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22 UDTNLR 125 JLR
(Cite as: 22 U. Dayton L. Rev. 125)
University of Dayton Law Review
*125 ONE TIN SOLDIER: A NEW LOOK AT THE CONSTITUTIONALITY OF PLACING UNITED
STATES SOLDIERS UNDER THE COMMAND OF
THE UNITED NATIONS
Robert Hansford Hoskins
Copyright (C) 1996 by the University of Dayton Law Review; Robert Hansford
TABLE OF CONTENTS
I. INTRODUCTION ........................................................ 125
II. BACKGROUND .......................................................... 126
A. The Case of Army Spc. Michael New ................................ 126
B. The Constitutional Basis for Presidential and Congressional War
Powers ............................................................ 128
C. The President's Commander-in-Chief Power and Congress ............ 130
D. Foreign Affairs and the Courts ................................... 133
III. ANALYSIS ............................................................ 135
A. The Argument Against Placing U.S. Soldiers Under U.N. Commanders . 136
1. Concerns that U.S. Sovereignty is Being Sacrificed .............. 136
2. Is Foreign Command of U.S. Troops Unconstitutional? ............. 138
B. The Constitutionality of the President Placing U.S. Military
Forces Under Foreign Command ...................................... 140
1. Policy Rationale for Redefining U.S. Participation in U.N.
Actions ........................................................... 140
2. Permissible Deployment of Prohibited Delegation? ................ 141
C. U.N. Command of U.S. Troops and the Courts ....................... 142
1. The Court's Analysis if Congress Does Not Pass Legislation
Concerning the Foreign Command of U.S. Troops ..................... 143
2. The Court's Analysis if Congress Passes Legislation Prohibiting
the Foreign Command of U.S. Troops ................................ 145
IV. CONCLUSION ..........................................................
In October 1995, bills were introduced in both houses of Congress forbidding
the placement of U.S. soldiers under foreign command and, in particular,
prohibiting U.S. troops from wearing the insignia of the United Nations (U.N.)
on their uniforms. [FN1] At least one soldier, United States Army Specialist
Michael New, fully supports the proposed legislation. New, a decorated Army
medic and Desert Storm veteran, refused to wear the U.N. blue beret and insignia
of the U.N. upon being ordered to do so as part of the U.S. contingent of the
U.N.'s peace-keeping operation in Macedonia. [FN2] New's *126 refusal to obey a
direct order, and his subsequent court-martial, served as the impetus of the
aforementioned legislation and rekindled a nation- wide debate questioning
presidential authority to place U.S. troops under the command of the U.N.
The Clinton administration defends its policy regarding U.S. troops in
Macedonia by citing the broad powers that Presidents have historically enjoyed
in their constitutional role as Commander-in-Chief. [FN3] Opponents of the
President's policy, however, claim that President Clinton, like many of his
predecessors, has exceeded the bounds of his authority as Commander-in-Chief by
placing U.S. troops under foreign command. [FN4] This Comment utilizes the case
of Army Spc. Michael New as a back-drop to examine the constitutionality of
placing U.S. troops directly under U.N. commanders. Section II of this Comment
outlines New's case and addresses the scope of the President's Commander-in-
Chief powers under the Constitution. [FN5] Section III discusses the arguments
opposing and supporting the constitutionality of placing U.S. soldiers under
foreign command and predicts how the issue would be resolved by the judiciary
should it come before the courts. [FN6] Finally, Section IV concludes that the
President does not exceed the bounds of the Constitution by placing U.S. troops
under the operational command of the U.N.
A. The Case of Army Spc. Michael New
On August 21, 1995, the Army informed Spc. Michael New that he and the rest of
his unit were being deployed to Macedonia as part of a U.N. peacekeeping
mission. [FN7] The soldiers were further informed that they were to wear the
uniform of the U.N. on this mission [FN8] and that they would be serving under
foreign officers who were under U.N.'s command. [FN9] At this time, New *127
informed his Army superiors that he felt uncomfortable with the prospect of, as
he saw it, being "involuntarily impressed into the military service of a foreign
government." [FN10] New's Army superiors responded to his statements by
threatening to court-martial him if he violated the given order and by referring
him to an Army attorney. [FN11] When Spc. New reported to formation on October
10, 1995 without the blue beret or insignia of the U.N., he was charged with
violating the order of a senior officer [FN12] and was arraigned before a
military judge in Wurzburg, Germany. [FN13]
New defended his actions on two grounds. First, New contended that President
Clinton's unilateral order making U.S. troops available for U.N. operations in
Macedonia was illegal; second, he claimed that the order to assume the uniform
of the U.N. was a technical violation of Army regulations concerning proper
military dress. [FN14] New maintained that his unit was being sent to Europe not
as part of a U.N. Chapter VI peace observation, which requires no Congressional
approval, but as part of a peace enforcement action under Chapter VII, which
requires prior Congressional approval. [FN15] According to the twenty-two year
old soldier, the deployment order was also a breach of New's oath and enlistment
order. [FN16] New argued that while his military oath obligated him to defend
the U.S. and its Constitution, an involuntary assignment to a foreign or
international entity exceeded the scope of his obligation to the U.S. Army.
A few days before the start of Spc. New's court-martial, a military judge
ruled that the order to wear the U.N. uniform was legal and that New would not
*128 be allowed to present evidence regarding the legality of the order at his
court-martial. [FN18] A seven-member military jury found New guilty of
disobeying a superior's direct order [FN19] and discharged Michael New from the
Army. [FN20] New's attorneys noted that they planned to appeal the decision in
both military and civilian courts. [FN21]
New's defiant stand received national attention and rekindled the debate
concerning the use of U.S. troops in multinational forces. Moreover, New's case
became a rallying cry for many Congressional conservatives who have questioned
both the country's involvement in foreign conflicts and the foreign policy of
the current President. [FN22] Both houses of Congress introduced bills
prohibiting U.S. troops from either being placed under foreign command or from
wearing the uniform of the U.N. [FN23] Two 1996 Republican Presidential
hopefuls, Bob Dole and Pat Buchanan, voiced support for Michael New, with
Buchanan going so far as to commit to pardoning New as his first act as
President should he win the 1996 Presidential election. [FN24] New also garnered
the support of isolationists who consider the U.N. an attempt to create a one-
world-government [FN25] and view New's situation as another example of
governmental abuse of power. [FN26]
B. The Constitutional Basis for Presidential and Congressional War Powers
The Executive branch has traditionally defended the President's ability to
place troops under foreign command by referencing the broad powers *129 accorded
to the President as Commander-in-Chief within the war powers of the
Constitution. The Constitution prescribes an inherent tension between the
Executive and Legislative branches of government in matters of foreign affairs
through its ambiguous delegation of authority among the two branches. [FN27] The
Constitutional framers had a solid conception of what specific power to vest in
the Legislative branch, but they were divided and unsure about the role of the
Presidency. [FN28] While they saw the need for a single individual to command
the military [FN29] and to meet foreign diplomats, [FN30] the framers feared the
tyrannical tendencies of a single executive office. [FN31] Thus, while the
President was given the power to negotiate treaties and to lead U.S. military
forces, [FN32] the framers granted Congress the sole power to declare war,
[FN33] to make laws regulating commerce with foreign nations, to ratify treaties
and to raise and fund armies to safeguard against the creation of tyranny.
Although the Commander-in-Chief's responsibilities that the framers extended
to the President were intended only to convey command of military forces, [FN35]
U.S. Presidents have traditionally used their constitutional authority to expand
their power. [FN36] The ability of the President to curry public opinion, *130
to serve a leading role in foreign affairs, and to command the military has
enabled the Executive branch to steadily acquire authority. [FN37] Nonetheless,
Presidents have continually looked to the Constitution for legitimacy. In
reality, however, presidential pre-eminence in foreign affairs relies more on
powers that "lie in or between the lines of the Constitution" than on the powers
actually enumerated therein. [FN38]
C. The President's Commander-in-Chief Power and Congress
Congressional and judicial deference have also contributed to the growth and
legitimacy of presidential power. [FN39] Although "Presidential assertions of
the right to use the armed forces for purposes short of war" [FN40] have been an
on-going controversy between the Executive and Legislative branches, Presidents
have established precedent to send troops without congressional approval, at
least when Congress has been silent on the issue, by doing so over 200 times.
[FN41] Congress quickly recognized the importance of the President's daily
control of foreign affairs and his ability to rapidly deploy forces in military
actions short of war. [FN42] This recognition allowed the Executive to establish
a foothold from which to expand his power. [FN43]
For example, in both the Korean and Vietnam wars, Congress ratified U.S.
entrance into the conflicts after the President had already committed U.S.
forces. President Truman maintained that the U.N. treaty obligated the U.S. to
send troops to Korea; accordingly, Truman claimed that he did not require the
prior approval of Congress to commit U.S. forces. [FN44] In Vietnam, President
Lyndon Johnson referenced the Southeast Asia Collective Defense Treaty [FN45]
obligations, along with a dubious military engagement in the Tonkin Gulf, to
solicit a blank-check from Congress to fund military activities in that region.
[FN46] *131 These examples of the unilateral commitment of troops by the
President illustrate his traditional ability to combine his power as Commander-
in-Chief with congressional deference to engage the country in large and
protracted military engagements without acquiring a congressional declaration of
war. [FN47] Presidential power is at its zenith during times of crisis when the
President can use his power as Commander-in-Chief to rationalize a variety of
actions which may not otherwise be supported by the Constitution. [FN48]
Congressional deference to the President in event of such crisis, or at least
its failure to raise a legal challenge to the President's action, has further
enabled the Executive branch to expand its war powers responsibilities and, in
the minds of many, allowed the President to alter the constitutionally mandated
balance of war powers. [FN49]
In the mid 1970s, Congress enacted the War Powers Resolution, ostensibly to
re-establish the proper balance of power between Congress and the President.
[FN50] In the wake of having been led by the President into unpopular military
engagements in Korea and Vietnam, Congress passed the War Powers resolution to
"fulfill the intent of the framers of the Constitution ... and insure that the
collective judgement of both the Congress and the President will apply to the
introduction of United States Armed Forces into hostilities." [FN51] The War
Powers Resolution requires the President to consult with Congress before sending
U.S. military forces into hostilities, to send a report to Congress within sixty
days of commencing military actions, and to cease a military operation if
Congress fails to authorize such action within sixty days of its inception.
In practice, the War Powers Resolution has done little to adjust the balance
of power between the President and Congress. During certain brief *132 military
engagements, Presidents have nullified Congressional participation by sending a
short report to Congress after already committing troops. [FN53] In other
instances, the President has simply ignored congressional requests for reports
pursuant to the War Powers Resolution. [FN54] Sometimes the President has sought
Congressional approval after already committing U.S. troops, knowing that
Congressional disapproval would cause the country to lose international
In an effort to restore a more equitable balance of foreign policy power,
legislation has been introduced in Congress proposing to strengthen
congressional influence over U.N. peace operations. [FN56] The extent to which
Congress will be able to assert a larger role in the use of U.S. military forces
abroad is uncertain. Any renewed efforts to assert congressional power will face
many of the same problems encountered by the War Powers Resolution. At the
moment when military intervention seems imminent, Congress tends to acquiesce to
presidential appeals to patriotism rather than strongly assert its role, thereby
losing the opportunity to effect a balance of power with the President in
foreign affairs. [FN57] Thus, Congress must draft legislation in such a *133 way
as to allow the President enough power to properly address an international
crisis, giving flexibility while maintaining Congress's ability to assert its
constitutional role in foreign affairs even in times
of war. [FN58]
D. Foreign Affairs and the Courts
In the few justiciable cases [FN59] that involve the foreign affairs power of
the President or Congress, courts have normally shown great deference to the
political branches. [FN60] Courts often consider the effect that a ruling may
have on international relations or national security and defer to political
bodies which are more adept in those areas. [FN61] The Constitution grants broad
powers to both the Legislative and Executive branches, yet the Supreme Court has
been willing to afford undefined powers to the Executive branch as the country's
representative among the "family of nations." [FN62]
Courts have never invalidated an act of Congress relevant to an issue of
foreign affairs. [FN63] The courts have, however, been slightly more willing to
question certain presidential acts. [FN64] Apparently many of the founding
fathers fears of the tyrannical potential of the presidency have been shared by
members of the judiciary. [FN65] Given the President's ability to act quickly,
[FN66] courts fear that permitting "the Executive to proceed unencumbered by
judicial review would work a radical allocation of constitutional power." [FN67]
If courts allow the President to act without restraint, the President would
usurp the courts' role as the ultimate arbiter of the Constitution and redefine
the allocation of power within government. [FN68]
*134 The Supreme Court first recognized Congress' right to regulate
presidential prerogative in military engagements short of war in the early
1800s. [FN69] Further, the Court has recognized the ability of a President to
utilize broad powers as Commander-in-Chief in time of war regardless of whether
war has been declared. [FN70] Thus, during times of national crisis, Presidents
have suspended habeas corpus, [FN71] mobilized some of the country's facilities
to enforce the laws of the nation, [FN72] created new governmental agencies,
[FN73] and seized privately owned industrial plants to support the war effort.
In United States v. Curtiss-Wright Export Corp., [FN75] a case involving the
President's Commander-in-Chief powers, the Supreme Court afforded the President
almost unlimited authority in the realm of foreign relations. [FN76] The Supreme
Court espoused an expansive view of Executive powers by recognizing the "plenary
and exclusive power of the President as the sole organ of the federal government
in the field of international relations." [FN77] The Court again showed great
deference to the President by validating the imprisonment of Japanese citizens
during the second World War in Korematsu v. United States. [FN78] Although many
consider Korematsu a regrettable decision, [FN79] the case manifests the power
that the President has been able to accumulate as Commander-in-Chief during
times of war.
The Supreme Court later qualified its view of presidential power in Youngstown
Sheet & Tube Co. v. Sawyer. [FN80] Youngstown addressed President *135 Truman's
effort to exercise his authority as Commander-in-Chief to seize and operate
striking steel mills that he considered necessary to national defense during the
Korean War. [FN81] Therein, the Court held that the President's unilateral
efforts to seize private industry were beyond the scope of his power as
Commander-in-Chief. [FN82] Although Congress may have had the authority to take
possession of private property in this matter, according to the Court, the
President was not granted such power either within the Constitution or "implied
from the aggregate of his powers under the Constitution." [FN83]
Although Youngstown did not lead to a significant reduction of presidential
power, Justice Jackson's concurring opinion provided the basic three
compartments within which presidential authority is evaluated. [FN84] First,
when the President acts pursuant to a congressional act, his authority is
greatest. [FN85] Second, when the President acts in light of congressional
silence or denial of authority, presidential authority rests solely on his
constitutionally delegated authority. [FN86] Within the test's second
compartment, however, there exists a "zone of twilight" in which the President
and Congress may have concurrent authority. [FN87] Depending on the event or
authority at issue, congressional silence or acquiescence may invite the
President to assume responsibility. [FN88] Finally, when the President acts
against the express or implied wishes of Congress, his power is at its weakest.
[FN89] When the President acts contrary to Congress, his power will be validated
only if the Constitution exclusively grants such authority to the President.
President Clinton is not the first American President to place U.S. troops
under foreign command. [FN91] In May, 1994, however, President Clinton became
*136 the first President to issue a policy statement authorizing the foreign
command of U.S. troops through Presidential Decision Directive-25 (PDD- 25).
[FN92] This Section outlines the arguments both criticizing and supporting the
foreign command of U.S. troops. [FN93] Further, this Section predicts how the
judiciary would rule on this issue, should it come
before a court. [FN94]
A. The Argument Against Placing U.S. Soldiers Under U.N. Commanders
The court-martial of Spc. Michael New received world-wide attention and became
a rallying cry for those critical of the foreign command of U.S. troops. Some
critics of the presidential policy allowing the foreign command of U.S. troops
argue that it manifests the subjugation of U.S. interests to those of the U.N.
and unfairly risks American lives for causes in which the U.S. has no direct
concern. [FN95] Others contend that the President violates the Constitution by
delegating command of U.S. troops to foreigners. Whether this criticism has been
motivated by real concerns regarding the legality of foreign command,
isolationist sympathies, or partisan politics, advocates of the presidential
policy supporting foreign command in some instances will need to overcome legal
challenges and forceful criticism if they wish to weave the ability to place
U.S. troops under foreign command into the tapestry
of American foreign policy.
1. Concerns that U.S. Sovereignty is Being Sacrificed
Since its inception, the U.N. has been the focus of criticism from
isolationists within the U.S. [FN96] Critics of the U.N. fear that the active
support *137 and participation of the U.S. in the U.N. is a threat to American
sovereignty, [FN97] a fear exacerbated by the increase in U.N. activity during
the last few years. [FN98] Although U.S. participation in the U.N. Desert Storm
operation against Iraq was widely accepted by the American people, subsequent
U.S. military participation in U.N. operations in Somalia and Haiti received
little popular support. [FN99] "[T]he American people's tolerance for casualties
varies directly with their perception that a concrete national interest is at
stake, and not merely a broad humanitarian goal." [FN100] Accordingly, U.S.
participation in the Macedonia peacekeeping effort has often been criticized.
[FN101] Therefore, when Michael New refused to serve as a soldier under the
U.N., critics hailed his actions "as a triumph of conscience over the new world
When Michael New joined the U.S. Army, he did not commit to serving the U.N.
According to his phalanx of supporters, placing New under foreign command
violated his military oath. [FN103] Foreign command antagonists also complain
that foreign command of U.S. troops puts soldiers in a situation in which the
military training and ethics of the soldier's commander may conflict with his
own. [FN104] Thus, U.S. soldiers under foreign command are placed in a position
where it is more likely that a direct order from a foreign commander conflicts
with the U.S. military code of conduct. [FN105]
Several proposals have been introduced in Congress lionizing Spc. New and
condemning the foreign command of U.S. troops [FN106] since PDD-25 was signed.
[FN107] Although there was an initial flurry of activity surrounding the *138
introduction of these bills, none of the proposed legislation appears poised to
actually challenge the policies enumerated in PDD-25. [FN108] Rather, Congress
appears to prefer using its traditional province over the "power of the purse"
to enforce its foreign policy concerns instead of directly challenging the
expanded scope of the President's Commander-in-Chief
2. Is Foreign Command of U.S. Troops Unconstitutional?
Those critical of placing U.S. troops under foreign command allege that such
action is clearly unconstitutional. [FN110] Since the Constitution grants
command authority to the President alone, [FN111] the Constitution could
feasibly be interpreted to indicate that the delegation of command authority to
another, especially a foreign power, is illegal. [FN112] Consequently, critics
consider President Clinton's assertion that he is delegating operational control
but retaining command control a distinction without a difference; one that fails
to mask an unconstitutional assignment of authority that threatens U.S.
Critics also deny the precedential value of instances where U.S. troops served
under foreign command in the past. Some consider these instances "exceptions to
the rule, expedients undertaken in the very gravest circumstances of world war.
Such instances do not alter the Constitution's clear requirement that only
officers of the United States may command U.S. troops; that document cannot be
amended by its own violation." [FN113] Critics therefore contend that the
foreign command of U.S. troops is illegal under a *139 literal interpretation of
the Constitution and question the policy of involving the U.S. in an
organization like the U.N.
There is also a legal question surrounding President Clinton's authority to
send troops to Macedonia unilaterally. The U.N. operation in Macedonia,
UNPROFOR, [FN114] has been explicitly referred to as a Chapter VII peace
enforcement operation, which would require prior congressional approval, in
several U.N. Security Council resolutions. [FN115] "[A]s early as July 9, 1993
[however], President Clinton asserted ... that the Macedonia operation was
mandated under 'Chapter VI' of the United Nations Charter." [FN116] Chapter VI
operations are "Characterized by noncombatant 'observers' of signed ceasefires
or peace treaties [and] do not require congressional approval." [FN117]
Nonetheless, some congressional critics maintain that the references to the
requirement for "combat equipped" troops and deployment to a "combat
environment" by the U.S. Army during New's court-martial are indicative of a
Chapter VII action. [FN118]
The inability of the U.N. to involve U.S. troops without the consent of the
President allows that his constitutional authority to deploy troops will not be
compromised. [FN119] Some hypothesize a constitutional issue may arise after
U.S. forces are involved in an Article 43 enforcement action. [FN120] Ending a
U.N. military action commenced under Article 43 of the U.N. Charter "requires a
substantive Security Council decision that can be vetoed by any one of the five
permanent members." [FN121] Since another country from the U.N. Security Council
can veto a U.S. motion to withdraw U.S. troops, the President could be in a
position where he can no longer withdraw U.S. troops independently. [FN122]
Consequently, this hypothesis alleges, the President would cede his
constitutional authority to command troops by placing them under U.N. command.
*140 B. The Constitutionality of the President Placing U.S. Military Forces
Under Foreign Command
The Clinton administration declared its policy on reforming multilateral
peacekeeping operations within PDD-25. [FN124] PDD-25 announced the policy
reasons supporting an active U.N. and the need to place U.S. troops under U.N.
commanders in certain circumstances. [FN125] The Clinton administration
supported the foreign command provisions within PDD-25 by pointing to prior
instances where Presidents have utilized broad Commander-in- Chief powers to
place U.S. troops under foreign command. [FN126] Supporters of the foreign
command provision within PDD-25 further defend its legality by noting that the
President would merely cede operational control of U.S. troops in certain
situations rather than ceding ultimate command of
those forces. [FN127]
1. Policy Rationale for Redefining U.S. Participation in U.N. Actions
Recognizing the recent increase in the number of international peacekeeping
operations that warranted U.S. involvement since the end of the Cold-War,
[FN128] the Clinton administration, in PDD-25, posited that the new world order
and the reinvigorated role of the U.N. in world affairs [FN129] required a new
look at the operational aspects of U.N. peace enforcement missions [FN130] and
the role of U.S. military forces therein. [FN131] PDD-25 identifies the need for
structural and procedural improvements in the U.N.'s oversight of its military
actions. [FN132] Further, the policy statement implicitly supports the active
role that the U.N. is assuming and recognizes the need for U.S. participation in
U.N. actions. [FN133] PDD-25 is premised on the idea that U.S. foreign policy
interests are best served by an active and effective U.N. and seeks to improve
U.N. operations and clearly define the role of the U.S. in U.N. operations.
The Clinton administration believes that U.N. peace actions normally address
circumstances which affect important U.S. interests either directly or *141
through their cumulative effect. [FN135] Importantly, the active participation
of the U.S., the world's most powerful nation, is essential to the ultimate
success of the U.N. U.S. participation may also be necessary to the success of
particular U.N. operations due to the unique capabilities and vast resources of
the U.S. military. [FN136] Further, the involvement of the U.S. military may be
required in some instances to persuade other nations to participate in a given
action or to protect U.S. interests during certain U.N. missions. [FN137]
Historically, the U.S. has assumed a significant role in each of the U.N.
sponsored military actions within which it has participated, thereby allowing
U.S. officers to retain command over U.S. troops. [FN138] While the more active
role that the U.N. has assumed in world affairs will likely result in a
corresponding increase in U.N. sponsored enforcement actions, PDD-25 was
advanced in an effort to provide the President with the option of deploying a
limited number of U.S. troops as part of a multi-national force. Because the
U.S. is unwilling to bear the expense in dollars and in lives [FN139] to lead
every U.N. action that it supports, [FN140] PDD-25 outlines a policy which
provides greater flexibility in the deployment of U.S. soldiers allowing the
U.S. to participate in U.N. actions in a limited capacity. [FN141] U.N. actions,
according to PDD-25, are best served by a community of nations within which the
U.S. should play an active, if not always leading,
2. Permissible Deployment or Prohibited Delegation?
In PDD-25, the Clinton administration asserts that the President will never
actually relinquish command over U.S. military forces that are placed under
foreign commanders. [FN143] Rather, PDD-25 maintains that the President may, on
a case by case basis, place U.S. forces under the operational control *142 of a
U.N. commander for specific operations. [FN144] U.S. forces will never be
deployed without presidential approval because provisions within the treaty
between the U.S. and the U.N. dictate that U.S. forces will never be pressed
into service without the expressed consent of the U.S. [FN145] The veto power of
the U.S. representative to the U.N. Security Council further ensures that U.S.
forces would not be compelled to participate in military actions without
presidential consent. [FN146] Therefore the U.S. troops will never be called
into international service over the objections of the President and Congress.
Operational control, [FN147] according to PDD-25, does not interfere with the
constitutional chain of command of U.S. troops; it merely authorizes a foreign
commander to lead U.S. forces within the parameters agreed to by the President.
[FN148] Anytime that the U.S. agrees to send troops to a U.N. sanctioned
military action, an agreement is written between the U.S. and the U.N. governing
the involvement of U.S. forces in that action. [FN149] Operational control
allows a foreign officer to be installed in the normal chain of command to lead
troops in accomplishing pre-defined objectives using methods compatible with
standard U.S. military operating procedures. [FN150]
PDD-25 also mandates that fundamental elements of U.S. command would still
apply. [FN151] U.S. forces under U.N. commanders may refuse to follow any order
that exceeds the scope of the mission or violates American or international law,
and may report any concerns directly to a U.S. commander. [FN152] In the event
of a large-scale or long-term U.N. sponsored military action, the President
would follow precedent by insisting that U.S. commanders lead U.S. forces,
consequently limiting the scope of foreign command. [FN153] Moreover, many
defend the foreign command of U.S. troops by noting that "[t]here is nothing in
the Constitution expressly prohibiting the [P]resident from sending American
troops abroad to serve under foreign command."
C. U.N. Command of U.S. Troops and the Courts
Given the justiciable issue created by Spc. Michael New's refusal to serve
under foreign command [FN155] and the possibility of legislation which expressly
*143 prohibits the foreign command of U.S. troops, the constitutionality of PDD-
25 may be adjudicated. [FN156] In addressing this issue, courts will need to
look beyond the surrounding political rhetoric and evaluate the case in light of
the letter and intent of the Constitution and the development of the powers
granted therein. America's founding fathers certainly did not envision American
troops serving under the command of foreigners within an organization like the
U.N. [FN157] Nonetheless, courts will look to the Constitution, as well as
existing precedent, to evaluate the validity of PDD- 25.
Any modern evaluation of the scope of presidential Commander-in-Chief powers
will most likely work within the general framework provided by the Supreme Court
in Youngstown. [FN158] Under a Youngstown analysis, the court must first
determine whether or not Congress has manifested its support or prohibition for
the action at issue. [FN159] If Congress passes legislation supporting the
foreign command of U.S. troops, the court will utilize a deferential review
standard under the first compartment of Youngstown and uphold the
Administration's foreign command policy. [FN160]
1. The Court's Analysis if Congress Does Not Pass Legislation Concerning the
Foreign Command of U.S. Troops
If Congress does not pass legislation addressing the President's ability to
place troops under foreign command, the court will evaluate the issue under the
second compartment of Youngstown. [FN161] Under this analysis, a court will
determine to which branch of government the Constitution grants the authority in
question. [FN162] If a court finds that the authority to place troops under
foreign command was granted by the Constitution to Congress and the President
concurrently, the court's "test of power is likely to depend on the imperatives
of events and contemporary imponderables rather than on abstract theories of
law." [FN163] Additionally, congressional indifference or inaction may be seen
by the court as inviting presidential action; the facts of the military and
political situation at issue should also prove influential in the court's
analysis of the issue. [FN164]
*144 Although the Constitution grants command authority to the President
alone, a strict reading of the Constitution and the intent of the Commander-in-
Chief clause is unlikely to resolve this issue. A court's policy evaluations are
thus apt to play a significant role in their analysis. The scope of the power
that Presidents have exercised under the guise of their role as Commander-in-
Chief may have exceeded the intent of the founding fathers, [FN165] yet
Presidents have not used these powers to frustrate the balance of power between
the Legislative and Executive branches or to effect tyranny. The President's
ability to deploy troops quickly and place them under foreign command when
necessary has proven beneficial in several circumstances. [FN166] Further, the
President's command over the nation's military and international intelligence
resources support the contention that decisions involving the command of the
U.S. military are best made by the President. [FN167] The qualified success of
this policy will not save a clearly unconstitutional act from being struck down
by the court, but it will favor the validation of the Clinton administration's
foreign command policy.
Although the Constitution was drafted in an era in which a country's
sovereignty was paramount, today's global village warrants policies that are
better suited to the current world environment. Were the Clinton administration
to issue a policy allowing U.S. troops to be called into service without the
expressed consent of the President or Congress, the court would likely find the
delegated powers of the Constitution usurped. Limited deployment of troops to
the temporary and constrained command of U.N. officers under the provisions of
PDD-25, however, allows a narrowly drawn policy to effect admirable humanitarian
goals. The traditional role of the President as the leader of U.S. foreign
policy and the deference that the courts and Congress have normally shown the
President in the past will also favor presidential pre-eminence in this area.
Courts are further inclined to consider the fact that, although command
decisions regarding U.S. troops may lie within the province of the President,
Congress may still influence command decisions through their capacity to
withhold funds from military actions or command decisions that it refuses to
sanction. Consequently, it is plausible that a court *145 will validate the
President's ability to place U.S. troops under the temporary command of a
foreign officer in light of congressional silence
on the matter.
2. The Court's Analysis if Congress Passes Legislation Prohibiting the Foreign
Command of U.S. Troops
If Congress were to enact legislation prohibiting the foreign command of U.S.
troops, presidential actions to the contrary would be evaluated under the third
compartment of the Youngstown analysis and would be upheld only if a court
determines that the authority at issues lies exclusively with the President.
[FN168] Courts are apprehensive about siding against Congress due to the
representative nature of that body. [FN169] Nonetheless, a court is unlikely to
utilize the limited strict interpretation of the Constitution that many critics
of foreign command prefer, even if Congress passes legislation prohibiting the
foreign command of U.S. troops. Although the President's power is "at its lowest
ebb" when he acts contrary to the expressed will of Congress, courts will use
caution in evaluating the equilibrium of powers established by the Constitution.
[FN170] In addition to looking to the text of the Constitution, the court will
likely consider the precedent of placing U.S. soldiers under foreign command,
[FN171] and evaluate functional and institutional considerations to determine
which branch of government is best suited to make such command decisions.
The history of placing U.S. troops under limited foreign command will add
credence to the formalization of this policy as will the benefits of allowing
the U.S. to participate in U.N. operations in a more limited capacity. [FN172]
The traditional lead role of the President in foreign affairs and in commanding
military forces also allows an air of credibility to presidential command
decisions. The Constitution grants command authority of U.S. forces to the
President alone. Thus, if the Clinton administration's policy allowing the
foreign command is found unconstitutional, the court will base its decision on
constitutional authority rather than congressional edict. Given the clear grant
of command authority to the President, the lack of constitutional text
prohibiting placing troops under foreign commanders temporarily and the policy
issues supporting such action, the court should uphold presidential discretion
to place U.S. forces under U.N. commanders.
Congress does not appear likely to pass legislation explicitly prohibiting the
foreign command of U.S. troops. A court may regard the failure of Congress to
enact a law prohibiting foreign command, particularly after considering
legislation to do so, as congressional acquiescence. [FN173] *146 Congressional
failure to forbid the foreign command of U.S. troops also lends credence to the
supposition that the criticism of foreign command was motivated as much by
partisan politics as by serious concerns regarding the legality of such action.
[FN174] Moreover, Congress may neither delegate the command authority accorded
to the President by the Constitution to themselves nor validate an
unconstitutional act that does so. [FN175]
The "lawful role of the President as Commander-in-Chief [is beyond question,
thus courts are apt to] .... indulge the widest latitude of interpretation to
sustain his exclusive function to command the instruments of national force ...
against the outside world for the security of our society." [FN176] Temporarily
placing American troops under a foreign commander pursuant to a treaty with the
U.N. after the parameters of that mission have been determined and agreed to by
U.S. military command is cession of command only in the strictest sense. As a
living document, the Constitution must be interpreted in light of general
reasoning as the court attempts to reconcile an eighteenth-century governmental
framework with a twenty-first century global society. [FN177] The strong policy
considerations supporting the temporary foreign command of U.S. troops, the
traditional deference accorded the Executive branch concerning foreign affairs
and the lack of a clear constitutional prohibition all indicate the court will
uphold the President's authority to place U.S. troops under foreign command.
The recent increase in U.N. activity manifests the ability of that
organization to assume its intended purpose in world affairs to foster world
peace and nurture the recognition of basic human rights. An active and effective
U.N. furthers a bevy of American economic and military interests, but the
symbiotic relationship between the U.N. and the U.S. requires that the U.S. *147
play an active role in supporting U.N. activities. Just as the dynamics of the
U.N. have changed, U.S. foreign policy must change accordingly.
Allowing U.S. troops to serve under foreign commanders in limited
circumstances allows the U.S. to play an important role in the preservation of
world peace without necessarily making large investments in terms of dollars or
American lives. An over-simplistic view of the constitutional delegation of
command authority frustrates the President's command discretion, ignores
precedent and fails to comprehend the true nature of our Constitution. The
Constitution was intended to be a living document; while protecting certain
basic rights, it was written in terms broad enough to allow government to
function effectively within unforseen circumstances. To equate U.S. assumption
of its leadership role amongst a league of nations with a subjugation of
sovereignty to a foreign power undermines the effectiveness the U.N. and
ultimately thwarts American foreign policy interests. Once political rhetoric
gives way to reasoned analysis, the President's ability to place U.S. troops
under the temporary command of foreign officers should be validated as a proper
exercise of presidential command authority.
FN1. See S. 1370, 104th Cong., 1st Sess. (1995); H.R. 2540, 104th Cong., 1st
FN2. Gilbert A. Lewthwaite, Model U.S. Soldier Refuses U.N. Duty; Medic Says He
Joined to Serve America, 'Not a Foreign Power,' BALTIMORE SUN, Oct. 13, 1995, at
FN3. See United States: Administration Policy on Reforming Multilateral Peace
Operations, 33 I.L.M. 705 (1994) [hereinafter Administration Policy]
(summarizing Presidential Decision Directive 25 which President Clinton signed
on May 3, 1994, outlining the Administration's revised foreign policy stance
regarding the foreign command of U.S. soldiers). See also infra notes 124-127
and accompanying text.
FN4. See Ronald A. Tayor, Foreign Command of U.S. Peacekeepers Debated, WASH.
TIMES, Aug. 19, 1993, at A3 (quoting U.S. Senate leaders criticizing
presidential authorization of foreign command).
FN5. See infra notes 7-90 and accompanying text.
FN6. See infra notes 91-178 and accompanying text.
FN7. See generally United States ex rel. New v. Perry, 919 F. Supp. 491, 500
(D.D.C. 1996) (holding that the court could not hear the appeal of New's court-
martial until his military appeals were complete); I Took An Oath: United States
v. Spc. Michael G. New, USA Briefing Dissemination Book, at 2 (January 10, 1996)
[hereinafter Oath] (on file with the University of
Dayton Law Review).
FN8. Oath, supra note 7, at 1. New and other soldiers wore the uniform of the
U.S. Army and served under U.S. command during the United Nations' Desert Storm
operations in Kuwait. Id.
FN9. Id. The U.N.'s operation in the former Yugoslavia is commanded by NATO
under a regional arraignment per the U.N. Charter.
Id. at 5.
FN10. Id. New said that his Army recruiter had never mentioned the prospect of
such service. Id.
FN11. Id. The Army attorney suggested that New apply for conscientious objector
status and avoid the issue with an immediate honorable discharge. Id. New
declined this suggestion, noting that he was willing to serve in Macedonia, but
he was unwilling to do so in a U.N.'s uniform. Id. The Army refused to allow New
either to serve without wearing a U.N. uniform or to transfer to another Army
unit which was not being deployed. Id. The Army also would not allow New to
leave the service with an honorable discharge to avoid deployment to Macedonia.
FN12. Id. at 3 (New was charged with violating a lawful order under Article 92
of the Uniform Code of Military Justice on October
FN14. Id. In a pre-trial Motion to Dismiss, New alleged that President Clinton
exceeded his constitutional powers as Commander-in-Chief by deploying U.S.
troops without Congressional approval and delegating his commander authority to
the U.N. Id. New also claims that the order to wear the uniform of the U.N.
violates U.S. Army regulations pertaining to proper military dress. Press
Release from Ron Ray, Attorney for Michael New (Jan. 15, 1996) (on file with the
University of Dayton Law Review) (citing Art. I. sect. 9 of the U.S.
Constitution which dictates that only Congress may make rules regulating the
military). Since the U.N. uniform is not currently listed as an acceptable
uniform or uniform accessory according to Army regulations, New argued that he
had every right to disobey the order because it was
FN15. Oath, supra note 7, at 7 (Congressional approval for deployment of U.S.
troops to Macedonia was neither sought nor granted).
FN17. Id. New noted that U.S. forces in Macedonia were required to carry only
one piece of identification, that of the U.N. Id. But see Rowan Scarborough,
Defiant GI's Attorney Is Gloomy; He's Filing Motions but Expects Conviction of
Spc. New, WASH. TIMES, Jan. 11, 1996, at A5 (noting that New's military oath
obligated him to follow the order of a superior officer according to the Army's
chief liaison to Congress).
FN18. See Judge Tosses Legality Issue in New Case; Jury Ordered to Consider Only
Obedience in Court-Martial, HOUSTON CHRON., Jan. 20, 1996, at A1 (quoting New's
attorney, retired Marine Colonel Ron Ray, as saying that New would be unable to
get a fair trial from the military and that the coming court-martial was merely
a formality prior to determining New's sentence).
FN19. Brannon P. Denning, Act of Conscience or Party Politics?, CHRISTIAN SCI.
MONITOR, Jan. 8, 1996, at 19.
FN20. Chronicles: The Week January 21-27, TIME, Feb. 5, 1996, at 13. New was
discharged for bad conduct for refusing to follow a direct order. Id. New's
discharge was subsequently affirmed by Major General Montgomery Meigs. See Rowan
Scarborough, General Upholds Verdict on New; Army Specialist to Be Discharged,
WASH. TIMES, June 15, 1996, at A2.
FN21. Rowan Scarborough, Medic Tainted by Guilty Finding; New Will Lose All VA
Benefits, WASH. TIMES, Jan. 26, 1996, at A6.
FN22. See, e.g., Denning, supra note 19, at 19 (noting that congressional
conservatives are using this case to renew the debate between Congress and the
President concerning the War Powers of each and alleging the debate has more to
do with partisan politics than potential constitutional
FN23. See S. 1370, supra note 1; H.R. 2540, supra note 1 (amending title 10 of
the United States Code to prohibit requiring members of the U.S. military to
wear the insignia of the U.N.); see also H.R. Con. Res. 134, 104th Cong., 2d
Sess. (1996) (condemning the court martial of Michael New and calling on the
President to vindicate New and override his conviction).
FN24. See Scarborough, supra note 21, at A6.
FN25. See Catherine Toups, Deep in the Heart of Texas, U.N. Is a Four-Letter
Word, WASH. TIMES, Jan. 1, 1996, at A1.
FN26. See Harold M. Hyman, GI's Stand Could Endanger our Constitutional Society,
HOUSTON CHRON., NOV. 12, 1995, at Outlook4 (referencing recent incidents in
which some felt that over-aggressive government agencies killed members of
militant anti-government factions in Waco, Texas,
and Ruby Ridge).
FN27. See LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY AND FOREIGN AFFAIRS 23-25
(1990). See infra notes 28-34 and accompanying text.
FN28. HENKIN, supra note 27, at 23.
FN29. See T. HARRY WILLIAMS, THE HISTORY OF AMERICAN WARS 27-28 (1981)
(recounting that Washington's commission required him to follow the orders of
the Continental Congress during the Revolutionary War although the concept of
military strategy by such a committee soon proved
FN30. Since members of Congress were usually dispersed throughout the country, a
President who was always in session and capable of acting quickly and decisively
was deemed necessary. HENKIN, supra note 27, at 27.
FN31. See CLARENCE BERDAHL, WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES,
116 (1921) (noting that early constitutional proposals forbade personal command
of the military by the President). But see THE FEDERALIST NO. 48, at 309-10
(James Madison) (Clinton Rossiter ed., 1961) (commenting that the greatest
danger to liberty was not a tyrannical President, but a Congress that would take
over the power of the other two branches).
FN32. "The President shall be Commander in Chief of the Army and Navy of the
United States ...." U.S. CONST. art. II, s 2; see also HENKIN, supra note 27, at
FN33. The Federal Constitutional Convention of 1787 initially reserved the right
"to make war" to Congress, but changed the phrase to "declare war" to allow the
President to call troops to repel sudden attacks. PETER M. SHANE AND HAROLD H.
BRUFF, THE LAW OF PRESIDENTIAL POWER: CASES AND MATERIALS 618 (1988); see also
HENKIN, supra note 27, at 25.
FN34. SHANE & BRUFF, supra note 33, at 618; see also MICHAEL J. GLENNON,
CONSTITUTIONAL DEMOCRACY 287 (1990) (recounting George Mason's concerns at the
Federal Convention of 1787 that the entities controlling the purse and the sword
be separate to protect against despotism); see also HENKIN, supra note 27, at
FN35. See THE FEDERALIST NO. 69 (Alexander Hamilton) (downplaying the power of
the Commander-in-Chief by comparing the position
to a first general).
FN36. Expansion of presidential
authority began with George
Washington, who added his prestige
and military prowess to the
office. DOROTHY SCHAFFTER &
DOROTHY M. MATHEWS, THE POWERS OF
THE PRESIDENT AS COMMANDER IN
CHIEF OF THE ARMY AND NAVY OF THE
UNITED STATES 1-2 (1974).
President Washington unilaterally
declared U.S. neutrality in the
war between Britain and France,
summoned state militias before
personally leading them into
Pennsylvania in 1794 pursuant to
the Whiskey Rebellion, and sowed
the seed for a standing army when
he asked Congress to forestall
disbanding the forces that had
been raised to fight Indians due
to the possibility of foreign
dangers. Id. at 2. Even Thomas
Jefferson, not generally
considered a proponent of large
government and a powerful
presidency, recognized the need
for pre-eminence of the President
in foreign affairs by unilaterally
sending U.S. naval forces to
defend U.S. interests in Tripoli
and establishing precedent
allowing future Presidents to
engage the military in foreign
conflicts short of war without
FN37. LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION
FN40. Id. at 53.
FN41. See CONGRESSIONAL RESEARCH SERVICE, INSTANCES OF USE OF UNITED STATES
ARMED FORCES ABROAD 1798-1989 (Ellen C. Collier ed.,
FN42. Congressional foreign policy efforts had proven ineffective under the
Articles of Confederation. HENKIN, supra note 37,
at 37, 52-53.
FN43. HENKIN, supra note 27, at 28
(noting that the practice of
informally consulting with members
of Congress regarding the use of
military force disarmed Congress
and added legitimacy to unilateral
FN44. SHANE & BRUFF, supra note 33, at 630. After already committing U.S.
troops, President Truman simultaneously informed Congress and the press of his
commitment to the Korean conflict. Id. Nevertheless, President Eisenhower asked
Congress for the authority to use the U.S. military in Formosa--implying that
the right to send troops remained with Congress. Id. at 631. See also Louis
Fisher, The Korean War: On What Basis Did Truman Act?, 89 AM. J. INT'L L. 21
FN45. Southeast Asia Collective Defense Treaty, Sept. 8, 1954, 6 U.S.T. 81, 209
FN46. SHANE & BRUFF, supra note 33, at 633. The Gulf of Tonkin resolution
acknowledges virtually unlimited control of the U.S. military by the President
and manifests the erosion of proper constitutional
delegation of powers. Id.
FN47. Id. at 628-35 (discussing a trend which began early in the 20th century
placing the power to bring the country into war into the hands of the President
as exemplified by Presidents Franklin Roosevelt and
FN48. For example, while President Lincoln raised and commanded armies, he
failed to call for a session of Congress for three months after the attack on
Fort Sumter which started the Civil War. SCHAFFTER & MATHEWS, supra note 36, at
15-21 (recounting that Lincoln also suspended habeas corpus and freed all slaves
without congressional authorization). President Wilson armed American merchant
vessels prior to World War I; similarly, President Franklin Roosevelt entered
into the lend-lease agreement and authorized American vessels to shoot Axis
submarines on sight prior to the U.S. officially entering World War II. Id.; see
also Korematsu v. United States, 323 U.S. 214 (1944) (allowing the President to
order the detention of Japanese-Americans during
World War II).
FN49. SCHAFFTER & MATHEWS, supra note 36, at
FN50. War Powers Resolution s 2(a), 50 U.S.C. s 1541(a)
FN51. Id. See also Peace Powers Act of 1994, S. 1803, 103d Cong., 2d Sess.
(1994); H.R. 3744, 103d Cong., 2d Sess. (1994) [hereinafter Peace Powers Act of
1994] (attempting to establish a balance of foreign policy power between
Congress and the President).
FN52. War Powers Resolution ss 4-6, 50 U.S.C. ss 1542-44 (1994). President Nixon
vetoed the War Powers Resolution because he felt that it unconstitutionally
infringed upon presidential power. H.R. DOC. NO. 171, 93d Cong., 1st Sess. 1
(1973). In particular, Nixon considered the resolution's grant of authority to
Congress to require the President to end a military engagement within sixty days
a clear violation of the President's Commander-in- Chief power. Id. The
President also thought that the framers of the Constitution had purposefully
left the delegation of war powers between Congress and the President flexible
and that the rigid procedures given in the resolution would hinder
responsiveness to changing circumstances. Id. at 1-2. Nixon's veto was
subsequently overridden. 119 CONG. REC. 36,197-98
FN53. President Carter sent a report to Congress after the aborted hostage
rescue attempt in 1980. PRESIDENT JIMMY CARTER, RESCUE ATTEMPT FOR AMERICAN
HOSTAGES IN IRAN, reprinted in 1 PUBLIC PAPERS OF THE PRESIDENTS: JIMMY CARTER,
1980-81, at 777 (1981). But see SHANE & BRUFF, supra note 33, at 653 (recounting
testimony from President Carter's legal counsel that Carter was not required to
consult with Congress because his actions were within his Commander-in-Chief
authority). President Reagan also sent reports to Congress after invading
Grenada in 1983 and bombing Libya in 1986. Id. at
FN54. President Reagan ignored
congressional requests to submit
reports prior to authorizing
military actions in Lebanon to
protect oil tankers in the Persian
Gulf in 1986. See SHANE & BRUFF,
supra note 33, at 653-71.
President Reagan reported to
Congress only after deploying
troops to Lebanon, a move which
Congress validated through
subsequent legislation. Id. at
651-52. Congressional affirmation
of Reagan's unilateral commitment
of U.S. troops notwithstanding his
prior reporting responsibilities
under the War Powers Resolution,
manifested, in the minds of some,
Congress' "unwillingness or
inability to use the War Powers
Resolution effectively to assert
Congress' voice in" military
policy making, and raised "obvious
questions as to the utility" of
that resolution. Id. at 671; see
also Lowry v. Reagan, 676 F. Supp.
333 (D.D.C. 1987) (dismissing a
case brought by 110 Congressmen
claiming that President Reagan had
violated the War Powers Resolution
by failing to include Congress in
the Persian Gulf conflict because
the case would require the courts
to assess the international
situation which was beyond their
competence); Phillip R. Trimble,
The President's Foreign Affairs
Power, in Foreign Affairs and the
U.S. Constitution, 39 (Louis
et al. eds., 1990).
FN55. President Bush sought
congressional approval for
military actions pursuant to the
U.N. resolution condemning Iraq's
invasion of Kuwait only after
issuing ultimatums to the leader
of Iraq and deploying U.S. troops.
See Gilbert A. Lewthwaite, Clinton
Plans to Ask Congress to Back
Sending GIs to Bosnia; President
Responds to a Demand from Capital
Hill, BALTIMORE SUN, Oct. 21,
FN56. See Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, S.
1281, 103d. Cong., 1st Sess. 1, 161-70A (1993); Peace Powers Act of 1994, supra
note 51; Peace, Prosperity, and Democracy Act of 1994, S. 1856, 103d Cong., 2d
Sess. (1994). See also George K. Walker, United States National Security Law and
United Nations Peacekeeping or Peacemaking Operations, 29 WAKE FOREST L. REV.
435, 488-503 (1994) (evaluating recent legislation involving the congressional
oversight of U.N. peace operations).
FN57. Philip Bobbitt, War Powers: An Essay on John Hart Ely's War and
Responsibility: Constitutional Lessons of Vietnam and its Aftermath, 92 MICH. L.
REV. 1364, 1366-67 (1994) (noting that the War Powers resolution has not
inhibited presidential use of force). Paradoxically, Congressional resolve to
assert a larger role in war power matters has been at its lowest point at the
very time that the constitutional right of Congress to insist upon participation
is the strongest. Thomas M. Franck, Rethinking War Powers: By Law or By
"Thaumaturgic Invocation"?, in FOREIGN AFFAIRS AND THE U.S. CONSTITUTION, supra
note 54, at 56, 58.
FN58. Poorly written legislation
has permitted the President to
avoid significant congressional
restraint during brief military
encounters. See supra notes 53-54
authorization of force by the
President in Lebanon, Grenada, and
FN59. The political question doctrine and the refusal to hear moot controversies
raise substantial barriers to cases seeming to question
foreign affairs actions.
FN60. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318
(1936); Employers Group of Motor Freight Carriers v. NWLB, 143 F.2d 145 (D.C.
Cir.), cert. denied, 323 U.S. 735 (1944).
FN61. See HENKIN, supra note 27, at 70-71 (1990) (stating that courts blend
judicial humility with patriotism in often showing undue deference to the
President and Congress); Michael J. Glennon, Foreign Affairs and the Political
Question Doctrine, in FOREIGN AFFAIRS AND THE U.S. CONSTITUTION, supra note 54,
at 112-13 (noting that all doctrines that lead courts not to decide cases find a
home in the field of foreign affairs); Immigration & Naturalization Servs. v.
Chadha, 462 U.S. 919, 944 (1983) (considering the functional advantages of each
branch of government in determining which is best suited to administer a
FN62. Curtiss-Wright, 299 U.S. at 318. Although some of the powers are not
enumerated in the Constitution, they are, according to the Court, warranted "in
the law of nations." Id.
FN63. HENKIN, supra note 27, at 71 (coupling deference for constitutional
foreign affairs powers with the representational
aspect of Congress).
FN64. Id. at 78 (considering the
President no more representative
the people than the courts).
FN65. See supra note 31.
FN66. See supra note 48 discussing presidential orders enacted without
congressional consideration or approval.
FN67. Glennon, supra note 61, at 112.
FN68. Id. at 112-13. See also Baker v. Carr, 369 U.S. 186, 211 (1962)
(establishing the political question doctrine by noting that many foreign
relations issues defy judicial application, although courts should not decline
to rule on a case if, by addressing the issue, the court can deter governmental
FN69. See Little v. Barreme, 6 U.S. (2 Cranch) 170, 178 (1804). Congress had
authorized the seizure of ships bound for French Ports, but President Jefferson
ordered the Navy to seize vessels heading both in and out of French ports. Id.
at 177-78. The Court recognized the pre-eminence of Congressional authority to
make laws in engagements short of war and held against a captain who, by
following the direct order of his Commander-in-Chief, violated congressional
legislation. Id. at 178-79.
FN70. Compare The Prize Cases, 67
U.S. (2 Black) 635 (1862)
(upholding President Lincoln's
right to enact a naval blockade of
the Confederacy during the Civil
War) and Ex parte Vallandingham,
68 U.S. (1 Wall.) 243 (1863)
(refusal by the Supreme Court to
hear a case concerning the
military trial of disaffected
civilians when civil courts were
available pursuant to a
proclamation by President Lincoln
during the Civil War) with Ex
parte Milligan, 71 U.S. (4 Wall.)
2 (1866) (holding that the
President could not order the
trial of civilians before military
courts after Civil War hostilities
had ceased and civilian courts
FN71. Habeas Corpus Act of 1863, ch. 81, 12 Stat. 755, amended by Act of May 11,
1866, ch. 80, 14 Stat. 46 (allowing either party to remove a case against a
federal officer to federal court within six months of the rendition of
FN72. See e.g., In re Debs, 158 U.S. 564 (1895) (authorizing President Cleveland
to send troops to Chicago during a Pullman strike to resume train service and to
ensure that the mail went through).
FN73. See Employers Group of Motor
Freight Carriers v. NWLB, 143 F.2d
145 (D.C. Cir.) (upholding the
ability of President Franklin
Roosevelt, as Commander-in-Chief,
to establish advisory agencies
that, in this case, were funded
appropriations), cert. denied, 323
FN74. See SCHAFFTER & MATHEWS, supra note 36, at
9 (noting that Presidents Roosevelt and Truman
seized private facilities seventy-nine times
between 1941 and
FN75. 299 U.S. 304 (1936).
FN76. Id. at 319; see also Missouri v. Holland, 252 U.S. 416 (1920) (holding
that presidential treaty authority need not conform with Congressional
FN77. Curtiss-Wright, 299 U.S. at 320.
FN78. 323 U.S. 214 (1944).
FN79. See, e.g., Abner J. Mikva, A Tribute to Justice William J. Brennan, Jr.,
104 HARV. L. REV. 12 (1990) (recounting the regret of Justice Black over the
343 U.S. 579 (1952).
FN81. Id. at 582-83.
FN82. Id. at 587-89.
FN83. Id. at 587.
FN84. Id. at 635-38 (Jackson, J., concurring) (qualifying his framework by
noting that presidential powers do not fit within strict judicial definitions
but fluctuate as they disjoin and conjoin with the
powers of Congress).
Id. at 635-36.
FN86. Id. at 637.
FN89. Id. at 637-38.
FN90. Id. The President was not granted a monopoly on war powers by the
Constitution nor was he deemed Commander-in-Chief of the entire country in
addition to its Army and Navy. Id. at 643-44. Although Congress does not have
the power to deprive the President of command of the military, only Congress has
the power to raise and fund military forces. Id.
FN91. American troops fought under foreign commanders at the beginning of U.S.
participation in World War I before sufficient materials were gathered and men
drafted so the U.S. could field its own European army. David F. Trask,
Introduction to 1 UNITED STATES ARMY IN THE WORLD WAR, 1917-1919, at xii (1988)
(noting that President Wilson and General Pershing considered foreign command of
American troops a temporary measure). U.S. troops also served under British
General Montgomery as part of a coalition army soon after the U.S. entered World
War II. See ALLAN R. MILLETT & PETER MASLOWSKI, FOR THE COMMON DEFENSE: A
MILITARY HISTORY OF THE UNITED STATES OF AMERICA 406 (1984). But see RICHARD
LAMB, MONTGOMERY IN EUROPE 1943-45: SUCCESS OR FAILURE? 183 (1984) (recognizing
that foreign command was soon displaced when American General Eisenhower became
commander over the entire European theater). American troops also reported to
foreign commanders in NATO, and an Army medical unit was placed under foreign
command in the U.N.'s Desert Storm conflict with Iraq. See also Harry Levins,
Under Foreign Flag; GI's Have Served Under Non-U.S. Commanders in Many Past
Wars, ST. LOUIS POST-DISPATCH, Feb. 25, 1996, at 1B (recounting, to refute Spc.
Michael New's allegations that such actions are unconstitutional instances, the
multi-national force in the Sinai Peninsula to separate Egypt and Israel, where
U.S. soldiers served under foreign commanders).
FN92. William J. Clinton, Presidential Decision Directive 25 (1994)
(unpublished). PDD-25 has been classified as a confidential and, as such, has
not been released, however, excerpts have been released revealing its contents.
See Michael J. Glennon & Allison R. Hayward, Collective Security and the
Constitution: Can the Commander in Chief Power Be Delegated to the United
Nations?, 82 GEO. L.J. 1573, 1574 (1994) (discussing the context of the
unpublished PDD-25). PDD-25 also outlines the circumstances under which the
President would place troops under foreign command and makes recommendations as
to how the U.N. may improve the way it organizes and oversees military
operations. See Administration Policy, supra note
3, at 801.
FN93. See infra notes 95-154 and accompanying text.
FN94. See infra notes 155-78 and accompanying text.
FN95. See e.g., Peter W. Rodman, Declarations of Dependence, NAT'L REV., June
13, 1994, at 32.
FN96. "The current discussion about U.S. troops under foreign command... seems
to reflect prevailing conclusions about U.S. foreign-policy and the role in it
of peacekeeping and the UN, and perhaps a desire to withdraw from
responsibilities of the world situation." Peace Operations, 1995: Hearing Before
the Subcomm. on Airland Forces of the Comm. on Armed Services, United States
Senate, 104th Cong., 1st Sess. 36 (1995) (statement of Ambassador Jonathan Dean,
Adviser of International Security Issues, Union of Concerned Scientists). See
also Thomas Goetz, Beating Up the Blue Berets: Amid all the Mud Slinging of the
Presidential Campaign, the UN Provides an Easy Target, VILLAGE VOICE, Mar. 5,
1996, at 24 (concluding that such isolationist rhetoric
lacks a sound basis).
FN97. See, e.g., Rodman, supra
note 95 (assailing President
Clinton's foreign command policy
as embodied in PDD-25 for
subjugating American interests to
of the U.N.).
FN98. Id. (comparing the history of right-wing criticisms that the U.N.
threatens U.S. sovereignty to red scare concerns
over the spread of communism).
FN99. See Warren Strobel,
Somalia's Specter Haunts Haiti
Plan, WASH. TIMES, July 17, 1994,
at A1. Even U.S. participation in
the 1994 U.N. action to return a
democratically elected leader to
power in nearby Haiti failed to
support in the U.S. Id.
FN100. Rodman, supra note 95, at 33. U.S. troops were pulled out of the
unpopular 1993 U.N. humanitarian mission in Somalia after eighteen soldiers were
killed in an October firefight. Id.
FN101. Some fear that U.S. participation in the U.N. sponsored peacekeeping
efforts in Macedonia will require long-term commitment reminiscent of post-
World War II Germany and will make American troops available for politically
motivated attacks. Frank Gaffney, Jr., No-go Momentum on Bosnia, WASH. TIMES,
Nov. 14, 1995, at A14 (claiming that President Clinton was not following the
criteria for troop deployment that he set forth in
FN102. Denning, supra note 19, at 19.
FN103. See D.L. Cuddy, U.N. Compromises Soldier's Loyalty, ROCKY MOUNTAIN NEWS,
Jan. 1, 1996, at A44 (supporting New's stand by claiming that the Constitution
only affords the President the authority to command the U.S. military when it is
called into the actual service of the U.S.).
FN104. Military leaders, however, would presumably prefer that policy concerns
should be addressed on the floor of Congress and not advanced by field soldiers
whose refusal to follow orders threatens the orderly function of military
FN105. See Marguerite Michaels, Peacemaking War, TIME, July 26, 1993, at 48
(describing the case of an Italian commander whose conduct was reprimanded by
the U.N. in Somalia as indicative of potential problems with foreign command of
FN106. One piece of legislation, however, implicitly supported the foreign
command of troops by requiring that Congressional approval be obtained before
placing U.S. soldiers under a foreign commander. See Peace Powers Act of 1994,
supra note 51 (replacing the War Powers Resolution with a bill which replaces
impermissible limits on the President's use of U.S. troops abroad with simple
reporting and consultation stipulations).
FN107. See, e.g., 139 CONG. REC. S13565 (daily ed. Oct. 18, 1993) (allowing U.S.
troops to be placed under foreign command only after the President had sought
and received congressional authorization, President Clinton considered this to
be a violation of his power as Commander-in-Chief). See generally George K.
Walker, United States National Security Law and United Nations Peacekeeping or
Peacemaking Operations, 29 WAKE FOREST L. REV. 435 (1994) (outlining proposed
legislation addressing the participation of U.S. military forces in U.N.
operations and placing those forces under U.N. command).
FN108. See CON. REC. H 8596 (daily ed. Sept. 6, 1995) ("[E]xpressing the sense
of Congress that the national security policy of the United States should be
based upon a national strategy for peace through strength."). See also 141 CONG.
REC. H1862 (daily ed. Feb. 16, 1995) (referencing the Engel Amendment to the
national security bill restricting the foreign command of U.S. troops); 140
CONG. REC. S416-18 (daily ed. Jan. 31, 1994) (statement of Sen. Dole indicating
he was removing a provision from the Peace Powers Act of 1994 prohibiting the
foreign command of U.S. troops to accommodate the presidential administration
and to avoid sidetracking the entire bill); 140 CONG. REC. E 002-03 (daily ed.
Sept. 29, 1994) (proposing an Amendment to the 1995 defense appropriations
legislation to prohibit the foreign command of U.S. troops); see also Tayor,
supra note 4, at A3 (quoting Senate leaders from both parties criticizing the
foreign command component of PDD-25's predecessor,
FN109. See Eric Black, Policing the Peace; Congress, Presidents have had Uneasy
Struggle Over Power to Make War, STAR TRIB., Nov. 27, 1995, at A1 (noting that
Congress is unlikely to rally the necessary support to forbid the Bosnian
mission in time to halt that action).
FN110. See generally Glennon & Hayward, supra,
FN111. See U.S. CONST. art. II, s 2.
FN112. "[T]he general rule of law is  that a delegated authority cannot be
delegated." Shankland v. Washington, 30 U.S. (5 Pet.) 390, 395 (1831); see also
Bill Gertz, Order on U.N. Uniform Spurned; American Awaits Army Discipline,
WASH. TIMES, Oct. 11, 1995, at A4 (criticizing the delegation of military
command authority to foreigners).
FN113. Lee A. Casey & David B. Rivkin, Jr., Congress, the President and the
U.N., WASH. TIMES, Jan. 30, 1995, at A21.
FN114. UNPROFOR is the UN Protection Force.
FN115. See Roscoe G. Bartlett, The Case of Michael New, WASH. TIMES, Mar. 18,
1996, at A19 (recounting congressional questions concerning the legality of the
FN116. Id. See also Scarborough, supra note 20, at A2 (recounting U.S.
Representative to the U.N. Madeline Albright's testimony before a Senate panel
stating that the Macedonian operation does not require Congressional approval
and that U.S. troops wear U.N. insignia in Macedonia "to prevent potential
FN117. Bartlett, supra note 115, at A19.
FN118. See Rowan Scarborough, Senator May Halt Funds for Macedonia Mission,
WASH. TIMES, Apr. 9, 1996, at A6 (recounting a letter from Sen. Mitch McConnell
to the White House threatening to withhold funds for the operation in Macedonia
because the President failed to seek Congressional approval prior to deploying
FN120. Glennon & Hayward, supra note 92, at 1594.
FN123. Id. at 1595. Although the U.S. would likely unilaterally withdraw troops
from an enforcement action without the consent of the U.N., the withdrawal might
violate U.S. treaty obligations. Id. Article VI of the Constitution states that
treaties, including the treaty the U.S. has with the U.N., "shall be the supreme
law of the land," but, when a treaty obligation runs contrary to our
Constitution, that obligation is nullified. See INTERNATIONAL LAW: CASES AND
MATERIALS 165, 199 (Louis Henkin et al. eds., 3d ed. 1993) (noting that
"treaties are subject to the constitutional limitations that apply to all
exercises of federal power").
FN124. Clinton, supra note 92. PDD-25 has been classified as a confidential and,
as such, has not been released, however, excerpts have been released revealing
FN125. See Administration Policy,
supra note 3, at 801 (outlining
contents of PDD-25).
FN126. See 141 CONG. REC. H1780 (daily ed. Sept.
FN127. See infra notes 143-54 and accompanying text.
FN128. See Administration Policy, supra note 3.
FN129. See Tom Squitieri, 'New World Order' Facing Disorder, USA TODAY, Oct. 11,
1993, at 4A (discussing recent U.N. sponsored military actions in Lebanon,
Haiti, Somalia, and the former Yugoslavia and noting that the concept of an
active U.N. in the new world order was introduced
by President Bush).
FN130. See World Cop?, THE ECONOMIST, Dec. 19, 1992, at 13 (noting that although
the U.S. is unwilling to play world's policeman, the U.N. will need significant
retooling to handle the task).
FN131. Administration Policy, supra note 3, at 801. PDD-25 recommends ways to
improve the U.N.'s management of its military operations, sets a standard of
review to determine whether the U.S. should become involved in a peace
operation, addresses the role of regional organization like NATO in peace
operations, declares a need to clearly define the command and control structure
for U.S. troops in U.N. actions, and recommends how the President and Congress
can better cooperate during peace operations. Id.
FN133. Id. at 801-02.
FN135. Id. at 800 (listing international territorial disputes, armed ethnic
conflicts, civil wars as threats to current world
FN136. Id. at 801.
FN137. Id. at 801.
FN138. U.N. operations have traditionally been organized on an ad-hoc basis. See
James W. Houck, The Command and Control of United Nations Forces in the Era of
"Peace Enforcement," 4 DUKE J. COMP. & INT'L L. 1, 11 (1993). Nations offer
troops to support a particular operation, and a single nation is normally
designated to lead forces in a particular engagement under the auspices of the
U.N. Id. For example, the U.S. led the U.N. forces in Korea. Id. at 12. In the
1991 U.N. action against Iraq, participating nations were split into two
distinct factions; one faction was led by the U.S., and the second was led by
Saudi Arabia. Id. at 17. The two different factions worked with the U.N. and
each other to coordinate military operations. Id.
FN139. See Rodman, supra note 95, at 32.
FN140. Administration Policy, supra note 3, at 801. Further, other nations may
interpret U.S. led actions as a manifestation of U.S. imperialism rather than
U.N. peacekeeping. Id.
FN141. Many U.N. member countries, including several of our NATO allies, readily
place their troops under foreign commanders as part of U.N. peace operations.
See Steven Greenhouse, Conflict on G.O.P. Agenda Intense in Capital Meetings,
N.Y. TIMES, Jan. 29, 1995, s 1, at 10 (fearing that if the U.S. enacts a policy
which forbids U.S. troops from serving under foreign command, our NATO allies
may do the same).
FN142. Id. PDD-25 also states that the U.S. does not support the idea of a
standing U.N. army or earmarking particular U.S. military units to participate
in U.N. operations. Id. But see Rodman, supra note 95, at 32 (quoting President
Clinton as seeing a need to institutionalize the U.N.'s success in Desert Storm
and the creation of a "U.N. Rapid Deployment
FN143. Administration Policy, supra note 3, at 807.
FN145. See U.N. CHARTER art. 43; see also infra note 149 and accompanying text
(noting that a treaty agreement which robs the President of his constitutional
right to command U.S. military forces would be unenforceable as violative of the
FN146. See Administration Policy,
note 3, at 808.
FN147. Operational control simply allows foreign commanders to lead U.S. troops
in accomplishing military objectives and methods that have been pre-approved by
the U.S. Id.
FN149. See U.N. CHARTER art. 43. An agreement is also reached between other
nations and the U.N. any time military forces are committed to a U.N. action by
a given country. Administration Policy, supra note
3, at 808.
FN150. Administration Policy, supra note 3, at 808.
FN154. Denning, supra, note 19, at 19.
FN155. See United States ex rel. New v. Perry, 919 F. Supp. 491, 499 (D.D.C.
1996) (holding that New's case was nonjusticiable until the military appeal of
his court martial had run its course).
FN156. But see Denning, supra note
19, at 19 (noting that "federal
courts are loath to referee
disputes between the executive and
legislative branches of government
over the conduct of foreign
FN157. See generally supra note 36. Although several officers from foreign
countries trained Revolutionary War troops, none did so under the commission of
a foreign country.
FN158. Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579 (1952);
see Dames & Moore v. Regan, 453
U.S. 654, 669 (1981) (Rehnquist,
J.) (noting that, although few
presidential actions are apt to
fall cleanly into one of the three
compartments of the test,
particularly where an
unanticipated international crisis
is involved, Youngstown provides a
useful analytical framework to use
evaluating executive actions).
FN159. Youngstown, 343 U.S. at 635-55 (Jackson, J., concurring); see also supra
notes 80-90 and accompanying text.
Id. at 635-37.
FN161. Id. at 637.
FN165. But see Harold Hongju Koh, Why the President (Almost) Always Wins in
Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255, 1256
(1988) (arguing that the "growing trend of executive initiative, abetted by
congressional acquiescence and judicial tolerance[,]" has allowed the President
to obtain too much power over foreign affairs).
FN166. See supra note 48. The court may also consider in their analysis the
willingness of other countries to place their military forces under foreign
command pursuant to multi-national military efforts.
FN167. If the court reviews a case similar to New's, the court will also
consider concerns that the disobedience of a soldier "undermine[s] the
presumption of lawfulness that attaches to orders ultimately emanating from the
Commander-in-Chief." United States ex rel. New v. Perry, 919 F. Supp. 491, 497
(D.D.C. 1996); see also 141 CONG. REC. S16425 (daily ed. Oct. 31, 1995)
(statement of Senator Craig) (noting that, although he sympathized with Michael
New and supported legislation outlawing foreign command, the Senator felt that
it was not New's place to question a direct order); Lawful Order/Soldiers are
not at Liberty to Pick and Choose, HOUSTON CHRON., Jan. 26, 1996, at A30 (noting
that although they felt "U.S. forces should not be placed under U.N. command[,]
.. individual soldiers, for the sake of the defense of the nation they serve,
cannot take it on themselves to make such decisions").
FN168. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952)
(Jackson, J., concurring).
FN169. See HENKIN, supra note 27, at 43.
FN171. See MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 54-68 (1990) (arguing
that courts reference custom in determining the proper constitutional delegation
FN172. See supra notes 126, 138-42
FN173. See Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 637 (1952).
FN174. See Denning, supra note 19, at 19 (arguing that Republican concerns over
Michael New are hypocritical because the party failed to voice similar concerns
when Republican Presidents held office); Crossfire, (CNN television broadcast,
Feb. 15, 1995) (transcript on file with the University of Dayton Law Review)
(discussing the partisan political motives behind the criticism of the
President's foreign command policy). Legislative attempts to secure
congressional approval prior to the placement of troops under foreign command
further suggests the influence of partisan politics and intimates that the
foreign command of U.S. forces is constitutionally acceptable. See Peace
Operations, supra, note 96 (arguing that the provisions of the Peace Powers Act
of 1995, which was co-sponsored by the Senate Majority Leader, Republican Bob
Dole, requiring congressional approval of the foreign command of U.S. troops
certifies the constitutionality of such action).
FN175. See Shankland v. Washington, 30 U.S. (5 Pet.) 390, 395 (1831) (holding
that a delegated constitutional authority cannot,
in turn, be delegated).
FN176. Youngstown, 343 U.S. at 645. The President may not escape the limits of a
constitutional republic, however, by utilizing his military authority. Id. at
645-46. Though the vague constitutional clauses that afford power to the
President provide a plausible basis for trying to assume authority beyond the
power actually granted, the court should resist such nebulous justification for
unrestricted presidential power. Id. at 647.
FN177. See generally GLENNON, supra note 171.
FN178. The court may also look for an opportunity to deem the issue
nonjusticiable or quickly validate presidential discretion over this matter
given the court's hesitancy to alter the equilibrium of power between the
President and Congress. See Goldwater v. Carter, 444 U.S. 996, 997 (1979)
(Powell, J., concurring) (reiterating judicial hesitancy to decide disputes
between the President and Congress).
END OF DOCUMENT