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If Dubya wants to go to war against Iraq, he has the power to do so By LANCE GAY Scripps Howard News Service Aug 22, 2002, 07:19

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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.
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