The government, responding to a lawsuit challenging President Bush's authority to send troops to the Persian Gulf without congressional approval, said the matter is a political question not suitable for courts to decide.
The brief filed by the Justice Department late Wednesday comes in response to a lawsuit brought by an Army national guardsman, who claimed the president has committed U.S. forces to the Middle East in violation of the 1973 War Powers Act.Sgt. Michael Ange, 26, attached to the 1,450th Transportation Unit at Fort Lee, Va., also sought an emergency order blocking his deployment to the Middle East saying an ulcer and leg injuries made him unfit for duty.
In a response filed in U.S. District Court, the government disputed the contention by Ange's lawyers that the United States was on the verge of war and said courts should not enter into such political debates.
"In terms of the broad sweep of events in the Persian Gulf," the government said, "there are simply no manageable standards by which this court can evaluate whether this country is engaged in `war' in the constitutional sense, or determine whether `hostilities' within the meaning of the (War Powers Act) are occurring or are about to occur."
To rule in favor of Ange, the government said, "would make the court an active participant in the delicate and ever-changing Persian Gulf diplomatic, military and political situation."
Ange's lawyers appeared in federal court Nov. 13 seeking an emergency court order suspending Ange's deployment to the gulf until a full hearing can be held on the constitutional question.
U.S. District Judge Royce Lamberth declined to issue the emergency order, but scheduled a Dec. 10 hearing on the case.
Ange's lawyers say the guardsman doesn't fall into the "conscientious objector" category but instead fears Bush is pushing the United States toward a war without consulting his countrymen.
"We believe that this is a historic and critical moment for the American people, that they should have, as should Sgt. Ange, the consent of Congress and the American people before launching a war in the gulf," said Michael Ratner, a lawyer for the Center for Constitutional Rights, which has taken up Ange's case.
The 1973 War Powers Act requires the president to notify Congress within 48 hours when U.S. forces are in an area of "imminent hostilities." Congress has 60 days to vote on whether to authorize the military action. Presidents have generally ignored the act and the courts have been reluctant to step into what many consider a political question.