Declaring war on undeclared war

A lawsuit could force President Clinton to get Congress' OK on Kosovo.


Jake Tapper
May 6, 1999 5:00PM (UTC)

President Clinton is being sued again.

This civil suit, however, has a loftier focus than that of Paula Jones. And, if successful, it could prove to be globally consequential, because it deals with the president's legal ability to wage war.

On April 30, 17 members of Congress filed a civil suit against the president before Judge Harold H. Greene of the U.S. District Court for the District of Columbia. The suit cites the exclusive role of Congress to declare war, as cited in the Constitution as well as the War Powers Act. It asks Judge Greene to declare that President Clinton is violating the Constitution by waging war without the explicit authority of Congress. The legal wrangling, which has gotten little coverage, could accomplish what House members have been unable to: force the president to come to Congress for permission to continue leading NATO's intervention.

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The suit was filed on the heels of the surprising April 28 series of House votes on the NATO campaign: No on ground troops, 249-180; no on removing all troops within 30 days, 290-139; no on declaring war, 427-2; and a shocking 213-213 deadlock on the resolution the Senate passed four weeks ago authorizing the president to continue airstrikes, despite support by Republican House Speaker Dennis Hastert and leading House Democrats.

To add to the mixed messages, on Thursday the House is expected to vote in support of $12.9 billion to fund the military operations it won't support -- even though President Clinton requested less than half that. House Majority Leader Dick Armey, R-Texas, has explained this as a way to support our troops, while not necessarily supporting the policy that put them there.

Publicly, the White House shrugged off the discouraging April 28 votes, apparently dismissing what the legislative branch thinks about its military intervention. "The House is obviously struggling to find its voice," says National Security Council spokesman David Leavy. "It voted 'No' on declaring war, 'No' on sending in ground troops, and it tied on whether to support an air campaign. They sent a mixed message as to what their stance is. But we've got to press ahead. There's broad support for this campaign among the American people, so we sort of just blew by" the House votes, he said.

But on the floor of the House last week, the attitude of Democratic House leaders wasn't so flip -- especially when it came to the 213-213 vote on continuing airstrikes. "The lobbying on this was some of the most intense that I've ever seen," says Rep. Dennis Kucinich, D-Ohio, who voted against the measure. "I think people were stunned that this thing went down."

Kucinich says that there was a secret reason House leaders lobbied so intensely: for constitutional reasons, the White House wanted to get some legislative record of the House signing off on the war. "This wasn't a simple matter of the Democratic Caucus endorsing the president's actions," he says. "It had tremendous consequence ... In looking at it further, I realized that the president would, in fact, be empowered to conduct war without further restraint by Congress."

Despite the fact that President Clinton wrote the House a letter on the day of the April 28 vote assuring members that he wouldn't send ground troops without checking with Congress, Kucinich says that there were signals that the White House was planning on using the vote in support of airstrikes as a future blank check.

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"They were passing [the Clinton letter] out on [House] floor to Democrats before the vote," Kucinich reports. But then, Kucinich heard that White House spokesman Joe Lockhart had told reporters that, were the vote to go the way the White House wanted, the president wouldn't be required to seek congressional approval on any further actions in Kosovo. "We'll talk to [House] leaders, but we won't have to go back," Kucinich paraphrases. "So Lockhart had already nuanced it into something that was less than what the letter said."

The White House continues to insist it doesn't need the permission of Congress to mount military action against Yugoslavia. "We believe the president does have the authority to conduct this campaign," says NSC spokesman Leavy. "There's constitutional precedent. In 1995, we engaged in military action in Bosnia in order to bring the Serbs to the negotiating table. President Bush sent 20,000 troops to Somalia. What we've done is consistent with the War Powers Resolution."

"The whole War Powers Act is a very vague and hazy area," adds a senior White House official. "It's never been tested to the Supreme Court level."

Not yet anyway. But then there's Kucinich and a small group of congressmen, led by Rep. Tom Campbell, R-Calif. They're not so willing to hand off the power "to declare war," as declared in Article I, Section 8. And now they're taking the president to court to get this right back.

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The manner in which the Clinton administration has launched the NATO military action is, indeed, consistent with how every president since Franklin Roosevelt -- with the exception of George Bush, who belatedly sought a resolution to support the Gulf War -- has waged war: by ignoring the role of Congress to declare it.

And most members of Congress are happy with that. Where Congress fought the proposed presidential "line-item veto" as interference with its powers, very few have kicked up a fuss about most presidents' failure to follow the War Powers Act. Many of them disagree with it, believing it ties the president's hands. And others are grateful that they don't have to commit themselves on military actions one way or another.

So far, the White House has been careful not to push the issue. Clinton's Cabinet members and spokesmen have carefully refrained from referring to the current military action as a "war." In fact, Campbell told Salon News, he asked Secretary of State Madeiline Albright, "'Well, if this isn't war, what is it?' And she said, 'It's an armed conflict.' So I asked [Assistant] Secretary [of State Barbara] Larkin, 'Well, what's the difference?' She couldn't tell me, but she said her attorney would. So the attorney finally said, 'It becomes war when you call it war.'"

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Campbell and Kucinich didn't buy that. They enlisted 15 other members of Congress -- including rabid Clinton haters Bob Barr, R-Ga., Philip Crane, R-Ill., and Dan Burton, R-Ill. -- as well as one other Ohio Democrat, Marcy Kaptur. Then they sought the legal counsel of Michael Ratner of New York's Center for Constitutional Rights. Last Friday, they filed their lawsuit to get District Court Judge Greene to declare the current military action unconstitutional.

Despite the lack of media attention given to this legal tack, Campbell says that he's "confident that Judge Greene will rule our way."

White House staffers aren't exactly quaking in their loafers. "We take the lawsuit with a healthy dose of political salt," says the senior White House official.

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Ratner, for one, has been down this road before, to less than resounding results. In 1981, he argued for then-Rep. George Crockett, D-Mich., that the presence of U.S. troops in El Salvador violated the Constitution. But the judge ruled that the 30 to 50 military "advisors" didn't amount to a sufficient enough force for the court to render a decision. Soon Ratner challenged the invasion of Grenada, on behalf of another Michigan Democrat, Rep. John Conyers, but the case went nowhere since the operation only took a few days.

But his last big War Powers case turned out a little differently. In November 1990, Kaptur and two California Democratic congressmen, Ron Dellums and Don Edwards, sought to enjoin President Bush from "waging war against Iraq without a congressional declaration of war." Judge Greene was assigned to that case, too, and he questioned the "ripeness" of the matter for a court ruling. Since Congress had yet to take a position on military intervention in the gulf, he said, any court decision would have been premature.

But while Greene didn't give an injunction, Ratner says, "He concurred with our argument that Congress has the sole power to declare war." And in fact, within a few days, President Bush went to Congress and got its support for the Gulf War. "It was clear that Judge Greene's decision had a fairly heavy impact on the president's decision to get congressional consent," Ratner says.

Campbell agrees. The larger significance of Greene's decision, according to Campbell, is that he "ruled for Dellums on every other part of his case" except for "ripeness," the one he rejected it on.

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Past challenges "were rejected because it was ruled that the court could not decide what 'war' was," Campbell says. But in 1990, Greene agreed that the court could, in fact, decide what war was.

Another issue was whether the plaintiff has "standing" to bring the case forward. Toward the end of the Vietnam War, the Rev. Robert F. Drinan -- then a congressman, now a constitutional law professor at Georgetown University Law Center -- sued President Nixon over the war. "I did not get standing in my native Massachusetts," Drinan recalls. But in 1990, Greene ruled that a congressman did, indeed, have standing to bring such a suit.

One key difference between today and the last time Ratner faced Judge Greene is that, unlike the Gulf War, Congress does not appear to support NATO's intervention in Yugoslavia. "When we went into Judge Greene's courtroom on Iraq, he said, 'Congress hasn't acted yet, it's been silent, so I can't declare one way or another,'" Ratner says. "But this is a stronger case -- Congress acted on it," rejecting the use of ground troops and deadlocking on supporting airstrikes. "So I'm quite optimistic," Ratner says. He anticipates that the legal back-and-forth with the Clinton administration will take anywhere from three to four weeks, though he and his congressional clients are pushing to expedite the process.

"They're before the right judge," says Professor Peter Raven-Hansen, an expert on national security law for George Washington University Law School. But Raven-Hansen says that the far more important aspect of Dellums' case was that Judge Greene ultimately "dodged a definitive ruling" on the constitutional issue. "Judges are immensely resourceful in finding any excuse to not issue a ruling on an issue this momentous."

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Ultimately, Raven-Hansen argues, "The Constitution doesn't say that Congress can only support war by declaring it." For instance, Wednesday's $12.9 billion appropriation may be enough evidence that Congress was more than in the loop. Throughout history, when it's come down to it, all that "the Constitution requires is joint participation," Raven-Hansen says.

For Campbell, who sees this fight as a matter of "whether this provision of the Constitution is going to be buried," there is a larger, simpler question looming: "Why did the president not make the case to Congress in advance?" he asks. "Why did he not convince us?"

"Clearly, we'd rather be in a position where we can work with Congress," says the senior White House official. "But we also realize that we're dealing with a very, very, very partisan Congress, that always -- at every opportunity -- puts politics first. How are we expected to work with them on this?"


Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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