Congress' war powers have few defenders


WASHINGTON -- As President Bush accompanies his war on terrorism with saber-rattling toward Iraq, a few concerned members of Congress and peace activists continue to insist that he must go to Congress before taking military action against that country.

But unlike the public protest against the use of American force in Vietnam, virtually none has been expressed over the notion that the president could act unilaterally against Saddam Hussein, confronting Congress with a fait accompli and leaving it with little recourse but to acquiesce.

The small group that argues that Congress, not the president, has the constitutional right to declare war, or at least authorize military action in advance under the War Powers Act of 1973, is ignored by an administration that says the act cannot encroach on a president's constitutional role as military commander in chief.

Indeed, some experts on war-making under the Constitution point out that the War Powers Act, in allowing a president to proceed with hostile action for 60 to 90 days before reporting to Congress, actually enhances his ability to wage war without congressional authorization.

One of these experts, Louis Fisher, a senior specialist in separation of powers with the Congressional Research Service, notes that the U.N. Charter and mutual security pacts such as NATO "give presidents access points" to authorization of force rather than Congress.

Mr. Fisher attributes some of the public silence on the issue to the low level of public involvement in the war on terrorism. The existence of the voluntary army, he says, keeps the war from reaching into many average families the way a military draft would.

Others cite the very high popularity of President Bush and the low casualties in the relatively antiseptic war using sophisticated weaponry. "The pain isn't that great," says Rep. Ron Paul of Texas, a rare Republican voicing concern. Another Capitol Hill critic, insisting on anonymity, says: "Nobody's second-guessing this. The attitude is, 'Nobody's getting killed, so what's the difference?'"

These voices aren't debating the merits of using force to deny Mr. Hussein weapons of mass destruction, but rather under what constitutional authority. Democratic Sen. Russell Feingold of Wisconsin, the point man in the discussion, argues not only that the president should come to Congress before any such action but also that open consultation would enhance the public support necessary to help it succeed.

Academia, which was vocal on presidential war-making powers in the Vietnam War, is relatively quiet now. But professor Harold Koh of Yale Law School notes that "the spirit of the War Powers Act is not to escalate conflict" and that the intent of the current use-of-force resolution is to limit the response to targets specifically tied to the Sept. 11 attacks.

In the House, Mr. Paul and Democrat Dennis Kucinich of Ohio have been outspoken in defense of Congress' power to declare or otherwise authorize war. Others, like Democratic Rep. Barney Frank of Massachusetts, observe that, as a practical matter, Congress can block military action only by refusing to appropriate the money for it, and with Americans in the field that won't happen.

Another concern of defenders of Congress' role in declaring war is the notion of "anticipatory self-defense," whereby Mr. Bush could argue that pre-emptive action against weapons of mass destruction in Iraq was imperative and therefore obviated the opportunity for congressional consultation.

But one critic hypothesizes that any large assault on Iraq would require months of buildup, as in Operation Desert Shield in 1991, depriving an attack of surprise, and thus would permit ample time to go to Congress before the blow was struck.

Such musing over observing the niceties of constitutional authority seems, however, to be getting little attention. Mr. Bush, unlike a previous Republican president, Theodore Roosevelt, speaks loudly about getting rid of Mr. Hussein while carrying a big stick.

Jules Witcover writes from The Sun's Washington bureau.

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