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Court Battle Launched Over War Powers

November 11, 1987|JOHN M. BRODER | Times Staff Writer

WASHINGTON — A 14-year battle over the War Powers Resolution moved into court here Tuesday as lawyers for 111 Democratic members of Congress asked a federal judge to force President Reagan to invoke the controversial 1973 measure, saying it clearly applies to the current U.S. military involvement in the Persian Gulf.

Lawyers for the government, however, contended that enforcement of the resolution is a political issue that should be decided in the White House and halls of Congress--not in the courts.

U.S. District Court Judge George Revercomb did not rule on the case Tuesday, appearing by the nature of his questioning to be reluctant to interject the courts into a foreign policy debate between Congress and the Executive Branch. But Revercomb, a Reagan appointee, said that he will study the case and rule on it soon.

Attacks Increase

The dispute arose from the Administration's decision last summer to register 11 Kuwaiti oil tankers to fly the American flag and provide them with U.S. naval escorts through the dangerous waters of the Persian Gulf. The policy has come under fire from congressional Democrats, particularly as the pace of attacks on U.S. shipping has increased.

The lawmakers are trying to assert their power under the War Powers Resolution to limit the Administration's commitment of military forces to areas where bloodshed is likely. The 1973 measure, passed over the veto of then-President Richard M. Nixon, has been the flashpoint of bitter constitutional confrontations between a Congress that wants to assert its power in matters of war and a President seeking to fulfill his role as commander in chief.

Under the resolution, the President must report to Congress within 48 hours whenever U.S. troops are introduced "into hostilities or into situations where imminent involvement in hostilities is clearly indicated." Unless Congress then authorizes the operation, the President has 90 days to withdraw the U.S. forces.

Attorney Alan Morrison, representing the congressmen, argued that the Persian Gulf represents a clear-cut case of "imminent hostilities" and that failure to force the President to invoke the resolution would doom it to become "a toothless tiger."

Morrison said that the resolution was enacted near the close of the Vietnam War because Congress was frustrated by its inability to end the conflict and bring American troops home. It wanted to prevent future undeclared wars waged by a President not accountable to Congress.

"Congress feared that our country would become embroiled in large wars by small steps," he said. "We don't want to wait until the start of World War III or another Vietnam War."

Robert Cynkar, a Justice Department attorney representing the Administration, argued that a court ruling that the United States is, in effect, at war with Iran would encourage further Iranian attacks and could undermine U.S. diplomatic efforts to end the Iran-Iraq War.

Called Unconstitutional

Both sides, ironically, agreed on a key point in the dispute: If the resolution does not apply in this case, it will be difficult to find any instance in which it does. President Reagan believes that the resolution is unconstitutional and should never be invoked. The congressmen maintain that the Persian Gulf is a classic case of "imminent hostilities" and that if the resolution is not invoked now, it is unworkable.

California Rep. Howard L. Berman (D-Panorama City) filed a brief as a friend of the court, arguing that Reagan already has tacitly acknowledged the War Powers Resolution by sending detailed reports to Congress on the gulf operation. He asked Judge Revercomb to declare the reports to be official notice under the resolution and to start the 90-day timetable for withdrawal immediately.

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