Former secretary of state calls War Powers act `unenforceable'. Gulf resurrects issue, but constitutional test is unlikely, Rogers says

Former US Secretary of State William P. Rogers says the War Powers Resolution is ``neither constitutional nor enforceable,'' but he allows that it ``highlights the need for consultation with Congress'' about military action abroad. Mr. Rogers indicates that it would take an extraordinary scenario to establish the constitutionality of the resolution once and for all. Meanwhile, the continuing crisis in the Gulf increases the likelihood of a constitutional showdown.

Rogers, who headed the State Department for President Nixon from 1969 to 1973, made his remarks in a Monitor interview at Wellesley College, where he had come to speak on the United States Constitution. He resigned as secretary of state shortly before the War Powers Resolution survived a presidential veto in October 1973. Henry Kissinger succeeded him at the State Department.

US attorney general under President Eisenhower from 1958 to 1961, Rogers last year chaired the presidential commission that investigated the space shuttle Challenger accident.

The controversy over the War Powers Resolution, often referred to as the War Powers act, resurfaced last month when the Senate voted 50 to 41 not to apply it to the US forces deployed in the Gulf. A bill that would have imposed many of the same restrictions was defeated by a filibuster.

The resolution requires a president to consult Congress within two days of committing troops to areas where they face ``imminent hostilities,'' and to withdraw such troops within 90 days unless Congress votes otherwise. Only once, when US marines were sent to Lebanon in 1983, has Congress acted on the measure. But that bill extended the deadline to 18 months.

``There's some logic to the position of Congress,'' Rogers says. ``The [congressional] declaration of war is outmoded and old-fashioned.... The constitutional provision of giving Congress the power to declare war is rather meaningless.'' But, he adds, ``the Constitution's framers intended that Congress should have a major role in the making of war.''

Rogers maintains - as has every president since Nixon - that the resolution unconstitutionally limits the commander in chief's role. It is also an unwise measure, he says, since it encourages ``a Khomeini'' simply to lie low for 90 days, then restart hostile action once Congress has voted the troops home.

The debate reignites nearly every time American troops are deployed overseas, from the US Marine Corps mission to free the Mayaguez (hijacked by Cambodia in May 1975), to the attempted rescue of the American hostages in Tehran in April 1980, to the US invasion of Grenada in October 1983.

It was Congress's frustration over the Vietnam war that brought the act about. ``Many members of Congress were of two minds,'' says Rogers. They were unhappy about what had happened, ``but, on the other hand, they knew that they had played a major role in what had happened.''

Rogers, who testified against the bill, says ``it always came down to the fact that members of Congress really wanted to blame the executive branch'' for the war.

Rogers says he was always diplomatic about the resolution, ``but I kept pointing out that they'd passed the Gulf of Tonkin Resolution; they'd authorized the buildup of the troops, and we'd had no part of that. So why did they keep blaming us? We were doing the best we could to end it. They didn't like that.''

The Gulf of Tonkin Resolution, passed overwhelmingly by Congress in August 1964, authorized the President to ``take all necessary measures to repel any armed attack against the forces of the United States.'' Nearly 10 years later, in 1973, 80 percent of the respondents in a Gallup poll supported the War Powers Resolution. ```No more Vietnams' should be our objective in setting up such procedures,'' said then-US Rep. Spark M. Matsunaga (D) of Hawaii.

The Supreme Court could settle the question of the resolution's constitutionality - if a case could properly be brought before the court, and if it would hear such a case, Rogers indicates. The first issue, he says, is whether or not one branch of government may sue another: ``You can imagine all kinds of lawsuits if that were possible,'' with Congress suing the president over a delaying tactic, or even the courts suing the president for acting unconstitutionally. In fact, a federal suit organized by the Democratic Study Group is under way to force the President to comply with the War Powers act.

It is unlikely, Rogers speculates, that the Supreme Court would feel it is proper to decide such a sensitive political issue. ``There's been no reluctance to talk about'' the War Powers Resolution, he concludes, ``but there has been reluctance to test its constitutionality.''

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