When the chairman of the House Foreign Affairs Committee, Rep. Dante Fascell (D-Fla.), complained last week that the administration should have consulted with Congress under the War Powers Act over the conflict in the Gulf of Sidra, he received little support from his congressional colleagues. The president's provocation of Libyan strongman Qaddafi was in its early stages a popular move that received strong bipartisan support. Reference to the War Powers Resolution must have seemed to many a throwback to Vietnam-era concerns.
But Fascell was correct in pressing the legal case. The resolution created a procedure to bring Congress into the fateful decisions involving war and peace. If the administration felt no need to consult Congress in the case of a popular engagement, can we expect any more when troops are committed in more controversial circumstances? Perhaps Fascell's legal position will be more appealing in the situation evolving on the Honduras-Nicaragua border.
The administration's attitude toward the War Powers Resolution was expressed explicitly by Secretary of State George Shultz during the Lebanon crisis. He angrily called it an unacceptable constraint on presidential power and subsequently called for its repeal.
It is even more revealing to consider the maneuvers of the administration lawyers who planned the last Gulf of Sidra exercise in 1981.
No one in the working group convened to plan the exercise doubted its purpose. The intention was to provoke Qaddafi while challenging Libya's bogus territorial claim to the gulf.
It was felt that a strong rationale had to be developed to get around the resolution's requirement to consult Congress "in all possible instances" when hostilities are "imminent" or "clearly indicated by the circumstances." The method chosen should be instructive to today's Congress.
The lawyers asked the Pentagon to review the military plans and determine the likelihood that U.S. forces would become engaged in combat. If the "probability of conflict" rose to 50 percent or above, then, according to the legal construct, consultations with Congress were required. Not surprisingly, the Pentagon's computers never produced a probability-of-conflict scenario reaching the threshold.
Then the Navy sought a change in the "rules of engagement." They wanted to allow Navy pilots to fire on Libyan planes when they "locked on" with their radars, indicating they were targeting U.S. aircraft.
This request was abandoned when the lawyers suggested that a change in the rules of engagement would demonstrate that the administration knew in advance that hostilities were "clearly indicated by the circumstances." The Navy apparently took the view that it was more important to avoid congressional consultation than to gain a slight combat edge. In any case, when the anticipated engagement took place on Aug. 19, 1981 -- and two Libyan aircraft were destroyed by two F-14s -- Pentagon spokesman Gen. Philip Gast was able to claim that U.S. pilots were "adhering to the rules that U.S. aircraft would be adhering to anywhere in the world."
Once again in 1986, administration spokesmen were emphasizing the routine nature of the military exercise while simultaneously seeking political credit for the decision to use force against a tyrant. Early in the week high officials were quick to praise their president for being aware in advance that sending the Navy into the gulf could cause a confrontation. Later, in a letter to Congress explaining why prior notice was not required, the operation took on the benign qualities of a "peaceful exercise" and part of a "global freedom of navigation program . . . on international waters."
Congress' reaction to the current Gulf of Sidra crisis is sure to be watched by administration lawyers seeking precedents to circumvent the War Powers Resolution. Perhaps Fascell's colleagues were intimidated by the initial popularity of the president's action. Whatever the cause, Congress cannot now afford to acquiesce in a clear circumvention of its legal prerogative.