Jewish World Review April 24, 2002 /13 Iyar, 5762

Jules Witcover

Jules Witcover
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Bush, congress and war on Iraq | President Bush's repeated statements that the United States will not tolerate the development or possession of "weapons of mass destruction" by Iraq has created a general expectation that sooner or later he intends to take direct military action against Saddam Hussein.

He seems to be justifying such potential action in advance as a mere extension of his war on terrorism authorized by Congress only days after the Sept. 11 attacks.

But that approval specified that the president could use force only against "nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks ... or harbored such organizations or persons, in order to prevent any future acts of international terrorism" by them.

In other words, to depend on that congressional action Bush would have to establish that Iraq and its dictator played a role in the Sept. 11 assaults or provided a haven for those who did. If he could not, defenders of Congress' constitutional role to declare war argue, he would have to come back to Congress for authorization to initiate hostile action.

With this potential circumstance in mind, Sen. Russell Feingold (D-Wis.) called in a panel of experts the other day to examine the scope of the War Powers Resolution of 1973, under which Congress approved the war on terrorism, and the chief executive's war powers under the Constitution.

Feingold said he did not intend to raise the specific question of a potential U.S. attack on Iraq, but some panelists did generally comment on it, reinforcing Feingold's view that Congress cannot be bypassed in initiating a war.

But speaking for the administration without referring to Iraq, Deputy Assistant Attorney General John Yoo said the president could act, under his constitutional powers, without congressional authorization, though he would prefer to have it.

Yoo cited the Supreme Court's calling the president "the sole organ of the federal government in the field of international relations" and noted his constitutional role as the commander-in-chief of the armed forces. These provisions, he said, "give the president the constitutional authority to introduce U.S. armed forces into hostilities when appropriate, with or without specific congressional authorization."

Feingold clearly had trouble with that view. So did Georgetown Law Professor Jane Stromseth, saying the framers of the Constitution intended Congress "to decide, to make a choice, about whether the United States should go to war; it was not a formalistic power to simply validate that a legal state of war existed."

The Constitution, she argued, "gave Congress the power to declare war because the founders believed such a significant decision should be made not by one person, but by the legislature as a whole, to ensure careful deliberation by the people's elected representatives and broad national support before the country embarked on a course so full of risks."

She cited James Madison's observation in 1793: "In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department."

Others on the panel discussed the doctrine of "anticipatory self-defense," wherein Bush could argue that every nation has the right to defend itself under attack, and that the development or possession of weapons of mass destruction by a hostile country would justify not waiting for an attack using such weapons.

Feingold said he intended to explore the matter further. As for You, he said after the hearing that the administration has "independent authority (to wage war) under the Constitution, but we would be willing to act with congressional support."

This is an issue that cries out for further exploration now, before the president confronts Congress with a fait accompli in an unauthorized attack on Iraq of indeterminate ramifications.

Comment on JWR contributor Jules Witcover's column by clicking here.

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