Lawyers Say Iraq Attack Needs No Congressional Approval

WASHINGTON (The Washington Post) – Lawyers for President Bush have concluded he can launch an attack on Iraq without new approval from Congress, in part because they say that permission remains in force from the 1991 resolution giving Bush’s father authority to wage war in the Persian Gulf, according to administration officials.

At the same time, some administration officials are arguing internally that the president should seek lawmakers’ backing anyway to build public support and to avoid souring congressional relations. If Bush took that course, he still would be likely to assert that congressional consent was not legally necessary, the officials said.

Whatever the White House decides about its obligations under the War Powers Resolution of 1973, some House and Senate leaders appear determined to push resolutions of support for ousting Iraqi President Saddam Hussein when Congress returns after Labor Day because they consider the issue too grave for Congress to be sidestepped. Administration officials say privately that military strikes against Saddam’s regime are virtually inevitable, although all the specifics have not been decided and action is not imminent.

Bush has said repeatedly he will consult lawmakers before deciding how to proceed but has pointedly stopped short of saying he will request their approval. The difference between getting legislators’ opinions, as opposed to their permission, could lead to a showdown this fall between Congress and the White House.

“We don’t want to be in the legal position of asking Congress to authorize the use of force when the president already has that full authority,” said a senior administration official involved in setting the strategy. “We don’t want, in getting a resolution, to have conceded that one was constitutionally necessary.”

Harold Hongju Koh, a professor of international law at Yale Law School who was an assistant secretary of state in the Clinton administration, called it shortsighted for the administration to try to avoid a full congressional debate about such an expensive and perilous operation. “The constitutional structure tries to make war hard to get into, so the president has to show leadership and make his case to the elected representatives,” Koh said. “This argument may permit them to get us into the war, but it won’t give them the political support at home and abroad to sustain that effort.”

Whether to secure formal congressional support is among many questions confronting Bush as he decides on a course of action toward Iraq. The president has strongly signaled his interest in toppling Saddam’s regime, in large measure because of what administration officials describe as the country’s pursuit of weapons of mass destruction. But Bush has not settled on the kind of military attack to pursue, nor has he mounted a full-blown effort to line up support from allies or the U.S. public.

Inside the White House, a full-throated debate over some of these issues has been underway for some time.

White House Counsel Alberto Gonzales had his deputy, Timothy Flanagan, develop the administration’s legal position on questions surrounding a war with Iraq.

That legal review is largely complete, officials said, with the consensus emerging that the president would not be legally bound to obtain approval for action against Iraq. In making this case, officials point first to the Constitution’s designation of the president as commander-in-chief.

Administration officials also cite the 1991 Persian Gulf resolution authorizing the use of military force against Iraq. The resolution allowed the use of force to enforce United Nations Security Council resolutions, including demands that Iraq eliminate weapons of mass destruction and open the country to U.N. inspectors.

“No one thinks that Iraq has fulfilled them,” an administration official said.

Administration officials said their position was bolstered by a Sept. 14 resolution – passed 98 to 0 in the Senate and 420 to 1 in the House – endorsing a military response to the terrorist attacks on the World Trade Center and the Pentagon. That argument would depend on linking Iraq and al-Qaida.

Although the administration has not publicly made this case in detail, Defense Secretary Donald Rumsfeld said at a July 30 news conference, “Are there al-Qaida in Iraq? Yes.” Last week, U.S. intelligence officials told The Washington Post that a number of high-ranking al-Qaida members have taken refuge in Iraq.

War-powers disputes have occurred frequently since 1800, when the Supreme Court upheld President John Adams’s undeclared war with France. The Constitution grants the president the duties and powers of commander-in-chief of the armed forces. But because of the framers’ concern that an unchecked executive might make war in pursuit of glory or personal revenge, they gave Congress the power to declare war. The result is a murky separation of powers.

The 1973 War Powers Resolution was intended to bridge the roles by allowing the president to act unilaterally with military force for 60 to 90 days, with congressional approval required for troops to remain engaged in hostilities after that.

Every president since has objected to the resolution, beginning with Richard Nixon, who vetoed its creation but was overridden by lawmakers dismayed by the escalation of U.S. deployments in Vietnam. Vice President Dick Cheney, when he was a member of Congress from Wyoming, called for the repeal of the resolution, which he said was “unworkable and of dubious constitutionality.”

Michael Glennon, an international law professor at Tufts University’s Fletcher School of Law and Diplomacy, specifically questioned the administration’s reliance on the Gulf War resolution. He said the authority apparently ended April 6, 1991, when Iraq formalized a cease-fire with a notification to the U.N. Security Council. “Once extinguished, the authority did not revive when Iraq failed to comply with its obligations,” Glennon said.

Administration officials have intensively researched President George H.W. Bush’s approach in the buildup for Operation Desert Storm, and it appears to track the evolution of their own thinking. The elder Bush initially said the War Powers Resolution did not apply to the buildup in the Persian Gulf, triggered by Iraq’s invasion of Kuwait in 1989, because hostilities were not imminent.

Bob Woodward reported in “The Commanders” that Sen. William Cohen, R-Maine, later defense secretary under President Clinton, told Bush during a White House meeting in 1990 that the administration should seek a vote of support for the operation “for the sake of unity between the administration and the Congress, for the sake of the troops in the desert who deserved a government unified.”

The elder Bush eventually did so. While still insisting a resolution was not necessary, his administration lobbied hard for it. In January 1991, it passed the Senate by 52 to 47 and the House by 250 to 183.

Senate leaders – including Majority Leader Tom Daschle, D-S.D., Foreign Relations Committee Chairman Joseph Biden, D-Del., and Sen. Robert Byrd, D-W.Va., who views himself as the guardian of Senate prerogatives – maintain the president must come to Congress before making a massive commitment of troops to oust Saddam.

Some congressional Republicans also are speaking up, including several who say they fear an invasion of Iraq would place an unacceptable burden on the country’s armed forces.

One compromise would be for Bush’s allies in Congress to introduce a resolution of support without having the president ask for it. Administration officials said they are concerned, though, that a war-powers resolution might add conditions, such as specifying that military action in Iraq is acceptable only for the purpose of eliminating weapons of mass destruction.