The Senate Judiciary Committee heard eight constitutional lawyers' opinions on whether President Bush needs a congressional declaration of war to use force to evict Iraq from Kuwait.
Sen. Orrin Hatch, R-Utah, observed at the start of the session Tuesday that while Congress has the sole constitutional power to declare war, the president has the authority as commander in chief to use the armed forces in the nation's security interests even if Congress does not formally declare war.Hatch cited 212 examples over 203 years of U.S. history in which presidents used force without Congressional declarations. He noted in particular President Harry S. Truman's entry into the Korean War without a vote from Congress.
A grueling 6 1/2 hours later, senators and their witnesses had agreed that it would be better if President Bush received a clear statement from Congress. But a majority said Bush either does not need a formal war declaration or should not receive such a sweeping mandate.
Nicholas Katzenbach, attorney general during the Johnson administration, was the lead witness for a panel arguing that a declaration is required before attacking Iraq and that the Constitution demands action by Congress.
On the other side, former undersecretary of state and University of Utah lecturer Eugene Rostow argued that the president does not need a declaration of war and could, in fact, legally attack Iraq even if Congress refused to vote a resolution backing the use of force.
Only an act of Congress, passed over Bush's veto, could make it illegal for him to act, Rostow said.
Rostow noted that Congress has declared war only five times in U.S. history. He added that under international law such a declaration has wide ramifications involving seizure of the belligerent nation's assets and the rights and requirements of neutrals. Such a declaration could complicate U.S. relations with its United Nations allies, particularly if other nations did not also declare war.