Two federal judges yesterday rejected challenges to President Bush's power to deploy troops to the Persian Gulf, but one hinted broadly that Bush's actions could require judicial scrutiny under some circumstances.
U.S. District Judge Harold H. Greene, ruling in a lawsuit brought by 54 members of Congress challenging Bush's power to attack Iraq without a congressional declaration of war, declined to decide the issue now, in part because it is unclear that war is imminent.
But his opinion said that if an impasse developed between Congress's constitutional power to declare war and the president's authority as commander in chief of the armed forces, "action by the courts would appear to be the only available means to break the deadlock." One justification for such action, he said, would be if a majority of Congress -- not just 54 members -- sought to block a presidential decision to go to war.
But short of such an indication of the mood of Congress, he said, a ruling from him would be premature. He also noted that diplomatic talks later this month may resolve the crisis.
His language was a departure from the conclusion usually chosen by courts confronted with the issue: that going to war is a political and foreign policy decision outside the judicial realm, and that judges are not equipped to make decisions about what constitutes a "war."
Greene disagreed. If the president alone has the power to determine whether a troop movement is an "offensive military operation" or an act of war, he said, "the congressional power to declare war will be at the mercy of a semantic decision by the executive. Such an 'interpretation' would evade the plain language of the Constitution."
". . . The court is not prepared to read out of the Constitution the clause granting to the Congress, and to it alone, the authority 'to declare war,' " Greene said.
In another ruling issued within hours of Greene's, U.S. District Judge Royce C. Lamberth said federal courts lacked the power to decide whether Michael R. Ange, a National Guard sergeant recently sent to Saudi Arabia, could challenge his deployment under the 1973 War Powers Resolution or the Constitution.
Ange's suit presents a classic "political question," Lamberth said, and "interjecting the court into this political process will only exacerbate the problems facing this nation."
In numerous court rulings dating to the Vietnam War, courts have declined to get embroiled in defining the president's war-making power. Lamberth cited many of those rulings in concluding that courts lack the "expertise, resources and authority" to explore such issues as to what constitutes a defensive action or an attack.
Greene disagreed. Judges are as well suited as Congress or the president to determine whether this country is technically at war, he said, and in fact do so frequently in civil lawsuits involving treaties or even insurance contracts. Given the right circumstances, he said, it could be within the court's power to resolve an impasse between the president and Congress over how war can begin.
Michael Ratner, an attorney for the Center for Constitutional Rights, which represented the plaintiffs in both cases, said yesterday that the rulings will be appealed quickly, probably by early next week.
He added that he considered Greene's ruling a victory. "We brought the case to uphold the principle that it was Congress's power to declare war, and not the president's, and he basically agrees with us."
The Washington Legal Foundation, which filed a friend of the court brief on behalf 16 conservative members of Congress who support Bush's actions in the crisis, said in a statement that "it is the height of judicial arrogance" for Greene to say courts have the power to decide whether Bush's actions need authorization from Congress.