U.S. Judge Refuses to Block Bush From Starting a War : Law: He calls a suit by 54 Democrats premature. But he also says only Congress can authorize an attack on Iraq.

Only Congress has the constitutional power to declare war and authorize a military attack against Iraq, a federal judge declared Thursday, but he refused for now to issue an order blocking President Bush from starting a war in the Persian Gulf.

Judge Harold H. Greene said such an injunction, requested by 54 Democratic members of Congress, would be premature because Congress has not yet voted on the issue.

Nonetheless, Greene’s opinion strongly endorsed the powers of Congress, and he flatly rejected the White House position that Bush as commander in chief of the armed forces has the legal authority to begin a war.

Secretary of State James A. Baker III and Defense Secretary Dick Cheney recently told congressional panels that the President does not need “any additional authorization” from Congress before launching a war against Iraq.

Greene disagreed. The Constitution is unambiguous in giving that power to Congress, he said. “To put it another way: The court is not prepared to read out of the Constitution the clause granting to Congress, and to it alone, the authority ‘to declare war,’ ” he said.

And there is no question, the judge added, “that an offensive entry into Iraq by several hundred thousand United States servicemen . . . could be described as a ‘war’ within the meaning of Article 1, Section 8, Clause 11, of the Constitution.”

The decision in the most closely watched of the pending war-powers lawsuits gave both sides something to cheer.

The American Civil Liberties Union called Greene’s opinion “a great victory for the Constitution.”

Since the end of World War II, U.S. presidents have repeatedly launched military attacks without congressional approval. The practice has become so common that presidential aides now assert that the constitutional power to make war resides in the White House.

Greene’s opinion shows that “the Constitution clearly requires congressional authorization prior to offensive military action by the President,” said Kate Martin, director of the ACLU’s National Security Litigation Project.

“The bottom line is we won,” countered Asst. Atty. Gen. Stuart M. Gerson, who represented the White House. Since Greene did not issue an injunction against Bush, “the President’s options remain open, and that’s what we were arguing for.”

The strong statement from the court may give new impetus to the move on Capitol Hill to debate the Persian Gulf crisis and to vote on whether to declare war against Iraq.

For months, as Bush bolstered U.S. forces in Saudi Arabia and threatened war against Saddam Hussein, lawmakers have wavered on whether they should take a stand on the issue.

Senate Majority Leader George J. Mitchell (D-Me.) has said repeatedly that the President lacks the “legal authority” to go to war without congressional approval. But Mitchell and other Democratic leaders have resisted efforts to call a special session of Congress to debate the war issue. The White House has been equally cool to the idea.

With the U.N. Security Council’s Jan. 15, 1991, deadline to permit the use of multinational forces against Iraq fast approaching, however, Mitchell indicated Thursday that the Senate may need to cancel a planned recess in early January so as to consider the gulf crisis. Lawmakers had intended to recess for two weeks after their Jan. 3 swearing-in ceremony.

Mitchell took off for a weeklong visit to the gulf region Thursday, but told reporters before leaving that the recess “must be considered tentative, subject to change and likely to change, depending on developments.”

Greene’s ruling came in a case that was filed last month by 54 members of Congress, most of them liberal Democrats led by California Rep. Ronald V. Dellums (D-Berkeley). The lawsuit asked the court to declare that the Constitution gave Congress the power to make war and to block Bush from initiating “an offensive military attack.”

The decision comes as something of a surprise because judges have avoided issuing rulings on the war-powers issue. In some instances, judges have said the issue is political, not legal. At other times, they have refused to accept the view that certain major military actions constitute a war. On still other occasions, judges have dismissed the suits on the grounds that the complaining party does not have standing in court.

Another federal judge, Royce Lamberth, Thursday dismissed a lawsuit against Bush filed by an Army reservist. He ruled on the grounds that the issues are political.

Last week, the Justice Department presented Greene with a series of legal precedents and urged him to dismiss the Dellums lawsuit without issuing an opinion. But Greene, 67, a highly respected jurist who is nonetheless considered a maverick by many, refused. In doing so, he ruled that congressional representatives have standing to assert their rights in court.

However, the Dellums group does not speak for Congress, Greene said. The court would act to block Bush, he said, “only if the majority of Congress seeks relief from an infringement on its war-declaration powers.”