-Caveat Lector-
http://www.msnbc.com/news/799070.asp
Bush aides: No Iraq war vote needed
Lawyers for President Bush have concluded he can launch an
attack on Iraq without new approval from Congress, in part because they
say that permission remains in force from the 1991 resolution giving
Bush�s father authority to wage war in the Persian Gulf, according to
administration officials.
AT THE same time, some administration officials are arguing
internally that the president should seek lawmakers� backing anyway to
build public support and to avoid souring congressional relations. If Bush
took that course, he still would be likely to assert that congressional
consent was not legally necessary, the officials said.
Whatever the White House decides about its obligations under the
War Powers Resolution of 1973, some House and Senate leaders appear
determined to push resolutions of support for ousting Iraqi President
Saddam Hussein when Congress returns after Labor Day because they consider
the issue too grave for Congress to be sidestepped. Administration
officials say privately that military strikes against Hussein�s regime are
virtually inevitable, although all the specifics have not been decided and
action is not imminent.
OPINIONS V. PERMISSION
Bush has said repeatedly he will consult lawmakers before deciding
how to proceed but has pointedly stopped short of saying he will request
their approval. The difference between getting legislators� opinions, as
opposed to their permission, could lead to a showdown this fall between
Congress and the White House.
�We don�t want to be in the legal position of asking Congress to
authorize the use of force when the president already has that full
authority,� said a senior administration official involved in setting the
strategy. �We don�t want, in getting a resolution, to have conceded that
one was constitutionally necessary.�
Harold Hongju Koh, a professor of international law at Yale Law
School who was an assistant secretary of state in the Clinton
administration, called it shortsighted for the administration to try to
avoid a full congressional debate about such an expensive and perilous
operation. �The constitutional structure tries to make war hard to get
into, so the president has to show leadership and make his case to the
elected representatives,� Koh said. �This argument may permit them to get
us into the war, but it won�t give them the political support at home and
abroad to sustain that effort.�
Whether to secure formal congressional support is only one of many
questions confronting Bush as he decides on a course of action toward
Iraq. The president has strongly signaled his interest in toppling
Hussein�s regime, in large measure because of what administration
officials describe as the country�s pursuit of weapons of mass
destruction. But Bush has not settled on the kind of military attack to
pursue, nor has he mounted a full-blown effort to line up support from
allies or the U.S. public for an invasion.
Inside the White House, a full-throated debate over some of these
issues has been underway for some time. In particular, White House Counsel
Alberto R. Gonzales had his deputy, Timothy E. Flanigan, develop the
administration�s legal position on questions surrounding a war with Iraq.
That legal review is largely complete, officials said, with the
consensus emerging that the president would not be legally bound to obtain
approval for action against Iraq. In making this case, officials point
first to the Constitution�s designation of the president as
commander-in-chief.
Administration officials also cite the 1991 Persian Gulf resolution
authorizing the use of military force against Iraq. The resolution allowed
the use of force to enforce United Nations Security Council resolutions,
including demands that Iraq eliminate weapons of mass destruction and open
the country to U.N. inspectors.
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�No one thinks that Iraq has fulfilled them,� an administration
official said.
Administration officials said their position was bolstered by a
Sept. 14 resolution � passed 98 to 0 in the Senate and 420 to 1 in the
House � endorsing a military response to the terrorist attacks on the
World Trade Center and the Pentagon. That argument would depend on linking
Iraq and al Qaeda.
Although the administration has not publicly made this case in
detail, Defense Secretary Donald H. Rumsfeld said at a July 30 news
conference, �Are there al Qaeda in Iraq? Yes.� Last week, U.S.
intelligence officials told The Washington Post that a number of
high-ranking al Qaeda members have taken refuge in Iraq.
MURKY SEPARATION OF POWERS
War-powers disputes have occurred frequently since 1800, when the
Supreme Court upheld President John Adams�s undeclared war with France.
The Constitution grants the president the duties and powers of
commander-in-chief of the armed forces. But because of the framers�
concern that an unchecked executive might make war because of thirst for
glory or personal revenge, they gave Congress the power to declare war.
The result is a murky separation of powers that has led to arguments and
even litigation between the White House and Congress.
The 1973 War Powers Resolution was intended to bridge the roles by
allowing the president to act unilaterally with military force for 60 to
90 days, with congressional approval required for troops to remain engaged
in hostilities after that.
Every president since has objected to the resolution, beginning
with Richard M. Nixon, who vetoed its creation but was overridden by
lawmakers dismayed by the escalation of U.S. deployments in the undeclared
war in Vietnam. Vice President Cheney, when he was a member of Congress
from Wyoming, called for the repeal of the resolution, which he said was
�unworkable and of dubious constitutionality.�
Critics of the Bush administration�s expansive view of presidential
power include some leading conservatives. �George Washington, Abraham
Lincoln and Franklin Delano Roosevelt never claimed war powers close to
what Bush is claiming,� said Bruce Fein, a constitutional scholar who was
associate deputy attorney general in the Reagan administration.
Michael J. Glennon, an international law professor at Tufts
University�s Fletcher School of Law and Diplomacy, specifically questioned
the administration�s reliance on the Gulf War resolution. He said that
authority �was narrowly circumscribed and was directed at reversing the
Iraqi invasion of Kuwait.�
Glennon said the authority apparently ended on April 6, 1991, when
Iraq formalized a cease-fire with a notification to the U.N. Security
Council. �Once extinguished, the authority did not revive when Iraq failed
to comply with its obligations,� Glennon said.
�FOR THE SAKE OF UNITY�
Administration officials have intensively researched President
George H.W. Bush�s approach as he began the buildup for Operation Desert
Storm, and it appears to track the evolution of their own thinking. The
elder Bush initially said the War Powers Resolution did not apply to the
buildup in the Persian Gulf, triggered by Iraq�s invasion of Kuwait in
1989, because hostilities were not imminent.
Bob Woodward reported in �The Commanders� that Sen. William S.
Cohen (R-Maine), later defense secretary under President Bill Clinton,
told Bush during a White House meeting in 1990 that the administration
should seek a vote of support for the operation �for the sake of unity
between the administration and the Congress, for the sake of the troops in
the desert who deserved a government unified.�
The elder Bush eventually did so. While still insisting that a
resolution was not necessary, his administration lobbied hard for it. In
January 1991, it passed the Senate by 52 to 47 and the House by 250 to
183.
As consistently as presidents have husbanded their war-making
authority, Congress has tried to preserve its role. This time, Senate
leaders � including Majority Leader Thomas A. Daschle (D-S.D.), Foreign
Relations Committee Chairman Joseph R. Biden Jr. (D-Del.) and Sen. Robert
C. Byrd (D-W.Va.), who views himself as the guardian of Senate
prerogatives � maintain that the president must come to Congress before
making a massive commitment of troops to oust Hussein. Byrd recently asked
a dozen constitutional scholars for their views about a president�s legal
authority to take military action in Iraq.
Although administration officials are adamant that no authorization
is required, some have begun to argue internally that it might be
desirable as a matter of politics and statesmanship.
�The legal question and the practical question may be very
different,� one administration official said. �There is a view that while
there is not a legal necessity to seek anything further, as a matter of
statesmanship and politics and practicality, it�s necessary � or at a
minimum, strongly advisable � to do it.�
One compromise would be for Bush�s allies in Congress to introduce
a resolution of support without having the president ask for it.
Administration officials said they are concerned, though, that a
war-powers resolution might add conditions, such as specifying that
military action in Iraq is acceptable only for the purpose of eliminating
weapons of mass destruction.
House Majority Whip Tom DeLay (R-Tex.) said in a speech in Houston
last week that he will �lead the effort to provide President Bush the
unified support of the House of Representatives.� He added yesterday on
�Fox News Sunday�: �He has said he�s going to come to Congress when he
decides what needs to be done and when it needs to be done, and I expect
him to do that.�
� 2002 The Washington Post Company
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