CRISIS IN THE BALKANS : U.S. Role in Bosnia Is Likely to Put 1973 War Powers Act Under Fire : Politics: Clinton and Congress appear headed for a collision over policy. But all seem to agree law needs to be changed.

By MICHAEL ROSS

June 2, 1995 12 AM PT

TIMES STAFF WRITER

WASHINGTON — The prospect of U.S. ground forces being sent to Bosnia-Herzegovina threatens to trigger a major confrontation between the Clinton Administration and Congress. Yet it could also act as a catalyst for one of the most important congressional foreign policy votes in more than two decades: repeal of the 1973 War Powers Act.

When Congress returns to work Tuesday after a week’s recess, one of its first orders of business will be to examine President Clinton’s Bosnia policy and his decision this week to consider sending troops to the Balkans--if asked by allied nations--to help beleaguered U.N. peacekeeping forces regroup to positions more easily defended.

Calling this a “significant shift,” Senate Majority Leader Bob Dole (R-Kan.) has called for hearings on the Bosnia policy as soon as the Senate returns.

Republicans in both houses are already discussing strategies for preempting the deployment by restricting participation of U.S. forces in U.N.-led peacekeeping efforts.

But as the debate refocuses attention on the perennial--and constitutionally fuzzy--question of congressional war-making powers and the President’s authority as commander in chief, it is underlining one point on which Republicans, Democrats and successive administrations all agree: The War Powers Act, enacted over a weakened President Richard M. Nixon’s veto during the Vietnam War, is so unworkable it needs to be repealed.

“Having watched the War Powers resolution in operation over the past 20 years, I have become convinced that it is not only unconstitutional but also profoundly unwise and dangerous,” said House Judiciary Committee Chairman Henry J. Hyde (R-Ill.), a House leader of efforts to repeal the legislation.

California Rep. Howard L. Berman (D-Panorama City), a member of the International Relations Committee, agreed, saying: “We must have a process where the Administration consults with Congress before undertaking [military] actions, but the War Powers Act, as written, is totally worthless.”

Although the debate over war powers dates back to Thomas Jefferson’s campaign against the Barbary pirates, it was Nixon’s 1970 “incursion” into Cambodia that, three years later, spurred lawmakers to pass the War Powers Act. It was an attempt to exert control over an area left in doubt by the Constitution, which gives Congress authority to declare war but the President power to wage it.

Under the 1973 law, a President must order the removal of U.S. forces from combat or from situations where combat may be “imminent” within 60 days of their deployment, unless Congress subsequently authorizes the mission.

Hyde plans to attach an amendment repealing the act to a foreign aid authorization bill that the House will resume debating next week. Dole has already introduced similar legislation and may offer it as an amendment to the foreign aid bill when it comes to the Senate floor later this month.

Leading the effort to delay the act’s repeal is Rep. Lee H. Hamilton (D-Ind.), ranking Democrat on the International Relations Committee.

He acknowledged that the act is “deeply flawed” but argued that it should not be jettisoned until something more effective can be devised to replace it.

“The core idea of the War Powers Act is that a decision to send American forces into combat should be the result of a collective judgment and not the judgment of one person, even if that person is the President,” Hamilton said in an interview. “That idea is still sound, even if the law as it is currently formulated is unworkable.”

Hamilton, however, acknowledged that he is “in the minority” and that the Hyde amendment will probably pass--and by a large margin, despite mounting concerns about U.S. involvement in Bosnia.

In practice, the War Powers Act has failed to work for two reasons, lawmakers and congressional scholars say.

The “giant flaw,” said Louis Fisher, a constitutional scholar at the Congressional Research Service, is a technical loophole in the act that lets the President evade reporting provisions that start the 60-day clock ticking.

“The way it’s written, the clock doesn’t start unless the President reports [to Congress] under very specific provisions, and so Presidents don’t do that,” Fisher said.

Concerns over the law’s constitutionality have time and again also restrained Congress from testing it.

“Congress, historically, has never pushed too hard on the War Powers Act for fear that it would be ruled unconstitutional. The thinking has been that it is better to have the law on the books as a potential restraint on presidential action without putting it to the test,” added Mark Rozell, a political science professor at Virginia’s Mary Washington College.

In conflict after conflict in the past 20 years--from Libya and Grenada to Panama and the Persian Gulf and, more recently, Somalia and Haiti--a war-powers confrontation, while often threatened, has always been fudged.

“Congress almost never authorizes military actions, but that has not prevented them from being launched in any instance I can recall,” Hamilton said.

Besides arguing that the War Powers Act represents an unconstitutional infringement on presidential powers, proponents of its repeal say the law poses unnecessary risks for U.S. forces by leading potential adversaries to believe that, once committed, the troops will be withdrawn after 60 days unless Congress approves the deployment.

The deadline “virtually invites foreign enemies to simply wait out our troops” and increases “risk of armed conflict . . . by encouraging our adversaries to doubt the determination of U.S. Presidents to use force,” House Republicans said in a statement last month endorsing the act’s repeal.

While the increasing likelihood of a deeper U.S. military involvement in Bosnia could give rise to second thoughts about the timing of a repeal, Republican strategists argued that the latest crisis only underscores the act’s limits.

Confident that they now have a stronger check on Clinton’s authority through their control of the appropriations committees that would fund any deployment to Bosnia, strategists said privately that repealing the War Powers Act now could even strengthen the GOP’s hand in a confrontation with Clinton over Bosnia by providing political cover for actions that could more meaningfully restrict a President.

When Congress returns next week, GOP leaders in both houses are also promising a renewed effort to require an end to the arms embargo for the Muslim-led Bosnian government, a move that could preempt any U.S. effort to help U.N. forces regroup by virtually guaranteeing their eventual withdrawal from what would be a widening war.

“We haven’t [decided on] our strategy yet because Clinton has promised to consult with Congress, and we’re waiting to hear what he says,” a senior Republican foreign policy adviser said. But whatever the GOP leadership decides to do, he added, it “won’t need the War Powers Act to do it. . . . That law hasn’t worked before, and it won’t work now, and it’s time to scrap it.”