B-223011, DEC 24, 1986

B-223011, DEC 24, 1986

MISCELLANEOUS TOPICS - NATIONAL SECURITY/INTERNATIONAL AFFAIRS - EXECUTIVE POWERS - MILITARY ACTIVITIES - STATUTORY RESTRICTIONS - COMPLIANCE DIGEST: GAO CANNOT CONCLUDE THAT THE PRESIDENT, WHEN HE ORDERED THE APRIL 14, 1986 AIR RAID ON LIBYA, VIOLATED SECTION 3 OF THE WAR POWERS RESOLUTION, 50 U.S.C. SEC. 1542 (1982) WHICH PROVIDES THAT THE PRESIDENT "IN EVERY POSSIBLE INSTANCE SHALL CONSULT WITH CONGRESS BEFORE INTRODUCING UNITED STATES ARMED FORCES INTO HOSTILITIES ***." THE PRESIDENT COMPLIED WITH THE LITERAL TERMS OF SECTION 3 WHEN HE MET WITH THE CONGRESSIONAL LEADERSHIP SHORTLY BEFORE THE RAID. FURTHER, THE LACK OF PRECISION OF THE CONSULTATION PROVISION AND ITS QUALIFYING OPENING CLAUSE REQUIRE THAT THIS OFFICE PERMIT THE PRESIDENT A GREAT DEGREE OF DISCRETION REGARDING WHEN AND HOW HE IS TO "CONSULT."

THE HONORABLE CHARLES B. RANGEL:

HOUSE OF REPRESENTATIVES

THIS IS IN RESPONSE TO YOUR LETTER DATED APRIL 28, 1986, REQUESTING THAT THIS OFFICE DETERMINE WHETHER THE PRESIDENT VIOLATED THE WAR POWERS RESOLUTION, 50 U.S.C. SEC. 1541-48 (1982), "WHEN HE DIRECTED UNITED STATES AIRCRAFT TO BOMB TARGETS IN LIBYA." SECTION 3 OF THE WAR POWERS RESOLUTION, 50 U.S.C. SEC. 1542 (1982), PROVIDES THAT THE PRESIDENT "IN EVERY POSSIBLE INSTANCE SHALL CONSULT WITH CONGRESS BEFORE INTRODUCING UNITED STATES ARMED FORCES INTO HOSTILITIES OR INTO SITUATIONS WHERE IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATED BY THE CIRCUMSTANCES ***."

WE HAVE REQUESTED AND OBTAINED THE VIEWS OF THE SECRETARY OF STATE IN THIS MANNER. THOSE VIEWS ARE INCORPORATED IN THIS OPINION WHERE RELEVANT.

THE APPENDIX TO THIS OPINION SETS FORTH IN DETAIL THE FACTUAL CIRCUMSTANCES OF THE APRIL 14 RAID AND THE "CONSULTATION" PROVIDED BY THE PRESIDENT, AS WELL AS A DETAILED ANALYSIS OF THE REQUIREMENTS OF THE CONSULTATION PROVISION OF SECTION 3 OF THE RESOLUTION. WE SHALL REFER TO IT FREQUENTLY IN THIS OPINION.

AS SET FORTH BELOW, THIS OFFICE CANNOT CONCLUDE IN THESE CIRCUMSTANCES THAT THE PRESIDENT VIOLATED THE WAR POWERS RESOLUTION.

BACKGROUND

ON APRIL 14, 1986, SHORTLY BEFORE 7:00 P.M. WASHINGTON TIME, UNITED STATES NAVY AND AIR FORCE AIRCRAFT ATTACKED FIVE TARGETS ALONG THE MEDITERRANEAN COAST OF LIBYA. ACCORDING TO MEDIA REPORTS AND PUBLIC STATEMENTS BY MEMBERS OF CONGRESS, AT APPROXIMATELY 4:00 P.M. ON APRIL 14, WHEN THE AIR FORCE BOMBERS HAD BEEN AIRBORNE FOR APPROXIMATELY 3 HOURS, BUT WERE STILL APPROXIMATELY 3 HOURS FROM THEIR TARGETS, SEVERAL MEMBERS OF THE CONGRESSIONAL LEADERSHIP WERE CALLED TO THE OLD EXECUTIVE OFFICE BUILDING. THERE THEY MET WITH THE PRESIDENT, THE VICE PRESIDENT, AND SEVERAL KEY MEMBERS OF THE ADMINISTRATION. THE PRESIDENT REPORTEDLY TOLD THE ASSEMBLED CONGRESSIONAL LEADERS THAT HE WAS COMPLYING WITH THE WAR POWERS RESOLUTION. THE MEMBERS OF CONGRESS WERE INFORMED OF THE SCOPE OF THE RAID AND REASONS FOR THE RETALIATION. THEY WERE TOLD THAT THE MEETING WAS A "CONSULTATION" AND THAT THE ATTACK COULD BE ABORTED IF THERE WAS STRONG OPPOSITION.

THE ADMINISTRATION POSITION AND CONGRESSIONAL REACTION

IN HOUSE HEARING HELD A FEW WEEKS AFTER THE RAID, THE WITNESS FOR THE ADMINISTRATION, STATE DEPARTMENT LEGAL ADVISER ABRAHAM S. SOFAER, TOOK THE POSITION THAT THE CONSULTATION PROVISION HAD BEEN SATISFIED. MR. SOFAER ASSERTED THAT THE CONSULTATION PROVISION OF SECTION 3 "DOES NOT DEFINE THE NATURE OF THE CONSULTATIONS REQUIRED, BUT ALLOWS THE PRESIDENT TO DETERMINE PRECISELY HOW SUCH CONSULTATIONS ARE TO BE CARRIED OUT." WAR POWERS, LIBYA, AND STATE-SPONSORED TERRORISM, HEARINGS BEFORE THE SUBCOMMITTEE ON ARMS CONTROL, INTERNATIONAL SECURITY AND SCIENCE OF THE HOUSE COMMITTEE ON FOREIGN AFFAIRS, 99TH CONG., 2D SESS. 14 (1986) TEXT OF A PREPARED STATEMENT. HE TESTIFIED FURTHER:

"*** SECTION 3 EXPRESSLY ENVISIONS THE POSSIBILITY THAT IN SOME INSTANCES THE PRESIDENT MIGHT HAVE TO ACT WITHOUT PRIOR CONSULTATIONS. IN ANY EVENT, HE MUST SEEK TO CONSULT IN A MANNER APPROPRIATE TO THE CIRCUMSTANCES, AND THE NEED FOR SWIFTNESS AND SECRECY IN CARRYING OUT A MILITARY OPERATION IS A VITAL FACTOR TO BE WEIGHED IN DETERMINING THE NATURE AND TIMING OF CONSULTATIONS THAT MAY BE APPROPRIATE IN A GIVEN SITUATION.

"IN THE CASE OF THE APRIL 14 OPERATION, EXTENSIVE CONSULTATIONS OCCURRED WITH CONGRESSIONAL LEADERS. THEY WERE ADVISED OF THE PRESIDENTS INTENTION AFTER THE OPERATIONAL DEPLOYMENTS HAD COMMENCED BUT HOURS BEFORE MILITARY ACTION OCCURED. THIS SATISFIED THE RESOLUTION'S REQUIREMENT THAT CONSULTATION OCCUR 'BEFORE' THE 'INTRODUCTION' OF TROOPS INTO HOSTILITIES OR A SITUATION OF IMMINENT HOSTILITIES."

ID. AT 27.

SOME MEMBERS OF CONGRESS AND OTHER WITNESSES, HOWEVER, DISPUTED THE ADMINISTRATION'S POSITION THAT THE PRESIDENT HAD COMPLIED WITH THE CONSULTATION PROVISION. REPRESENTATIVE MCHUGH TESTIFIED THAT, IN HIS VIEW, THE APRIL 14 MEETING CONSTITUTED "NOTIFICATION, NOT CONSULTATION." ID. AT 179. REPRESENTATIVE FASCELL, ONE OF THE DRAFTERS OF THE WAR POWERS RESOLUTION, CONTENDED THAT THE CONSULTATION PROVISION HAD NOT BEEN SATISFIED. ID. AT 182-83.

STATUTORY INTENT AND HISTORICAL PRACTICE

SECTION 3 OF THE WAR POWERS RESOLUTION REQUIRES THE PRESIDENT "IN EVERY POSSIBLE INSTANCE" TO "CONSULT WITH CONGRESS BEFORE INTRODUCING UNITED STATES ARMED FORCES INTO HOSTILITIES ***. 50 U.S.C. SEC. 1542 (1982). SECTION 3, HOWEVER, DOES NOT CLARIFY THE NATURE OF THE CONSULTATION REQUIRED. THE TERM "CONSULT" IS NOT DEFINED IN THE RESOLUTION. FURTHER, THERE IS NO EXPLANATION IN THE RESOLUTION ITSELF REGARDING IN WHAT CIRCUMSTANCES CONSULTATION MAY BE DEEMED TO BE NOT "POSSIBLE."

THE CONGRESS TRADITIONALLY HAD MAINTAINED THAT, PURSUANT TO SECTION 3, IT SHOULD HAVE AN OPPORTUNITY TO PARTICIPATE ACTIVELY IN ANY DECISION TO INTRODUCE AMERICAN ARMED FORCES INTO HOSTILITIES. SEE, E.G., THE SITUATION IN GRENADA: HEARING BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE, 98TH CONG., 1ST SESS. 11-12 (1983) (REMARKS OF SENATOR PELL). PRESIDENTS FROM BOTH POLITICAL PARTIES, HOWEVER, TYPICALLY HAVE MAINTAINED THAT INFORMATIONAL BRIEFINGS ARE ADEQUATE TO SATISFY THE CONSULTATION REQUIREMENT, EVEN WHEN THEY TAKE PLACE AFTER A DECISION TO USE MILITARY FORCE HAS ALREADY BEEN MADE. SEE, E.G., LEGAL OPINION OF MAY 9, 1980, BY LLOYD CUTLER, COUNSEL TO PRESIDENT CARTER, REPRINTED IN THE WAR POWERS RESOLUTION-RELEVANT DOCUMENTS, CORRESPONDENCE, REPORTS, SUBCOMMITTEE ON INTERNATIONAL SECURITY AND SCIENTIFIC AFFAIRS OF THE HOUSE COMMITTEE ON FOREIGN AFFAIRS, 98TH CONG., 1ST SESS. 50 (COMM. PRINT 1983).

IT IS CLEAR THAT THE FRAMERS OF THE WAR POWERS RESOLUTION CONTEMPLATED THAT THE CONSULTATION REQUIRED BY SECTION 3 WOULD CONSTITUTE MORE THAN JUST AN INFORMATIONAL BRIEFING. 55 COMP.GEN. 1081, 1097 (1975). THE HOUSE REPORT ON THE RESOLUTION INCLUDED THE FOLLOWING EXPLANATION:

"A CONSIDERABLE AMOUNT OF ATTENTION WAS GIVEN TO THE DEFINITION OF CONSULTATION. REJECTED WAS THE NOTION THAT CONSULTATION WOULD BE SYNONYMOUS WITH MERELY BEING INFORMED. RATHER, CONSULTATION IN THIS PROVISION MEANS THAT A DECISION IS PENDING ON A PROBLEM AND THAT MEMBERS OF CONGRESS ARE BEING ASKED BY THE PRESIDENT FOR THEIR ADVICE AND OPINION AND, IN APPROPRIATE CIRCUMSTANCES, THEIR APPROVAL OF ACTION CONTEMPLATED. FURTHERMORE, FOR CONSULTATION TO BE MEANINGFUL, THE PRESIDENT HIMSELF MUST PARTICIPATE AND ALL INFORMATION RELEVANT TO THE SITUATION MUST BE MADE AVAILABLE."

H.R. REP. NO. 287, 93D CONG., 1ST SESS. 6-7 (1983).

STATEMENTS BY MEMBERS OF CONGRESS IN THE YEARS SINCE THE WAR POWERS RESOLUTION BECAME LAW INDICATE CLEARLY THE DESIRE OF CONGRESS THAT THE CONSULTATION PROVIDED BY THE PRESIDENT BE MORE THAN A MERE INFORMATIONAL BRIEFING. SEE, E.G., WAR POWERS, A TEST OF COMPLIANCE RELATIVE TO THE DANANG SEALIFT, THE EVACUATION OF PHNOM PENH, THE EVACUATION OF SAIGON, AND THE MAYAGUEZ INCIDENT, HEARINGS BEFORE THE SUBCOMMITTEE ON INTERNATIONAL SECURITY AND SCIENTIFIC AFFAIRS OF THE HOUSE COMMITTEE ON INTERNATIONAL RELATIONS, 94TH CONG., 1ST SESS, VI (1975) (STATEMENT OF REPRESENTATIVE ZABLOCKI).

NEVERTHELESS, ALTHOUGH THE FRAMERS OF THE WAR POWERS RESOLUTION MAY HAVE HOPED FOR SUBSTANTIAL AND PURPOSEFUL CONSULTATION, IN HISTORICAL PRACTICE, THE CONSULTATION PROVIDED BY THE PRESIDENT HAS FALLEN FAR SHORT OF THAT IDEAL. SINCE THE WAR POWERS RESOLUTION BECAME LAW, THERE HAVE BEEN TWO SITUATIONS, ROUGHLY ANALOGOUS TO THE CASE AT HAND, INVOLVING SURPRISE ATTACKS BY AMERICAN FORCES: THE IRANIAN HOSTAGE RESCUE ATTEMPT AND THE INVASION OF GRENADA. IN NEITHER CASE WAS EXTENSIVE PRIOR CONSULTATION PROVIDED BY THE PRESIDENT. IN EACH CASE, THE ADMINISTRATION TOOK THE POSITION THAT THE CONSULTATION PROVISION HAD BEEN SATISFIED, BUT MEMBERS OF CONGRESS EXPRESSED DISSATISFACTION. SEE THE SITUATION IN IRAN: HEARING BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE, 96TH CONG., 2ND SESS. 13 (1980); THE SITUATION IN GRENADA: HEARING BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE, 98TH CONG., 1ST SESS. 11-12 (1983). SEE APPENDIX.

COMPTROLLER GENERAL INTERPRETATION

THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE PRESIDENT IN A CASE INVOLVING COMPLIANCE WITH THE WAR POWERS RESOLUTION. FOR EXAMPLE, IN 55 COMP.GEN. 1081 (1975), THIS OFFICE EXAMINED THE LEGALITY OF THE EXPENDITURE OF APPROPRIATED FUNDS TO EVACUATE AMERICANS FROM SAIGON IN APRIL 1976 AND TO RESCUE THE S.S. MAYAGUEZ FROM CAMBODIAN PIRATES IN MAY 1976. A KEY ISSUE WAS THE SUFFICIENCY OF PRESIDENT FORD'S CONSULTATION WITH CONGRESS PRIOR TO ORDERING THE MAYAGUEZ RESCUE MISSION. WE REVIEWED THE LEGISLATIVE HISTORY OF THE CONSULTATION PROVISION IN DETAIL, AND ACKNOWLEDGED THAT:

"CONGRESSIONAL INTENT IS CLEAR THAT THE PRESIDENT IS TO DO MORE THAN INFORM CONGRESS OF DECISIONS HE HAS ALREADY MADE; HE IS EXCUSED FROM PRIOR CONSULTATION ONLY IN INSTANCES OF 'GREAT SUDDENNESS;' AND CONSULTATION IS TO BE AN ONGOING PROCESS."

ID. AT 1097. WE ALSO ACKNOWLEDGE THAT THERE WAS EVIDENCE "THAT THE PRESIDENT MERELY INFORMED CONGRESS OF DECISIONS ALREADY MADE, EVEN THOUGH THERE WAS SUFFICIENT TIME TO CONSULT IN A MORE MEANINGFUL MANNER." NONETHELESS, WE CONCLUDED,

"HOWEVER, WITHOUT MORE DEFINITIVE GUIDELINES THAN ARE PRESENT IN SECTION 3 OR THE LEGISLATIVE HISTORY OF THAT SECTION, WE CANNOT SAY THAT, UNDER THE CIRCUMSTANCES SURROUNDING THE RESCUE OF THE MAYAGUEZ CREW, THE PRESIDENT FAILED TO COMPLY WITH SECTION 3 OF THE WAR POWERS RESOLUTION."

ID. AT 1097.

IN TWO CASES SUBSEQUENT TO OUR DECISION IN 55 COMP.GEN. 1081, WE REVIEWED U.S. MILITARY ACTIVITIES IN EL SALVADOR. BOTH CASES INVOLVED, IN PART, A DISPUTE REGARDING THE APPLICABILITY AND EFFECT OF THE WAR POWERS RESOLUTION. IN NEITHER CASE DID WE FIND THAT THE RESOLUTION HAD BEEN VIOLATED. SEE APPLICABILITY OF CERTAIN U.S. LAWS THAT PERTAIN TO U.S. MILITARY INVOLVEMENT IN EL SALVADOR, ID-82-53, B-207901, JULY 27, 1982; B-214929, OCTOBER 11, 1984.

CONCLUSION

IN THE CASE AT HAND, ALTHOUGH THE CONSULTATION PROVIDED BY THE PRESIDENT PRIOR TO THE APRIL 14 AIR RAID CLEARLY WAS LESS THAN THAT HOPED FOR BY THE FRAMERS OF THE WAR POWERS RESOLUTION, THIS OFFICE CANNOT CONCLUDE THAT THE PRESIDENT VIOLATED THE LAW BY FAILING TO PROVIDE A MORE PURPOSEFUL CONSULTATION.

THE PRESIDENT COMPLIED WITH THE LITERAL TERMS OF SECTION 3. THE MEMBERS OF CONGRESS WITH WHOM HE MET PRESUMABLY WERE ABLE AT LEAST TO VOICE THEIR OPINIONS REGARDING THE RAID. THE PRESIDENT, AS COMMANDER IN-CHIEF, COULD HAVE ORDERED THE RECALL OF THE ATTACKING AIRCRAFT, HAD HE BEEN PERSUADED TO DO SO BY CONGRESSIONAL OBJECTION.

FURTHER, THE LACK OF PRECISION IN THE WORDING OF THE CONSULTATION PROVISION, INCLUDING IN PARTICULAR ITS QUALIFYING OPENING CLAUSE, "IN EVERY POSSIBLE INSTANCE," SUGGESTS THAT THE PRESIDENT IS PERMITTED A GREAT DEGREE OF DISCRETION REGARDING WHEN AND HOW HE IS TO "CONSULT." DISCUSSED ABOVE, THE TERM "CONSULT" IS NOT DEFINED IN THE RESOLUTION. ADDITIONALLY, AS SEVERAL COMMENTATORS AND EXECUTIVE BRANCH SPOKESMEN HAVE POINTED OUT, SECTION 3 REQUIRES CONSULTATION ONLY WHEN "POSSIBLE," NOMINALLY GRANTING SUBSTANTIAL DISCRETION TO THE PRESIDENT TO DECIDE WHEN AND TO WHAT EXTENT CONSULTATION IS "POSSIBLE."

WE CANNOT CONCLUDE, THEREFORE, IN THE CIRCUMSTANCES HERE UNDER REVIEW, THAT THE PRESIDENT VIOLATED THE CONSULTATION PROVISION OF SECTION 3 OF THE WAR POWERS RESOLUTION.

THIS LETTER WILL BE AVAILABLE FOR RELEASE TO THE PUBLIC 30 DAYS FROM TODAY, UNLESS RELEASED EARLIER BY YOU OR YOUR STAFF.

APPENDIX TO COMPTROLLER GENERAL DECISION B-223011 HISTORICAL APPLICATION OF THE CONSULTATION PROVISION OF THE WAR POWERS RESOLUTION: THE IRANIAN HOSTAGE RESCUE ATTEMPT AND THE INVASION OF GRENADA.

ALTHOUGH THE FRAMERS OF THE WAR POWERS RESOLUTION MAY HAVE HOPED FOR SUBSTANTIAL AND PURPOSEFUL CONSULTATION UNDER SECTION 3, 50 U.S.C. SEC. 1542 (1982), IN HISTORICAL PRACTICE, THE CONSULTATION PROVIDED BY THE PRESIDENT HAD FALLEN FAR SHORT OF THAT IDEAL. SEE GENERALLY "THE WAR POWERS RESOLUTION: A DECADE OF EXPERIENCE," CONGRESSIONAL RESEARCH SERVICE, REPORT NO. 84-22 F, FEBRUARY 6, 1984, AT 27-29 PREPARED BY ELLEN C. COLLIER (HEREAFTER CITED AS COLLIER). SINCE THE PASSAGE OF THE WAR POWERS RESOLUTION, THERE HAVE BEEN TWO SITUATIONS, ROUGHLY ANALOGOUS TO THE CASE AT HAND, INVOLVING SURPRISE ATTACKS BY AMERICAN FORCES: THE IRANIAN HOSTAGE RESCUE ATTEMPT AND THE INVASION OF GRENADA. IN NEITHER CASE WAS EXTENSIVE PRIOR CONSULTATION PROVIDED BY THE PRESIDENT. IN EACH CASE, THE ADMINISTRATION TOOK THE POSITION THAT THE CONSULTATION PROVISION HAD BEEN SATISFIED, BUT MEMBERS OF CONGRESS EXPRESSED DISSATISFACTION.

IRAN: ON NOVEMBER 4, 1979, AN IRANIAN MOB STORMED THE AMERICAN EMBASSY IN TEHERAN. WHEN THE CHIEF OF MISSION ORDERED THE MARINE GUARDS NOT TO RESIST, THE EMBASSY STAFF WAS TAKEN HOSTAGE. DIPLOMATIC EFFORTS TO OBTAIN THE RELEASE OF THE HOSTAGES WERE UNSUCCESSFUL. AN APRIL 24, 1980, IN TOTAL SECRECY, SIX AIR FORCE TRANSPORT AIRCRAFT LEFT A BASE SOMEWHERE IN THE MIDDLE EAST AND FLEW TO A RENDEZVOUS POINT IN THE IRANIAN DESERT ABOUT 300 MILES SOUTH OF TEHERAN. THERE THEY WERE MET BY HELICOPTERS FROM AN AIRCRAFT CARRIER IN THE ARABIAN SEA. THE RESCUE PLAN CALLED FOR AN ATTACK ON THE EMBASSY AND THE RESCUE OF THE HOSTAGES. DURING THE RENDEZVOUS AT THE DESERT SITE, A BUS CARRYING IRANIAN CIVILIANS HAPPENED BY AND WAS DETAINED BY THE AMERICAN FORCES. ADDITIONALLY, A PASSING TRUCK WAS STOPPED AND ITS HEADLIGHTS SHOT OUT. DUE TO A SERIES OF MISFORTUNES, THE RESCUE PLAN WAS ABANDONED AND SEVERAL AMERICAN SERVICEMEN WERE KILLED. SEE GENERALLY THE WAR POWERS RESOLUTION, A SPECIAL STUDY OF THE COMMITTEE ON FOREIGN AFFAIRS, 97TH CONG., 2D SESS. 239-241 (COMM. PRINT 1982) PREPARED BY JOHN H. SULLIVAN (HEREAFTER CITED AS SULLIVAN; LETTER FROM PRESIDENT JIMMY CARTER TO THOMAS P. O'NEILL, JR., SPEAKER OF THE HOUSE, APRIL 26, 1980, REPRINTED IN THE WAR POWERS RESOLUTION-RELEVANT DOCUMENTS, CORRESPONDENCE, REPORTS, SUBCOMMITTEE ON INTERNATIONAL SECURITY AND SCIENTIFIC AFFAIRS OF THE HOUSE COMMITTEE ON FOREIGN AFFAIRS, 98TH CONG., 1ST SESS. 47-48 (COMM. PRINT 1983) (HEREAFTER CITED AS RELEVANT DOCUMENTS).

MEMBERS OF CONGRESS WERE NOT CONSULTED BY PRESIDENT CARTER PRIOR TO THE HOSTAGE RESCUE MISSION. SULLIVAN AT 241; COLLIER AT 28. SOME MEMBERS AS IN THE CASE AT HAND, TOOK THE PUBLIC POSITION THAT THE PRESIDENT THEREFORE HAD VIOLATED SECTION 3 OF THE WAR POWERS RESOLUTION. SULLIVAN AT 242. THE CARTER ADMINISTRATION, HOWEVER, TOOK THE POSITION THAT PRIOR CONSULTATION WITH CONGRESS UNDER SECTION 3 OF THE RESOLUTION HAD NOT BEEN REQUIRED DUE TO THE UNUSUAL CIRCUMSTANCES SEE GENERALLY SULLIVAN AT 242- 245. IN A MAY 9, 1980 LEGAL OPINION, LLOYD CUTLER, THE COUNSEL TO THE PRESIDENT, CONTENDED THAT CONSTITUTIONAL CONSIDERATIONS, AS WELL AS THE PRECISE FACTUAL CIRCUMSTANCES, MADE PRIOR CONSULTATION UNNECESSARY:

"2. THE PRESIDENT'S CONSTITUTIONAL POWER TO USE THE ARMED FORCES TO RESCUE AMERICANS ILLEGALLY DETAINED ABROAD IS CLEARLY ESTABLISHED. ***

"3.HIS INHERENT CONSTITUTIONAL POWER TO CONDUCT THIS KIND OF RESCUE OPERATION, WHICH DEPENDS ON TOTAL SURPRISE, INCLUDES THE POWER TO ACT BEFORE CONSULTING CONGRESS, IF THE PRESIDENT CONCLUDES, AS HE DID IN THIS CASE, THAT TO DO SO WOULD UNREASONABLY ENDANGER THE SUCCESS OF THE OPERATION AND THE SAFETY OF THOSE TO BE RESCUED.

"4. SECTION 3 OF THE WAR POWERS RESOLUTION DOES REQUIRE CONSULTING WITH CONGRESS 'IN EVERY POSSIBLE INSTANCE' BEFORE INTRODUCING UNITED STATES ARMED FORCES INTO 'HOSTILITIES OR INTO SITUATIONS WHERE IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATED BY THE CIRCUMSTANCES.' THIS CASE, THE FIRST STAGE OF THE OPERATION-- INTRODUCING THE RESCUE TEAM INTO IRAN DURING THE NIGHT OF APRIL 24-- DID NOT INVOLVE ANY HOSTILITIES. THE RESCUE EFFORT ITSELF WAS NOT TO BE INITIATED BEFORE THE FOLLOWING NIGHT, AND COULD HAVE BEEN ABORTED BEFORE ANY INVOLVEMENT IN HOSTILITIES WAS 'CLEARLY INDICATED,' AND THIS IS IN FACT WHAT OCCURRED.

"5. IN ANY EVENT, SECTION 8(D)(1) OF THE WAR POWERS RESOLUTION PROVIDES THAT NOTHING IN IT 'IS INTENDED TO ALTER THE CONSTITUTIONAL AUTHORITY OF THE CONGRESS OR THE PRESIDENT.' IF SECTION 3 WERE READ TO REQUIRE PRIOR CONSULTATION IN THESE PRECISE CIRCUMSTANCES-- WHERE THE PRESIDENT HAS INHERENT CONSTITUTIONAL AUTHORITY TO CONDUCT A RESCUE OPERATION DEPENDENT ON SURPRISE AND REASONABLE GROUND TO BELIEVE THAT PRIOR CONSULTATION WOULD UNREASONABLY ENDANGER THE SUCCESS OF THE OPERATION AND THE SAFETY OF THOSE TO BE RESCUED-- THIS WOULD RAISE GRAVE ISSUES AS TO THE CONSTITUTIONALITY OF SECTION 3. SINCE STATUTES AND JOINT RESOLUTIONS ARE TO BE READ WHERE POSSIBLE IN A MANNER THAT DOES NOT RAISE SUCH GRAVE CONSTITUTIONAL ISSUES, SECTION 3 AND SECTION 8(D)(1), READ TOGETHER, SHOULD NOT BE CONSTRUED TO REQUIRE PRIOR CONSULTATION UNDER THE PRECISE CIRCUMSTANCES OF THIS CASE.

LEGAL OPINION OF MAY 9, 1980, BY LLOYD CUTLER, COUNSEL TO PRESIDENT CARTER, REPRINTED IN RELEVANT DOCUMENTS AT 50.

IN HEARINGS SUBSEQUENT TO THE IRANIAN RESCUE MISSION, ACTING SECRETARY OF STATE WARREN CHRISTOPHER TOOK THE POSITION THAT THE "EXTRAORDINARY CIRCUMSTANCES" OF THE RESCUE MISSION MADE CONSULTATION IMPOSSIBLE, AND THEREFORE UNNECESSARY:

"THE PRESIDENT CONCLUDED IN THIS CASE THAT THE SUCCESS OF THE OPERATION AND THE SAFETY OF THOSE INVOLVED DEPENDED ON TOTAL SURPRISE. FOR THIS REASON, HE CONCLUDED THAT IT WAS ESSENTIAL TO LIMIT KNOWLEDGE OF THE OPERATION TO A VERY SMALL NUMBER OF INDIVIDUALS DIRECTLY INVOLVED IN PLANNING AND IMPLEMENTING THE OPERATION. HE THEREFORE CONCLUDED THAT IT WAS NOT POSSIBLE IN THIS INSTANCE TO ENGAGE IN CONSULTATIONS UNDER SECTION 3 OF THE WAR POWERS RESOLUTION. THIS WAS A DIFFICULT DECISION, BUT ONE WHICH HE CONSIDERED ESSENTIAL UNDER THE EXTRAORDINARY CIRCUMSTANCES OF THIS CASE. HAD THE OPERATION PROCEEDED, THE PRESIDENT HAD PLANNED TO ADVISE APPROPRIATE CONGRESSIONAL LEADERS BEFORE THE NEXT PHASE BEGAN."

THE SITUATION IN IRAN: HEARING BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE, 96TH CONG., 2ND SESS. 13 (1980). SOME COMMITTEE MEMBERS SUPPORTED THE ADMINISTRATION'S POSITION. SEE ID. AT 17, 29 (REMARKS OF SENATOR HAYAKAWA, SENATOR HELMS, AND SENATOR GLENN). OTHER MEMBERS, HOWEVER, REJECTED THE ADMINISTRATION'S POSITION. SENATOR JAVITS, ONE OF THE DRAFTERS OF THE RESOLUTION, CONTENDED THAT THE CONSULTATION PROVISION HAD NOT BEEN SATISFIED. ID. AT 46-47 "ALL I SAY IS THAT THAT DECISION OF WHETHER IT IS POSSIBLE IS NOT UP TO THE PRESIDENT ALONE. IT IS UP TO HIM AND US." SENATOR CHURCH EXPRESSED INCREDULITY AT THE ADMINISTRATION'S EXPRESSED CONCERN FOR SECRECY. ID. AT 7.

GRENADA: ON OCTOBER 25, 1983, UNITED STATES MARINES AND ARMY TROOPS LANDED IN THE CARIBBEAN ISLAND OF GRENADA. THE SURPRISE ATTACK WAS PROMPTED BY THE BREAKDOWN OF THE CIVIL GOVERNMENT OF GRENADA AND CONCERN FOR THE SAFETY OF AMERICANS ON THE ISLAND. SEE GENERALLY LETTER FROM PRESIDENT RONALD REAGAN TO THOMAS P. O'NEILL, JR., SPEAKER OF THE HOUSE, OCTOBER 25, 1983, REPRINTED IN RELEVANT DOCUMENTS AT 84 85.

PRESIDENT REAGAN MET WITH SEVERAL MEMBERS OF CONGRESS AT APPROXIMATELY 8:00 P.M. ON OCTOBER 24, 1983 TO BRIEF THEM ON THE INVASION. THIS MEETING TOOK PLACE APPROXIMATELY 2 HOURS AFTER THE PRESIDENT SIGNED THE ORDER FOR THE INVASION, BUT ABOUT 9 HOURS BEFORE THE INVASION BEGAN. U.S. DECLARES GOAL IS TO PROTECT AMERICANS AND RESTORE ORDER, THE WASHINGTON POST, OCTOBER 26, 1983, AT A7. SEE COLLIER AT 29. IN HEARINGS A FEW DAYS AFTER THE INVASION, DEPUTY SECRETARY OF STATE KENNETH DAM TOOK THE POSITION THAT THE CONSULTATION PROVISION HAD BEEN SATISFIED, BUT SEVERAL MEMBERS OF CONGRESS DISAGREED SHARPLY:

"SENATOR PELL. WHY WAS THERE REALLY NO CONSULTATION WITH CONGRESS PRIOR TO THE ACTUAL INVASION?

"MR. DAM. WELL, THERE WAS CONSULTATION WITH THE CONGRESS.

"SENATOR PELL. NOT INFORMING BUT CONSULTATION, BECAUSE I AM A RANKING MEMBER OF THIS COMMITTEE. I CERTAINLY WAS NEVER CONSULTED.

"MR. DAM. THERE WAS CONSULTATION WITH THE LEADERSHIP-- BIPARTISAN LEADERSHIP OF THE HOUSE AND THE SENATE. WE DID NOT GO BEYOND THAT FOR SECURITY REASONS. THIS WAS A MILITARY OPERATION IN WHICH THE LIVES OF AMERICANS WERE AT STAKE AND THERE WERE ALSO THE LIVES OF AMERICAN CIVILIANS AT STAKE. AND SO THE JUDGMENT OF THE PRESIDENT WAS TO CONSULT THE BIPARTISAN LEADERSHIP OF BOTH HOUSES, WHICH HE DID.

"SENATOR PELL. I BELIEVE THE MINORITY LEADER OF THE SENATE WAS THERE. HE STATED THAT HE FELT HE HAD BEEN INFORMED BUT WAS NOT BEING CONSULTED. THAT IS THE POINT I AM MAKING.

"MR. DAM. I THINK THAT, OF COURSE, IS A QUESTION OF INTERPRETATION. DO NOT WANT TO DISAGREE WITH THIS ASSESSMENT OF WHAT HE THOUGH WAS INVOLVED. THE WAR POWERS RESOLUTION, OF COURSE, DOES RECOGNIZE THAT THERE ARE SITUATIONS IN WHICH CONSULTATION HAS TO BE LIMITED OR MAY INDEED BE IMPOSSIBLE, BECAUSE IT TALKS ABOUT CONSULTATION WHEN POSSIBLE. AND WE BELIEVE THAT WE DID CONSULT TO THE MAXIMUM DEGREE CONSISTENT WITH THE SAFEGUARDING OF AMERICAN LIVES, BOTH MILITARY AND CIVILIAN.

"SENATOR PELL. WE HAVE REACHED A POINT HERE WHERE WE CAN AGREE TO DISAGREE, BECAUSE THERE IS A WORLD OF DIFFERENCE BETWEEN BEING CONSULTED AND BEING ASKED DO WE THINK THIS IS WISE OR NOT, OR BEING INFORMED, SAYING WE ARE DOING THIS AT 5 A.M. TOMORROW.

"MR. DAM. I AM NOT AWARE OF THE FACT THAT THEY DID NOT HAVE AN OPPORTUNITY TO EXPRESS THEIR VIEWS TO THE PRESIDENT. I HAVE THE IMPRESSION THAT THEY HAD PLENTY OF OPPORTUNITY."

"SENATOR SARBANES. AT WHAT TIME DID THE PRESIDENT SIGN THE ORDER FOR THE OPERATION TO GO FORWARD?

"MR. DAM. HE SIGNED AN ORDER WHICH WOULD PERMIT THE FORCES TO GO INTO OPERATION SLIGHTLY BEFORE THE MEETING WITH THE BIPARTISAN LEADERSHIP. THAT DOES NOT MEAN THAT--

"SENATOR SARBANES. SO THE ORDER TO MOVE AHEAD--

"MR. DAM. COULD I ANSWER THE QUESTION PLEASE SENATOR?

"SENATOR SARBANES. BUT THE ORDER TO MOVE AHEAD WAS SIGNED BEFORE THE MEETING WITH THE LEADERSHIP?

"MR. DAM. YES, SIR, THAT IS WHAT I JUST SAID. WHAT I WAS SAYING WAS THAT THAT DOES NOT MEAN, HOWEVER, THAT THE OPERATION COULD NOT HAVE BEEN STOPPED.

"SENATOR SARBANES. THE ORDER WOULD HAVE HAD TO HAVE BEEN COUNTERMANDED AT THAT POINT; IS THAT CORRECT?

"MR. DAM. YES; THAT IS RIGHT, BECAUSE IT WAS ESSENTIAL BECAUSE THE FORCES ARE AT SEA, AND SO FORTH, THAT THEY HAVE TO BEGIN TO MOVE IN THE FINAL PHASE. BUT THAT IS A FAR CRY FROM SAYING THAT THIS WAS BEYOND THE POINT AT WHICH THE PRESIDENT COULD MAKE A FURTHER DECISION."

THE SITUATION IN GRENADA: HEARING BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE, 98TH CONG., 1ST SESS. 11-12 (1983). SEE ALSO GRENADA WAR POWERS: FULL COMPLIANCE REPORTING AND IMPLEMENTATION; MARKUP BEFORE THE HOUSE COMMITTEE ON FOREIGN AFFAIRS, 98TH CONG., 1ST SESS. 12-13 (1983). SEE GENERALLY NOTE, THE FUTURE OF THE WAR POWERS RESOLUTION, 36 STAN. REV. 1407, 1427-1429 (1984).