March Toward War Tests Authority of Congress

If Congress fails to assert war powers, it could lose them, scholars say

THE politics of war in the Persian Gulf are pressing some stark decisions on the United States Congress. The steady and deliberate mounting of war preparedness is creating a more clear-cut test of how the nation decides to go to war than in decades.

Many scholars of American government, both liberal and conservative, say that if Congress fails to assert its war powers in this case, it will, for all practical purposes, lose them.

So far, the Congress has avoided taking up votes on whether to authorize offensive military action against Iraq. On Friday, however, Senate majority leader George Mitchell (D) of Maine said that a debate leading to a vote could begin as early as Jan. 10 and no later than Jan. 14.

How definitive any resolution the Congress votes is not clear. Sen. Tom Harkin (D) of Iowa is promoting one that merely requires the president to seek congressional authorization before launching an offensive action. Such a resolution would allow Congress to assert its constitutional authority to declare war without actually making a decision concerning the Gulf.

An immediate concern of the congressional leadership is not to undermine the diplomatic mission of Secretary of State James Baker III, meeting Iraqi Foreign Minister Tariq Aziz in Geneva on Jan. 9. Senator Mitchell says he does not want the debate in Congress to muddle the administration's message to Iraq.

But at least two factors are pressing Congress to act. One is the stir among members to speak out on US Gulf policy. The general drift of the views on Capitol Hill is to slow down the march toward war. Yet Congress is being charged with cowardice and opportunism - even by Washington analysts who usually avoid such loaded language - for refusing to take action but making critical speeches anyway.

``The real problem of Congress is irresponsibility, basically,'' says Charles Fairbanks, a diplomatic scholar and former foreign policy official. ``They'll carp, but they won't decide.''

The other factor pressing action is the need of Congress to preserve its authority to allow the nation to go to war.

Although the president is commander in chief of the Army and Navy, the Constitution grants Congress sole authority to declare war. The last time this authority was clearly used was in World War II, when the US declared war on Japan, Germany, and Italy.

White House officials cite ample precedent for presidents' taking matters into their own hands. Americans have used force abroad without declaring war 211 times and declared war only five times. Most of the undeclared uses of force were small-scale rescue missions or attacks on pirates. But that number also includes the Korean and Vietnam Wars.

The road to war in the Gulf is less ambiguous. The preparations have been long and deliberate, requiring no substantial secrecy or surprise - unlike American attacks on Grenada or Panama. If the US strikes against Iraq, it will launch a defined war, not a gradual enmeshing as in Vietnam.

``This is a critical defining case,'' says Alexander George, a fellow at the US Institute of Peace. ``If Congress does not assert its role in declaring war in this case, [its role] is finished.''

Congress passed resolutions in October that supported administration policy up to that point in defense of Saudi Arabia.

The mounting of an offensive force in the Gulf came later. It brought a suit from some members of Congress, led by Rep. Ronald Dellums (D) of California, to force the administration in court to invoke the 1973 War Powers Resolution. This law gives the administration 60 days to win approval from Congress for military action or withdraw its troops.

A federal judge rejected the suit, saying the Congress itself must act to trigger the War Powers Resolution. The resolution, passed at the end of the Vietnam War, was intended to reinforce Congress's war powers. Presidents ever since have insisted the resolution is unconstitutional.

The Gulf confrontation, says Robert Katzmann, a constitutional scholar at the Brookings Institution, is ``really the first post-Vietnam case in which the notion of constitutional principle is being seriously tested.''

One argument against the need for congressional action is that the United Nations has authorized the use of force to free Kuwait, and the Senate has ratified US membership in the UN.

This was the argument used to avoid a declaration of war in Korea. However, the argument was stronger in Korea. Although most of the soldiers and the commanding officers were American, the force was technically a UN force. In the current Gulf crisis, the UN has merely authorized member nations to act individually.

The greatest practical power that the Congress has over military action in the Gulf is not legal but political.

If Congress voted down a resolution authorizing force similar to the UN resolutions, then President Bush could proceed only at great political peril. Likewise, an affirmative vote could consolidate public support and give his policy added legitimacy.

There are political perils for the Democrats controlling Congress as well. They must be careful not to appear to undermine American policy with soldiers ready to fight. Their doubts about Gulf policy, no matter how valid, also risk branding them as weak in foreign policy.

Unless a war with Iraq becomes a long, Vietnam-like quagmire, says American Enterprise Institute analyst William Schneider, ``this will be an issue that will damage them for a long time to come.''

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