Rulings vary in 2 war powers cases: Bush upheld in one, challenged in other

THE BALTIMORE SUN

WASHINGTON -- A federal judge here ruled yesterday that America will be at war if it attacks Iraq and said that the courts might in the future support congressional veto power over that war if Congress is willing to challenge President Bush's claim that he can act alone.

A different federal judge here, however, ruled almost simultaneously that the courts have no role to play in any dispute between Congress and the White House over U.S. military options in the Persian Gulf.

The two conflicting rulings left the developing constitutional fight over possible combat in the gulf in a temporary state of legal limbo, with the ultimate outcome depending upon future action -- or inaction -- by two and probably all three branches of the federal government.

For the moment, it appeared that President Bush had not yet lost in court any flexibility in continuing to manage the U.S. role in the gulf crisis.

But if the more sweeping of yesterday's two court decisions were to hold up after expected appeals, Mr. Bush and all future presidents could find that Congress had become, constitutionally, a perhaps unwanted full partner in the nation's ultimate decisions on peace and war.

The president escaped that prospect yesterday but apparently only because 54 members of Congress, and not a majority, had challenged his power to go to war on his own. That kind of challenge, the judge said in the key ruling, is not enough to show whether the president and Congress are at a constitutional impasse.

The broader decision, historic in its scope, was issued by U.S. District Judge Harold H. Greene, a jurist with a reputation for a strongly independent streak. He bluntly rejected most of the pleas offered by Mr. Bush's lawyers to try to keep the courts from exercising any role as the White House and Congress struggle over their war-making powers, and the judge went on to lay out a legal route Congress could take to get a final court ruling its way.

For now, however, the judge said it would be premature to order the president not to go to war on his own.

Two Democratic members of Congress, it was learned, have plans to start down the route defined by Judge Greene. On Jan. 3, those lawmakers -- Representatives Charles E. Bennett of Florida and Richard J. Durbin of Illinois -- plan to offer a measure to declare that "any offensive action against Iraq" must be approved in advance by Congress.

Even if a majority in both houses of Congress adopt that proposal, and the issue returns to the courts to further test the president's authority to act alone, the situation would remain clouded because of the other judge's separate decision yesterday.

U.S. District Judge Royce C. Lamberth accepted most of the government's arguments against a judicial role in sorting out the constitutional conflict over war-making powers. He declared: "The court must respect both the president's powers as well as the powers of the nation's elected representatives in Congress. Interjecting the court into this political process will only exacerbate the problems facing this nation."

Judge Lamberth threw out a plea by Army National Guard Sgt. Michael Ray Ange of Boone, N.C., to be brought back from the gulf, where his unit has been sent as part of the U.S. military buildup there.

The fact that two judges here reached such contradictory rulings increased the possibility that the issue would move on to higher courts, perhaps to the Supreme Court.

Judge Greene, in his ruling, turned aside the government attorneys' claim that war issues are to be worked out solely between the White House and Congress, without judicial intrusion. He said it ultimately was for the courts to decide whether a U.S. military situation amounted to "war" that could be declared only by act of Congress.

Noting the heavy buildup of U.S. forces in the gulf region, the judge concluded that "the forces involved are of such magnitude and significance" that no one could claim seriously "that a war would not ensue if they became engaged in combat, and it is therefore clear that congressional approval is required if Congress desires to become involved."

Thus the judge put Congress plainly on notice that if a majority of lawmakers want to insist upon a veto over U.S. combat action in the Persian Gulf, they must do so or in effect lose the constitutional struggle to the White House.

If a majority in Congress do insist that combat may not begin without Congress' approval, the judge seemed to be telegraphing the kind of decision he would then be inclined to reach: a decision that war in the gulf was imminent, and that the president could not start it alone.

At the same time, however, Judge Greene said it was too early for him to consider issuing such a decision now. Congress has not made clear where it stands on the war issue, and the president has not made clear whether he is actually going to launch an attack, the jurist said.

Judge Greene stressed that he could not act now because the lawsuit he had before him was a challenge to Mr. Bush by 54 members of Congress -- "only about 10 percent of its membership" -- and not a challenge by Congress as an institution.

He said it was not clear that "a majority" in Congress share the view that Mr. Bush cannot constitutionally go to war on his own. Even if he were to order Mr. Bush to get Congress' approval in advance, the judge said, Congress might yet conclude that he does not need it.

The president, Judge Greene added, "is entitled to be protected" from a court order telling him he must go to Congress for approval "when there is no evidence that this is what the legislative branch as such . . . regards as a necessary prerequisite to military moves in the Arabian desert."

Moreover, the judge said, he was not yet satisfied that Mr. Bush had made "a commitment to a definitive course of action" showing that war is the option he is ready to pursue. If Congress confronts the president, "there will be time enough," the judge said, to decide whether war is so imminent that Mr. Bush would be ordered to go to Congress for approval.

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