11 law professors file brief demanding Bush get go-ahead from Congress

November 27, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Eleven professors from major law schools urged a federal judge yesterday to rule that President Bush must get "genuine approval" from Congress before sending U.S. troops into a military assault on Iraq.

The professors' plea, a move to escalate the constitutional challenge mounted last week by 45 Democratic members of Congress, came as President Bush prepared to urge the same judge to leave management of the Persian Gulf situation largely to the White House.

Mr. Bush was facing a midnight deadline last night for a reply to the Democratic lawmakers' lawsuit. On the president's behalf, lawyers at the Justice Department were expected to urge U.S. District Judge Harold H. Greene to dismiss that lawsuit.

The 45 Democrats did not question the legality of any military step Mr. Bush has taken so far in response to Iraq's invasion and seizure of Kuwait. But they do question the president's authority to go to war without Congress' prior approval.

The law professors argue in their filing in support of the Democrats' lawsuit that Congress must either declare war outright or else take some step to give "affirmative authorization . . . through formal action" before the president may commit U.S. forces to combat operations in the gulf region.

The Constitution requires, the professors contend, that Mr. Bush not present Congress with a "fait accompli" -- that is, "engaging in war" without getting explicit permission of some kind in advance from Capitol Hill.

They also argue that the courts should not allow the president or his aides to claim that Congress has already signaled its willingness to support U.S. combat action against Iraq.

The professors sought to head off the likely claim of the White House that Judge Greene should stay out of the gulf situation. The professors' friend-of-the-court brief told the judge: "Precisely because federal judges enjoy life tenure . . . they have both the power and a special obligation to say what the law is in war-making cases. . . . Since the beginning of the Republic, federal judges have reviewed the legality of military seizures, retaliatory strikes, and covert actions ordered under claims of delegated and inherent presidential power to conduct warfare."

Mr. Bush, the law teachers said, should not be allowed to argue that plans for combat operations in the Mideast "are somehow immune" from challenge in federal court.

The professors noted that they were making their plea as individuals, not as representatives of their law schools. Among the signers of the brief were two of the country's best-known scholars on international law and U.S. government powers, Abram Chayes of Harvard University and Louis Henkin of Columbia University.

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