       Authority to Use United States Military Forces in Somalia


 T h e P resid en t, in his constitutional ro le as C om m ander in C h ie f and C h ie f E xecutive, m ight
      reaso n ab ly an d law fully determ ine that it w as justified to u se U nited S tates A rm ed Forces
      p erso n n el to p ro tect those engaged in relief w ork in S om alia. His authority exten d ed to
      u sin g U .S . m ilitary personnel to p ro te c t S om alians and other foreign nationals in S om alia.


                                                                                   December 4, 1992
 THE PRESIDENT
     THE WHITE HOUSE
     MY DEAR MR. PRESIDENT: You have asked for my views as to your
  authority to commit United States troops to support and secure the humani­
 tarian assistance effort currently underway in Somalia. I am informed that
 the mission o f those troops will b e to restore the flow of humanitarian relief
 to those areas of Somalia most affected by famine and disease, and to facili­
 tate the safe and orderly deployment of United Nations peacekeeping forces
 in Somalia in the near future. I understand that private United States nation­
 als and military personnel are currently involved in relief operations in Somalia.
 I am further informed that the efforts of the United States and other nations
 and o f private organizations to deliver humanitarian relief to those areas of
 Somalia are being severely hampered by the breakdown of governmental
 authority in Somalia and, in particular, by armed bands who steal relief com­
 modities for their own use.
    I conclude that in your constitutional role as Commander in Chief and
 C hief Executive, you may reasonably and lawfully determine that the pro­
 tection o f those engaged in relief work in Somalia, including members of
the United States Armed Forces who have been and will be dispatched to
Somalia to assist in that work, justifies the use o f United States military
personnel in this operation. I further conclude that you have authority to use
those military personnel to protect Somalians and other foreign nationals in
Somalia. You have authority to commit troops overseas without specific
prior Congressional approval “on missions of good will or rescue, or for the
purpose o f protecting American lives or property or American interests.” 40
Op. Att’y Gen. 58, 62 (1941) (Jackson, A.G.). See also 53 Dep’t St. Bull. 20
(1965) (President Lyndon Johnson ordered the United States military to in­
tervene in the Dominican Republic “to preserve the lives of American citizens
and citizens of a good many other nations.”). As explained more fully in the

                                                     6
enclosed opinion of the Office of Legal Counsel, your authority thus extends
to the protection of the lives of United States citizens and others in Somalia.
    Apart from your constitutional authority, I conclude that ample statutory
authority exists for the use of the military to engage in the distribution of
humanitarian relief in Somalia. E.g., 10 U.S.C. § 2551.
    While not required as a precondition for Presidential action here, I also
note that United Nations Security Council Resolution 794 authorizes the
United States and other member nations to use “all necessary means” to
establish a secure environment for humanitarian relief operations in Somalia
and to provide military forces to that end. You may reasonably and lawfully
conclude that it is necessary to use United States military personnel to sup­
port the implementation of Resolution 794 and other Security Council
resolutions concerning Somalia.
    Finally, I note that the proposed mission accords with the requirements of
international law. United States forces will be acting consistent with Reso­
lution 794, which has been adopted in accordance with Chapter VII, Article
42 of the Charter of the United Nations. Implementation of Resolution 794
will accord fully with the principle of non-intervention in matters that are
“essentially within the domestic jurisdiction” of member States, inasmuch
as that principle does not “prejudice the application of enforcement m ea­
sures under Chapter VII.” U.N. Charter art. 2(7). Resolution 794 makes it
unnecessary to evaluate the proposed mission separately under principles o f
customary international law. I note, however, that given the urgent need for
humanitarian assistance to Somalians and the breakdown of governmental au­
thority in Somalia, the operation appears fully consistent with those principles.

                                                   Respectfully,

                                                WILLIAM P. BARR
                                                 Attorney General




                                       1
                                                                                   December 4, 1992

                 M e m o r a n d u m O p in io n fo r t h e A t t o r n e y G e n e r a l


    You have asked for our opinion whether the President has the legal au­
thority to commit United States Armed Forces to assist the United Nations
in ensuring the safe delivery o f food, medicine and other relief to the popu­
lation in affected regions of Somalia. We understand that the mission of
those troops will be to restore as quickly as possible the flow of humanitar­
ian relief to those areas of Somalia most affected by famine and disease, and
to facilitate the safe and orderly deployment of United Nations peacekeep­
ing forces in Somalia in the near future. We also understand that private
United States nationals are currently involved in relief operations in Somalia
and United States military personnel are engaged in humanitarian supply
flights into Somalia. We further understand that the efforts of the United
States and other nations and o f private organizations to deliver humanitarian
relief to those areas o f Somalia are being severely hampered by the break­
down o f governmental authority in Somalia and, in particular, by armed
bands who steal relief commodities for their own use.1
    In our opinion, the President’s role under our Constitution as Commander
in C hief and C hief Executive vests him with the constitutional authority to
order United States troops abroad to further national interests such as pro­
tecting the lives of Americans overseas. Accordingly, where, as here, United
States government personnel and private citizens are participating in a law­
ful relief effort in a foreign nation, we conclude that the President may
com m it United States troops to protect those involved in the relief effort. In
addition, we believe that long-standing precedent supports the use of the
Armed Forces to protect Somalians and other foreign nationals in Somalia. We
also believe that the President, in determining to commit the Armed Forces to
this operation, may lawfully look to the importance to the national interests of

   ' We note at the outset that the deployment of troops to Somalia appears primarily aimed at providing
hum anitarian assistance, and will only involve combat as an incident to that humanitarian mission.
T hus, the current situation poses two questions: is there legal authority for United States Armed Forces
to perform hum anitarian tasks, and if so, may the President authorize those troops to engage in more
purely m ilitary actions, such as self-defense and the creation of safe corridors for the provision o f aid.
We understand from the General Counsel o f the Department of Defense that there is clear statutory
authority for the use o f the Armed Forces to support and to perform humanitarian tasks in Somalia.
See, e.g., 10 U.S.C. § 2551; see also 22 U.S.C. §§ 2292, 2292/. We conclude in this opinion that in
these circum stances the President's constitutional authority to authorize the troops to engage in various
related m ilitary actions is also clear. We d o not address issues raised by the proposed operation under
the War Pow ers Resolution.
the United States of upholding the recent United Nations resolutions regarding
Somalia. Finally, we note that Congress has expressed its tacit approval for
the President’s exercise of his constitutional authority in this matter.

                                                 I.

    From the instructions of President Jefferson’s Administration to Commo­
dore Richard Dale in 1801 to “chastise” Algiers and Tripoli if they continued
to attack American shipping, to the present, Presidents have taken military
initiatives abroad on the basis of their constitutional authority. See Abraham
D. Sofaer, War, Foreign Affairs and Constitutional Power 209-16 (1976); J.
Terry Emerson, War Powers Legislation, 74 W. Va. L. Rev. 53, 88-110 (1971);
James Grafton Rogers, World Policing and the Constitution 93-123 (1945);
Milton Offutt, The Protection o f Citizens Abroad by the Armed Forces o f the
United States (1928). Against the background of this repeated past practice
under many Presidents, this Department and this Office have concluded that
the President has the power to commit United States troops abroad for the
purpose of protecting important national interests. See, e.g., Training o f
British Flying Students in the United States, 40 Op. Att’y Gen. 58, 62 (1941)
(Jackson, A.G.) (“the President’s authority has long been recognized as ex­
tending to the dispatch of armed forces outside of the United States, either
on missions of good will or rescue, or for the purpose of protecting Ameri­
can lives or property or American interests”). As the Supreme Court noted
in United States v. Verduqo-Urquidez, 494 U.S. 259, 273 (1990), “[t]he United
States frequently employs Armed Forces outside this country — over 200
times in our history — for the protection of American citizens or national
security.”2
    At the core of this power is the President’s authority to take military
action to protect American citizens, property, and interests from foreign
threats. See, e.g.. Presidential Powers Relating to the Situation in Iran, 4A
Op. O.L.C. 115, 121 (1979) (“It is well established that the President has the
constitutional power as Chief Executive and Commander-in-Chief to protect
the lives and property of Americans abroad.”); Presidential Power to Use the
Arm ed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185,
187 (1980) (“Presidents have repeatedly employed troops abroad in defense
of American lives and property.”); see also Memorandum of William H.
Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The
President and the War Power: South Vietnam and the Cambodian Sanctuar­
ies at 8 (May 22, 1970) (President as Commander in Chief has authority “to
commit military forces of the United States to armed conflict . . . to protect the
lives of American troops in the field”). In Durand v. Hollins, 8 F. Cas. 111
(C.C.S.D.N.Y. 1860) (No. 4186), an American naval officer, under orders from

  2 See Dames <St Moore v. Regan, 453 U.S. 654, 686 (1981) (historical practice provides im portant evi­
dence o f scope o f constitutional powers).

                                                  9
the President and the Secretary of the Navy, bombarded Greytown, Nicara­
gua, in retaliation for the Nicaraguan government’s refusal to make reparations
for attacks against United States citizens and property. In a suit brought
against the naval officer, Justice Nelson held that the officer properly took
this action, observing that such an attack on American citizens and property
required the sort of swift and effective response that only the Executive
could make:

        Acts o f lawless violence, or of threatened violence to the citi­
        zen or his property, cannot be anticipated and provided for;
        and the protection, to be effectual or of any avail, may, not
        unfrequently, require the most prompt and decided action.

Id. at 112. Justice Nelson also stated that whether the President had a duty
to act to protect the citizens involved “was a public political question . . .
which belonged to the executive to determine.” Id. See also Youngstown
Sheet <£ Tube Co. v. Sawyer, 343 U.S. 579, 645 (1952) (Jackson, J., concur­
ring) (“I should indulge the widest latitude of interpretation to sustain [the
President’s] exclusive function to command the instruments of national force,
at least when turned against the outside world for the security of our soci­
ety.”).
    Applying these principles to the present case, we conclude that the Presi­
dent can reasonably determine that the proposed mission is necessary to
protect the American citizens already in Somalia. We understand that these
include private United States citizens engaged in relief operations, and United
States military personnel conducting humanitarian supply flights. The United
Nations has determined that existing conditions in Somalia pose a threat to
the lives and safety o f these individuals and of non-Americans also engaged
in efforts to deliver food, medicine and other relief to over two million
Somalians. See Security Council Resolution No. 794, U.N. SCOR, 47th
Sess., 3145th mtg., U.N.Doc. S\RES\794 (1992), reprinted in H.R. Rep. No.
89, 103d Cong., 1st Sess. 19 app. (1993) (determining that the Somali situa­
tion “constitutes a threat to international peace and security,” and expressing
alarm at “reports of violence and threats of violence against personnel par­
ticipating lawfully in impartial humanitarian relief activities”); see also John
M. Goshko, U.N. C hief Favors Use o f Force in Somalia, Wash. Post, Dec. 1,
1992, at A l.
    It is also essential to consider the safety of the troops to be dispatched as
requested by Security Counsel Resolution No. 794. The President may pro­
vide those troops with sufficient military protection to insure that they are
able to carry out their humanitarian tasks safely and efficiently. He may
also decide to send sufficient numbers of troops so that those who are primarily
engaged in assisting the United Nations in noncombatant roles are defended by
others who perform a protective function. See, e.g., Memorandum of William

                                       10
H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The
President and the War Power: South Vietnam and the Cambodian Sanctuar­
ies at 8 (May 22, 1970).
    Nor is the President’s power strictly limited to the protection of American
citizens in Somalia. Past military interventions that extended to the protec­
tion of foreign nationals provide precedent for action to protect endangered
Somalians and other non-United States citizens. For example, in 1965, Presi­
dent Lyndon Johnson explained that he had ordered United States military
intervention in the Dominican Republic to protect both Americans and the
citizens of other nations, see An Assessment o f the Situation in the Dom ini­
can Republic, 53 Dep’t St. Bull. 19, 20 (1965) (“to preserve the lives of
American citizens and citizens o f a good many other nations — 46 to be
exact, 46 nations”). During the 1900-01 Boxer Rebellion in China, Presi­
dent McKinley, without prior congressional authorization, sent about 5,000
United States troops as part of a multi-national contingent to lift the siege of
the foreign quarters in Peking after the Chinese government proved unable
to control rebels. Compilation o f the M essages and Papers o f the Presidents
1789-1902 at 113, 120 (James D. Richardson, ed. Supp. 1904).3
    The United States has an additional important national interest arising
from the involvement of the United Nations in the Somalian situation. In a
1950 opinion supporting President Truman’s decision to support the United
Nations in repelling the invasion of South Korea, the State Department con­
cluded that “[t]he continued existence of the United Nations as an effective
international organization is a paramount United States interest.” Authority
o f the President to Repel the Attack in Korea , 23 Dep’t St. Bull. 173, 177
(1950). We adopt that conclusion. Here, too, maintaining the credibility of
United Nations Security Council decisions, protecting the security of United
Nations and related relief efforts, and ensuring the effectiveness of United
Nations peacekeeping operations can be considered a vital national interest,
and will promote the United States’ conception of a “new world order.” See,
e.g.. President’s Address to the 46th Session of the United Nations General
Assembly, 27 Weekly Comp. Pres. Doc. 1324, 1327 (1991).
    In Security Council Resolution No. 794, which was adopted pursuant to
Chapter VII of the United Nations Charter, the Security Council has autho­
rized the United States and other member States to use “all necessary means”
to establish a secure environment for the delivery of essential humanitarian



   3 A case of intervention on behalf of a foreign national, one Martin Koszta, was cited approvingly by
the Supreme Court in In re Neagle, 135 U.S. 1, 64 (1890), as an example of the legitimate exercise of
Executive power “growing out o f the Constitution itself, our international relations, and all the protec­
tion implied by the nature of the government under the Constitution.” Id. Although Koszta had ex­
pressed his intention of becoming naturalized, at the time of the events in question he was not an
American citizen. He was seized by the Austrian government while in Smyrna and confined in an
Austrian vessel. A United States naval officer demanded K oszta’s surrender, and “was com pelled to
train his guns upon the Austrian vessel before his demands were complied with." Id. The Court noted
that no Act of Congress sanctioned this armed intervention.

                                                  11
aid in Somalia.4 The President is entitled to rely on this resolution, and on
its finding that the situation in Somalia “constitutes a threat to international
peace and security,” in making his determination that the interests of the
United States justify providing the military assistance that Security Council
Resolution No. 794 calls for. Moreover, American assistance in giving ef­
fect to this and other Security Council resolutions pertaining to Somalia
would in itself strengthen the prestige, credibility and effectiveness of the
United Nations — which the President can legitimately find to be a substan­
tial national foreign policy objective, and which will tend further to guarantee
the lives and property of Americans abroad.
    This conclusion accords with our prior opinions. During the Korean War,
for example, we took the position that a Security Council resolution autho­
rizing the use o f force by member States to protect international peace and
security could

          furnish a new ground for a decision by the President to use
          troops abroad.

              In the presence of such a resolution the President is bound
          to consider what the interests of the United States require.
          He will necessarily weigh the nature of the breach of the
          peace which has occurred, what its consequences will be for
          the United Nations if it goes unchallenged, and what it fore­
          shadows in the way of an ultimate threat to the vital interests
          o f the United States. In the light of these and other consider­
          ations he will then make the decisions which he, as President,
          m ust make.

Franklin S. Poliak, Power of the President to Send Troops Abroad, 34-35
(Apr. 27, 1951).5




  4 Id. (“D ism ayed by the continuation of conditions that im pede the delivery of humanitarian supplies to
destinations within Som alia, and in particular reports of looting of relief supplies destined for starving
people, attacks on aircraft and ships bringing in humanitarian relief supplies, and attacks on the Pakistani
U N O SO M [U.N. O peration in Somalia Peacekeeping] [sic] contingent in Mogadishu” ; “Noting the offer
by M em ber States aimed at establishing a secure environment for humanitarian relief operations in So­
m alia as soon as possible” ; “Calls on all Member States which are in a position to do so to provide
m ilitary forces” ; “Endorses the recommendation by the Secretary-General in his letter o f 29 Novem ber
1992 (SV24868) that action under Chapter VII [authorizing use of force] of the Charter of the United
N ations should be taken in order to establish a secure environment for humanitarian relief operations in
Som alia as soon as possible”).
  3 We do not conclude that a Security Council resolution calling on member States to provide troops to
assist th e U nited N ations by itself imposes any legal duty on the President to act in accordance with the
resolution. But, as we explained in our 1951 memorandum, such a resolution can be an important
factor on which the President may rely in determ ining whether national interests require such m ilitary
action.

                                                   12
                                                  II.

    Finally, we note that the available evidence strongly suggests that Con­
gress believes that the President’s use of military force to assist United
Nations relief and peacekeeping efforts in Somalia does not exceed his con­
stitutional powers. In recent legislation, Congress appears to have recognized
the President’s authority to make use of military personnel, should he deem
it necessary to carry out or protect humanitarian missions in Somalia. Sec­
tion 3(b)(3) of the Horn of Africa Recovery and Food Security Act, Pub. L.
No. 102-274, 106 Stat. 115, 116 (1992), states that “[i]t is the sense of the
Congress that the President should . . . ensure, to the maximum extent pos­
sible and in conjunction with other donors, that emergency humanitarian
assistance is being made available to those in need.” Section 4(a)(1) of the
Act states in part that U.S. policy should be “to assure noncombatants . . .
equal and ready access to all food, emergency, and relief assistance,” and
section 4(b)(1) states that pursuant to the United States policy of “seeking to
maximize relief efforts” the United States should “redouble its commend­
able efforts to secure safe corridors o f passage for emergency food and relief
supplies in affected areas.” Id. at 117. Moreover, in section 2(3), Congress
explicitly found that the actions of the government and armed opposition
groups in Somalia “erode[d] food security” in that country. Id. at 115.
    Thus, Congress appears to have contemplated that the President might
find it necessary to make use of military forces to ensure the safe delivery of
humanitarian relief in Somalia, and to have assumed in such circumstances
that the President possessed constitutional authority to do so.6 See also
Dames & M oore, 453 U.S. at 678-79.

                                                        TIMOTHY E. FLANIG AN
                                                         Assistant Attorney General
                                                          Office o f Legal Counsel




  #As noted above, the quoted provisions of the Act are part o f a “sense o f Congress” resolution. A
“sense o f Congress” resolution does not, of course, give the President authority he does not otherwise
possess. Nonetheless, we believe that the Congressional views expressed in the quoted portions o f the
Act are evidence that Congress recognized that the President has authority to use m ilitary force to
accomplish the goals o f the Act.

                                                  13
       OPINIONS
          OF THE




OFFICE OF LEGAL COUNSEL




            14
