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War in Iraq Already Approved, White House Lawyers Conclude

By Mike Allen and Juliet Eilperin

Lawyers for President Bush have concluded he can launch an attack on Iraq without new approval from Congress, in part because they say that permission remains in force from the 1991 resolution giving Bush’s father authority to wage war in the Persian Gulf, according to administration officials.

Bush has said repeatedly he will consult lawmakers before deciding how to proceed but has pointedly stopped short of saying he will request their approval. The difference between getting legislators’ opinions, as opposed to their permission, could lead to a showdown this fall between Congress and the White House.

“We don’t want to be in the legal position of asking Congress to authorize the use of force when the president already has that full authority,” said a senior administration official involved in setting the strategy. “We don’t want, in getting a resolution, to have conceded that one was constitutionally necessary.”

Harold Hongju Koh, a professor of international law at Yale Law School who was an assistant secretary of state in the Clinton administration, called it shortsighted for the administration to try to avoid a full congressional debate about such an expensive and perilous operation. “The constitutional structure tries to make war hard to get into, so the president has to show leadership and make his case to the elected representatives,” Koh said.

Senate leaders -- including Majority Leader Tom Daschle (D-S.D.), Foreign Relations Committee Chairman Joseph Biden (D-Del.), and Sen. Robert Byrd (D-W.Va.), who views himself as the guardian of Senate prerogatives -- maintain the president must come to Congress before making a massive commitment of troops to oust Saddam.

Some congressional Republicans also are speaking up, including several who say they fear an invasion of Iraq would place an unacceptable burden on the country’s armed forces.

One compromise would be for Bush’s allies in Congress to introduce a resolution of support without having the president ask for it. Administration officials said they are concerned, though, that a war-powers resolution might add conditions, such as specifying that military action in Iraq is acceptable only for the purpose of eliminating weapons of mass destruction.