President Bush's request to Congress yesterday for authorization to invade
Iraq marked the broadest request for military authority by any White House since
President Lyndon B. Johnson won approval of the Gulf of Tonkin resolution in 1964,
legal scholars said.
The "discussion draft" Bush sent lawmakers would authorize the president to "use all means that he determines to be appropriate, including force," to enforce U.N. Security Council resolutions requiring Saddam Hussein to disarm. Administration officials said the president would not be bound by the ultimate decision of the United Nations about whether military force was warranted.
draft makes no mention of the War Powers resolution of 1973, which was passed
partly in reaction to the perceived mistakes of the Tonkin Gulf resolution.
White House officials said that while they will negotiate the final language, Bush will insist that the resolution not require future approval by Congress or the U.N. A pair of senior administration officials used the phrase "maximum flexibility" four times during a 23-minute briefing on the proposal.
The three-page, 20-paragraph draft would authorize the president to use force to defend against Iraq and to "restore international peace and security in the region." Legal scholars said that appeared to give him permission to send the U.S. military into action not only against Iraq but also against other enemy forces or nations that might emerge before the United States restores stability to the region. White House officials said the resolution was intended to be specific to Iraq, but the sweep of the language took scholars aback and opened Bush to criticism from Democrats who supported the idea of a resolution.
In keeping with the Bush administration efforts to restore presidential prerogatives to pre-Watergate strength, the resolution contains fewer constraints than the Persian Gulf War resolution of 1991. That resolution required Bush's father to report back to Congress that the United States had exhausted "all appropriate diplomatic and other peaceful means" of expelling Iraqi forces from Kuwait. In an effort to compel support from Democrats, yesterday's draft was modeled on a 1998 resolution that condemned Hussein but did not confer the authority envisioned by Bush.
Law professors said the language Bush submitted yesterday stopped just short of the breadth of the 1964 resolution that Johnson used as a justification for escalating U.S. involvement in Vietnam. That resolution, passed unanimously in the House and with only two dissenters in the Senate, authorized all necessary measures to repel armed attack against U.S. forces and "prevent further aggression" in Southeast Asia.
Peter J. Spiro, a professor of international law at Hofstra University on Long Island, said the Tonkin Gulf resolution was seen in retrospect as a blank check, and said Bush's request is only marginally more limited. "That's why I think this has very little chance of being enacted as proposed," Spiro said. "The Tonkin Gulf still looms over these war powers issues. Especially in cases such as this where Congress has shown ambivalence, Congress will carefully tailor the scope of the authority."
By including a clause authorizing the use of force "in order to enforce" U.N. Security Council resolutions that sanctioned the Gulf War, Bush effectively reiterated that he already has all the authority he needs under international law to wage war, even without a new U.N. resolution.
"Even though everyone understands we're starting a new war, he's treating it as an old war," said Harold Hongju Koh, a professor of international law at Yale who served as an assistant secretary of state in the Clinton administration.
The president's draft makes no mention of the War Powers resolution of 1973, which was passed partly in reaction to the perceived mistakes of the Tonkin Gulf resolution. The War Powers resolution allows the president to commit troops on his own for 60 to 90 days, then requires congressional approval if troops are to remain engaged in hostilities.
If the draft had cited the authority of the War Powers resolution, legal analysts said, then a commitment to Iraq might be subject to limitations on how long it could continue without fresh congressional approval. However, legal analysts said presidents generally have contested the constitutionality of the War Powers resolution, and that Bush in any case would not want to concede any limits on what he can do in Iraq in a document that is probably the opening bid in what could be an extended negotiation with Hill leaders.
"One could expect that given Congress's institutional ambivalence in this, there would be counteroffers that would include qualifications on the use of force," Spiro said.
In listing the rationale for using force against Iraq, the draft resolution also appears to take the view that the administration's doctrine of preemptive use of force is consistent with international law, as embodied in the U.N. charter.
The draft resolution speaks of "the inherent right, acknowledged in the United Nations Charter, to use force in order to defend itself." Article 51 of the charter, however, speaks specifically only of the use of force in response to an armed attack, whereas the administration argues war is justified because of the likelihood of a future armed attack by Iraq or allied terrorist groups.
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