The Roles of the President and the Congress in the Kosovo War

1 The Roles of the President and the Congress in the Kosovo War Executive Summary President Bill Clinton sparked off fierce debates following his move to authorize the US military to join forces with the North Atlantic Treaty Organization (NATO) forces and bombard the Federal Republic of Yugoslavia. This decision had been arrived at following Yugoslav President Slobodan Milosevic’s resolve to use oppressive force to silence Kosovo’s Albanian majority and impose the rule of Serbs over them. Initial attempts to negotiate a truce had failed to bear fruit following Milosevic’s refusal to participate in peace negotiations. President Bill Clinton led other NATO allies in bombarding Yugoslavia as a way of forcing Milosevic to return to the negotiation table.

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President Clinton cited the War Power Resolutions that is enshrined in the US Constitution to authorize the air strikes. However, he did not follow protocol. Procedurally, a president is supposed to seek permission from the Congress before evoking the War Power Resolutions. Despite the president’s failure to observe protocol, the Congress did not seem to prohibit the decision. President Clinton informed the Congress of the decision two days after the American military had already began the bombardment of Yugoslavia. He informed the Congress that the army was going to take part in the Kosovo mission up to its end. This could exceed the 60-day maximum period that any military action under the War Power Resolutions is supposed to last.

A section of the Congress expressed their opposition to the move by the president. A series of voting was carried out where the government survived a number of resolutions that aimed at reversing the decision taken by the president. The Congress voted to limit the military’s participation to only aerial surveillance and bombardment. The executive arm succeeded in convincing the Congress against opposing the planned military action through informal backdoor influences. The high ranking presidential advisers, including Secretary of State Madeleine Albright and the National Security Adviser Samuel Berger, had all served either as congressmen or congress staff. This gave the executive arm more power to lobby the Congress.

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The Roles of the President and the Congress in the Kosovo War Introduction The North Atlantic Treaty Organization, abbreviated as NATO, went to war on March 24th, 1999. This was historic as NATO had never been involved in any war for the last fifty years since its formation. NATO had attempted for almost a decade to confront Slobodan Milosevic, the Serbian leader, to stop perpetuating acts of violence that had since claimed over one hundred thousand lives, as well as displaced millions as a result of the Bosnian and Croatian wars. The violence had seen the former Yugoslavia disintegrate as Milosevic’s security forces fiercely battled it out with the Kosovo Liberation Army (KLA) which was agitating for the region’s freedom.

The negotiations that had intended to seek Milosevic’s participation so as to halt the violence were headed by the USA and its NATO allies. Similar efforts by the organization had seen the Bosnian Croatian war halted in the early 1990s, but the Serbian leader remained adamant in Kosovo. The NATO bombings particularly aimed at forcing the Serbian leader back to the negotiation table after it was evident his atrocities were causing a humanitarian crisis in Kosovo.

The situation back in the USA was complex for President Bill Clinton. He had just survived an impeachment ordeal and the Congress he was facing was particularly hostile. The Congress had grown weary of the US-led military action intended to serve humanitarian objectives, including the Balkan region. Bill Clinton had given permission in separate instances to allow the US military to use force in different circumstances. However, none of those had

4 entailed American soldiers to battle in countries where they would risk being killed. The Somalia operation in 1993, which ended tragically for the US forces, was the last encounter of that nature that the military, under Clinton’s watch, had involved itself in. Thus, it was against this backdrop that President Bill Clinton failed to prepare America for the likelihood that the initial bombings

by NATO could actually result in an all-out war (Daalder & O'Hanlon 2000, 2). Even the president himself and his advisers had not seen it coming, and neither did they anticipate for the new turn of events. This paper seeks to analyze and discuss in detail the role that was played by the president and the US Congress in as far as the Kosovo war was concerned.

The Clinton’s Administration Position on the Relevance of the "War Power Resolution" During his first term in office, President Bill Clinton was largely naive of international affairs, believing that his foreign policies were adequate to stamp the American authority and power with little resistance. However, by 1999, when the Kosovo war was imminent, the president had had enough experience. Having encountered the case of Bosnia, for instance, the president had realized that diplomacy alone, without employing military force, would fail in the Balkans. In the initial phase of dealing with the Balkan crisis, Clinton had been enthusiastic of the idea that deep unyielding ethnic antagonism, which was behind the crisis, could hardly be handled by the West.

Clinton had gradually come to the conclusion that fatalism and passivity, in as far as his foreign policies were concerned, were only self-defeating. In the cases of Bosnia and Rwanda, what the United States managed to do with its entire hold of power was to turn a blind eye to the atrocities that were being perpetrated. Bearing in mind the indispensability of the USA, there was the added burden and growing pressure on the country and its administration to take greater and

5 more varied responsibility in addressing international stability issues. By the second term of Clinton’s presidency, the traditionally hesitant president for the use of military power and force had thoroughly developed the comfortable feeling of using it. The fact that he had ordered the military into action on several occasions, as well as the success recorded in Bosnia by the US troops, had set a precedent.

On the plans to use NATO in Kosovo, Clinton’s mind and position was very clear: he was not interested in dealing with the European allies of France and Britain. This realization came to light after revisiting the treacherous games that the two governments had engaged in with Milosevic when Clinton’s predecessor, George H.W. Bush, had given the allies the full freedom to concentrate on their interests.

In essence, the Clinton administration pegged its decision to evoke the War Power Resolution based on the fact that there was a need to halt the Serbian government and its forces from carrying on with its attacks against the ethnic Albanians. According to Madeleine Albright who was then the Secretary of State, the US government came to its decision to have military action in Yugoslavia based on the UN Charter’s Article 51. In particular, the Article allows for countries to participate in military action either for purposes of either collective or individual self-defense (United Nations 1968, par.12).

Although the Congress offered several protests against authoritarian claims, the national security advisor to the president, also a State Department official, argued in support of the administration’s position. According to the arguments advanced in support of the government’s position, the commander in chief enjoyed exclusive powers to authorize military action even without congressional approval (Hendrickson 2002, 122). The Senate was particularly supportive

6 of the president’s idea, more than the House, on the use of military force against Milosevic.

President Clinton reciprocated the positive gesture made by a section of the Senate. He met the members prior to the military bombing of Serbia. The president particularly intended to use the meetings to show concern for the Congress, even though he had not involved it in deciding to fight against Milosevic. Clinton equally informed the Congress of his intention to apply force.

The above events resulted in the Senate offering its full support for the resolution to have the president authorize missile strikes and military operations against the Federal Republic of Yugoslavia.

With a vote of 58 to 41, S.Con.Res.21 was passed by the Congress on March 23rd 1999.

This expressed a non-binding resolution that authorized the president to use military force through the use of missile strikes against Milosevic and his allies, Serbia and Montenegro. The House, subsequently, voted on several measures concerning the US’ involvement in the operations by NATO in Kosovo.

President Bill Clinton, days after the bombardment had begun, addressed the Congress through a letter. The president’s position which was also supported by his entire administration was clearly enumerated to the Congress. The aerial bombardment of Serbia was pursuant to the president’s constitutional authority to carry out the US’ foreign relations. The president insisted that he acted in his capacity as the Commander in Chief, as well as the Chief Executive. The address to the Congress also cited Yugoslavia’s putative infringement of the United Nation’s Security Council resolutions as well as the UN Charter (Hendrickson 2002, 129). In other words, President Bill Clinton’s reason for evoking the War Power Resolution in Kosovo was to force

7 President Milosevic’s government to abide by the UN Charter and the UN Security Council’s resolutions.

Prior to the Kosovo war, there had been widespread publicity as well as debates and numerous pieces of information concerning the war in Kosovo. Many of the people in the Congress had noted how Madeleine Albright, the Secretary of State, had threatened to use force on several occasions even before the government and NATO decided to act (Bolton 1999, 14).

Apart from the threats that were being issued by the US and NATO, the Clinton administration officials had testified before the Congress of their intended action, about the measures they had already utilized, and those that they were attempting to cause the United Nations Security Council to approve. Part of the measures involved Security Council Resolution 1199, which declared Yugoslavia’s intervention in Kosovo as threatening the region’s peace and security. All the above details, together with an addition of many others, were brought forth to the Congress.

Even the pronouncements by NATO and statements issued by President Bill Clinton were put before the Congress.

On March 26th, 1999, two days after the president had authorized the participation of the US military in Kosovo, the Congress received the presidential report concerning Clinton’s decision to evoke the War Power Resolution. This had, subsequently, led to the US forces joining the ‘Operation Allied Force.’ The President’s action was in conjunction with the decision adopted by NATO in response to Yugoslav President Slobodan Milosevic’s effort to drive Albanians out of Kosovo. The decision by Clinton took into consideration the views, together with the support, that had been expressed by the Congress. In his particular address to the Congress, the president categorically appreciated the Congress’ support for taking action. The

8 Congress, on its part, however, did not do anything to challenge or question the implicit characterization as had been claimed by the president (Blumenthal 2003, 604).

On April 7th, a further extensive report by the President was delivered to the Congress.

The president, in his additional report, vowed to carry on with the war until its end. Additionally, the president informed the Congress that the bombardment of Yugoslavia would continue perhaps beyond 60 days, or until the allied forces achieved victory over Milosevic. It is worth pointing out that the Congress puts a maximum of 60 days for any military action authorized under the WPR constitutional decree that requires no legislative approval.

On April 28th, the House took part in four votes concerning the Kosovo war. However, an affirmation of the war never saw the light of the day. Instead, the House stood evenly divided on whether or not to support the Senate Resolution. The House acted by passing a bill that was against the use of ground troops. On May 20th, one month after the military action in Yugoslavia had begun but before the 60 days maximum period for WPR had elapsed, a supplemental misappropriation bill by both the houses of the Congress and the Senate was passed, allowing payment for the ‘Operation Allied Force.’ The Congress demanded a report prepared by the Department of Defense detailing the operation right from its onset in March 24th. The Congress, in this legislation, authorized and gave directions for the payment of funds for the support of the war.

The House of Representatives, on April 28th, 1999, passed H.R. 1569 by a 249-180 vote.

The bill prohibited the use of funds earmarked for use by the Defense Department from funding the deployment of ground troops within the Federal Republic of Yugoslavia (Grimmett 2010, 34). The law would only permit the president to use ground forces in the war. The House, on the

9 same day, by a vote of 139-290, defeated H.Con.Res. 82. The resolution had sought to instruct the president to withdraw the military from their positions in connection with the operations that were ongoing against the Federal Republic of Yugoslavia. This was in pursuit of the War Powers Resolution, according to section 5(c). The House defeated by 2-427 votes the H.J.Res. 44, on April 28th, 1999. The joint resolution sought to declare the United States and the Federal Republic of Yugoslavia’s government at war. Yet another vote on the same day in the House was defeated with a tie vote of 213-213. This was the S.Con.Res. 21 resolution passed by the Senate on March 23rd, 1999, giving support to the aerial bombardment and the use of missile strikes against Milosevic’s Yugoslavia.

Representative Tom Campbell, in conjunction with up to 17 other House members, on April 30th, 1999, sought a ruling that required the president to get the Congress’ authorization as to whether the US would continue with the aerial bombardment of Yugoslavia and any other military activity in the country. The suit by Tom Campbell was filed in the District of Columbia’s Federal District Court (McCormick 2009, 323).

On May 4th, 1999, the Senate tabled S.J.Res. 20 after succeeding in the ensuing voting exercise by a 78-22 margin. This joint resolution that was sponsored by Senator John McCain sought to authorize the use of necessary force, including any other means, through the president’s command and powers. This was to take place in concert with the US’ other allies that, together, formed the North Atlantic Treaty Organization (NATO) in pursuing their ultimate objectives in Yugoslavia. Meanwhile, by a vote of 117-301 on May 6th, 1999, the House had defeated an amendment that was sought by Representative Istook to prohibit the use of US ground forces against Yugoslavia, unless it was during war.

10 Billions of money was approved by the Congress on May 20th, 1999, after the clearance of the president’s signature. The H.R.1141 emergency supplemental appropriations bill for the financial year 1999 provided funding worth billions of dollars to sustain the US-Kosovo operation.

On May 25th 1999, after the expiry of the 60-day maximum period stipulated in the Constitution concerning the War Powers Resolution, Representative Campbell, together with others who were earlier conjoined in the suit seeking to nullify the president’s decision on Kosovo, returned to court (Morehead 1986, 164). The petitioners argued that the War Powers Resolution’s language was clearly being adulterated by the extended operations of the US forces, unless the president requested the Congress an extension of 30 days. President Bill Clinton declined to seek for the 30-day extension and, instead, pointed at the constitutional defects that were contained in the War Powers Resolution. Paul L. Friedman, the Federal District Judge, however, dismissed Representative Campbell’s suit (Johnson & Columbus 2003, 198). The judge ruled that there was a lack of legal standing on the part of Campbell and the conjoined litigants in bringing up the suit. Even after successfully appealing the ruling by the District Court, Campbell and the group of other complainants still had their suit nullified by the appeals court on the same grounds that the plaintiffs lacked any legal standing to file a suit against the president. Further attempts on May 18th, 2000, by Representative Campbell, in conjunction with 30 others to seek the indulgence of the United States Supreme Court over the same matter, failed to bear fruit after the highest court on the land refused to arbitrate on the matter (Born & Hanggi 2004, 138).

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Congressional-Executive Relations: Why Clinton and Congress acted in this ways The kind of congressional-executive relations that were witnessed during the Kosovo war could be well understood by excessively focusing on the institutional conflict that existed regarding foreign policy. The executive-congress institutional rivalry, which characterizes a lot of the formal and public discussions between the branches, disproves the extraordinary casual collaboration and cooperation occurring at all government levels (Nye 2003, 215). Huge amounts of information flow through these backdoor and informal channels on a daily basis. A majority of these kinds of relationships can herald as well as outlast a particular administration. Without them, the foreign policy adopted by the USA could end up descending into a total gridlock over issues considered to be habitual. The formal legislative process is by no means cumbersome, thus, making it hardly surprising, considering the fact that the informal problem solving methods become so attractive.

Often, these channels permit both the executive branch and the Congress to obtain the necessary information required to diffuse a situation prior to its development into a crisis.

Additionally, in a practical environment in which conflict lies in between issue leaders as opposed to institutions, it is essential to collaborate with a congressional supporter for a perfect executive-legislative strategy. While this kind of communication and cooperation that is sustained through the backdoor is significant in resolving many problems, it can potentially cause conflict and controversy through the transfer into the congressional arena of the executive branch’s disagreements. This ‘spillover effect’ is what characteristically exemplifies the executive-legislative relations complexity as far as the American foreign policy is concerned.

12 This includes the degree to which the concerns of the Congress, either with or opposed to the policy adopted by the administration, resemble or derive from disagreements.

The substantive disagreements that pitted President Bill Clinton on the one side and the Congress on the other over the foreign policy in Kosovo only mirrored the arguments as well as the interagency process’ battles. Spillover, often, is a natural occurrence as a result of genuine policy disagreements. Policy decisions, like the one on the authorization of the aerial bombardment of Yugoslavia by the US military in conjunction with NATO, always face difficult trade-offs and varying viewpoints. President Clinton noted how weighty the issue of involving the military in Kosovo was (Mertus 2004, 138). The president knew the interagency process between the executive arm of government and legislature could take months of deliberations.

The weighing of options, building consensus, airing viewpoints, as well as higher level reviews, and the building of consensus could have delayed any action to act on Milosevic and his brutality, while allowing Albanians in Kosovo to continue suffering. It is worth pointing out that the Congress lacks any tangible unanimity in as far as the deliberation on foreign policy is concerned (Dunn 2009, 33). It was only natural that substantive concerns, as well as trade-offs, would have surfaced within the Congress had Clinton decided to follow protocol and inform it of his intended plans to apply force in Yugoslavia.

Inevitably, the disagreement of bureaucracy elements with the decisions taken by President Clinton did not wholesomely miss the attention of the Congress. While deciding to authorize the use of the military in Kosovo, President Clinton’s administration had already made good use of the existing informal channels to inform the Congress of the impending action. The comparatively soft stance that the President’s action received from the Congress could have

13 resulted from the fact that informal backdoor relationships actually existed between the executive arm and the Congress.

In other words, the understanding of the fact that the bureaucracy elements can always exploit opportunities and have grievances handled in a different way forced President Clinton to find a consensus as the best way of resolving the impasse. The numerous voices of dissent, such as that of Representative Tom Campbell, however, cannot be completely muzzled by such a process. However, the opposition, despite their numerous efforts to seek sympathy from the public and any other group that would care to listen, gradually became isolated when it appeared that a majority of the interagency players were actually in agreement.

At the time President Clinton was deciding to authorize the use of military force in Kosovo, he considered the previous experiences he had with the Congress when American troops were then involved in Bosnia and Somalia on similar missions. Several forces of influence around the president were pushing for his action without considering the Congress. For instance, Clinton’s legislative advisers were rebuffing congressional requests to have consultations about the new policy on peacekeeping, owing to the fact that issues related to the funding remained unresolved. It was inevitable that the funding problem would ultimately sabotage the relations between the administration and the Congress concerning the peace keeping policy. The funding proposals and the newly suggested policies were vehemently rejected by the oversight committees.

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Why Congress neither Authorized nor Prohibited the Use of Force The manner by which the Congress controls policy is critical. It uses a variety of both formal and informal means to exert its influence on foreign policy. These techniques help to disperse power as well as create issue clusters or linkages that are based on issues (Daalder & O'Hanlon 2000, 174). A majority of the casual or informal techniques used by the members and their staff to sway policy include leveraging the behavior of the executive branch rather than directly legislating policy.

The leveraging of the influence of the Congress and the reaction of the Executive branch can be done in an informal and private manner, as the Congress members and their respective staffs use the advantage of their relationships and personal contacts to raise issues and concerns.

Publicly, the leveraging occurs through the use of the ‘bully pulpit’ and the media. The members use the ample opportunity presented by the floor of the Senate or House, committee hearings, talk shows on Sunday mornings, or in the opinion and editorial pages of newspapers (Callahan 1999, 34).

In the case of the Kosovo war, the Congress particularly failed to prohibit it following the excessive leveraging that was carried out by the Executive branch. President Clinton was under immense pressure to forecast and accommodate the concerns of the Congress so as to prevent collateral damage or the escalation of conflict. Despite the institutional rivalries between the Congress and the Executive, the policy makers and the legislators also have common interests in recognizing differences and using informal means to resolve them. Highly ranked members of the Clinton administration went into great lengths in their efforts to accommodate their

15 counterparts in the Congress by using such means as phone calls, briefings, and delays. By the time President Clinton decided to officially inform the Congress of his intentions and reasons to apply military force on Yugoslavia, two days after the aerial strikes and bombardment had begun, a section of the Congress did not appear shocked. This is evidence enough that the president had sought their support, albeit through informal means (Daalder & O'Hanlon 2000, 172).

Thus, the failure by the Congress to reverse the decision that had been taken by President Clinton was a result of the Executives’ boardroom efforts to quietly work out the deal so as to avoid the issue getting out of hand and spilling into the public domain. One other factor that helped President Clinton to easily sway the influence of the Congress was the fact that his senior advisers on foreign policy issues, namely: William Cohen, who was the Secretary of Defense; Samuel Berger, the then National Security Adviser; Madeleine Albright, Secretary of State; and, George Tenet, who served as the Director of Central Intelligence. They were either former Congress members or had, at some point in time, served in various capacities as congressional staff (Hersman 2000, 41). Their combined wealth of experience helped the administration to create an incentive towards minimizing conflict. They targeted the individual congressmen, knowing very well that it was going to be easy to convince them, as opposed to dealing with them as a group.

The impact of the Clinton administration’s informal and protocol actions can prove difficult to quantify, but it is an actual fact as far as behavior modification, the escalation of the process of decision making, and additional consultations are concerned. Clinton’s administration succeeded in forecasting the concerns of the Congress and inoculating the proposals against

16 potential difficulties. This is referred to as ‘anticipated reactions.’ Thus, the policy and proposal modifications by the executive arm, in relation to the expected congressional opposition, facilitated a more approving response from the Congress. To some extent, the president even went overboard by distorting facts so as to ensure that he obtained congressional support. When he was challenged to seek an additional 30-day extension period for the military action in Yugoslavia or pull out the forces altogether immediately the maximum 60-day period had elapsed, as stipulated in the War Power Resolutions, President Clinton claimed that the constitutional requirement was actually erroneous (Daalder & O'Hanlon 2000, 173).

This approach gave the administration the leeway to keep a low profile on the Kosovo plans and, thus, avoid jurisdictional squabbles between the foreign affairs committee and the defense committee. The executive arm used this approach as a way of disputing any arguments to the effect that the utilization of the defense’s resources was being appropriated for nondefensive purposes.

From the analysis above, it is clear that even though the Clinton administration had succeeded in contacting several members of the Congress through informal ways to seek their support, not all members were contacted. A majority of the Republican Party representatives were either objective to the plans or supported it, but not in full swing. The executive, thus, needed to only convince quite a sizeable chunk of the Congress of the impending action and plans, hence, limiting the chances of the entire Congress to rise up against the President’s decisions. The backdoor informal lobbying by the executive, therefore, weakened any chances of the Congress prohibiting the planned military action in Kosovo and gave the executive branch immense backing to go ahead with the authorization plans (White 2012, 225).

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Conclusion President Bill Clinton’s decision to authorize the US forces to participate in military action in the Federal Republic of the Yugoslavia in March 1999 sparked a series of debate in the country over whether he had adhered to the Constitution in making the decision. The Congress was clearly divided on the matter, with the Senate authorizing the president to go ahead with plans to bombard Yugoslavia. The president informed the Congress of the military action, two days after the exercise had already kicked off. Constitutionally, the Congress should have ratified the decision before being initiated, according to the War Powers Resolution contained in the Constitution.

The Clinton administration, in seeking to involve the military in Yugoslavia, cited atrocities by the Serbian authorities under the leadership of President Slobodan Milosevic.

President Bill Clinton, in earnest, attempted to use all means possible to showcase reasons as to why the use of military force was inevitable. After fuelling similar atrocities in Bosnia and Croatia, which had serious implications, it was time for Slobodan Milosevic needed to be tamed.

Part of the reason why the US and NATO allies resorted to using military force was to compel Milosevic to return to the negotiation table and halt his ruthless use of power against the majority of Albanians in Kosovo.

The US military’s participation in Yugoslavia was not supposed to involve ground troops. The Congress had voted to deny the use of ground assault by the US army. In his address to the Congress, President Bill Clinton indicated that the US military would participate in the aerial bombardment of Yugoslavia until President Milosevic surrendered. The president further

18 reported that the use of force had initially been planned to only last for a few days but that, due to the turn of events, it was evident it would take more than 60 days. According to the Constitution, the War Powers Resolution could only be enforced for a maximum period of 60 days, beyond which the military was required withdrawn from the battlefront. Or, an additional 30-day extension should be sought from the Congress by the president. President Clinton did not, however, seek for any extension of the American forces presence in Yugoslavia, citing constitutional flaws in the War Powers Resolution. This prompted a section of the Congress to challenge his action in the courts, led by Representative Tom Campbell. However, the suit was thrown out by the District and Appeals courts on the grounds that the action by the litigants lacked any legal standing.

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