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WASHINGTON - Lawyers trying to
persuade the courts to stop President Bush from launching a war against
Iraq plan to bring a new challenge next week, despite a rejection two days
ago in a federal appeals court.
John C. Bonifaz of Boston, the lead
lawyer for the soldiers, parents, and members of Congress pursuing the
challenge, said the attempt to reopen the case may start as early as
Monday, but in any event, as soon as it is clear what the United Nations
will do on a second Iraq resolution.
''We are not going to wait until the
bombs fall,'' he said. A decision Thursday by the US Court of Appeals for
the First Circuit, in Boston, which dismissed the challenge, ''made it
clear that the door is still open for review, in light of further facts,''
he added.
If the Appeals Court allows the case
to go forward, it could set the stage for a major constitutional conflict
between the president and the courts, and it could force the White House
to put war plans on hold, awaiting court action.
This case, said Marie Ashe, professor
of law at Suffolk University, ''involves a huge constitutional issue:
whether there is a wrongful concentration of power in one person - the
president.''
Ashe was one of the 74 law professors
who urged the appeals court to rule that Bush cannot send the nation to
war against Iraq without UN approval or, failing that, without a formal
declaration of war by Congress. Congress has mandated that there be no
preemptive strike against Iraq without UN approval or new congressional
approval, the challengers argue.
The Appeals Court did not doom the
case entirely. It turned aside a request by the Bush administration to
erect a categorical bar to any such lawsuit.
The administration had argued that
the courts have no role to play in the dispute because the Constitution
assigns war-making power solely to Congress and the White House.
The Appeals Court said this is a
murky area of constitutional law, so it dismissed the case instead on the
ground that the legal controversy was not fully developed. Courts could
not review the dispute, it said, ''until the available facts make it
possible to define the issues with clarity. ... Here, too many crucial
facts are missing.''
The court cited the daily
fluctuations in diplomacy at the UN, the ongoing Security Council debate
over a new resolution on Iraq, and the open question of what would happen
militarily in the event of an impasse.
''These are tough cases,'' Bonifaz
said, ''but this decision is a major step forward.''
The legal team decided that the
ruling created a premise for seeking a rehearing once the facts needed to
bring the case emerge.
''A couple of conditions must be
met,'' the lawyer said.
First, the UN Security Council must
either vote against authorizing war against Iraq or the request for such
endorsement is withdrawn by the United States, Britain, and Spain.
Second, the president would have to
indicate that the United States would go forward without UN approval. The
attorneys, Bonifaz said, believe that this second condition already has
been met, because the president has indicated publicly several times that
he does not believe UN approval is necessary.
Once the outcome in the Security
Council is clear, Bonifaz said, ''we are prepared to go back to the court.
Every indication is that we will then be marching forward toward war.''
One other uncertainty remains, he
added. A plea for the Appeals Court to rehear the case must be filed
within 14 days after the ruling. If action should be put off at the UN,
the lawyers conceivably could run out of time.
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