Gulf Confrontation Again Raises Issue of Legal Basis for Committing U.S. Forces : War powers: Congress will consider a resolution seeking to define and guide actions by the President.

In 1799, in the midst of an undeclared war with France, the U.S. frigate Boston seized the Flying Fish, a Danish-owned ship that had been sailing from a French port.

The Boston’s captain was operating under orders. But the Supreme Court, in a ruling now fraught with significance for the Middle East crisis, held that the seizure was unlawful because it ran afoul of an act of Congress, which authorized U.S. captains to seize only American ships.

The high court’s ruling, written by Chief Justice John Marshall, established a principle that many scholars consider still valid today: In the constitutional twilight zone of undeclared international conflicts, the will of Congress generally prevails over the authority of the President--provided that Congress has made an effort to express its will.

Today, in the midst of the Persian Gulf confrontation, that 191-year-old principle is the center of a debate just beginning to take shape on Capitol Hill.

On one side are those who contend that President Bush’s actions in the Persian Gulf should be subject to some sort of ground rules--such as those established by Congress in the 1973 War Powers Resolution, born out of congressional frustration over White House management of the Vietnam War. They say Congress should pass a resolution that, as some see it, could both define the objectives of Operation Desert Shield and set specific time limits on the U.S. commitment in the gulf.

On the other side are lawmakers who consider the War Powers Resolution to be either unconstitutional--because it intrudes on presidential prerogatives, as the Bush Administration contends--or at best impractical.

“It’s unrealistic to expect Congress to make hard choices about military operations that are really the province of the President as commander in chief,” says Rep. William S. Broomfield (R-Mich.), the ranking minority member on the House Foreign Affairs Committee and one of the original sponsors of the War Powers Resolution.

The committee will hold hearings within a month to consider whether to draft a congressional resolution covering Operation Desert Shield. And the Senate Foreign Relations Committee seems likely to follow the same path, key staffers said last week. The panel’s chairman, Sen. Claiborne Pell (D-R.I.), has already asked the White House for copies of communications between the United States and Saudi Arabia and Kuwait “to ensure that we are ready to proceed with whatever legislative action may be necessary.”

“I think this operation needs some legal foundation,” Rep. Robert G. Torricelli (D-N.J.), a member of the House Foreign Affairs panel, says. “Having lived through the Vietnam experience, I think every member of Congress has a responsibility to assure that American forces never fight again without their purpose being very clear and this nation being very united.”

Torricelli’s call comes despite a pledge by House Majority Leader Richard A. Gephardt (D-Mo.) last Tuesday that Democrats would support the President in the Administration’s stance against Iraq. Indeed, as the New Jersey lawmaker explains his position, the two are perfectly consistent with one another.

“The initiation of the War Powers Act and an affirmative vote by Congress would bring both ends of the political spectrum and both political parties on board the policy,” Torricelli says. “As time passes, George Bush might wish he had a vote where people had acted affirmatively and committed themselves.”

Michigan’s Broomfield admits to being concerned “about where we go from here” in the Middle East, but he also is worried about the symbolic impact of a congressional effort to limit the President’s freedom of action.

“I just don’t want to do anything that will give the wrong signal to thousands of servicemen serving in Saudi Arabia,” he says.

In between is a middle ground occupied by lawmakers who are still struggling to make up their minds--notably, House Foreign Affairs Chairman Dante B. Fascell (D-Fla.), who believes that Congress has a responsibility to act but who is not sure what it should do.

“There’s a big debate going on within the committee,” one Fascell aide says. “And he (Fascell) is being pulled in different directions by a lot of people, including me.”

Although both sides cite legal precedents going back two centuries, in the end the outcome may depend more on politics and public opinion than on constitutional fine points. For example, Sen. Dale Bumpers (D-Ark.) disagrees with the Administration’s contention that the War Powers Resolution is unconstitutional. Yet, he asserts, “Politically, I am not going to lead the charge--because anybody who does that is going to get his brains beat out.”

The Middle East crisis is only the latest in a series of episodes that have raised this decidedly murky issue. Although the Constitution’s framers clearly granted Congress the sole power to declare war, they left the President free to use his authority as commander in chief to deploy troops, take steps to prevent an attack, protect American citizens and act on an almost unlimited range of other emergency situations.

Indeed, the State Department has contended that the President’s power to act is so broad that “we do not believe that any single definitional statement can clearly encompass every conceivable situation” in which he could use it.

To a degree, both history and legal precedent support that contention. Thus, in 1854, after an American diplomat, Solon Borland, suffered a cut on his nose in a scuffle with an angry crowd in Greytown, Nicaragua, the secretary of the Navy ordered the U.S. warship Cyane to bombard the town.

The gunfire demolished Greytown’s buildings, including one owned by a U.S. citizen, who promptly sued the Cyane’s captain for damages--and lost in the U.S. Circuit Court of Appeals. The court held that the citizen abroad “must look for protection” to the President.

“For this purpose,” it declared, “the whole executive power is in (the President’s) hands.”

But constitutional scholars say that ruling does not contravene the doctrine of congressional supremacy that Marshall laid down in the Flying Fish case.

Michael Glennon, a constitutional expert at the University of California at Davis, writes in his new book, “Constitutional Diplomacy,” that in interpreting the Greytown bombardment case, “the key issue . . . is whether the President acted in the face of congressional silence or congressional disapproval. On this the record is clear: No statute had been enacted prohibiting the act.”

For most of the first 150 years of U.S. history, the President’s use of his emergency power was limited to dealing with relatively small-scale crises--such things as threatening mobs and marauding pirates. But with America’s emergence as a superpower after World War II and the onset of continuing Cold War tensions, all that changed. Presidents, acting on their own, led the United States into two undeclared wars, Korea and Vietnam.

Even so, the Supreme Court has consistently upheld the principle of congressional supremacy. Thus, during the Korean War in 1952, when President Harry S. Truman seized U.S. steel mills to keep them running in the face of a nationwide strike, the high court overturned his claim to have had inherent power to do so, holding that his action did not conform to conditions for a takeover established previously by any act of Congress.

Mindful of the importance of congressional backing, for political as well as constitutional reasons, President Lyndon B. Johnson maneuvered Congress into adopting the Gulf of Tonkin Resolution in 1964, allowing him to claim sweeping authority for conducting the war in Vietnam.

But as the war escalated, and continued into the presidency of Richard M. Nixon, many who had voted for the Tonkin resolution became critics of the war. Striving to force Nixon to end the war, they resorted to the congressional power of the purse, enacting a series of limitations on spending that prohibited the Administration from using appropriated funds for certain operations in Indochina.

But such actions were an unhappy choice for many lawmakers because it put them in the position of denying support to American forces there.

“Every time an appropriation bill came up, it turned into a question of whether we were cutting and running,” recalls Donald S. Kellerman, a former aide to the late Republican Sen. Jacob K. Javits of New York and now vice president for public affairs of Times Mirror Co.

To avoid that predicament in future undeclared wars, Javits, then an influential member of the Senate Foreign Relations Committee, played a leading role in drafting the War Powers Resolution. Passed in 1973 over Nixon’s veto, it was designed to ensure that “the collective judgment” of Congress and the chief executive will be brought to bear whenever U.S. forces are put in harm’s way in the absence of a formal declaration of war.

The key section of the law calls upon the President to submit a written report to Congress whenever U.S. forces are sent into combat or situations where “imminent involvement in hostilities is clearly indicated.” But whether the President actually makes such a report, the act of deployment itself is supposed to trigger a 60-day waiting period. When that time is up, if Congress has not declared war or approved an extension of the grace period, the President must withdraw the troops from whatever peril they face.

Since the adoption of the War Powers Resolution, however, U.S. troops have been sent to hot spots in every corner of the globe. They have invaded Grenada and Panama and have escorted Kuwaiti tankers through unfriendly fire in the Persian Gulf, all without the troop-recall provision being put into effect.

Although Presidents have technically complied with the law by filing reports, only one--President Gerald R. Ford, in the 1975 rescue of the merchant ship Mayaguez, seized by Cambodians--has ever acknowledged the possibility of “imminent involvement” in hostilities. And by the time Ford filed his report, all U.S. forces had been withdrawn.

When President Bush reported the recent deployment of U.S. troops to the Middle East--on Aug. 9, a week after the fact--he asserted: “I do not believe involvement in hostilities is imminent.”

The action drew a rejoinder from the Senate Foreign Relations Committee’s Pell.

“The Congress may want to make its own determination on that question,” he said. “A conflict in the Middle East would involve U.S. forces in the most extensive military operations since the Vietnam War. In such a situation, formal congressional support under the terms of the War Powers Resolution is imperative.”

In a subsequent letter to Bush, Pell cited as a possible model for congressional action in the Middle East a resolution adopted in September, 1983, that authorized U.S. participation in the peacekeeping operation in Lebanon for 18 months. The measure, which itself made reference to the War Powers Resolution, marks the only time since the war powers legislation was passed that Congress has set a time limit on U.S. commitment abroad. Troops were withdrawn before the 18 months elapsed after 241 of them were killed in a truck-bomb attack on their barracks in Beirut.

WAR POWERS ACT: IN LAW AND IN PRACTICE

Congress passed the War Powers Resolution in 1973 out of frustration over White House management of the Vietnam War. The resolution acts as a check on presidential authority when U.S. forces are deployed without a formal declaration of war. The resolution: Urges President to consult with Congress before sending U.S. forces into a potentially hostile situation.

Requires President to submit written reports to Congress whenever U.S. forces are sent into combat or situations where “imminent involvement in hostilities is clearly indicated.”

Calls on President to withdraw troops 60 days after deployment if Congress has not declared war or approved an extension. Technically, the law has never been triggered to restrict presidential powers. Congress has been reluctant to take this step, and in most of the military operations since 1973, Presidents have sidestepped the law: May, 1975: President Ford orders forces to free sailors aboard U.S. merchant ship Mayaguez, seized by Cambodian Communists. General agreement that action did not require congressional approval. But some argue that Congress should have been more thoroughly consulted.

April, 1980: President Carter dispatches forces on botched mission to rescue 52 Americans held hostage in Iran. He fails to notify Congress, citing importance of secrecy. Carter also argues that the mission is humanitarian, not military, and falls outside the scope of the War Powers Act.

August, 1982: President Reagan sends troops to Lebanon as part of a multinational peacekeeping force. Brief operation turns into 18 months of military escalation. Congress fails to invoke War Powers Resolution until 12 months after deployment. Reagan and Congress then negotiate terms of deployment.

October, 1983: Reagan sends troops to invade Grenada. Congress overwhelmingly votes in the 60-day clock, but the action ends within weeks. Congress complains of Reagan’s failure to tell them of the mission beforehand.

April, 1986: Reagan orders U.S. warplanes to bomb targets in Libya in response to terrorism blamed on Moammar Kadafi. Broad congressional support. But some legislators complain that Reagan consulted Congress only after the planes were en route.

July, 1987: Reagan orders U.S. Navy to escort Kuwaiti oil tankers, threatened by Iran-Iraq War, through Persian Gulf. Congress says hostilities are imminent. Reagan says the resolution does not apply to escort missions. Congress members file suit, but it is dismissed.