- The Washington Times - Friday, February 14, 2003

BOSTON, Feb. 14 (UPI) — A lawsuit challenging President Bush’s power to attack Iraq without a congressional declaration of war has little chance of success, legal experts said Friday.

A federal judge in Boston will hear arguments on the suit next week.

“Cases like this have been filed over and over over the years and they never win because the court is not going to intrude on the foreign policy of the United States,” attorney Paul Martinek, editor of Lawyers Weekly USA, told United Press International.

“It’s just not going to happen,” he said.

Similar federal lawsuits challenging the Vietnam War and the 1991 Gulf War failed. The Korean War, the Vietnam War and the Gulf War were all fought without congressional declarations of war.

This suit was filed in U.S. District Court on Thursday on behalf of a group of soldiers, parents of military personnel and six Democratic members of Congress.

Judge Joseph L. Tauro is expected to hear the case next Thursday.

The lead attorney for the plaintiffs, John C. Bonifaz, told reporters that Bush “is not a king” and “does not have the power to wage war against another country absent a congressional declaration of war.”

There was no immediate comment from the Department of Justice, but DOJ lawyers are expected to argue at the hearing that the Constitution grants the president the necessary authority in his role as commander in chief.

“At the hearing, the government will move to dismiss, and Judge Tauro will respectfully listen to the plaintiffs’ arguments and then he’ll dismiss the suit,” Martinek said.

“They basically have a foreign policy dispute with the president, and it’s not for the courts to decide that dispute,” Martinek said.

Other experts agreed.

“Congress has concurred in authorizing the president to put troops in harm’s way,” Harvard Law Professor Richard H. Fallon Jr. told the Boston Globe.

“I think they (the court) are likely to say this is a political question,” Boston College Law School Dean John Garvey told the Boston Herald.

The suit “has almost no chance of success,” Martinek added. “It’s pretty safe to say that it was filed primarily for publicity purposes, to get publicity for the antiwar point of view.”

As for the October resolution authorizing the president to use force, Bonifaz said it didn’t constitute an official declaration of war.

Bonifaz challenged the right of Congress to delegate its power to declare war to the president and maintained the Constitution requires an outright declaration of war by Congress.

He denied the suit was filed to stir up opposition to the war.

Among the plaintiffs named in the suit were Charles Richardson and his wife, Nancy Lessin, of Boston, vocal critics of any military invasion of Iraq.

Richardson and Lessin said they were worried for their son, Joseph Richardson, 25, a Marine stationed in the Persian Gulf.

“As a military family, Charlie and I feel a special need to speak out,” Lessin said. “We worry about Joe. We don’t want him to be wounded or die. We don’t want him to wound or kill innocent Iraqi civilians.”

The representatives joining the suit, all Democrats, are John Conyers of Michigan, Dennis Kucinich of Ohio, James McDermott of Washington, Jose Serrano of New York, Sheila Jackson Lee of Texas and Jesse Jackson Jr. of Illinois.

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