A tussle over who can legally declare war

As the White House steps up the making of its case for toppling Iraqi President Saddam Hussein, it will argue the United States has what might be called residual authorization.

The idea is there's a leftover "go" from the Gulf War and from congressional action in the days following the Sept. 11 attacks.

President Bush already has all the legal and moral authorization he needs to attack Iraq, the executive thinking goes, because Mr. Hussein never complied with the Gulf War's terms of surrender, and because defensive measures adopted after Sept. 11 apply to a developer and user of weapons of mass destruction. Therefore no new Congressional authorization – nor any United Nations Security Council resolution – is necessary.

But that position is causing alarm in Congress and among legal experts, renewing a debate over presidential war powers that is nearly as old as the American republic itself.

The White House emphasizes that President Bush might yet seek authorization from Congress out of national interest and as a way to back a war with unity. In the administration's most forceful case yet for regime change in Iraq, Vice President Dick Cheney said in a speech Monday that the administration would consult both Congress and America's allies.

Yet the claim that there is no legal necessity for Congress to authorize a war against Iraq appears designed to carve out a precedent-setting freedom of action for the president. Already it's an opinion that even some White House allies view dimly.

"The White House should be mindful of the important distinction between what the president can do, and what he ought to do," said Henry Hyde, chairman of the House Committee on International Relations, in a statement Monday. Noting he agrees with the analysis that the Bush administration is not obliged to seek approval to take action, he also warned that "any policy undertaken by the president without a popular mandate from Congress risks its long-term success."

But other Republicans and many legal scholars go a step farther. "The administration's position is simply wrong," says Michael Glennon, a professor of international law at Tufts University's Fletcher School of Law and Diplomacy in Medford, Mass. He says there's no doubt that congressional authorization for the 1991 Gulf war was "extinguished" the day Iraq signed terms of a ceasefire – whether it complied with the terms of cessation of hostilities or not.

Sen. Arlen Specter (R) of Pennsylvania argues that in an "emergency," the president as commander-in-chief can act unilaterally, but that in this case there is time for Congress to make and make the final decision.

As for the Bush administration argument that Iraq is covered by last September's congressional vote that authorized the president to act against perpetrators of the terrorist attacks, Professor Glennon says, "That argument may be correct, but only if Iraq can be linked to events of Sept. 11."

Vice President Cheney's speech, before a convention of the Veterans of Foreign Wars in Nashville, appeared designed to accomplish two tasks: give firm ground to the Bush argument for a right to preemptive action against regimes or organizations seeking weapons of mass destruction; and quiet the dissenting voices from within the president's own party as well as principal figures involved in the Gulf War.

Arguing the case for preemptive action against Mr. Hussein, Cheney said Hussein would possess nuclear weapons "fairly soon" if left on his current course.

But legal experts say those concerns do not override constitutional requirements for the president to seek congressional authorization for war.

"I cannot imagine why the administration is asserting this singular power, except that it sees this as an opportunity to assert a constitutional position," says Roger Pilon, director of the Center for Constitutional Studies at the Cato Institute in Washington. "The president is probably obligated to get Congressional authority because the mere commander-in-chief function does not entail waging war on his own initiative," Mr. Pilon says.

Some observers, and even Republican leaders, say that despite the Cheney speech, which argued that regime change in Iraq would "benefit the region," unease about the administration's actions will continue until the president himself makes the case for attacking Iraq. The White House says administration officials will participate in a second round of Congressional hearings on Iraq next month.