to this primary mission, SFOR will provide selective support, within its capabilities, to civilian organizations implementing the Dayton Peace Agreement.” 30 The new NATO force includes 8,500 U.S. troops. This force was scheduled to stay until June 1998.
While Secretary of State Warren Christopher hinted in September 1996 that some form of international force would probably have to remain after IFOR completed its mission, many members of Congress were not pleased at both the timing and substance of the president’s announcement. Tom Lantos, Democratic Congressman from California, commented: last year’s talk about a “clear-cut exit strategy” was “an escape from reality.... This may have been the only way for [the administration] to get Congress to acquiesce in deployment.” 31 Republican members were publicly less forgiving, and Senator John McCain (R-AZ) said that the credibility gap of administration officials on Bosnia is now “wide as the Grand Canyon." 32 Republican Senator Kay Bailey Hutchinson (R-TX) reacted to the president’s postelection announcement of U.S. participation in a new peacekeeping force in Bosnia this way: “I don’t think that the president has kept his word on the commitments he made to Congress last year. He said that he would keep the mission to a year. He didn’t. He said he would arm and train the Bosnian Muslims. He hasn’t. He said he would consult with Congress, and he hasn’t.” As for the administration’s insistence that the original December 1996 “exit strategy” remained intact, because the original force will be withdrawn “on schedule,” Senator Hutchinson’s reaction was typical: “The President is playing with words.” 33 Even some journalists voiced criticism. Writing in the New York Times, Thomas Friedman said, “Let’s get right to the point: The Clinton Administration has not been candid with the American people about its intentions in Bosnia.” 34 Two months later, Clinton’s nominee to replace Perry—former Republican senator from Maine, William Cohen—tried to soften his former colleagues’ criticisms of the administration’s Bosnia policy by repeating the promise during his confirmation hearings that U.S. ground forces would leave in June 1998. In his words, “This is a signal, and a very strong message to our European friends. We are not going to be there [after the new deadline]. It was primarily a European problem to be solved, and it’s time for them to assume responsibility.” 35 He soon reiterated this position in early March 1997 on a trip to Germany, when he told reporters that the American forces will be out of Bosnia by the target date even if hostilities break out again. He also stated that any new peace force for Bosnia would not include U.S. troops, even though some European officials were already planning for that eventuality.
The administration’s fiscal 1997 budget contained only the previously identified $542 million in DOD funds for Bosnia, earmarked as part of the originally anticipated costs of a twelve-month operation. Given the timing of the president’s announcement of U.S. participation in SFOR, it was not practically possible to request SFOR funds in the regular DOD appropriation. Thus, the administration faced the same situation and followed the same strategy as in fiscal 1996 in budgeting for SFOR—find the funds from within the fiscal 1997 DOD accounts, and do not ask for new money. One difference between the fiscal 1996 and 1997 budgeting strategies, however, was that the planners and cost estimators within DOD had a better chance to come up with a budget closer to actual needs. First, they had the 1996 IFOR actual spending experience to work with. Second, they had more time to prepare the spending plans the second time around. Even though the president did not announce that the U.S. forces would stay beyond December 1996 until November 1996, behind the scenes, the planners were anticipating the expected contingency.
Another difference from fiscal 1996 was that the fiscal 1997 DOD appropriation included the Overseas Contingency Operations Transfer Fund for the first time. 36 Any contingency fund would, of course, supply additional obligational authority, to be used when unanticipated circumstances or needs arise. In such instances, the need to obligate funds is determined by the agency officials, consistent with the underlying appropriation act. However, despite its title, this $1.1 billion fund, available for transfer only to operation and maintenance accounts in DOD, was envisioned as a funding source for known contingencies, such as Bosnia. It did not signal any acquiescence on the part of Congress to give DOD a blank check for new Bosnia costs or for other peacekeeping operations.
Less than two months after announcing SFOR, Pentagon Comptroller Hamre testified that Bosnia costs, as of late February 1997, would total $6.5 billion, more than three times the original cost estimates. A $2 billion supplemental appropriation for fiscal 1997 would be required, largely to fund U.S. participation in SFOR. By mid-April 1997 funding sources for the supplemental were identified. About $1 billion was proposed for rescission from specific programs; $246 million from unobligated balances; $307 million from revised inflation estimates; and $308 million related to fluctuation in foreign currency rates. 37
Meanwhile, DOD once again played its readiness card. Hamre said that if Congress did not act on the fiscal 1997 supplemental before its mid-April recess, the army and the air force would have to cancel selected training exercises. 38 At the same time, Marine General John Sheehan, head of the Atlantic Command, told the House National Security Committee in March that the army would start cutting back on tank miles, flight hours, and training. 39
As DOD was emphasizing the exigencies of the funding situation for SFOR and the need for Congress to enact the supplemental expeditiously, Republican leaders in Congress decided to join the DOD supplemental to a supplemental for disaster relief and then to encumber the larger supplemental with unrelated riders. The supplemental was, in terms of its $6.5 billion and publicity, dominated by funds for disaster relief for flood victims, primarily in North Dakota. In the face of an explicit veto threat by Clinton, Congress added to the disaster relief/peace operation supplemental two politically charged provisions—one prescribing an automatic continuing resolution in the event that the regular appropriations were not enacted by the end of the fiscal year, and the other forbidding the use of statistical sampling techniques in compiling census data for the next biennial census. 40 As expected, Clinton exercised his veto, and Republican leaders were embarrassed by the obvious realization that they lacked the votes to override the veto and that public opinion would not look favorably upon delays in forwarding disaster relief to flood victims as a pawn in political battles with the president. 41 After a few more days of wringing hands and political posturing, a new bill was passed, stripped of the objectionable riders. It was signed by the president on 12 June 1997, 42 almost two months after it was scheduled for passage.
The enacted supplemental provided funds for Bosnia in part through replenishing the Overseas Contingency Operations Transfer Fund with $1.4 billion, thus permitting DOD to transfer the infusion of funds into such of the operations accounts as, in the Department’s view, should have the new budget authority, or to pay for the costs of drawdown. 43 The balance of funds for Bosnia was earmarked for personnel accounts. In keeping with the pattern of paying for peace operations with existing funds, the president proposed and Congress accepted a cancellation of $2 billion of unidentified appropriations from the fiscal 1997 Appropriations and Military Construction Acts. The secretary of Defense was authorized to determine which programs, projects, and activities should be rescinded to attain the $2 billion amount. 44 The secretary was thus not even required to adhere to his proposed list of rescissions.
Lessons
The commander in chief has acquired his own spending power, eroding the congressional power of the purse and the check it gives on executive national security initiatives. At a minimum, the Bosnia deployments to IFOR and SFOR show that the ex ante check resulting from the on-going need for military supply and the inevitability of unanticipated military operations have been substantially undercut by the accretion of discretionary spending authority in the commander in chief. The Bosnia operation illustrates that drawdown options—lump sum spending authority, along with special discretion to reprogram, transfer, and spend for contingencies—have given the commander in chief a formidable short-term national security spending cushion without the need for prior specific appropriations. As Bosnia demonstrates, however, the discretionary mechanisms also permit the president to undertake long-term, large-scale operations, which may leave Congress little practical choice but to appropriate specifically for their continuation.
In addition, once an unauthorized operation begins without an explicit appropriation, members may balk at being seen as unwilling to support troops in the field. In the throes of the Bosnia deployment debate, on 30 November 1995, Senate Majority Leader Bob Dole said: “It is time for a reality check in Congress. If we would try to cut off funds, we would harm the men and women in the military who have already begun to arrive in Bosnia.” 45 Senator Dole’s response merely recognizes a dilemma that Congress itself created through its inability to enact an authorization, appropriation, or restriction on the Bosnia operation. Nonetheless, this justification for congressional acquiescence has recurred often, at least since the Vietnam War. 46
Because the president committed U.S. forces to a potentially hostile environment, risking at least limited involvement in hostilities and ensuing casualties, the deployment was, in our opinion, an unconstitutional usurpation of congressional power over war. Congress itself recognized the legal and policy problem in 1995, when the conference report on the DOD supplemental appropriation stated that military deployments “in support of peacekeeping objectives both merit and require advance approval by Congress.” 47 Ironically, when Secretary Perry was asked by Senate Appropriations Committee members whether IFOR was empowered to arm and train Bosnian Muslim forces, Perry demurred: “I do not believe the Defense appropriations bill gives me the authority to use [funds appropriated for DOD] to buy equipment for the Bosnian army.... There has to be some enabling legislation for that to happen.... If the cost is to be paid by an American taxpayer, there has to be an authorization....” 48 Thus, according to the secretary, more than 20,000 troops may be deployed into a hostile environment at a cost of more than $2 billion with neither an authorization nor appropriation for that purpose, but the deployed forces cannot undertake a politically controversial operation that bears little dollar costs. Too little attention has been paid to this mischaracterization of Congress’s role.
In addition, the president’s efforts to rely on NATO or the UN as authority for U.S. participation in IFOR are wide of the mark. First, NATO is a defensive treaty, intended to contain the Soviet Union through “collective defense” and resistance to “armed attack.” The treaty does not authorize offensive actions generally or peacekeeping in particular. Second, the provisions of the treaty were to be carried out “in accordance with [the parties’] constitutional processes.” This language, like a parallel provision in the UN Charter, reminds us that, for operations like Bosnia peacekeeping, the treaty provisions are not self-executing. Thus the treaties grant the president no unilateral power to use the military to enforce the peace in the Balkans. 49
At the same time, the Bosnia deployment followed a familiar script. Neither the president nor Congress ever articulated a clear or consistent set of policy objectives for Bosnia, certainly not before the Dayton accords. And when the proposal was made by the president to commit U.S. ground troops to enforce the peace, the proposal was not made to Congress. Instead, the president relied on NATO and the UN, and he came to Congress only as a reporter and huckster, selling a done deal. Factions and individuals within Congress tried but failed to get Congress to take a principled up or down vote on Bosnia, either through the authorization or appropriation processes. At the same time, members of Congress and the administration knew that the discretionary spending devices permitted the operation to occur without further action required by Congress. To implement the discretionary spending, the president made political deals to free up the funds, while he sent the secretary of Defense and chairman of the Joints Chiefs to congressional hearings to brief members of Congress on the details on an operation that had already begun. Members of Congress thus remained free either to criticize or applaud the operation and the president; no institutional position or risk was taken by Congress. The president continued to call the shots, and if things did not go well, he could choose to blame the Congress for insufficient support.
The case of financing U.S. military involvement in Bosnia highlights the relationship between budget execution and public policy, particularly in the area of national security. More than twenty years have past since Louis Fisher wrote: “Public policy is not so easily apportioned into watertight compartments. Policy-making is a dynamic, ongoing phenomenon, beginning with the inception of an idea and carrying through to its enactment and implementation.... If Congress is to play the role of major policy-setter, it must avoid situations where budget execution becomes a controlling factor, locking Congress into commitments and decisions ahead of time.” 50 Fisher’s study documented the use of budget execution procedures throughout the nineteenth and twentieth centuries. It is instructive to recall that the secret bombing of Cambodia in 1972-1973 was financed through a transfer of funds that was approved after the fact. 51 A more recent account of the use of budget execution devices to finance national security activities by William Banks and Peter Raven-Hansen documents several interventions from the Vietnam War period through Operation Desert Shield. 52 This case study of Bosnia is consistent with these earlier assessments in the overall conclusions about the changing institutional dimensions of financing national security activities in the post-cold war era.
From time to time, Congress has rescinded some of the commander in chief’s discretionary spending authority—such as the authority to fund operations from third-party funds outside the appropriations process. But the longevity of the remaining sources suggests that Congress believes that the flexibility this discretion affords in matters of national security is worth the cost in congressional control and the risk of abuse by the executive. Or, as we believe, the continuation of the discretionary spending devices is best explained as facilitating a sort of accountability-avoidance game, played by Congress and the president. For members of Congress who do not wish to play the game and who seek to force votes on authorization and appropriation for operations like Bosnia before-the-fact, these discretionary spending devices are potentially maddening. They permit, as House National Security Chairman Floyd D. Spence (R&-;SC) put it, “[t]he proverbial train [to leave] the station, [with] our troops... already on board.” 53 Comments like this highlight the frustration created by the ad hoc nature of peacekeeping activities like Bosnia, the political opposition generated by a commitment of this type, and the fear that it will take valuable resources away from more important missions. At the same time, while the absence of U.S. casualties in the Bosnia operations to date has weakened the political opposition, the perceived need on the part of the administration to avoid casualties may have weakened the effectiveness of the operations and protracted the length of the U.S. commitment. When asked if there is anything that can be done to reduce the conflict between the branches when funding for unplanned contingencies like Bosnia arise, John Hamre said when he was the comptroller of the Defense Department: “This is a fault line in the Constitution.” 54 In other words, from the Pentagon perspective, contingencies such as Bosnia will likely continue to occur, funded ad hoc and without prior approval from Congress. From the constitutional perspective, the fault line has a different purpose—to insure congressional control over the purse strings. That this fundamental piece of our system of separated powers has failed is due to actions of both of the elected branches.
Endnotes
Note 1: “Bosnia Costs and Funding Requirements,” Hearing before a Subcommittee of the Committee on Appropriations, United States Senate, 104th Congress, 1st sess., 1 December 1995, S. Hrg. 104-286, 35. Back.
Note 2: The Writings of Thomas Jefferson (New York: G.P. Putnam’s Sons, 1895), 123. Back.
Note 3: Although the “original understanding” of the Constitution is often obscure, the power to commit the nation to war, big or little, declared or undeclared, was clearly given to Congress. Only defensive actions where time does not permit deliberation by Congress may be lawfully conducted by the executive without congressional authorization. See Stephen Dycus, Arthur L. Berney, William C. Banks, and Peter Raven-Hansen, National Security Law (Boston: Little, Brown, 2d ed., 1997), 9-27. Back.
Note 4: A Senate report stated: “[T]he practice of American Presidents for over a century after independence showed scrupulous respect for the authority of Congress except in a few instances.” S. Rep. No. 797, 90th Congress, 1st sess., 1967, 23. While proponents of broad presidential power have developed various lists purporting to show instances in which the president has ordered military action without congressional authorization, these lists tend to mislabel an operation authorized by Congress, or the actions listed involve minor skirmishes with pirates or operations to rescue Americans abroad. See Frances Wormuth and Edwin Firmage, To Chain the Dog of War: The Power of Congress in History and Law (Urbana: University of Illinois Press, 2d ed., 1989); Dycus, et al. National Security Law, 334-341. Back.
Note 5: Edward Corwin, The President: Office and Powers, 1787-1984 (New York: New York University Press, 1984), 246. Back.
Note 6: Department of Defense Appropriations Act, 1994, 107 Stat. 1475-77, §8151 (1993). Back.
Note 7: The Constitution permits unilateral presidential action only to repel a sudden attack or to rescue Americans held abroad. Other unilateral uses of military force by the president in an emergency are best viewed as unlawful, permitting Congress to ratify the action after-the-fact if it believes the actions were justified. See Jules Lobel, “Emergency Power and the Decline of Liberalism,” Yale Law Journal 98 (1989): 1385. Back.
Note 8: United Nations Security Council Resolution 770, 13 August 1992. Back.
Note 9: S. Res. 330, 102d Congress, 2nd sess. (1992); H. Res. 554, 102d Congress, 2nd sess. (1992). Back.
Note 10: Department of Defense, Appropriations Act for Fiscal 1994, Pub. L. No. 103-139, §8146, 107 Stat. 1476 (1993). Back.
Note 11: William J. Clinton, 30 Weekly Compilation of Presidential Documents, 6 February 1994, 406. Back.
Note 13: Pub. L. No. 103-211, §302, 1994. Back.
Note 14: Department of Defense, Appropriations Act for FY 1995, Pub. L. No. 103-335, §8100 (1994). Back.
Note 15: 31 Weekly Compilation of Presidential Documents (11 August 1995), 1439. Back.
Note 16: 31 Weekly Compilation of Presidential Documents (6 December 1995), 2144. Back.
Note 17: Jefrey R. Smit and Ann Devroy, “Reduced Arms Sale to Saudis Discussed: Byrd Moves to Bar Pentagon `Slush Fund,’” Washington Post, 21 September 1990. Back.
Note 18: Interview, 6 May 1997. Back.
Note 19: William J. Perry, Prepared Statement, “Bosnia Costs and Funding Requirements,” Hearing before a Subcommittee of the Committee on Appropriations United States Senate, 104th Congress, 1st sess., 1 December 1995, S. Hrg. 104-286, 21, 43. Back.
Note 20: Donna Cassata, “Clinton Accepts Defense Bill in Bid for Bosnia Funds,” Congressional Quarterly Weekly Report, 2 December 1995, 3672. Back.
Note 21: These committee approval arrangements have no binding legal effect, in light of the Supreme Court’s decision in Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983). Back.
Note 22: Department of Defense, Appropriations Act of 1992, Pub. L. No. 102-172, §8010, 105 Stat. 1173 (1991). Back.
Note 23: “Congress Oks Nearly $1 Billion for Bosnia,” Defense Daily, 190 (22 March 1996): 440. Back.
Note 24: Pat Towell, “Pentagon Seeks Money to Pay for Unscheduled Missions,” Congressional Quarterly Weekly Report, 21 January 1995, 216. Back.
Note 25: General John M. Shalikashvili, “Bosnia Costs and Funding Requirements,” Hearing before a Subcommittee of the Committee on Appropriations United States Senate, 104th Congress, 1st sess., 1 December 1995, S. Hrg. 104-286, 22. Back.
Note 27: Michael Dobbs, “Bosnia Exit Deadline Crumbles,” Washington Post, 28 November 1996. Back.
Note 28: James Kitfield, “Six Months Down, Six More to Go,” The National Journal, 25 May 1996, 1154. Back.
Note 29: Elaine Sciolino, “Loosening the Timetable for Bringing G.I.’s Home,” New York Times, 17 November 1996. Back.
Note 30: William J. Clinton, “Letter to Congressional Leaders on Bosnia,” 32 Weekly Compilation of Presidential Documents, 2535-36 (20 December 1996). Back.
Note 31: Dobbs, “Bosnia Exit.” Back.
Note 33: Ann Swardson, “Bosnian Presidents, Western Powers Renew Dayton’s Promises; U.S. Peacekeepers Seize Weapons from Muslim Army,” Washington Post, 15 November 1996. Back.
Note 34: Thomas Friedman, “The Fudge Factor,” New York Times, 3 November 1996. Back.
Note 35: Pat Towell, “Cohen, in Confirmation Hearing, Vows Timely Bosnia Pullout,” Congressional Quarterly Weekly Report, 25 January 1995, 247. Back.
Note 36: Department of Defense Appropriations Act, Fiscal 1997, Pub. L. No. 104-208, §618 (1996). Back.
Note 37: “House Defense Appropriators Mark Up Bosnia Supplemental,” Defense Daily, 18 April 1997, 195. Back.
Note 39: Tom Breen, “Sheehan: Atlantic Command Faces Cutbacks Without Supplemental,” Defense Daily, 7 March 1997, 194. Back.
Note 40: James Bennet, “As Promised, President Vetoes Bill on Flood Aid,” New York Times, 10 June 1997. Back.
Note 41: Jerry Gray, “Flood Relief Bill Passes As G.O.P., in Turmoil, Yields,” New York Times, 13 June 1997. Back.
Note 42: Ibid.; Supplemental Fiscal 1997 Appropriations Act, Pub. L. No. 105-18,—Stat. (1997). See also Andrew Taylor, “Clinton Signs `Clean’ Disaster Aid After Flailing GOP Yields to Veto,” Congressional Quarterly Weekly Report, 14 June 1997, 1362. Back.
Note 43: See H.R. Rep. 105-119, 105th Congress, 1st. (1997). Back.
Note 44: H.R. Rep. 105-83, 105th Congress, 1st. (1997). Back.
Note 45: Pat Towell, “Congress Reluctantly Acquiesces in Peacekeeping Mission,” Congressional Quarterly Weekly Report, 2 December 1995, 3668. Back.
Note 46: See Mitchell v. Laird, 488 F. 2d 611, 615 (D.C. Cir. 1973) (“This court cannot be unmindful of what every schoolboy knows... that a Congressman wholly opposed to the war’s commencement and continuation might vote for... appropriations... because he was unwilling to abandon without support men already fighting.”) Back.
Note 47: H. Rep. No. 104-101, 104th Congress, 1st sess. (1995), 25. Back.
Note 48: Transcript: DoD News Briefing, Secretary William J. Perry with press, 20 December 1995, http://www.dtic.dla.mil/cgi-bin/wa. Back.
Note 49: While treaties become part of “the supreme Law of the Land” pursuant to the Supremacy Clause, U.S. Constitution Article VI, the domestic legal effect of treaties may turn on whether their provisions are consistent with other constitutional limits, such as the Declaration Clause. See Louis Fisher, Presidential War Power (Lawrence: University of Kansas Press, 1996), 92-97, 188-189. In addition, “if implementing legislation is constitutionally required” by a treaty, it is non-self-executing and thus does not permit the President to act alone. Restatement (Third) of the Foreign Relations Law of the United States §111(4) (1987). Back.
Note 50: Louis Fisher, Presidential Spending Power (Princeton: Princeton University Press, 1975), 258. Back.
Note 52: William C. Banks and Peter Raven-Hansen, National Security Law and the Power of the Purse (New York: Oxford University Press, 1994). Back.
Note 53: Towell, “Congress Reluctantly Acquiesces,” 3668. Back.
Note 54: Interview with the authors, 6 May 1997. Back.
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