WAR POWERS TEST BY SUPREME COURT WEIGHED IN SENATE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00965R000302640027-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 1
• Document Creation Date: December 22, 2016
• Document Release Date: September 26, 2012
• Sequence Number: 27
• Publication Date: March 29, 1984
• Content Type: OPEN SOURCE

Declassified in Part - Sanitized Copy Approved for Release 2012/09/26: CIA-RDP90-00965R000302640027-1
ARTICLE APPEARED
ON PAGE ,4
NEI POVkiERS TEST
BY SUPREME COURT
WEIGHED IN SENATE
SHULTZ WANTS A DECISION
Urges Congress and Reagan
to Seek 'Common Sense'
Solution to Conflict
By BERNARD GWERTZMAN
Special to The New York Times
WASHINGTON, March 28 ? Some
Senate leaders and White House offi-
cials have discussed petitioning the Su-
preme Court to rule on the constitution-
ality of the War Powers Act in. the af-
termath of the Lebanon crisis, a Re-
publican senator said today.
Secretary of State George P. Shultz,
who has been highly critical of the
limits the act sets on the President's
role as Commander in Chief, today
cautiously approved the idea of asking
the Court to take up the question. But in
testimony before a Senate subcommit-
tee he suggested it might be better for
Congress and the Administration to
work out "a common sense" solution.
'Extremely Important Issue'
The War Powers Act, which was ap-
proved in 1973 after the United States
had ended its involvement in the Viet-
nam War, has again emerged as an
issue between Congress and the execu-
tive branch because of Congressional
efforts to use it as a vehicle to limit the
Administration's ability to keep Ameri-
can troops in Lebanon.
Testifying before the Senate Appro-
priations Subcommittee on Commerce,
Justice, State and Judiciary, Mr.
Shultz said, "How the Congress and the
executive branch should interact in the
field of foreign affairs, particularly of
matters of great moment, is an ex-
tremely important issue and it has
moved in recent years very much in the
Congressional direction."
NEW YORK TIMES
29 March 1984
Threat Expected to Grow
"It ought to be thoroughly discussed,
preferably in an atmosphere net hay-
ing to do with some particular action
we're struggling with, but on a more
general plane," Mr. Shultz said. "I
would welcome a more thorough re-
view, including getting the lawyers into
the act, and so on, because I think my-
self that we're getting off the track."
Mr. Shultz repeated before the corn-
mittee his opposition to the bill to move
the American Embassy in Israel to
Jerusalem, and appealed for $10.5 mil-
lion in emergency funds to augment se-
curity at American installations,
particularly in the Middle East.
Noting the bombings and assassina-
tions of the last year that have led to
more than 300 American deaths, Mr.
Shultz said, "The most recent intelli-
gence estimates offer no reason to be-
lieve that this threat will diminish." He
said the Administration must assume
the threat to Americans will increase.
Most of Mr. Shultz's discussion over
the War Powers Act was with Senator
Arlen Specter, Republican of Pennysl-
vania, who has publicly taken the view
that no American forces should be en-
gaged in combat except through a Con-
gressional declaration of war. At an
earlier hearing, Mr. Specter elicited
from Mr. Shultz the statement that
both the Korean and Vietnam conflicts
were "wars."
Mr. Specter argued that Presidents
engaged American troops in those
"wars" without seeking and receiving
the necessary Congressional declara-
tions of war. The War Powers Act was
an attempt to get around the declara-
tion of war issue by prohibiting the
President from keeping United States
troops in combat situations for more
than 90 days unless Congress declares
war or otherwise approves use of the
troops.
Last October, Congress approved a
resolution, based on the act, authoriz-
ing the marines in Lebanon to remain
for 18 months, but President Reagan in
a statement indicated he did not accept
the Congressional limits.
. Test Case Is Discussed
Mr. Specter said "there has been
some discussion between the Senate
leadership and the White House to for-
mulate a test case that would go to the
Supreme Court of the United States
which would decide this question in a
nonconfrontational context."
He said he agreed with Mr. Shultz on
trying to work out differences on the
issue when there is no specific crisis.
For instance, he said if the President
refused to withdraw troops from over-
seas after 90 days, as required by the
War Powers Act, Congress would have
no other action open than to cut off
funds, something it would be unlikely
to do if American troops would suffer.
Any court action at that time would
undoubtedly take too long, he said.
Later, in a telephone interview, Mr.
Specter said he and the majority lead-
er, Howard H. Baker Jr., had met with
Fred F. Fielding, the White House
counsel, and lawyers from the Justice
Department to discuss a Supreme
Court test. A spokesman for the
ma-
jority leader confirmed the meetings,
saying that Mr. Baker agreed with the
Administration that the language in the
act needed to be changed because con-
stant confrontation between the two
branches served no useful purpose.
Major Problem Is Noted
Mr. Specter said that so far the Jus-
tice Department was opposing the test.
Moreover, Mr. Specter, a former dis-
trict attorney from Philadelphia, noted
a major legal problem.
The Supreme Court, he and other
lawyers said, has traditionally ruled
that it and other Federal courts have no
constitutional authority to provide ad-
visory opinions to other branches of
government or to anybody else.
Under the Constitution, the jurisdic-
tion of Federal courts is limited to
deciding "cases" and "controversies,"
which they said have traditionally been
interpreted to mean real disputes with
a factual content as opposed to abstract
legal disputes.
Nevertheless, Mr. Specter said he be-
lieved that if the President and Con-
gressional leaders made a direct ap-
peal to the Supreme Court to take up
the War Powers Act, it would do so.
Mr. Shultz has argued previously
that the continuing debate in Congress
on whether the marines in Lebanon
should have remained there, and what
their mission was, contributed to the
inability of the United States to bring
about a diplomatic solution in Lebanon
and to the eventual withdrawal of the
marines in what was perceived as a
setback for the United States.
"It seems to me," Mr. Shultz said,
"that if you say the President is the
Commander inthief and then you have
a piece of legislation that says he can
be put into a position by the Congress
that if the Congress does nothing then
he must move forces within some
period of days, how can you say he is
the Commander in Chief under those
circumstances."
"There has to be a capacity for deci-
siveness under certain circum-
stances," he said. "There has to be an
ability to go along without being con-
stantly undercut or surrounded by so
many conditions that you don't have
room for maneuver."
In his formal presentation, Mr.
Shultz asked for $10.5 million in emer-
gency allocations to increase security
at American installations overseas.
STAT
Declassified in Part - Sanitized Copy Approved for Release 2012/09/26: CIA-RDP90-00965R000302640027-1