Taking Clinton to court

June 07, 1999|By Jack W. Germond and Jules Witcover

WASHINGTON -- Even as the first reports were being aired that Yugoslavia President Slobodan Milosevic would accept the NATO peace plan, a federal judge here was hearing a congressional charge that President Clinton was conducting an illegal war.

Judge Paul Friedman of the U.S. District Court listened passively as attorneys for 26 members of the House, Democrats and Republicans, urged him to accept their case accusing Mr. Clinton of conducting armed hostilities "without obtaining a declaration of war or other explicit authority" from Congress as the Constitution requires.

They further charged that he was in violation of the War Powers Resolution of 1973 by proceeding with those hostilities beyond the law's 60-day deadline for stopping in the absence of congressional authorization. His actions, they argued, marked not only the first time a president had violated the 60-day cutoff, but also the first time one had continued military action in the face of an explicit congressional refusal to authorize him to proceed.

Conflicting votes

That refusal came on April 28, when the House in a rare tie vote, 213-213, declined to authorize the air strikes against Yugoslavia that had already been going on for more than a month. Deputy Assistant Attorney General Philip Bartz noted, however, that the House subsequently voted overwhelmingly to provide additional military funds, claiming the vote amounted to a statement of approval of the air strikes.

But University of Pittsburgh law professor Jules Lobel, representing the petitioners, said it "was too much to ask Congress to deny the troops the funds" once they were committed, and Congress in voting the money was not authorizing the hostilities.

One petitioner, Rep. Roscoe Bartlett, a Maryland Republican, said Congress was merely "refilling the pot" of military hardware that Mr. Clinton was "emptying," not sanctioning what he was doing. On the steps of the courthouse, Mr. Bartlett contended that the Founding Fathers never intended that a president be permitted on his own to put the country into war and risk American lives.

Judge Friedman, aware of the reports of a peace breakthrough that might make the whole issue moot, nevertheless patiently heard a Justice Department plea to have the charges dismissed mainly on the grounds that the 26 House members of the 435-member body did not have the standing to bring the charges.

The judge's decision, due early this week whatever the status of the peace plan, will be important as a constitutional and legal issue. Mr. Bartz argued that the courts have been most reluctant to get involved in "political" questions between the executive and legislative branches in the absence of a clear-cut impasse.

But Mr. Lobel and others petitioning the court contended that the issue is one of legality and constitutionality and clearly belongs in court. They warned that a dismissal of the suit by Judge Friedman would render the War Powers Resolution "meaningless."

If the dismissal occurs, Mr. Lobel said, it "will be treated by future presidents as carte blanche" to go to war without congressional authorization, with ramifications "far beyond Kosovo." He argued that members of the House "have done their duty" in the tie vote denying explicit authorization and the judge should "do what we think is yours."

Impeachable offense

Afterward, Michael Ratner, another of the plaintiffs' lawyers, turned aside a question about whether Clinton's continuation of the bombing without congressional approval would be an impeachable offense. But he did say "subverting" the Constitution in this way would be most serious.

The president obviously has had his fill of impeachment threats and trials. He has to hope that Judge Friedman will decide to stay out of a situation that shows signs of resolving itself, and dismiss the allegations of unconstitutional behavior.

At the same time, clarifying whether any president can make war on his own in apparent defiance of the law would be constructive.

Jack W. Germond and Jules Witcover write from the Washington Bureau.

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