Published September 04, 2002
WASHINGTON – After winning the Persian Gulf War, then-President Bush boasted of the free hand he had had to wage war against Iraq.
"I didn't have to get permission from some old goat in the United States Congress to kick Saddam Hussein out of Kuwait," Bush said.
Ten years after his father spoke those words before the Texas State Republican Convention, President Bush is wrestling with the same issue: how much of a say does Congress have in deciding whether a president can send U.S. troops into battle.
Bush told congressional leaders Wednesday he would seek approval "at the appropriate time" to deal with the threat posed by Iraq. But he hasn't said whether he would explicitly ask Congress for a formal resolution approving the dispatch of troops to depose Saddam, the Iraqi president.
As far as the White House is concerned, Bush has the legal authority he needs: a congressional vote in 1991 that authorized his father to enforce U.N. Security Council resolutions by using military force to reverse Iraq's annexation of Kuwait.
Objectors say the resolutions expired after a six-week air war and four days of ground operations restored Kuwaitis' control of their country on Feb. 28, 1991.
The White House also has a congressional resolution approved last year supporting "necessary and appropriate force" as a response to the Sept. 11 terror attacks.
These arguments may not satisfy Congress, which is getting ready to hold hearings on Iraq policy.
Sen. Patrick J. Leahy, D-Vt., chairman of the Senate Judiciary Committee, is drawing a line in the sand.
"The administration should not expect to commit American troops to war with a wink and a nod to Congress," he said last week.
"There should be a full debate and a vote," Leahy said. "That is what the Constitution prescribes, and that is what the American people expect."
History shows the American people rarely have got what Leahy says they are entitled to — a vote in Congress on a declaration of war before their president used force abroad.
President George H.W. Bush was no exception. Armed with the U.N. and congressional resolutions — in the days leading to the air war, Bush had requested wording similar to the U.N. mandate and got almost that — Bush did agree to limit the use of American troops against Iraq to the liberation of Kuwait, and the House made clear he would need congressional approval to go further.
Bush did not. Saddam and his regime remained in Baghdad. Bush, the son, appears determined to finish what Bush, the father, left unfinished.
A month before the eventual congressional vote, 54 members of Congress had brought a lawsuit to force the elder Bush to seek congressional authority to send troops into action. The late U.S. District Judge Harold H. Greene ruled the issue was not ripe for decision.
At the same time, he rejected the administration's claim that it was not the business of the court.
"The court," Greene said, "is not prepared to read out of the Constitution the clause granting to the Congress, and to it alone, the authority `to declare war."'
The Constitution reserves to Congress the power to declare war, and purists or strict constructions say that means anything short of a declaration of war is insufficient to send troops into combat.
But presidents have done so, repeatedly. President Franklin D. Roosevelt, on Dec. 7, 1941, was the last president to get a declaration of war.
Since then, the debate has been vociferous only once.
The gradual escalation of U.S. fighting in Vietnam and the death of thousands of Americans almost tore the country apart. Some opponents of the war argued that Congress had not declared war and the troops should be withdrawn.
Early on, before opposition grew, President Johnson used as a legal basis for making war the Gulf of Tonkin resolution of 1964. It stemmed from an incident at sea and gave the White House authority to use force to protect U.S. military personnel.
As the war raged on, however, anti-war forces pressed the Supreme Court to rule the war unconstitutional.
All petitions for a hearing on the question were rejected. Only three justices, at most, voted in any one case to take up the war — one short of the number required for a hearing.
After tens of thousands of Americans died in combat, Congress responded to public sentiment for curbing presidential power by passing the War Powers Act in 1973.
The law, which President Nixon tried to kill with a veto, lets presidents send troops into conflicts for up to 60 days but requires congressional approval beyond that.
On that basis, Congress tried in 1983 to force President Reagan to withdraw Marines from Lebanon. Congress relented, however, and extended the deadline for 18 months.
By then the Marines had been withdrawn after suffering 241 dead when a truck bomb blew apart a barracks.