- WASHINGTON -- As the White
House steps up the making of its case for toppling Iraqi President Saddam
Hussein, it will argue the United States has what might be called residual
authorization.
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- The idea is there's a leftover "go" from the
Gulf War and from congressional action in the days following the Sept.
11 attacks.
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- President Bush already has all the legal and moral authorization
he needs to attack Iraq, the executive thinking goes, because Mr. Hussein
never complied with the Gulf War's terms of surrender, and because defensive
measures adopted after Sept. 11 apply to a developer and user of weapons
of mass destruction. Therefore no new Congressional authorization ñ
nor any United Nations Security Council resolution ñ is necessary.
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- But that position is causing alarm in Congress and among
legal experts, renewing a debate over presidential war powers that is nearly
as old as the American republic itself.
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- The White House emphasizes that President Bush might
yet seek authorization from Congress out of national interest and as a
way to back a war with unity. In the administration's most forceful case
yet for regime change in Iraq, Vice President Dick Cheney said in a speech
Monday that the administration would consult both Congress and America's
allies.
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- Creating a precedent
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- Yet the claim that there is no legal necessity for Congress
to authorize a war against Iraq appears designed to carve out a precedent-setting
freedom of action for the president. Already it's an opinion that even
some White House allies view dimly.
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- "The White House should be mindful of the important
distinction between what the president can do, and what he ought to do,"
said Henry Hyde, chairman of the House Committee on International Relations,
in a statement Monday. Noting he agrees with the analysis that the Bush
administration is not obliged to seek approval to take action, he also
warned that "any policy undertaken by the president without a popular
mandate from Congress risks its long-term success."
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- But other Republicans and many legal scholars go a step
farther. "The administration's position is simply wrong," says
Michael Glennon, a professor of international law at Tufts University's
Fletcher School of Law and Diplomacy in Medford, Mass. He says there's
no doubt that congressional authorization for the 1991 Gulf war was "extinguished"
the day Iraq signed terms of a ceasefire ñ whether it complied with
the terms of cessation of hostilities or not.
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- Sen. Arlen Specter (R) of Pennsylvania argues that in
an "emergency," the president as commander-in-chief can act unilaterally,
but that in this case there is time for Congress to make and make the final
decision.
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- As for the Bush administration argument that Iraq is
covered by last September's congressional vote that authorized the president
to act against perpetrators of the terrorist attacks, Professor Glennon
says, "That argument may be correct, but only if Iraq can be linked
to events of Sept. 11."
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- Vice President Cheney's speech, before a convention of
the Veterans of Foreign Wars in Nashville, appeared designed to accomplish
two tasks: give firm ground to the Bush argument for a right to preemptive
action against regimes or organizations seeking weapons of mass destruction;
and quiet the dissenting voices from within the president's own party as
well as principal figures involved in the Gulf War.
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- Preemptive strike
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- Arguing the case for preemptive action against Mr. Hussein,
Cheney said Hussein would possess nuclear weapons "fairly soon"
if left on his current course.
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- But legal experts say those concerns do not override
constitutional requirements for the president to seek congressional authorization
for war.
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- "I cannot imagine why the administration is asserting
this singular power, except that it sees this as an opportunity to assert
a constitutional position," says Roger Pilon, director of the Center
for Constitutional Studies at the Cato Institute in Washington. "The
president is probably obligated to get Congressional authority because
the mere commander-in-chief function does not entail waging war on his
own initiative," Mr. Pilon says.
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- A call for further dialogue
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- Some observers, and even Republican leaders, say that
despite the Cheney speech, which argued that regime change in Iraq would
"benefit the region," unease about the administration's actions
will continue until the president himself makes the case for attacking
Iraq. The White House says administration officials will participate in
a second round of Congressional hearings on Iraq next month.
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- http://www.csmonitor.com/2002/0828/p02s02-usmi.html
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