Thus, the more likely reading of the authorization section of P.L. 102-1 is that Congress specifically authorized the use of United States military forces to drive Iraqi forces from Kuwait. Congress would have taken the reference in Resolution 678 to `all subsequent relevant resolutions’ to mean those Resolutions that preceded 677, those, that is, referenced by number in 678. Congress further would have understood the reference in Resolution 678 to the use of force `to restore international peace and security in the Area’ to encompass the restoration of the status quo ante, the withdrawal of Iraq from Kuwait. Certainly, there is nothing in the authorization section of P.L. 102-1 that requires or compels a reading that would be in effect an open-ended authorization of the use of United States military forces to achieve any subsequently adopted goals of the United Nations.
Nonetheless, sufficient ambiguity does exist to permit the possible construction of the language of P.L. 102-1 as authorizing United States military force to carry out subsequently-adopted Resolutions setting forth an intention to force Iraq, under threat of military force, to rid itself of prescribed weapons and to permit United Nations inspections to assure that the result has been achieved. It is not clear, as noted above, that the Security Council has adopted any authorization for its member states to use military force to achieve these results, but we pass that question by.
The pertinent question is, given two possible interpretations of congressional meaning, how do we resolve the matter?
Second, one must look at the textual object. Although two meanings are possible, one is more likely to represent the meaning to be ascribed to it by Congress. If, however, after confronting the actual language to be interpreted and finding a likely but not compelled interpretation, how do we then infer or deduce meaning from context and surroundings? One such method, favored by the courts, including the United States Supreme Court, is under some circumstances to adopt a default means of interpretation. When, for example, the issue arises in the context of a critical or critically important question of constitutional meaning, courts impose a `clear-statement’ rule under which Congress, or some other entity, will not be understood to have meant to say something having great bearing on its powers or on the Constitution without saying it clearly, perhaps expressly. For example, when the issue is whether by the terms of a statute Congress has waived the sovereign immunity of the United States, the Court will not apply ordinary rules of statutory construction but will require the clearest possible expression of congressional intent; any waiver must be unequivocal. E.g., United States Dept. of Energy v. Ohio, 503 U.S. 607 (1992); Library of Congress v. Shaw, 461 U.S. 273 (1983). Of course, the particular issue with which we deal is highly unlikely to present itself as suitable for judicial resolution, but subsequent Congresses and private parties may resort to such rules of construal.
Congress has been highly protective of its powers in this area, especially of the use of United States military forces abroad, since the great debate in this country with respect to the undeclared war in Indochina, which eventuated in the adoption, over a presidential veto, of the War Powers Resolution. P. L. 93-148, 87 Stat. 555, 50 U.S.C. Sec. 1541-1548. In view of the hesitancy of Congress to act in respect of the Gulf War and of the close votes in both Houses, how likely is it that Congress would have authorized the President to use United States military forces to effectuate a United Nations Resolution or a series of Resolutions that were to be adopted sometime in the future? It is, of course, possible for Congress to authorize something on the basis of an occurrence not yet having resulted. But with respect to the commitment of United States forces abroad? Again, Congress might do so, but ought we to conclude that it did so in 1991 on the basis of contestable language susceptible to more than one interpretation? Might a clear statement of Congress’ intent to do so be required before such a construction is adopted?
In short, to conclude that P. L. 102-1 contains authorization for the President to act militarily in 1998 requires the construction of an interpretational edifice buttressed by several assumptions. We must conclude that Congress in 1991 intended to base its authorization of United States military action upon the future promulgation of United Nations policy developed in the context of circumstances unknown or at most highly speculative in 1991. We must conclude that Resolution 687 did authorize member states to act to implement its goals and not merely reserved to the Security Council a future determination of what it might authorize. We must conclude that Resolution 1137 did authorize member states to act to end Iraqi recalcitrance and not merely expressed the aspiration of the Security Council to do something in the future. And we must conclude that Congress in 1991 was so confident of United Nations policy in the future that it would have authorized the future committal of United States military forces to achieve what the Security Council wished to achieve.
We have examined legislation enacted later by Congress in the same year that bears on Operation Desert Storm, in particular P. L. 102-190, 105 Stat. 1290, and P. L. 102-25, 105 Stat. 75, and find nothing bearing on what Congress might have thought it was doing in P. L. 102-1. Certainly, there is nothing in those Acts to be construed as additional authorizations.
In the end, it is for the Congress to determine what the 102d Congress meant in adopting the joint resolution that became P. L. 102-1. How, if Congress’ interpretation is different from that of the President, Congress is to give effect to its determination presents another question altogether.
Johnny H. Killian is a Senior Specialist in American Constitutional Law