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Constitution Could Keep Bush at Bay
Published on Wednesday, March 12, 2003 by the Madison Capital Times
Constitution Could Keep Bush at Bay
by John Nichols

Considering the fact that the Bush administration is the planet's primary proponent of war with Iraq, Nancy Lessin wants to know why the U.S. Congress has failed to follow the example of parliaments around the world that are debating whether a war is necessary.

"When we look at the world community, we see that they had a debate in the parliament of Turkey. They had a debate in the Parliament of Great Britain. They are having serious debates in legislative bodies all over the world, and yet there is no debate in Congress," says Lessin, the mother of a 25-year-old Marine who has been dispatched to the Persian Gulf.

Lessin and several other parents of troops serving in the Gulf have joined U.S. soldiers and a dozen members of Congress as plaintiffs in a lawsuit that seeks to bar President Bush from ordering an attack on Iraq without a congressional declaration of war.

"If the rest of the world can debate this war, then America can as well. Our Constitution requires that debate," says Lessin, whose son Joe is among the almost 300,000 U.S. troops who have already been sent to the Gulf. "If the president starts this war without a declaration from Congress, he will violate the Constitution. And I do not want our troops being ordered to fight an unconstitutional war."

Last Tuesday, Lessin sat in a federal courthouse in Boston, where a three-judge panel of the U.S. Court of Appeals for the First Circuit heard arguments regarding the suit that she sees as an essential step in reasserting democracy in America.

Boston lawyer John Bonifaz argued that an invasion of Iraq without further action by Congress would violate Article I, Section 8 of the United States Constitution, which states that "Congress shall have power ... to declare war." He explained that the October resolution on Iraq that was passed by the House and Senate had failed to declare war and, in fact, had unlawfully ceded to the president the authority to decide whether to launch an invasion of Iraq.

"We are not saying that the war cannot occur if Congress declares it. Our position is that the Constitution requires the president to go to Congress before launching a premeditated, first-strike invasion of another country," explains Bonifaz. "This is precisely what the framers of the Constitution intended to prevent. They placed Article 1, Section 8 in the Constitution to assure that the president of the United States would not have the power that European monarchs had held in the past in matters of war and peace."

After the three-judge panel asked Bonifaz and lawyers for John Ashcroft's Justice Department to submit briefs in the case by today, Bonifaz said, "Clearly the court understands the gravity of the issues being put before it. I think we have strong arguments, and I think the judges want to hear them."

It is still a long shot to expect a federal appeals court to issue an order blocking a war. During the Vietnam War and in the run-up to the first Persian Gulf War, federal courts found various arguments for rejecting similar suits. But Bonifaz believes that the Bush administration's failure to get a declaration of war - and the confusion over whether members of Congress intended for the president to get a clear go-ahead from the United Nations - creates an opening that may not have existed in the past.

"It was clearly the intent of the founders that there be a congressional declaration of war before this country invaded another. We are now at the point where an invasion appears imminent, yet we have not had the declaration. This is exactly the point where the court should intervene and say George Bush must obey the Constitution," Bonifaz says. "Saddam Hussein can, on his own volition, send troops into Kuwait. President Bush does not have the power to send troops into Iraq. We have a different system, and it is right to ask that that system be allowed to work."

That argument has won support in legal circles. More than 70 law professors have signed onto a brief supporting the suit. And U.S. Rep. John Conyers from Michigan, ranking Democrat on the House Judiciary Committee and one of the congressional plaintiffs, says, "President Bush recently told journalists that whether we go to war 'is not up to you, it's up to me.' The founding fathers did not establish an imperial presidency with war-making power. The Constitution clearly reserves that for Congress."

Copyright 2002 The Capital Times


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