Court disarms war opponents

March 14, 2003|By Jules Witcover

WASHINGTON - Diehard American opponents of President Bush's planned pre-emptive invasion of Iraq are, so to speak, running out of bullets.

A U.S. Circuit Court of Appeals in Boston yesterday detoured a last-ditch legal effort to block the war by ruling that the time was not "ripe" to consider whether the president was usurping Congress' constitutional power to "declare war" because negotiations at the United Nations to avert war were still under way.

"Many important questions remain unanswered about whether there will be a war, and if so, under what conditions," Judge Sandra Lynch, a Bill Clinton appointee, wrote for the three-judge panel. "Diplomatic negotiations, in particular, fluctuate daily. The president has emphasized repeatedly that hostilities still may be averted if Iraq takes certain actions. ... The Security Council, now divided on the issue, may yet reach a consensus."

To evaluate the claim that Mr. Bush was exercising a congressional power that could not be delegated to him, as the plaintiffs' lawyer, John C. Bonifaz of Boston, contends, "we would need to assume that the Security Council will not authorize war, and that the president will proceed nonetheless," she wrote.

At the same time, however, Judge Lynch said the panel "would be reluctant to accept" the assertion of Justice Department lawyers "that no claim can ever be ripe until an attack has actually occurred. ... It would seem to say that a case cannot be ripe on the basis of reasonable predictable future injury" to the plaintiffs.

But that seems a slender reed on which to lean. And waiting until an invasion to seek court relief would obviously be a case of locking the barn door after the horse had been stolen. Just as obviously, once U.S. troops move into Iraq, solid support for them - if not for the president - in Congress and the country is certain.

Mr. Bonifaz says he will petition the court for a rehearing as soon as the Security Council passes or rejects a new resolution and Mr. Bush declares his firm intention to invade, at which point the case presumably will be "ripe" for the court's consideration.

But the plaintiffs - five unidentified soldiers, 15 military parents and a dozen House Democrats, including anti-war presidential candidate Dennis J. Kucinich of Ohio - may soon have only the recourse of street protest to stop the war. Although such demonstrations are picking up steam, they are a long way from the Vietnam anti-war effort that disrupted domestic tranquillity more than 30 years ago.

This time last year, it was already clear that the Democratic leadership in Congress had no taste for challenging Mr. Bush's intention of including Iraq and Saddam Hussein under his umbrella of a war on terrorism as part of his described "axis of evil."

Only a few Democrats on Capitol Hill, such as Mr. Kucinich and Sen. Russell D. Feingold of Wisconsin, along with maverick Republican Ron Paul of Texas, raised any questions then about the president's assumption of Congress' war-declaring prerogative.

As Mr. Bush effectively cast himself as a wartime president in the wake of Sept. 11, the Democratic leadership of Richard A. Gephardt in the House and Tom Daschle in the Senate essentially ran for political cover. They ultimately persuaded many of their party colleagues to embrace Mr. Bush's request for authorization to use force if necessary to disarm Iraq.

The Democratic leaders counseled their followers to do so to "get it off the table" before the November congressional elections, rationalizing that voters would then focus instead on the flagging Bush economy and return a Democratic majority to Congress. It was a fool's errand.

Even now, most of the Democratic presidential hopefuls for 2004 are tied in knots over how to position themselves on what to do about Iraq now and especially after the war they fully expect to happen - regardless of whether only Congress can constitutionally declare it.

Jules Witcover writes from The Sun's Washington bureau. His column appears Mondays, Wednesdays and Fridays.

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