AUTHORIZATION FOR USE OF MILITARY FORCE AGAINST IRAQ RESOLUTION OF 2002

USDOJ Seal

U.S.

Department of

Justice

Office of Legal Counsel

Office of

the

Deputy Assistant Attorney General Washington, DC 20530

October

21,

2002

MEMORANDUM FOR DANIEL J. BRYANT

ASSISTANT ATTORNEY GENERAL

OFFICE OF LEGISLATIVE AFFAIRS

From: John C. Yoo - Signature of John C. Yoo

Deputy Assistant Attorney General

Re:

Authorization for Use of Military Force Against Iraq Resolution of 2002

This memorandum confirms the views of the Office of Legal Counsel, expressed to you

last week, on H. J. Res. 114, the Authorization for Use of Military Force Against Iraq Resolution

2002.

This resolution authorizes the President to use the United States Armed Forces, "as he

determines to be necessary and appropriate," either to "defend the national security of the United

States against the continuing threat posed by Iraq," or to "enforce all relevant United Nations

Security Council resolutions regarding Iraq." H. J. Res. 114, § 3(a).

We have no constitutional objection to Congress expressing its support for the use of

military force against Iraq.

Indeed, the Office of Legal Counsel was an active participant in the

drafting of and negotiations over H. J. Res. 114. We have long maintained, however, that

resolutions such as H. J. Res. 114 are legally unnecessary. See, e.g., Deployment of United

States Armed Forces into Haiti, 18 Op. O.L.C. 173,175-76 (1994) ("the President may introduce

troops into hostilities or potential hostilities without prior authorization by the Congress");

Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. O.L.C. 327, 335

(1995) ("the President has authority, without specific statutory authorization, to introduce troops

into hostilities in a substantial range of circumstances"). As Chief Executive and Commander in

Chief of the Armed Forces of the United States, the President possesses ample authority under

the Constitution to direct the use of military force in defense of the national security of the

United States, as we explain in Section I of this memorandum, and as H. J. Res. 114 itself

acknowledges when it states that "the President has authority under the Constitution to take

Congress has expressed its support for the use of military force on a number of occasions throughout U.S.

history, including, most recently, in response to the attacks of September 11, 2001. See Authorization for Use of

Military Force, Pub. L. No. 107-40,115 Stat. 224 (2001); see also Act of May 28,1798,1 Stat. 561 (Quasi War with

France); Act of

Feb.

6,1802,2 Stat. 129 (First Barbary War); Act of Jan.

15,1811,

3 Stat. 471 (East Florida); Act of

Feb.

12, 1813, 3 Stat. 472 (West Florida); Act of Mar. 3, 1815, 3 Stat. 230 (Second Barbary War); Act of

Mar.

1819,

3 Stat. 510 (African Slave Trade); Joint Resolution of June 2, 1858, 11 Stat. 370 (Paraguay); Joint Resolution

of Apr. 20, 1898, 30 Stat. 738 (Spanish-American War); Joint Resolution of Apr. 22, 1914, 38 Stat. 770 (Mexico);

Joint Resolution of Jan. 29, 1955, 69 Stat. 7 {Formosa); Joint Resolution of Mar. 9, 1957, 71 Stat. 5 (codified at 22

U.S.C. § 1962) (Middle East); Joint Resolution of

Aug.

10, 1964, 78 Stat. 384 (Gulf of Tonkin); Authorization for

Use of Military Force Against Iraq Resolution, Pub. L. No. 102-1,105 Stat. 3 (1991).

action in order to deter and prevent acts of international terrorism against the United States."

Moreover, as we detail in Section II, Congress has previously authorized the use of force against

Iraq.

It has been our understanding that the President sought this resolution not out of need for

legal authority, but in order to demonstrate, to the United Nations and to the current regime in

Iraq, that the American people, as represented by both their President and their representatives in

both Houses of Congress, frilly support taking all action necessary and appropriate to enforce all

relevant United Nations Security Council resolutions involving Iraq and to defend the United

States against Iraq, including the use of force if necessary. We recognize that, notwithstanding

the President's pre-existing constitutional and statutory authorities to use force, there are

significant non-legal reasons for the President and Congress jointly to state their renewed

commitment, particularly in light of the terrorist attacks of September 11, 2001, to use force if

necessary to deal with the threat posed by Iraq to the national security of the United States and to

international peace and security in the Persian Gulf region.

Accordingly, last week we recommended to you and to the White House that the

President take steps to ensure that his decision to approve H. J. Res. 114 would not be construed

in the future as an indication' that this resolution was legally necessary. Specifically, we

recommended that the President's signing statement include an explicit reservation stating that

his signing of the resolution did not reflect any change in his position, and the long-standing

position of the Executive Branch, that the President already possesses ample legal authority

under the Constitution to order the use of force against Iraq. We further recommended that the

President's signing statement expressly state that his signing of H. J. Res. 114 also did not

change the established position of the Executive Branch that the War Powers Resolution cannot,

consistent with the Constitution, restrict the President's authority as Chief Executive and

Commander in Chief to order the use of military force. See, e.g., Statement on Signing the

Resolution Authorizing the Use of Military Force Against Iraq,

Pub. Papers of George Bush 40

(1991) ("my request for congressional support did not, and my signing [Pub. L. No. 102-1] does

not, constitute any change in the long-standing positions of the executive branch on either the

President's constitutional authority to use the Armed Forces to defend vital U.S. interests or the

constitutionality of the War Powers Resolution").

As we have explained on numerous occasions, the President has authority under the

Constitution to initiate the use of military force to defend the national security of the United

States. Article II expressly vests in the President, and not in Congress, the full "executive

Power" of the United States. U.S. Const, art. II, § 1, cl. 1. Article II also provides that the

President "shall be Commander in Chief of the Army and Navy of the United States." U.S.

Const, art. II, § 2, cl. 1. The Framers understood the Commander in Chief Clause as investing

the President with the fullest range of power understood at the time of the ratification of the

Constitution as belonging to the military commander. Taken together, these two provisions

constitute a substantive grant of broad war power to the President.

In addition, the structure of the Constitution demonstrates that any power traditionally

understood as pertaining to the executive - which includes the conduct of warfare and the

defense of the nation - is vested in the President unless expressly assigned in the Constitution to

Congress. Article 11, Section 1 makes this clear by stating that the "executive Power shall be

vested in a President of the United States of America." U.S. Const, art. II, § 1, cl. 1. That

sweeping grant vests in the President an unenumerated "executive Power" and contrasts with the

specific enumeration of the powers granted to Congress by the Constitution. See U.S. Const, art.

I, § 1 (vesting in Congress "all legislative Powers herein granted'') (emphasis added). The

implications of constitutional text and structure are confirmed by the practical consideration that

national security decisions require the unity in purpose and energy in action that characterize the

Presidency rather than Congress. Indeed, the textual provisions in Article II, combined with

considerations of constitutional structure and the fundamental principles of the separation of

powers, forbid Congress from interfering with the President's exercise of his core

constitutionally assigned duties, absent those "exceptions and qualifications . .. expressed" in the

Constitution. Myers

United States, 272 U.S. 52, 139 (1926) (quotations omitted).

There is no expression in the Constitution of any requirement that the President seek

authorization from Congress prior to using military force. There is certainly nothing in the text

of the Constitution that explicitly requires Congress to consent before the President may exercise

his authority as Chief Executive and Commander in Chief to command U.S. military forces. By

contrast, Article II expressly states that the President must obtain the advice and consent of the

Senate before entering into treaties or appointing ambassadors. U.S. Const, art. II, § 2, cl. 2.

Similarly, Article I, Section 10 expressly denies states the power to "engage" in war without

congressional authorization, except in case of actual invasion or imminent danger. U.S. Const.

art. I, § 10, cl. 3. Moreover, founding documents prior to the U.S. Constitution, such as the

South Carolina Constitution of 1778, explicitly prohibited the Executive from commencing war

or concluding peace without legislative approval. S.C. Const, art. XXVI (1776), reprinted in

Francis N. Thorpe, ed., 6 The Federal and State Constitutions, Colonial Charters, and Other

Organic Laws at 3247 (1909). See also Articles of Confederation, art. IX, § 6, 1 Stat. 4, 8 (1778)

("The United States, in Congress assembled, shall never engage in a war . . . unless nine States

assent to the same."). The framers of the Constitution thus well knew how to constrain the

President's power to exercise his authority as Commander in Chief to engage U.S. Armed Forces

in hostilities, and decided not to do so.

All three branches have recognized the President's broad constitutional power as the

Chief Executive and Commander in Chief to initiate hostilities and to use military force to

protect the nation. The Executive Branch, for example, has long interpreted the Commander in

Chief power "as extending to the dispatch of armed forces ... for the purpose of protecting

American interests." Training of British Flying Students in the United States, 40 Op. Att'y Gen.

58,

62 (1941); see also Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C

6 (1992) (President's role as Commander in Chief and Chief Executive vests him with

constitutional authority to order U.S. forces abroad to further national interests). The Supreme

Court has likewise held that a major object of the Commander in Chief Clause is "to vest in the

President the supreme command over all the military forces, - such supreme and undivided

command as would be necessary to the prosecution of a successful war." United States v.

Sweeny, 157 U.S. 281, 284 (1895). As Commander in

Chief,

the President "is authorized to

direct the movements of the naval and military forces placed by law at his command, and to

employ them in the manner he may deem most effectual to harass and conquer and subdue the

enemy." Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).

Congress itself recently recognized the President's constitutional authority to use military

force when it enacted Pub. L. No. 107-40 by overwhelming margins shortly after the terrorist

attacks of September 11, 2001. That law expressly states that "the President has authority under

the Constitution to take action to deter and prevent acts of international terrorism against the

United States," and H. J. Res. 114 explicitly reaffirms that conclusion. Moreover, Congress has

acquiesced in the unilateral use of force by Presidents during the course of numerous armed

conflicts. During the previous Administration, for example, our Office concluded that Congress

had approved of President Clinton's unilateral decision to use military force in Kosovo, when it

enacted Pub. L. No.

106-31,

113 Stat. 57 (May 21, 1999), to provide emergency supplemental

appropriations for continued military operations there. See Authorization for Continuing

Hostilities in Kosovo, 2000 WL 33716980 (O.L.C.).

Indeed, Presidents have relied upon their inherent constitutional powers when they have

used force in recent conflicts. For example, President George H.W. Bush launched Operation

Desert Storm pursuant to his authority as Commander in

Chief.

See Letter to Congressional

Leaders on the Persian Gulf Conflict, 1 Pub. Papers of George Bush 52 (1991). In 1992,

President Bush ordered the participation of the United States in the enforcement of the southern

no-fly zone in Iraq pursuant to his constitutional authority. See Letter to Congressional Leaders

Reporting on Iraq's Compliance with United Nations Security Council Resolutions, 2 Pub.

Papers of George Bush 1574, 1575 (1992-93). When President Clinton ordered the 1993, 1996,

and 1998 missile strikes against Iraq, he likewise pointed to his constitutional authority as

Commander in Chief and Chief Executive. See Letter to Congressional Leaders on the Military

Strikes Against Iraq, 2 Pub. Papers of William Jefferson Clinton 2195, 2196 (1998); Letter from

President William J. Clinton, to the Honorable Newt Gingrich, Speaker of the House of

Representatives at 2 (Sept. 5, 1996); Letter to Congressional Leaders on the Strike on Iraqi

Intelligence Headquarters, 1 Pub. Papers of William Jefferson Clinton 940 (1993). And, to take

a more recent example, when President Clinton directed the extensive and sustained 1999 air

campaign in the Former Republic of Yugoslavia, he relied entirely on his "constitutional

authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive."

Letter to Congressional Leaders Reporting on Air strikes against Serbian Targets in the Federal

Republic of Yugoslavia (Serbia and Montenegro), 1 Pub. Papers of William Jefferson Clinton

As we have recently explained, various procedural obstacles make it unlikely that a court would reach the

question of the President's constitutional power to engage the U.S. Armed Forces in military hostilities, regardless

of whether the suit is brought by a Member of Congress or a private citizen. See Letter for Honorable Alberto R.

Gonzales, Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel

(Sept. 10, 2002); see also Campbell

Clinton, 203 F.3d 19 (D.C. Cir.), cert,

denied,

531 U.S. 815 (2000) (Kosovo);

Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973) (Vietnam); Luftig

McNamara, 373 F.2d 664,665-66 (D.C.

Cir. 1967) (Vietnam); Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990) (Persian Gulf War); Crockett v. Reagan, 558

Sup

; 893 (D.D.C. 1982) (El Salvador); cf. Harisiades v.,Shaughnessy, 342 U.S. 580, 588-89 (1952); Johnson v.

Eisentrager, 339 U.S. 763,789 (1950). A federal district court recently dismissed sua sponte a suit filed on August

27,

2002 to enjoin the President from engaging in military action against Iraq absent a declaration of war or other

extenuating circumstances on the grounds of lack of standing and the political question doctrine. See Mahorner v.

Bush,

- F. Supp. 2d -, 2002 WL 31084938 (D.D.C. 2002).

459 (1999). In none of these interventions did Congress interfere with or regulate the President's

exercise of his Commander-in-Chief powers.

Because the President possesses broad constitutional authority as Chief Executive and

Commander in Chief to direct the use of military force against Iraq, congressional authorization

is legally unnecessary. Congress has the power to "provide for the common Defence," to "raise

and support Armies," to "provide and maintain a Navy," and to appropriate funds to support the

military, U.S. Const, art. 1, §§ 8-9, to be sure, but it is the President who enjoys the constitutional

status of Commander in

Chief.

As such, the President has full constitutional authority to use all

of the military resources provided to him by Congress. Indeed, within the past half century,

Presidents have unilaterally initiated military actions in Korea, Vietnam, Grenada, Lebanon,

Panama, Somalia, and Kosovo, without congressional authorization.

The Constitution does vest in Congress, and not the President, the power to "declare

War." U.S. Const, art. I, § 8, cl. 11. The Constitution nowhere states, however, that Congress

has the additional power to "make" or "engage" or "levy" war. By contrast, Article I, Section 10

addresses the power of states to "engage" in war, U.S. Const, art. 1, § 10, cl. 3, while Article III

describes the offense of treason as the act of "levying war" against the United States, U.S. Const.

art. Ill, § 3, cl. 1. Thus, the constitutional text itself demonstrates that the power to "declare" war

was a narrower power than that of engaging, making, or levying war. By placing the power to

declare war in Congress, the Constitution did nothing to divest the President of the traditional

power of the Commander in Chief and Chief Executive to decide to use force. Congress's ability

to restrain the President from using military force arises out of its control over military resources,

and not out of its power to declare war.

The Founders did not contemplate that a declaration of war would be legally necessary

for the President to use military force. To the contrary, the Founders were intimately familiar

with the extensive British practice of engaging in undeclared wars throughout the preceding

century. That is not to say that the power to declare war had no meaning whatsoever at the time

of the Founding. Rather, Congress's Article I power to declare a legal state of war, and to notify

The normative role of historical practice in constitutional law, and especially with regard to separation of

powers, is well settled. As the Supreme Court has repeatedly recognized, governmental practice plays a highly

significant role in establishing the contours of the constitutional separation of powers: "a systematic, unbroken,

executive practice, long pursued to the knowledge of

the

Congress and never before questioned ... may be treated

as a gloss on 'executive Power' vested in the President by § 1 of

Art.

II." Youngstown Sheet & Tube

Co.

v. Sawyer,

343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring) (quoted in Dames & Moore v. Regan, 453 U.S. 654, 686

(1981)). Moreover, the role of practice is heightened in dealing with issues affecting foreign affairs and national

security. As the Supreme Court has noted, "the decisions of the Court in th[e] area [of foreign affairs] have been

rare,

episodic, and afford little precedential value for subsequent cases." Dames & Moore, 453 U.S. at 661. In

particular, the difficulty the courts experience in addressing "the broad range of vitally important day-to-day

questions regularly decided by Congress or the Executive" with respect to foreign affairs and national security

makes the judiciary "acutely aware of the necessity to rest [judicial] decisions on the narrowest possible ground

capable of deciding the case." Id. at

660-61.

Historical practice and the ongoing tradition of Executive Branch

constitutional interpretation therefore play an especially important role in this area.

As James Madison explained during the critical state ratification convention in Virginia, "the sword is in

the hands of the British King; the purse in the hands of the Parliament. It is so in America, as far as any analogy can

exist." 3 Jonathan Elliot, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION

THE FEDERAL

CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 393

(1836).

other nations of that status, once had an important effect under the law of nations. And even

today, the power to declare war continues to trigger significant domestic statutory powers, such

as those established under the Alien Enemy Act of 1798, 50 U.S.C. § 21, and federal surveillance

laws,

50 U.S.C. §§ 1811, 1829, 1844. Declarations of war have significant constitutional

ramifications as well. See U.S. Const, art. 1, § 10, cl. 3 (prohibiting states from "lay[ing] any

Duty of Tonnage, keep[ing] Troops, or Ships of War" without congressional consent only "in

time of Peace"); U.S. Const, amend. Ill (permitting the quartering of soldiers in private homes

"in time of war ... in a manner to be prescribed by law"); U.S. Const, amend. V (permitting

criminal trials without grand jury indictment in cases "arising ... in the Militia, when in actual

service in time of War or public danger"). The power to declare war has seldom been used,

however. Although Presidents have deployed the U.S. Armed Forces, by conservative estimates,

more than a hundred times in our nation's history,

Congress has issued formal declarations in

only five wars.

This long practice of U.S. engagement in military hostilities without a

declaration of war demonstrates that the political branches have interpreted the Constitution just

as the Founders did.

II.

In addition to his powers under the Constitution, the President already enjoys statutory

authorization to use force against Iraq. On January 14, 1991, shortly before the United States

and allied nations began Operation Desert Storm, Congress enacted Pub. L. No.

102-1,

105 Stat.

the "Authorization for Use of Military Force Against Iraq Resolution." Subsection 2(a)

authorizes the President "to use United States Armed Forces pursuant to United Nations Security

Council Resolution 678 (1990) in order to achieve implementation of Security Council

Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677." U.N. Security Council

Resolution 678, in turn, authorizes member states "to use all necessary means to uphold and

implement resolution 660 (1990) and all subsequent relevant resolutions and to restore

international peace and security in the area." The other resolutions listed in Pub. L. No. 102-1

relate to Iraq's military invasion of Kuwait on August 2, 1990 and are identical to the resolutions

"recall[ed] and reaffirm[ed]" in Resolution 678.

By authorizing the use of

U.S.

Armed Forces "pursuant to" Resolution 678, Pub. L. No.

102-1 sanctions not only the employment of the methods approved in that resolution - that is,

"all necessary means" - but also the objectives outlined therein - namely, "to uphold and

implement. . . all subsequent relevant resolutions and to restore international peace and security

to the area." S.C. Res. 678 (emphasis added). Two of the most important "subsequent relevant

resolutions" respecting "international peace and security" in the Persian Gulf region are U.N.

Security Council Resolution 687, which requires, inter alia, the inspection and destruction of

See, e.g., Congressional Research Service, Library of Congress, Instances of

Use

of United States Armed

Forces

Abroad,

J 798-1999(1999).

See Act of June 18, 1812, 2 Stat. 755 (1812) (War of 1812); Act of May 13, 1846, 9 Stat. 9 (Mexican-

American War); Act of Apr. 25, 1898, 30 Stat. 364 (Spanish-American War); Joint Resolution of

Apr.

6, 1917, 40

Stat. 1 (World War I: Germany); Joint Resolution of

Dec.

7, 1917, 40 Stat. 429 (World War I: Austria-Hungary);

Joint Resolution of

Dec.

8, 1941,55 Stat. 795 (World War

11:

Japan); Joint Resolution of

Dec.

11, 1941,55 Stat. 796

(World War II: Germany); Joint Resolution of

Dec.

11, 1941, 55 Stat. 797 (World War II: Italy); Joint Resolution of

June 5, 1942, 56 Stat. 307 (World War II: Bulgaria); Joint Resolution of

June

5, 1942, 56 Stat. 307 (World War II:

Hungary); Joint Resolution of June 5,1942,56 Stat. 307 (World War

II:

Rumania).

Iraq's program to develop weapons of mass destruction, and U.N. Security Council Resolution

688,

which demands that Iraq halt the repression of its civilian population. Should the President

determine that the use of force is necessary to implement either resolution, such force would find

statutory authorization in Pub. L. No.

102-1.

Congress has demonstrated several times that Pub. L. No. 102-1 remains in effect. First,

the same Congress that enacted Pub. L. No. 102-1 twice expressed its sense that Pub. L. No. 102-

1 continues to authorize the use of force even after Iraq's withdrawal from Kuwait. Specifically,

Section 1095 of the National Defense Authorization Act for Fiscal Years 1992 and 1993 contains

a congressional finding that Iraq is violating Resolution 687's requirements relating to its

weapons of mass destruction program, and expresses Congress's sense that "the Congress

supports the use of all necessary means to achieve the goals of Security Council Resolution 687

as being consistent with the Authorization for Use of Military Force Against Iraq Resolution

(Public Law 102-1)." Pub. L. No. 102-190, § 1095, 105 Stat. 1290, 1488 (1991). Section 1096

of that same Act expresses Congress's sense that "Iraq's noncompliance with United Nations

Security Resolution 688 constitutes a continuing threat to the peace, security, and stability of the

Persian Gulf region . . . and [that] the Congress supports the use of all necessary means to

achieve the goals of United Nations Security Resolution 688," which condemns the repression of

the Iraqi civilian population, "consistent with all relevant United Nations Security Council

Resolutions and . . . Public Law

102-1."

105 Stat. 1489. Second, in 1999 Congress amended

Pub.

L. No. 102-1 to extend the reporting requirements from every 60 days to every 90 days,

thereby indicating that the law continues in effect. See Pub. L. No. 106-113, Div. B, §

1000(a)(7), 113 Stat. 1501,1536(1999).

The practice of the Executive Branch, in which Congress has acquiesced, further

demonstrates that Pub. L. No. 102-1 continues to be in effect and to provide supplemental

statutory authority for the President to implement applicable Security Council Resolutions,

including Resolutions 678, 687, and 688. Consistent with the reporting requirement in section 3

of Pub. L. No.

102-1,

President Bush and his two predecessors have written to Congress at

regular intervals to report on the status of efforts to secure Iraqi compliance with the applicable

Security Council resolutions. This practice has gone unchallenged by Congress. Moreover,

President George H.W. Bush and President Clinton authorized the use of force on several

occasions under Pub. L. No.

102-1.

For example, in January 1991, shortly after ordering U.S.

Armed Forces to commence Operation Desert Storm , President George H.W. Bush reported to

Congress that such operations were "contemplated by" Pub. L. No.

102-1.

See Letter to

Congressional Leaders on the Persian Gulf Conflict, 1 Pub. Papers of George Bush 52 (1991).

Shortly thereafter, President Bush reported to Congress that he had ordered the 1992

participation of the United States in the enforcement of the southern no-fly zone in Iraq

"consistent with" Pub. L. No.

102-1.

See Letter to Congressional Leaders Reporting on Iraq's

Compliance with United Nations Security Council Resolutions, 2 Pub. Papers of George Bush

1574,

1575 (1992-93). In September 1996, President Clinton reported to Congress that he had

ordered U.S. cruise missile strikes "consonant with" Pub. L. No. 102-1 and section 1096 of the

1992-93 Defense Authorization Act. See Letter from President William J. Clinton, to the

Honorable Newt Gingrich, Speaker of the House of Representatives 1 (Sept. 5, 1996). And in

1998,

President Clinton directed missile and aircraft strikes against Iraq "under" Pub. L. No.

102-1.

See Letter to Congressional Leaders on the Military Strikes Against Iraq, 2 Pub. Papers

of William Jefferson Clinton 2195, 2196 (1998). Congress has acquiesced in each of these uses

of force.

In addition, Pub. L. No. 105-235, a Joint Resolution finding that Iraq "is in unacceptable

and material breach of its international obligations," and "urg[ing]" President Clinton "to take

appropriate action, in accordance with the Constitution and relevant laws of the United States, to

bring Iraq into compliance," arguably expresses Congress's support for the President to direct

military action against Iraq. Pub. L. No. 105-235, 112 Stat. 1538, 1538, 1541 (1998). The

resolution contains multiple "whereas" clauses detailing almost two dozen Security Council

findings of Iraqi violations of its WMD obligations and concluding that "Iraq's continuing

weapons of mass destruction programs threaten vital United States interests and international

peace and security." 112 Stat. 1540. Although the Joint Resolution does not specifically

authorize the use of force, and cautions that any action taken must comply with the Constitution

and relevant laws, insofar as the President determines that directing military action against Iraq is

"appropriate ... to bring Iraq into compliance with its international obligations," and consistent

with the Constitution and relevant U.S. law. Congress has expressed its support for such action.

112 Stat. 1541.

Military action against Iraq might also be authorized, under certain circumstances,

pursuant to Pub. L. No. 107-40, the "Authorization for Use of Military Force" enacted shortly

after the terrorist attacks of September 11, 2001. Pub. L. No. 107-40 authorizes the President to

use "all necessary and appropriate force" against those nations, organizations or persons whom

'he determines planned, authorized, committed, or aided the [September 11] terrorist attacks . . .

or harbored such organizations or persons, in order to prevent any future acts of international

terrorism against the United States by such nations, organizations or persons." 115 Stat. 224

(emphasis added). Were the President to order military action against Iraq because, in his

judgment, Iraq provided assistance to the perpetrators of the September

attacks, he also would

be acting with prior statutory authorization pursuant to Pub. L. No. 107-40.