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Repeal of war authorization may create constitutional minefield

Michael Doyle
McClatchy Newspapers

WASHINGTON - Sen. Dianne Feinstein wants Congress to undeclare the war in Iraq.

Other leading Democrats agree, following a lead the Californian took with the introduction of a bill a week ago. But as lawmakers craft their latest Iraq strategy, they could be entering either a constitutional minefield or an exercise in futility.

"I have never, ever heard of a declaration of war being taken away," Ruth Wedgwood, a Johns Hopkins University international law professor, said Friday. "It's certainly constitutionally ambitious, if not outrageous."

Congress has declared wars, such as World War I. Congress has adopted peace treaties, as happened after World War II. Congress has authorized force, twice against Iraq, and Congress has cut off war funding, effectively ending the Vietnam conflict.

But removing a president's war-making authority while it's still being used is something different. It has happened, once, but it accomplished little.

Feinstein's legislation would end on Dec. 31 the U.S. authorization to fight in Iraq. It would permit some U.S. forces to remain there, though. Senate Democratic leaders have adopted a similar concept but are still tinkering with language.

They face potentially insurmountable political hurdles.

"If the issue came before the Supreme Court, my guess is the court would hold that Congress has the power to repeal the use of force just as it can repeal any other statute," said University of Virginia law professor Robert Turner. "However ... any such effort would have to be submitted to the president and could be vetoed."

With Democrats controlling the Senate by a thin 51-49 majority, it would be difficult to rally the 66 votes needed to overcome a veto by President Bush.

Even if Democrats get a resolution passed into law, ambiguities would linger:

Would the president simply employ his executive authority as commander in chief to keep conducting the Iraq war as he sees fit?

Would this bring to a boil a long-simmering conflict over the 1973 War Powers Act, by which Congress limited presidential action?

How might loopholes undermine the resolution? Feinstein's measure, for instance, would allow U.S. forces to train, equip and advise the Iraqi military. They could protect themselves, secure borders, fight terrorists and provide logistical support in Iraq.

"This resolution is without much content because of those exemptions," Wedgwood suggested.

Feinstein, though, contends that any reasonable president would heed a clear congressional signal.

"Congressional action sends a strong message," Feinstein said Friday. "And to continue a war without the support of Congress is a very risky thing because it becomes totally an executive-branch war."

Feinstein added that she would "reserve the right" to pursue her resolution later, but for now she'll align with what Democratic leaders come up with.

Senate Majority Leader Harry Reid's spokesman, Jim Manley, said Friday that "no final decision has been made," but he added that "the American people have demanded a change of course in Iraq, and Democrats are committed to holding President Bush accountable."

Democratic staffers say a resolution is being drafted for possible airing next week. One author is Sen. Joseph Biden, D-Del., a presidential candidate and chair of the Senate Foreign Relations Committee.

Another presidential contender, Sen. Hillary Rodham Clinton, D-N.Y., has a plan to revoke the Iraq war authorization unless U.S. troops begin withdrawing within 90 days. As of Friday, Clinton had no co-sponsors.

The one time Congress did withdraw war authorization, the results were unimpressive.

In June 1970 Congress repealed the 1964 Gulf of Tonkin Resolution, which had authorized the Vietnam war. The Senate seemed to speak emphatically. By an 81-10 vote, senators first added the Gulf of Tonkin repeal to another bill. Then, by a 57-5 vote several weeks later, the Senate passed a separate repeal resolution.

President Nixon signed the bill that included the Gulf of Tonkin repeal. He also kept the Vietnam war going, using what he called inherent presidential powers.

"The president has constitutional authority to deploy troops abroad and can take measures to protect those troops as commander in chief," Undersecretary of State Elliot Richardson told the Senate Foreign Relations Committee at the time.

About 2,900 American troops died in Vietnam between the repeal of the Gulf of Tonkin Resolution and when the war formally ended in January 1973.

"The repeal did not really affect the war as far as I could tell," said Turner, who was a young Army lieutenant at the time and who went on to co-found the University of Virginia's Center for National Security Law.

Even in formally declared wars, congressional action eventually can seem beside the point. Japan, for instance, surrendered to end World War II in August 1945. Japan signed the peace treaty in 1951, and the Senate ratified it in 1952.

"Final peace treaties can be slow in coming," Wedgwood said.

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