Haunting the Persian Gulf debate is the constitutional phrase that won't go away

LAW IN PERSPECTIVE

November 18, 1990|By LYLE DENNISTON

A constitutional ghost -- Article I, Section 8, clause 11 -- is haunting the government in Washington as it has not done in more than two decades, not since the early years of the Vietnam War.

As America's military forces in the Persian Gulf feel themselves being pushed closer to combat, officials in the capital feel the nation being pushed toward war. An increasingly restive Congress seems to be fretting that there just might be, sooner rather than later, a war by presidential decree.

In the background is clause 11, a ghost that hovers over Washington every time a president sends U.S. military troops off to foreign waters or soil, ready to fight should the order come from the White House to do so.

What makes that clause a ghost is that it has not been a constitutional reality since 1941, when the power it grants was last used. And yet the ghost does not go away.

This particular collection of words in the Constitution's first article says with stark simplicity and awesome authority: "Congress shall have power to declare war." For the nation's older generations, it is a phrase that can still arouse genuine terror, in the same way it did 49 years ago, when clause 11 led to the formal announcement that World War II had begun. To the young, perhaps, it is a constitutional relic more than a ghost.

But last week it was back, as members of Congress began seeking a greater role in the handling of the Persian Gulf crisis, apparently out of concern that war could break out there before Capitol Hill could become a full partner in shaping the commitment America would be assuming.

And the ghost was back in another part of the capital, too -- in the federal courthouse. There, an Army National Guard sergeant was seeking to avoid being sent to the Middle East to fight in what might be called (in the contentious words of the late Supreme Court Justice William O. Douglas) a "presidential war" -- a war that is real in every sense except that it has not been declared by Congress.

Justice Douglas used that phrase when, almost alone, he had continued to agitate to get the Supreme Court to answer a very basic question posed by the Vietnam War. Here is the way he put it in an opinion written 20 years ago this month: "We are asked . . . whether the Executive has power, absent a congressional declaration of war, to commit . . . citizens in armed hostilities on foreign soil. Another way of putting the question is whether under our Constitution presidential wars are permissible?"

The Supreme Court was asked five times, between 1967 and 1970, to take up that issue, but it steadfastly refused, and the war wound onward with its fundamental legality -- and its fundamental legitimacy -- unresolved.

In some ways it can be said that America is still unsettled not only over the legitimacy of the Vietnam War itself but also over the public's willingness to accept the view that presidents do have the authority to set off "armed hostilities" without asking Congress explicitly to authorize such action.

Of course, the military mobilization President Bush has ordered in the gulf so far has not yet aroused anything like the political storm the Vietnam conflict ultimately did. But the legal, constitutional, question is already a live one.

It would be extravagant, however, to speculate at this point that federal courts will be more willing now than they were during the Vietnam War to rule on the war powers issue as it affects the Persian Gulf mobilization.

For one thing, there appears to be no one of the stature of a Supreme Court justice to sound the call repeatedly for resolution of that question.

More significantly, the federal judiciary and the Supreme Court itself are populated now with conservative jurists who are hostile philosophically to the very notion that courts might feel free to second-guess the way the "political branches" (Congress and the presidency) use their powers.

Even if the courts do not step in, though, the absence of a declaration of war will remain an issue of some consequence as long as combat appears imminent in the Middle East. What has been happening on Capitol Hill in recent days is, in some sense, a questioning of the president's constitutional authority to go further -- on his own -- than he has. There has been no serious move to try to force him to have U.S. troops and tanks back off, but there is beginning to be some insistence that he not commit them more deeply without congressional concurrence.

Even some congressional members of the president's own political party seem interested in heading off the building challenge by getting Congress on record, in some clear-cut way, to endorse what Mr. Bush is doing and what he may yet wish to do.

The nation may well be facing a return to the situation that prevailed in the early days of the Vietnam buildup, when Congress passed what was called the "Gulf of Tonkin Resolution," which associates of President Lyndon B. Johnson came to call "the functional equivalent of a declaration of war."

Congress may not have meant the Tonkin resolution to authorize as much as President Johnson did under it, but the measure did set a historic precedent for a supposedly constitutional way to "satisfy" the Constitution's distribution of the government's war powers without actually turning to Article I, Section 8, clause 11.

But the Tonkin resolution did not make clause 11 go away, and its abiding presence is one factor, and very likely a key one, in leading Washington back to a search for an agreed way to make the U.S. commitment in the Persian Gulf seem more of a joint effort and, therefore, possibly more legal.

Lyle Denniston is The Sun's legal correspondent in Washington and makes his base at the Supreme Court.

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