Posted on 08/22/2002 6:44:48 AM PDT by KLT
President Bush has sufficient legal authority to conduct a war against Iraq under broadly drafted resolutions that Congress passed in 1991 for the Persian Gulf War and a second resolution adopted last year for the war against al Qaeda, legal experts say.
Some add that the president's position would be strengthened politically by seeking a new congressional vote on any operations in Iraq, which would require a public debate over the evidence the administration has developed against Saddam Hussein, and a discussion about what the wider consequences of the war might be on the Middle East.
Lee Casey, a partner in the Washington law firm of Baker and Hostetler, said he would prefer a congressional debate to lead to a war declaration that clearly defines the conflict while asking America's allies to line themselves up as allies, neutrals or fellow belligerents.
But Casey said he cannot dispute the White House contention that Bush already has sufficient authority to conduct the war against Iraq under the resolutions Congress already has enacted.
"Yes, he does have the legal authority to go ahead," Casey said. But seeking another vote from Congress "politically makes a lot of sense - it makes a united country," Casey said. He said a vote of congressional support would also give Bush political cover if a war with Iraq turned sour.
Congress has declared war only five times - against Great Britain in 1812, Mexico in 1846, Spain in 1898 and then World War I and World War II.
In drafting the Constitution, the Founding Fathers gave Congress the power "to make war" but later changed the language "to declare war," but gave no further explanation of the debate, leaving to historians to debate why the change was made.
It has made little difference. War has raged on several occasions under resolutions or congressional authorizations of military funding that have fallen short of declarations of war.
Among these were an undeclared war with France from 1798-80, the First Barbary Pirate War of 1801-05, and the Second Barbary Pirate War of 1815, the raid of slave traffic in Africa from 1820-23, an action against Paraguay for attacking a U.S. ship in 1859, the invasion of Lebanon in 1958, the Vietnam War of 1964-73, and the Persian Gulf War of 1990-91. The U.S. Civil War was never declared because Union lawmakers after secession regarded the conflict as an "insurrection," or a rebellion. The Korean War was conducted under a United Nations resolution.
The Persian Gulf War was conducted under a 1991 congressional resolution that states "the president is authorized...to use United States armed forces pursuant to United Nations" resolutions that found Saddam Hussein's invasion of Kuwait and Iraq's development of weapons of mass destruction threatened the peace and security of the region.
Congress has never repealed the resolution, and for the last decade, U.S. and British warplanes have enforced a no-fly zone over Iraqi territory because Saddam Hussein never lived up to a cease-fire agreement requiring him to comply with the U.N. resolutions.
President Bush has argued that the resolution Congress passed after the Sept. 11 attacks also gives him broad authority to conduct operations in Iraq.
That resolution, which Congress passed three days after the attack, is broadly drafted. It states:
"The president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
The administration has been building the case that the Iraqi dictator is connected with al Qaeda, contending that Iraq is harboring terrorist refugees and al Qaeda operatives.
A congressional resolution is not equivalent to a declaration of war, which is a peculiar legal action that has consequences of its own.
Stephen Salzburg, a George Washington University law professor, said a declaration of war gives the president broad emergency powers, and triggers about 150 provisions in the law, including the right to seize ships, impose censorship, expedite licensing for nuclear facilities, and control communications. It also affects contracts and insurance policies, which are written specifically to exclude coverage from damage caused by acts of war.
The powers of the White House are so broad, Abraham Lincoln suspended the habeas corpus rights of people to appeal their detention through the courts, and the Roosevelt administration rounded up Japanese-American citizens on the West Coast and put them in camps during World War II.
© Copyright 2002 by Capitol Hill Blue
This one'll most assuredly draw all sorts of flamethrowers from amoung the forum participants.
...war or no war.
How many people are of aware of the Iraqi terror attacks that occured in this country during the Gulf War? Fortunately, the perps were very inept at the time. They have had 10 yrs to improve.
Not until Congress authorizies it. W is the Commander-in-Chief, the leader of the military forces. But it takes an act of Congress to declare war, or to authorize the use of miltary force.
"THE President of the United States is to be ``commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.'' The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it." [emphasis in original]He can't give himself the power - that's delegated to Congress.
Alexander Hamilton, Federalist Papers, Federalist No. 74, "The Command of the Military and Naval Forces, and the Pardoning Power of the Executive", 25 Mar 1788.
I agree that President Bush SHOULD go to Congress.
However, I disagree with you that we have not been at war with Iraq for 11 years straight. We have DEFINITELY been at a continual state of conflict with Iraq, as has the United Kingdom. We have thousands patrolling the no-fly zones, and we have been bombing Iraq each week since the Gulf War. I believe the case could indeed be made that new action is required in the enforcement of the original Gulf War's terms of surrender. In fact, I believe Bill Clinton should have done this in 1998.
The Abu Sayyaf group is directly linked as an offshoot of Osama Bin Laden. The leader of the 1993 WTC bombers came from that group.
Additionally, SecDef Rumsfeld stated quite clearly that Iraq is harboring top members of Al Qaeda.
The current congressional resolution covers these issues very well.
Then there is the war powers act wich requires the president to get approval from Congress with 60 days of commiting US troops to battle, and if he doesn't he has 30 more days to withdrawal. Every administration since it was passed has said it was unconstitutional, and the courts have refused to rule on it. However even if it is constitutional it means that the president can fight any war without Congress' approval as long as he wraps it up within 90 days.
Second, we are still at war with Iraq from the Gulf War. We signed a ceasefire, not a peace treaty. Iraq has violated those terms and continues to do so every week by attacking our planes. We have every right to resume hostilities at our discretion due to their violation of that agreement.
Our first two undeclared wars were fought by John Adams (the naval Quasi-War with France) and Thomas Jefferson (against the Barbary States). Nothing new about presidents fighting wars without a DOW. The Constitution gives Congress the power to declare war, it says nothing about limiting the President from fighting a war without a declaration. No court has ever ruled that he needs one to commit forces to combat either.
Such was the determination of congress on 9/14/01. Can anyone here seriously doubt that Saddam is guilty of aiding and harboring those who were involved in 9/11 and are plotting future attacks on the US?
As far as the president's constitutional powers, the founders placed such wartime powers in the hands of the executive cautiously and fearfully. But they recognized that war, like peace, does not last forever and these powers in the hands of a virtuous executive (IMHO) like president Bush will not be abused when war ends.
What a stupid statement. First, wouldn't we want to attack him before he has nukes? Second, what does he expect Saddam to do, make an announcement that he has them?
The dems just want to carp from the sidelines without actually going on record for or against an attack. That way if it goes badly they can say they warned us, and it it goes well they can wave the flag.
This is a moot point. The Constitution should be read as it was written and not second guessed.
I don't expect you to change your mind.
Perhaps President Bush's supposed "whims" are on par with mine.
Al Quaeda is alive and well...and unless you check under every rock, we'll never get them for what they did to us...I don't believe in giving the Feds a blank check to do anything...but in this case...justice must be served.
Slogans? Never knew my own words were slogans...They declared war on us, when they blew us up...the response should be and should have been forceful and swift...but everything is now so politically correct..with this allies BS...
Were the allies blown up? In the world the only allies we have are ourselves. And this is no SLOGAN...The sooner we realize it...the better off we'll be.
As far as the president's constitutional powers, the founders placed such wartime powers in the hands of the executive cautiously and fearfully. But they recognized that war, like peace, does not last forever and these powers in the hands of a virtuous executive (IMHO) like president Bush will not be abused when war ends.
If anything I don't think it's been forceful enough...I do believe President Bush will make his case to us, I'm sure we know nothing of the real evidence before him...
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