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Judge hears lawmakers' plea to keep Bush from initiating war on his own


WASHINGTON -- Lawyers for 54 members of Congress pleaded with a federal judge yesterday to make a "clear statement" to President Bush that he "cannot do what he's planning to do": go to war without Congress' advance approval.

U.S. District Judge Harold H. Greene postponed any ruling after listening to lawyers spar for 75 minutes in a historic constitutional confrontation over how the U.S. government is supposed to decide for or against war.

Saying he would rule after studying the case, the judge gave few hints of his own inclinations. But at one point, he told lawyers for the challenging members of Congress that they were confronted with "a problem" -- that is, that no court had ever issued a direct order to a president not to go to war on his own authority.

That is exactly the kind of order the lawmakers' attorney, University of Pittsburgh law professor Jules Lobel, asked the judge to issue. Mr. Lobel conceded that it was unprecedented but said that the nation had never before faced the situation it now faced in the Persian Gulf: a massive array of U.S. forces there, a "realistic" threat that they soon would be sent into combat against Iraq and a president who insisted he needed no more authority to enable him to commit those forces to war.

The judge wondered aloud whether the lawmakers' constitutional challenge was premature, "when they're still talking" -- a reference to Mr. Bush's diplomatic initiatives, announced last week, toward Iraq.

Mr. Lobel said it was not, citing fresh statements made to a congressional committee this week by Defense Secretary Dick Cheney and Gen. Colin L. Powell, chairman of the Joint Chiefs of Staff, that "all the means to drive Iraq out of Kuwait" were now in place and that there was no time to wait for non-force alternatives to work.

When Mr. Bush's lawyer, Assistant Attorney General Stuart M. Gerson, was at the podium, Judge Greene picked up on Mr. Lobel's suggestion that Mr. Cheney had signaled that war was imminent. Noting that U.S. troops might be "ready to march into Iraq," the judge asked: "If that isn't war, what is?"

Mr. Gerson insisted that "no decision has been made, one way or the other, to deploy the forces in mass activities" against Iraq. What Mr. Cheney actually had told Congress this week, the president's lawyer argued, was only that forces were being massed in the gulf so that Iraqi President Saddam Hussein "understands what he faces" if Iraq remained in occupied Kuwait.

Several times during Mr. Gerson's argument, Judge Greene hinted that he thought the administration had pressed its arguments in favor of presidential authority over military action too far.

Meanwhile yesterday, House Democrats voted 177-37 to adopt a policy statement that declared the president should take no military action against Iraq without approval from Congress, "except to protect American lives from imminent endangerment."

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