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http://www.bayarea.com/mld/mercurynews/news/3939567.htm
Bush lawyers OK war on Iraq
THEY SAY CONGRESS CONSENTED IN 1991
By Mike Allen and Juliet Eilperin
Washington Post
WASHINGTON - Lawyers for President Bush have concluded he can launch an attack on Iraq without new approval from Congress, in part because they say that permission remains in force from the 1991 resolution giving Bush's father the authority to wage war in the Persian Gulf, according to administration officials.
At the same time, some administration officials are arguing internally that the president should seek lawmakers' backing anyway to build public support and to avoid souring congressional relations. If Bush took that course, he still would probably assert that congressional consent was not legally necessary, the officials said.
Whatever the White House decides about its obligations under the War Powers Resolution of 1973, some House and Senate leaders appear determined to push resolutions of support for ousting Iraqi President Saddam Hussein when Congress returns after Labor Day because they consider the issue too grave for Congress to be sidestepped. Administration officials say privately that military strikes against Saddam are virtually inevitable, although the specifics have not all been decided and action is not imminent.
Bush has said repeatedly that he will consult lawmakers before deciding on how to proceed but has pointedly stopped short of saying he will request their approval. The difference between getting legislators' opinions, as opposed to their permission, could lead to a showdown this fall between Congress and the White House.
``We don't want to be in the legal position of asking Congress to authorize the use of force when the president already has that full authority,'' said a senior administration official involved in setting the strategy. ``We don't want, in getting a resolution, to have conceded that one was constitutionally necessary.''
Harold Hongju Koh, a professor of international law at Yale Law School who was an assistant secretary of state in the Clinton administration, called it shortsighted for the administration to try to avoid a full congressional debate about such an expensive and perilous operation.
``The constitutional structure tries to make war hard to get into, so the president has to show leadership and make his case to the elected representatives,'' Koh said. ``This argument may permit them to get us into the war, but it won't give them the political support at home and abroad to sustain that effort.''
White House press secretary Ari Fleischer said Congress ``has an important role to play.''
``Any decision the president may make on a hypothetical congressional vote will be guided by more than one factor,'' he said. ``The president will consider a variety of legal, policy and historical issues if this becomes a relevant matter.''
Whether to secure formal congressional support is among many questions confronting Bush as he decides on a course of action toward Iraq. The president has strongly signaled his interest in toppling Saddam's government, in large measure because of what administration officials describe as the country's pursuit of weapons of mass destruction. But Bush has not settled on the kind of military attack to pursue, nor has he mounted a full-blown effort to line up support from allies or the U.S. public.
White House Counsel Alberto Gonzales had his deputy, Timothy Flanagan, develop the administration's legal position on questions surrounding a war with Iraq.
That legal review is largely complete, officials said, with the consensus emerging that the president would not be legally bound to obtain approval for action against Iraq. In making this case, officials point first to the Constitution's designation of the president as commander in chief.
Administration officials also cite the 1991 Persian Gulf resolution authorizing the use of military force against Iraq. The resolution allowed the use of force to enforce United Nations Security Council resolutions, including demands that Iraq eliminate weapons of mass destruction and open the country to U.N. inspectors.
``No one thinks that Iraq has fulfilled them,'' an administration official said.
Administration officials said their position was bolstered by a Sept. 14 resolution -- passed 98-0 in the Senate and 420-1 in the House of Representatives -- endorsing a military response to the terrorist attacks on the World Trade Center and the Pentagon. That argument would depend on linking Iraq and Al-Qaida.
Although the administration has not publicly made this case in detail, Defense Secretary Donald Rumsfeld said at a July 30 news conference, ``Are there Al-Qaida in Iraq? Yes.'' Last week, U.S. intelligence officials told the Washington Post that several high-ranking Al-Qaida members had taken refuge in Iraq.
Senate leaders -- including Majority Leader Tom Daschle, D-S.D., Foreign Relations Committee chair Joseph Biden, D-Del., and Sen. Robert Byrd, D-W.Va. -- maintain the president must come to Congress before making a massive commitment of troops to oust Saddam.
Republicans sounded a mixed message Sunday for President Bush about whether, when and how to use military action to remove Saddam from power.
Invade right away, after telling Congress, was one course. A second would have Bush wait for a better assessment of the Iraqi president's danger to American security, then hold off until lawmakers gave their approval.
Rep. Tom DeLay, R-Texas, who has urged military action, ``the sooner, the better,'' said Sunday that the decision to act is the commander in chief's, but he expects Bush to consult with Congress first.
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The Associated Press contributed to this report.
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