U.S. Argues Against Use of War Powers : Administration Sees No Combat to Justify It, No Judiciary Role

The Administration, arguing today that a federal judge should not force President Reagan to abide by the War Powers Act, said that there is no daily combat in the Persian Gulf to warrant it and that the judiciary has no business in the political question.

Responding to a lawsuit filed by 110 congressional Democrats, Justice Department attorney Robert J. Cynkar told U.S. District Judge George H. Revercomb, “There are some questions the court can never consider.”

The Democrats, who have asked the judge to force the President’s hand, contended that they are seeking a presidential report to Congress that would essentially invoke the controversial law. Alan Morrison, attorney for the lawmakers, said, “The President basically hasn’t told the American people what he is doing there and how long it will last.”

“We don’t want to wait for the start of World War III, another Vietnam or another Korea,” Morrison told the judge.

Judge Expresses Doubt

Revercomb, who took the case under advisement, expressed some doubt about the advisability of his jumping into the controversy but also appeared convinced that if he ruled against the congressmen, it would be unlikely that a war powers case could be brought successfully.

The Democrats, frustrated by Reagan’s refusal to acknowledge the 1973 War Powers Act applies to the situation in the war-torn gulf, say the continued attacks against vessels in the strategic region “leads to one and only one conclusion”--U.S. forces are at risk and the law should be triggered to bring Congress into the decision-making process.

“If this set of circumstances doesn’t cause the trigger of the act, then nothing short of all-out war would,” Morrison said.

But Cynkar asserted that if the lawmakers disagree with the President, “those debates must be constrained to the Congress, not the courts,” which further are not in a position to judge the political question.

Not ‘Day In and Day Out’

He also told the judge that the law still does not apply to the gulf, because “we don’t have combat day in and day out and we’re not mounting a military campaign to assist one side in a war.”

Under the 1973 law, a President must notify Congress within 48 hours when U.S. forces are in an area of “imminent hostilities,” giving lawmakers 60 days either to declare war or to grant an extension--or the troops must come home.

The issue has been a contentious one since the U.S. naval buildup began in the gulf this summer to protect U.S.-flagged Kuwaiti oil tankers. There are now about 40 American ships in the strategic region, operating in a heightened stage of alert that has included military engagements with Iran.