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Congress is about to debate whether the U.S. should act militarily in Syria in the wake of suspected usage of chemical weapons by the regime of Bashar Assad. After initially sending signals that the military might strike before waiting for approval by Congress, the Obama administration ultimately decided to ask for congressional approval.
This set up the possibility that President Barack Obama might feel pressed to pursue military action even in the face of a congressional rejection. And because the NATO air campaign in Kosovo in the late 1990s proceeded along similar lines, the Kosovo experience quickly became a part of the discussion of Syria.
On the Aug. 1, 2013, edition of Fox News Sunday, Rep. Peter King, R-N.Y., said, "The House did vote against engagement in Kosovo, and Bill Clinton kept fighting anyway. And, then, ultimately, a vote did pass. But he had bombing missions being carried in Kosovo after the House of Representatives voted against him taking action." King is a senior Republican on the House Homeland Security Committee and the House Intelligence Committee.
Is King right that there is precedent for a president carrying out military action even after the House specifically voted against authorizing such action?
First, some background. The Kosovo conflict erupted in the 1990s between two groups within the former Yugoslavia -- Kosovars, who are primarily ethnic Albanians, and Serbs, who are of Slavic descent. The two groups have long disputed the territory known as Kosovo, and after greater Yugoslavia fractured in the early 1990s, the dispute over Kosovo became violent, pitting the rebel Kosovo Liberation Army against the Serb-dominated government of what remained of Yugoslavia.
Seeking to prevent casualties like those that had proliferated in Bosnia between 1992 and 1995, NATO -- the military alliance of the United States and western Europe -- edged in 1998 and 1999 toward action against the Serbs, who it viewed as the aggressors.
NATO initiated airstrikes on March 24, 1999, a campaign that would continue for the better part of three months, until agreements were reached for Serb forces to withdraw, for the Kosovo Liberation Army to disarm and for refugees to return home. In 2008, Kosovo declared independence; 100 countries have recognized it, and it has joined the International Monetary Fund and the World Bank. However, despite ongoing negotiations by the United Nations and other international officials, its final status remains unresolved.
Did the House reject Clinton over Kosovo?
During his second term as president, Clinton pressed Congress to authorize NATO military action in Kosovo.
On March 23, 1999, the Senate, by a 58-41 vote, passed a non-binding authorization of force. The Senate resolution backed "military air operations and missile strikes in cooperation with our NATO allies against the Federal Republic of Yugoslavia (Serbia and Montenegro)."
That’s short of a declaration of war -- the method outlined in the Constitution -- but it is similar to what other presidents have sought, and usually received, from Congress in recent decades when they wish to pursue military efforts abroad. (In this article, we take a closer look at the differences between post-World War II declarations of war and authorizations for the use of military force.)
The day after the Senate passed this resolution, NATO bombing commenced. But the House of Representatives did not vote on the Senate-passed resolution until more than a month later.
On April 28, 1999, the House took up several pieces of legislation on Kosovo. By a 249-180 vote, the House prevented any Defense Department funds from being used on a ground campaign. Meanwhile, by a 139-290 vote, the House defeated an effort to remove U.S. armed forces from the Kosovo conflict. A more traditional declaration of war failed by an even larger margin -- 2 votes for, 427 against.
But the most important legislation -- and the one directly relevant to judging King’s claim -- was the Senate resolution that authorized air and missile strikes against the Serbs. It failed the House in a rare tie vote, 213-213.
The vote was a stinging rebuke to Clinton, and an embarrassment to House Speaker Dennis Hastert, R-Ill., who backed a president from the opposite party. The defections were mixed -- 31 Republicans supported Clinton’s request while 26 Democrats voted against it.
The New York Times, which called the debate "heated and sometimes anguished," reported that White House spokesman Jake Siewert brushed off the House vote. "The House today voted no on going forward, no on going back and they tied on standing still," Siewert said. "We will continue to prosecute the air campaign and to stop the violence being perpetrated by (Serb leader Slobodan) Milosevic."
Indeed, NATO continued airstrikes the following day and for about two months after the failed House vote.
Did the House eventually reverse course and authorize the campaign?
By saying that "ultimately, a vote did pass," King suggested that the House did ultimately authorize force in Kosovo. But whether that’s true is not as settled as the first part of his claim.
On May 20, 1999, the House passed an emergency appropriations bill that funded the Kosovo campaign. By funding military activities that were already under way, the spending bill can be seen as a way for Congress to tacitly back the Kosovo campaign, even though the bill did not explicitly use language that authorized the war.
Norman Ornstein, a longtime Congress watcher, said King phrased his statement broadly enough to be accurate. In addition, Ornstein said, it was a narrowly targeted emergency spending bill, rather than an "omnibus" bill funding potentially hundreds of programs. That suggested to him that it’s "a direct vote on continuing to bomb," he said.
Other experts say "not so fast."
The War Powers Resolution, passed in the wake of the Vietnam War, was intended to stop presidents from fighting wars without input from Congress. Under the War Powers Resolution, a president can initiate military action but must receive approval from Congress to continue the operation within 60 days.
Presidents from both parties have regularly ignored the law, and Congress has often been reluctant to assert itself. But it remains on the books.
As it happens, section 8(a)(1) of the resolution addresses the question of whether a spending bill constitutes authorization.
It says, "Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred … from any provision of law … including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities … and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution."
That would suggest that approving spending does not equal authorization.
But to make things even more complicated, there is some case law (particularly the 1973 case Mitchell v. Laird) suggesting that appropriations measures might be sufficient as to infer authorization, said Anthony Clark Arend, professor of government and foreign service at Georgetown University.
King said that "the House did vote against engagement in Kosovo, and Bill Clinton kept fighting anyway. And, then, ultimately, a vote did pass."
King is right that the House failed to pass an authorization for military action in Kosovo, and that Clinton continued to pursue the air campaign despite the legislative setback. However, it’s not a slam dunk that "ultimately, a vote did pass." The House did pass a spending bill covering the costs of the Kosovo campaign, but not an authorization along the lines of what is required by the War Powers Resolution. On balance, we rate the statement Mostly True.
Peter King, comments on Fox News Sunday, Sept. 1, 2013 (CQ subscribers only)
Congressional Research Service, "War Powers Resolution: Presidential Compliance," March 16, 2004
PBS Frontline, "A Kosovo Chronology," accessed Aug. 3, 2013
Central Intelligence Agency, World Factbook entry on Kosovo, accessed Aug. 3, 2013
U.S. Court of Appeals for the D.C. Circuit, decision in Mitchell v. Laird, March 20, 1973
New York Times, "Deadlocked House Denies Support for Air Campaign," April 29, 1999 (accessed via Nexis)
New York Times, "Surprise on Capitol Hill: No! And Then Billions," April 30, 1999 (accessed via Nexis)
PolitiFact, "Charlie Rangel says last president to seek congressional permission for war was FDR," April 5, 2011
Email interview with Norman Ornstein, resident scholar at the American Enterprise Institute, Aug. 3, 2013
Email interview with Mark Brawley, political scientist at McGill University, Sep. 4, 2013
Email interview with Anthony Clark Arend, professor of government and foreign service at Georgetown University, Aug. 3, 2013
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