On The Fence

By Richard Lacayo

In the Persian Gulf two massive armies squared off across miles of desert sand as the Jan. 15 deadline for Iraq's withdrawal from Kuwait drew nearer. But with the world anxiously awaiting the outcome of this week's last-chance meeting between U.S. Secretary of State James Baker and Iraqi Foreign Minister Tariq Aziz, a different battle was brewing back in Washington. This fight was over constitutional prerogatives and political power. The burning question at the center of it all: Could President Bush send U.S. troops into battle without congressional approval?

The showdown over that issue was surprisingly long in coming. Congress was in recess last August when Bush dispatched the first troops to Saudi Arabia, and the lawmakers had little to say in September and October when they were busy running for re-election. Only after the November elections, as Bush doubled U.S. troop strength and successfully pressed the U.N. to adopt its Jan. 15 ultimatum, did a few Senators and Representatives speak up. The urgency of participating in a major national decision finally came home last week as the 102nd Congress convened in Washington for the first time. Its members faced the challenge not only of injecting their voice into the process but also of deciding whether that voice should support or oppose the President's threat of imminent military action.

Asserting his constitutional role as Commander in Chief, George Bush has made it clear that he regards the decision to go to war as his alone. The debate that erupted in both chambers last week was a sure sign that after months of holding their fire, many of the 535 representatives of the American people disagreed not only with the President but with their own leadership on that question. Barely half an hour after the Senate's opening session was gaveled to order, Iowa Democrat Tom Harkin upset the plans of majority leader George Mitchell to delay a floor fight over U.S. policy. When Mitchell proposed to the chamber that no resolutions on the gulf should be submitted before Jan. 23 unless the leadership approved, Harkin leaped to his feet. War is "being talked about in coffee shops, in the workplace and in the homes," the Iowa Democrat declared. "Now is the time and here is the place to debate."

Harkin wanted to introduce a resolution co-sponsored by fellow Democrat Brock Adams of Washington that would prohibit Bush from attacking Iraqi forces without "explicit authorization" from Congress. Mitchell looked surprised and angry. Though for weeks he had been asserting in public that only Congress has the constitutional power to declare war, he was anxious to avoid a debate before the Jan. 9 meeting between Baker and Aziz in Geneva. "This is the place," he replied to Harkin, then added, "I don't think it's the time." But among the rank and file, the attitude was "If not now, when?"

By the next day, Mitchell had acquiesced. A full-fledged debate on the Harkin-Adams resolution began in the Senate, where Massachusetts Democrat Edward Kennedy pointedly warned, "We have not seen such arrogance in a President since Watergate." The fight spread to the House, despite Speaker Tom Foley's efforts to contain it. Democrats Richard Durbin of Illinois and Charles Bennett of Florida announced that they had enlisted 51 supporters for a resolution similar to the one Harkin and Adams had introduced in the Senate. Though neither resolution would be binding, both represent a clear message to the President that he must make Congress a partner to any decision to use force.

The congressional leadership's reluctance to challenge the President reflected the fears of legislators from both parties. Many dovish lawmakers prefer to sit on the fence as long as it remains unclear whether the military option can succeed at acceptable cost. Though some may loudly question White House policy, few have ventured any on-the-record challenge. That suits the President just fine. Bush says he is willing to continue "consulting" with Capitol Hill leaders, but he has made no effort to seek outright congressional approval for his push toward war. His concern, as he explained to TIME in an interview published last week, is that anything less than an overwhelming endorsement of his policy by Congress would convince Saddam that the U.S. is divided and therefore reluctant to fight.

Many in Congress agree. "It is awfully difficult for us to do anything of substance without creating the impression of congressional and national divisiveness," says Indiana Democratic Representative Lee Hamilton. "The fact is, in an instance like this, Congress operates on the margin." The reasons for that may be more political than patriotic. If Bush opts for war -- and if Iraq is quickly dislodged from Kuwait at acceptable cost -- the President's popularity will skyrocket. A Congress that tries to thwart him now could later appear guilty of unseemly partisanship. Dovish Democrats in particular would see themselves labeled once again as wimps in the arena of global politics.

But there are dangers in silence as well. If Bush hopes to convince Saddam that the country is behind its President, no move would send a stronger signal than a congressional declaration of war. If war turns disastrous, moreover, a Congress that had done nothing to deter the President would be vulnerable to charges that it had let down the people it purports to represent. Georgia Democratic Senator Sam Nunn warns that once troops go into battle, it will be too late for Congress to be arguing the propriety of war. "The time for debate," he insists, "is before that occurs."

To a large extent, the hesitations of Congress echo the ambivalence of the American public. Most polls show that a majority of Americans support the U.S. goal of expelling Iraq from Kuwait. Yet the American people are divided over the prospect of rushing into war on the timetable set by the President. Many members of Congress returned to Washington last week reporting that letters from their constituents strongly favored giving sanctions more time to work and urged the lawmakers to get into the act.

Whatever the political consequences, the Constitution does grant Congress -- and Congress alone -- the power to declare war. The reason was clearly explained by James Madison, a key framer of that document who went on to become President. "The Constitution supposes what the history of all governments demonstrates," wrote Madison in 1798, "that the Executive is the branch of power most interested in war and most prone to it. It has accordingly with studied care vested the question of war in the Legislature."

Although Bush claims to be a "strict constructionist" when it comes to the Constitution -- meaning that he respects the original intentions of those who wrote the document -- he prefers to emphasize the passage that designates the President as Commander in Chief of the armed forces. Many Presidents have relied on that provision to initiate quick military action without congressional approval. Bush's staff members like to point out that in the country's 200-year history, Presidents have sent American soldiers abroad 211 times, though Congress has declared war on only six occasions.* But those expeditions rarely involved massive troop deployments or a prolonged buildup to war. The gulf, in contrast, is a textbook case of when Congress should be a part of the decision: speed is not essential, and the stakes are high -- very high.

Nor is the case for involving Congress merely academic. Vietnam is now regarded as a warning that disaster awaits any President who leads the country into a lengthy war without the support of Congress. Even hawks on Capitol Hill say that in the event of an extended and bloody struggle in the gulf, it will be crucial for the President to have Congress on record as with him from the outset. "If you want Congress in on the landing," says House Democrat Stephen Solarz of New York, who supports the use of force against Saddam, "you had better have Congress in on the takeoff."

With debate under way at last in both houses, the question becomes just what kind of action Congress should take. One unlikely prospect is that it could offer the President a blank check to pursue his current policies. To that end, the White House began preparing a draft resolution for Congress that would urge "continued action" by the President to fulfill U.N. mandates calling for Iraqi withdrawal from Kuwait.

Few members of Congress expect Bush to get that kind of green light. But neither does there appear to be any enthusiasm for invoking the 1973 War Powers Resolution, which instructs a President to withdraw troops 60 days after they are dispatched unless Congress approves the deployment or grants an extension. No President has ever recognized the constitutionality of that Vietnam-era resolution, and Congress has given up hope that it could use such a slender thread to reel in the massive military machine in the gulf.

Congress could pass resolutions supporting further diplomacy or urging more patience in pursuing the embargo. In either case, lawmakers would face political humiliation -- and a full-fledged constitutional crisis -- should the President decide to ignore them. But Bush may find his maneuvering room constrained by political expediency as well as constitutional forms: no President wants to risk taking on the whole responsibility for a U.S. war by himself.

Dictatorships are given to boasting that they embody the will of an undivided people. That claim is always a sham -- and certainly not one that any democracy can or should aspire to. But one of the ironies of a confrontation with a foreign potentate is that it brings with it a temptation to behave like him. The unimpeded power of a dictator can look enviable to an American President when the prospect of war brings with it the need to convince an enemy of this nation's unity and resolve. If George Bush is succumbing to that temptation now, only Congress can persuade him -- or compel him -- to resist it.

FOOTNOTE: *The Tripolitan War, 1801; the War of 1812; the Mexican War, 1846; the Spanish American War, 1898; World War I, 1917; World War II, 1941.

With reporting by Hays Gorey and Bruce van Voorst/Washington