Suit examines Clinton policy in Yugoslavia

Judge hears arguments on use of military force

War In Yugoslavia

June 04, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- With talk of a diplomatic deal to end the Kosovo crisis swirling beyond the courthouse, a federal judge went ahead yesterday to explore at length a court's power to second-guess President Clinton's use of U.S. military forces in Yugoslavia.

U.S. District Judge Paul L. Friedman at one point suggested that the pace of military operations may overtake a court's review of war-making power under the Constitution, as has happened in past conflicts.

Still, he showed no sign of backing off the issue and said he would rule early next week on whether 26 members of the House will be allowed to go forward with a lawsuit claiming that presidents cannot constitutionally send the military into action without Congress' approval.

The Clinton administration has asked the judge to dismiss that lawsuit swiftly. A Justice Department lawyer, Philip D. Bartz, argued yesterday that it was improper "for the judiciary to become an adviser to the president." It will be "ominous for U.S. foreign policy," he said, if the courts now "speak with a different voice" than the president's on military actions.

Judge Friedman listened with a mixture of sympathy and skepticism to both sides during an 80-minute hearing on the constitutional issue. The hearing was held in a large ceremonial courtroom to accommodate a crowd of spectators -- including White House counsel Charles F. C. Ruff.

A lawyer for the 26 House members -- including Rep. Roscoe G. Bartlett, a Western Maryland Republican -- argued that the Balkan conflict provides a unique chance for the courts to lay down the law that the nation cannot be committed to war "unless both houses of Congress are willing to support that war."

Pittsburgh law professor Jules Lobel, representing the legislators, said that no president before Clinton has continued a military operation abroad more than 60 days without getting approval from Congress.

Clinton has done so, the professor contended, in direct disobedience of the War Powers Act, enacted in 1973 to spell out the Constitution's mandate that only Congress can commit the nation to war. And he has gone on with the conflict, Lobel added, in the face of an explicit vote in the House in April refusing to authorize the air war against Yugoslavia.

If the courts refuse to let members of the House sue the president to require obedience to the War Powers Act, that will make the act "meaningless," Lobel said. "The courts can't just say nothing," he added.

Pub Date: 6/04/99

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