Gulf crisis may push resolution of constitutional issue of war-making power

December 16, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- As deadlines and decisions approach on U.S. military action against Iraq, it appears that one of the possible outcomes could be a clear-cut answer to a generations-old constitutional question about how America goes to war.

Even the possibility that such an answer could be forthcoming is one of the bigger surprises so far of the entire U.S.-Iraq affair, a prospect that very few experts -- in law, diplomacy or military history -- would have foreseen.

But it became a possibility last week when a federal judge here -- already well known as a "daring" jurist but now, apparently, more so -- indicated for the first time that the answer could be very simple: When war is about to break out, U.S. troops cannot start fighting unless Congress formally says they can.

The jurist, U.S. District Judge Harold H. Greene, did not lay down that answer as a binding legal decision, because he said the case was not legally "ripe" for a final ruling. But he did telegraph what he might well rule if it did "ripen."

He did so in 29 pages of judicial prose that Yale law professor Harold Hongju Koh called "the first big opinion we've ever gotten in this whole controversy" over war-making powers under the U.S. Constitution.

Mr. Koh was one of 11 professors from major law schools who had joined in the case to support Congress' war powers.

Another lawyer taking a public position on the case, but siding with the president -- Paul Kamenar, executive legal director of the Washington Legal Foundation -- pronounced Judge Greene's decision "the height of judicial arrogance," as well as "the height of judicial ignorance," and a "very dangerous" signal to Iraqi President Saddam Hussein that the judge might soon impose a "check on the president's powers" to deal with the Persian Gulf crisis.

The Justice Department, although privately discontented with much of Judge Greene's commentary, was said to be "reasonably comfortable" with "the bottom line" -- that is, that Judge Greene did not go ahead and order the president to get Congress' permission first, before combat could start.

Assistant Attorney General Stuart M. Gerson, who had defended President Bush's powers before Judge Greene, commented: "I'm satisfied -- and the [Bush] administration is satisfied -- that the president has the same range of options open to him as he had the day before."

This issue has returned Judge Greene to the forefront of public controversy, a place he has not occupied since his ruling in 1983 remaking the nation's telephone system by breaking up the American Telephone & Telegraph Co. The war-powers controversy, though, has been around since early in the 19th century (three-quarters of a century before the telephone was invented).

Presidents from John Adams on have insisted that they could send U.S. troops into combat without asking Congress' permission in advance. In fact, presidents have done that 192 times in history -- including the Vietnam and Korean wars.

But, as those same generations of time unfolded, Congress was insisting that the declaration of war was its exclusive power. And war has been declared by Congress five times in American history -- most recently, in 1941, to start World War II.

For all of that time, though, no one has been able to say for sure which argument was right.

It is, fundamentally, a constitutional question. Congress tried to give an answer in 1973, when it adopted -- over President Richard M. Nixon's veto -- the War Powers Resolution, which says Congress alone has the power to send the nation to war. But every president since then has either thought, or said, that the War Powers Resolution is an unconstitutional infringement on presidential powers. That debate, too, has continued without the courts agreeing to referee it.

But, last week, Judge Greene became the first American jurist to declare quite clearly that the courts are the place to get the basic constitutional answer -- at least in a situation where Congress and the White House are definitely at an impasse over who has the power to send U.S. troops into action.

The judge, while saying he would not rule finally yet, outlined a scenario that some Bush administration officials think is "pretty far-fetched," as one aide put it, but which some other legal observers here think might easily occur within coming weeks.

* First, if Congress "as a whole," or at least a majority of members -- presumably of both houses -- "is heard from" and its message is that it thinks Congress is the only branch of government that can declare war, the judge would then be one definite step toward a constitutional ruling on war-making power.

* Second, the judge then would decide if President Bush's actions were committing the nation to "military operations" against Iraq.

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