Given chance to settle war-making issue, Congress seems to prefer talk to action

LAW IN PERSPECTIVE

January 06, 1991|By LYLE DENNISTON

The clock of war that is ticking loudly for American military forces in the Persian Gulf can also be heard, just as clearly, on Capitol Hill. But in Congress, the countdown toward a possible invasion of Iraq has another sound to it not heard among the

troops: It is the sound of a possible constitutional conflict with the White House.

In the hot sands of Saudi Arabia, this other aspect of the gulf crisis may have no meaning, and might even seem silly, as troops prepare for what many expect would be a very bloody, costly war. But there is a historic dimension to this potential home-front combat between Capitol Hill and President Bush, this possible fight over war-making powers under the Constitution.

Still, from what has been emerging in recent days in Congress, it is by no means certain that such a fight will ever actually break out. There seem to be few preparations for waging combat with Mr. Bush over it, no sign of the development of the political will that would be needed to carry it forward.

This hesitancy could be very puzzling to anyone who had listened to members of Congress in the five months since Iraq invaded Kuwait, touching off the gulf crisis that may wind up in a war after Jan. 15. It has seemed that Congress has been spoiling for a fight with the White House over who in Washington gets to commit U.S. forces to military action in the Middle East.

Day after day, one lawmaker after another has been insisting, without qualification, that it is only Congress, not the White House, that can authorize offensive military action by this nation.

In fact, the apparent lack of interest now in confronting Mr. Bush over war powers seems to contradict not only what many in Congress have been saying lately, but what they have been saying for the past couple of generations about war-making.

This stress on the congressional prerogative, of course, has not been repeated downtown, at the White House, in the Bush administration or in any of its recent predecessor administrations. Mr. Bush, like many presidents before him, has insisted that he has all the authority he needs to commit U.S. forces to conflict overseas.

It would seem obvious, then, that this clear-cut difference of constitutional opinion would someday push those two branches of government to force the issue in an ultimate confrontation, to determine -- once and for all -- who is right.

Rhetorical jousting, of course, could not force the issue; that has been going on for years, to no avail in getting the matter settled. Political talk does not settle constitutional questions of great magnitude.

But, there is a new dimension that has arrived in these waning days of the countdown toward crisis sometime after Jan. 15: A federal judge has made it seem very easy, indeed, for Congress to get that long-postponed, once-and-for-all, final judgment on who has authority to make war happen.

U.S. District Judge Harold H. Greene, in a recent, quite surprising ruling, has indicated that Congress can obtain that judgment in the form of a clear-cut court decision. The judge has even telegraphed the kind of decision that could be expected: Congress would win the undoubted power to declare war, and U.S. troops could never again be sent into combat without Capitol Hill's concurrence.

As Congress assembled for a new session late last week, some of its bolder members moved to take Judge Greene up on that offer. They introduced a simple resolution that would put Congress on record as saying "that the Constitution of the United States vests all power to declare war in the Congress of the United States."

The resolution, in that form, is nothing more than a formal declaration of what members of Congress have been saying all along.

And, in that form, it is only an expression of Congress' constitutional opinion (if it passes) and therefore would not be binding on the president, who could choose to ignore it and continue to insist that he need not ask Congress' permission.

But if a majority were to approve that resolution, according to Judge Greene, that would be all that Congress would have to do to let him know that Congress means business in this old conflict over war powers, and a decision in its favor could be expected to follow promptly.

Simple though that may seem, however, the resolution is already caught in the middle of deep political perplexity on Capitol Hill. Lobbyists working for adoption of the resolution concede that they are encountering quite considerable resistance to it.

Here are some of the negative reactions now being picked up to that proposal:

* The resolution would sound, politically, like a negative reaction to Mr. Bush's attempts to get the gulf crisis resolved, and thus might be interpreted as somewhat less than a show of patriotic solidarity against Iraq's Saddam Hussein.

* The resolution would appear to be only a partisan gesture by the Democrats against a Republican president they want to control but cannot.

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