WASHINGTON -- While hopes are rising here that Iraq's decision to release all hostages may avert war in the Persian Gulf, key Democratic legislators are talking in concerned tones about the emergence of a "constitutional crisis" if President Bush starts a shooting war without seeking a declaration of war from Congress.
They acknowledge that once such a war starts the practical imperative of supporting American forces in the field would make it extremely difficult to pursue a case against the president as a usurper of Congress' constitutional power. For this reason, they want the matter aired now.
The president, Secretary of State James Baker and Secretary of Defense Richard Cheney have all said or strongly implied that the chief executive has the power to act, as chief defender of the national-security interests of the country. But the challenging legislators cling to the letter of Article I, Section 8, of the Constitution, which says, "Congress shall have power . . . to declare war . . . to raise and support armies . . . to provide and maintain a navy . . . [and] to make rules for the government and regulation of the land and naval forces."
Sen. Edward Kennedy, an outspoken defender of this view, warns that "Congress, by not acting, is acquiescing" in the threatened presidential usurpation of the power to start a war. And Vice President Dan Quayle, at a Republican governors' conference yesterday, fed that view by telling reporters: "We're going to interpret the silence as supportive."
Kennedy cites the letters of James Madison, written in 1793: "Every just view that can be taken of this subject admonishes the public of the necessity of a rigid adherence to the . . . fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature."
Kennedy recently called on Senate Majority Leader George Mitchell to summon the Senate back into special session next week. He wants a debate on whether war should be declared or more time should be allowed to see whether the economic sanctions imposed will force Iraq out of Kuwait.
Mitchell has declined, saying there will be time for the situation to be debated when Congress returns in the first week of January. He argues that the November election changed 10 percent of Congress' makeup and new members should have an opportunity to be heard. And he notes that the United Nations resolution authorizing use of force precludes that use until at least Jan. 15.
But Mitchell says he agrees with Kennedy that Congress' exclusive power to declare war is clear, and that "military action from a standing start would be an act of war," as opposed to the president's ordering force to defend against an attack.
Mitchell says Bush "will be making a very grave mistake" if he acts on his own. He must be made to recognize, Mitchell says, that restraint "is in the president's practical self-interest," because if he starts a shooting war without congressional authorization his chances of getting the necessary support down the line will be severely jeopardized.
A key administration supporter, Republican Sen. Richard Lugar, has called on Congress to debate and consider a declaration of war as a means of bolstering the president's hand in his pressure on Iraq. Mitchell says that when Congress returns in January any senator will have the right to propose anything.
Some opponents of offensive action against Iraq are fearful that Congress might well under pressure give Bush the green light. But Kennedy says there is a possibility as well that Congress would say no and demand that the sanctions be given more time.
Placing the debate in terms of a constitutional crisis obviously is a way to focus the issue on a question of congressional prerogative rather than support or non-support of the president. To the notion of invoking the terms of the War Powers Act, Kennedy says he would rather keep the matter "targeted on where it ought to be -- on the administration thumbing its nose at the Constitution."
An unauthorized shooting war, he says, "would move us toward a real constitutional crisis, and the people would get heavily involved." And that, Kennedy says, is how it's supposed to be.
Columnists Germond and Witcover, members of The Evening Sun's staff, also appear in the Perspective section of The Sunday Sun.