Congress, president again face dilemma of decision on war BUILDUP IN THE GULF

November 18, 1990|By Frank Starr

Washington -- Historians will say this past week was when the broad support for President Bush's military buildup in the Persian Gulf shifted abruptly to demands that he get congressional authority before the fighting starts.

Before Nov. 8 his military posture had been passive, if not exclusively defensive. After Nov. 8 (when he doubled the U.S. troop commitment), his posture explicitly included an offensive option. Then demands began for a declaration of war, if war it was going to be.

But history and practical politics suggest that Congress will prove unable either to grant that authority or to deny it in advance, and the president doesn't want it because it could limit his options. Indeed, a midweek flurry over calling a special session of Congress for that purpose died on the vine because neither the president nor much of the leadership could summon enough enthusiasm for it.

Sen. Richard G. Lugar, an influential Republican member of the Foreign Relations Committee, proposed calling Congress back, and Sen. Bob Dole, the minority leader, agreed. But it took very little to kill the idea. Representative Dante B. Fascell, D-Fla., chairman of the House Foreign Affairs Committee, said it was "because we got the assurance [from President Bush] that no final decision had been made with regard to the use of force."

For everyone involved, it's a dilemma. Members of Congress don't want their names attached to an act that results in the deaths of their constituents' sons and daughters. Neither do they wish to be blamed for having endangered Americans by tying the president's hands. Presidents, while needing to show public support for their policies, have always sought to avoid restrictions on their freedom of action in fast-moving military confrontations.

And yet the responsibility for making the decision is clear. The Constitution provides that the president is the commander in chief of the armed forces, but it is Congress that has the sole power to declare war.

In fact, Congress has often chosen to avoid declaring war -- in two major "wars" of this century, in Korea and Vietnam. Harvard University's Laurence Tribe estimates there have been 150 to 180 instances of military action without declarations of war.

After the Korean experience, President Dwight D. Eisenhower insisted on getting congressional authorization for action, should become necessary, when Chinese Communists were threatening the offshore islands of Quemoy and Matsu. He obtained, in 1955, the Offshore Islands Resolution authorizing use of force in case of military action by the Chinese, but it was never used.

When he later sought authority to use force against "international Communists" in the Middle East in 1957, then-Sen. J. William Fulbright balked at advance authorization and watered down the resolution to the extent that when Mr. Eisenhower introduced 14,000 soldiers into Lebanon the following year, the president cited the United Nations Charter as authority.

"Eisenhower was very careful about this," said Walter LaFeber, a history professor at Cornell University, because of the criticism of his predecessor, President Harry S. Truman, over conduct of the Korean War without a formal declaration.

When Lyndon B. Johnson, undoubtedly remembering that, sought the Gulf of Tonkin resolution in 1964 to authorize use of force in Vietnam, Congress acted on the strength of an incident involving the U.S. ship C. Turner Joy. It later saw cable traffic raising serious questions about the validity of that incident, which caused congressional unwillingness to issue further "blank checks."

Short of denying authorization, Congress may by "the power of the purse strings" acquiesce in prosecution of undeclared war or stop it, though Mr. Tribe believes that does not satisfy the constitutional requirement since Congress may be dealing with a situation in which forces are already fully committed.

Former Secretary of State Henry A. Kissinger, on the other hand, said that "a myth is being created that we got into Vietnam without anybody knowing it. . . . After all, 500,000 troops were sent to Vietnam, and the Congress appropriated money for it every year."

When Congress, weary with the war's costs, attempted in 1973 to spell out the details of this division of authority, it may have discovered why the founding fathers hadn't tried. The War Powers Resolution that they produced, according to Mr. Tribe, is an "extremely ineffective" piece of legislation, "a nullity," according to former Judge Robert H. Bork.

Despite the anger and division in the country and the Congress over Vietnam, some doubt whether the resolution Congress finally passed would have survived President Richard M. Nixon's veto, had it not come less than three weeks after the Saturday Night Massacre, a low point in Mr. Nixon's political fortunes. As it was, the House overrode Mr. Nixon's veto by a four-vote margin.

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