Craig K. Allen's criticism {Free for All, Dec. 8} of Prof. Stephen Carter's article on the War Powers issue {Outlook, Nov. 18} fell short of its mark. The idea that only one issue was "controversial" at the Philadelphia Convention is ludicrous, and while the debate about control of the militia did have a "federalism" aspect, the issue does not appear to have even been raised with respect to the power of Congress "to declare war."

The Founding Fathers understood the need to place military authority in the hands of a national government. As Carter observed, the debate was one of separation of powers within that national government.

Allen wrote that "somehow, 'make' was changed to 'declare.' This compromise in language may have been intended to strike a balance between the federalists, who didn't want state governors 'making' war, and the anti-federalists, who believed state-run militias to be the preferred form of defense."

In reality, thanks to Madison's journal of the convention ("Writings of James Madison," Vol. IV, p. 227, Hunt, Ed., 1903) such speculation is unnecessary. Madison himself made the motion to reduce the power of Congress from "to make war" to "to declare war" in order to leave the president as commander in chief "the power to repel sudden attacks" and to make it clear that the "conduct" of war was "an executive function."

Some debate followed about where within the federal government the power to initiate war ought to reside. Pierce Butler "was for vesting the power in the president, who ... will not make war but when the nation will support it." To that, Elbridge Gerry responded, he "never expected to hear in a republic a motion to empower the executive alone to declare war."

Roger Sherman of Connecticut emphasized the offensive/defensive distinction identified in Carter's fine article, arguing "{t}he executive shd. be able to repel and not to commence war." Madison's motion passed by a vote of 8 to 1.

This offensive-defensive distinction finds further support in that international law has never required a declaration of war for nonaggressive use of forces. No nation has formally declared war in more than four decades. If members of Congress feel that their prerogative to issue such a declaration has been weakened in the post-World War II era, they are correct -- but the explanation is not executive usurpation but the outlawing through the U.N. charter of aggressive war itself.

When the president seeks to respond defensively against Saddam Hussein's aggressive war (a crime against all nations under international law), he no more becomes the aggressor than did Franklin D. Roosevelt through the Normandy landing. The president's military pressures on Saddam are in no way an infringement on the power of Congress to veto an executive decision to launch an aggressive war.

-- Robert F. Turner

The writer is associate director of the Center for National Security Law, the University of Virginia.