Legal Experts Split Over Bush's Power : Policy: Talk of launching an offensive against Iraq sparks questions about the need for congressional approval.


Legal authorities were divided Monday over whether President Bush has constitutional power to send U.S. troops into Iraq without congressional approval.

But even those who claim that Bush lacks the legal authority unless he is responding to an Iraqi attack contend that the lawmakers could not politically afford to cut off funds once fighting had begun.

The legal experts' varying interpretations of presidential powers in the current crisis reflect a similar disagreement between Bush and some members of Congress.

"I know the authorities that a President has," Bush told reporters in San Francisco last month while he was campaigning for Sen. Pete Wilson's election as California governor.

While noting that he would be talking with congressional leaders about the Persian Gulf crisis, Bush added: "History is replete with examples where the President had to take action" without congressional authorization. And, he said, he "would have no hesitancy at all" to do so.

But congressional leaders tend to disagree.

If the President decides to commit the United States to war, "then he must come to Congress and ask for a formal declaration of war," Senate Majority Leader George J. Mitchell (D-Me.) said Sunday on ABC's "This Week With David Brinkley."

"If he doesn't get it, then there's no legal authority for the United States to go to war," Mitchell added.

Rep. Les Aspin (D-Wis.), chairman of the House Armed Services Committee, agreed during an interview Monday night on the "MacNeil Lehrer News Hour."

"In this case, the President needs to get a vote from Congress," he said.

The poles of conflicting views were also expressed by a variety of legal experts.

Bush "absolutely" has authority to send in troops, said Bruce Fein, a Justice Department official in the early Reagan Administration and a specialist in constitutional and international law.

"It's a concept of executive prerogative, inherent in executive power. To protect national security, a President can act preemptively," Fein maintained.

But Peter Raven-Hansen, a George Washington University law professor, argued just as adamantly that the President lacks authority without a declaration of war or other congressional action, such as appropriation of funds for the invasion. Sending troops into Iraq "would be war--plain and simple."

If Bush "goes it alone, it's a non-argument to say that Congress could cut off funds," Raven-Hansen said. "Pulling the appropriations rug on the troops would be politically unlikely. Realistically, if he goes forward, it's a done deal."

Fein said a President does not have to seek authority from Congress "as long as there's a reasonable basis that preemptive action was imperative."

Fein, citing Article 51 of the U.N. Charter, which provides for collective defense, said: "We know that Iraq invaded Kuwait, and we know the legitimate government of Kuwait has asked the United States to restore its country to itself."

Abraham Sofaer, the State Department's legal counsel during much of the Reagan Administration, supported Bush's authority to act without a congressional declaration of war but disputed Fein's claim that the President has the "inherent" power to do so.

"The President does have some inherent rights--the power to communicate to the people, the power to conduct diplomacy. But war powers is not one of them," said Sofaer, a former federal judge who now is in private practice here.

Sofaer emphasized that Congress has been "at most neutral" on U.S. involvement in the Persian Gulf.

"We're not dealing with a situation where Congress has told the President he cannot do something. If you look through all the policy pronouncements and laws relating to the gulf, you will find a national policy--articulated under (former President Jimmy) Carter and most recently under Reagan--that there is a national consensus supported by the Congress that the gulf is an area of critical interest to the nation's security," Sofaer explained.

Robert F. Turner, chairman of the American Bar Assn.'s standing committee on law and national security, contended that "Congress does a great disservice by not authorizing force."

He cited congressional resolutions authorizing the President's use of force during the Eisenhower Administration in incidents involving Taiwan and the Middle East, the Cuban crisis during the Kennedy Administration and the Gulf of Tonkin resolution that led to President Lyndon B. Johnson's buildup in Vietnam in the late 1960s.

In failing to authorize force in advance, Congress "is undermining (U.S.) deterrence," said Turner, emphasizing that he was speaking as an individual law teacher and not for the ABA.

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