What About the War Powers Act?

1 May 2002

The White House wasted no time the other day shooting down a front-page story in The New York Times saying the Bush administration is focusing on "a major air and ground invasion" of Iraq, probably "early next year," using from 70,000 to 250,000 American troops to drive Saddam Hussein from power.

That the cautious Gray Lady played the story on page one caused considerable consternation among congressional figures who fear President Bush may undertake, without further congressional authority, the task he has often indicated he will carry out - removing the Iraqi threat of using weapons of mass destruction.

Sen. Russell Feingold, the Wisconsin Democrat who recently held hearings on war powers before his Senate Judiciary Subcommittee on the Constitution, responded with a reminder: "If the president does plan to take such action, it is time for the administration to initiate meaningful consultations with Congress over the authority that will be needed to launch such an expansive military campaign, if it should be undertaken at all."

Mr. Feingold went on: "While the consultative process and debate may demonstrate that it may be necessary to take military action to limit Iraqi weapons of mass destruction, it is also clear that the United States must act from a strong unified position. The Constitution and the American people demand as much."

He noted that Congress had authorized Mr. Bush "to use appropriate force to respond to the attacks of Sept. 11," but it emphasized that "absent a clear finding that Iraq participated in, aided or otherwise provided support for" the attackers, "the president is constitutionally required to seek additional authority to embark on a new major military undertaking in Iraq."

As of now, there is no indication that the administration has any interest in such discussions with Congress. The White House turns away such matters with evasive and ambiguous comments like spokesman Ari Fleischer's recent observation that while the Pentagon has "multiple contingency plans" for dealing with Iraq, Mr. Bush "has no plan on his desk" to implement military action.

Mr. Feingold made a critical distinction in saying that Congress' "use of force" joint resolution after Sept. 11 was very limited in that it approved only actions clearly responsive to those attacks. Congressional sources say the administration at first sought an open-ended resolution in the nature of the 1964 Gulf of Tonkin resolution that then-President Lyndon Johnson took as a blank check for whatever military action he chose to initiate in Vietnam.

It was to undo this legislative mistake that Congress in 1973 enacted the War Powers Act. It requires regular consultation with Capitol Hill in contemplating military action, written notification within 48 hours of such action and its "estimated scope or duration" and congressional consent through either a declaration of war or "specific statutory authorization." If such approval is not granted in 60 days, the president is supposed to withdraw U.S. forces within 30 days.

The details of the War Powers Act, however, have usually been honored in the breach. But in this latest case, Congress wrote the empowering resolution specifically confining military action against "nations, organizations or persons [the president] determines planned, authorized, committed or aided the terrorists ... or harbored such organizations or persons, in order to prevent any future acts of international terrorism" by them.

Such language, as Mr. Fein- gold noted in response to the Times story, makes it imperative that unless the administration can establish Iraqi complicity in the events of Sept. 11, the administration will be obliged to go back to Congress for new authorization of any invasion or other assault on that country.

An administration spokesman at Mr. Feingold's earlier hearings, Deputy Assistant Attorney General John Yoo, insisted, however, that the president is not bound by the War Powers Act requiring specific congressional approval because of his constitutional powers as commander in chief.

This issue, which goes to the heart of constitutional government, warrants further discussion here, and will get it.

Jules Witcover
Published in the Baltimore Sun © 2002, The Baltimore Sun

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