Top secret.

TOP SECRET

MEMO TO: The President

FROM: Y'r Obd't Sv't, TRB 

YOU ASKED for my thoughts on the Persian Gulf business--well, here they are. The Iraqui counter-thrust against Iran is probably going to run out of steam any day now, our people tell me. That's the moment when the Iranians are likely to resume a major offensive, and they're going to give it everything they've got.

On top of everything else, the Ayatollah now sees himself as fighting a Holy War to avenge the killing of his boys at Mecca. You remember that Khomeini blamed the Americans (and the Israelis, of course) for plotting to disrupt the holy pilgrims' proceedings. The Iranian media kept up the anti-American theme, but pretty soon they combined it with the anti-Sunni theme, so now they've got themselves a proper jihad (why don't they just say "holy war'? And by the way, if you decide to go ahead and do a teevee appearance on this, don't forget that Shiite has two syllables. Might do to practice. If you slip, just think of Sam Donaldson). The DOD thinks the likelihood is high that the kamikaze types will come in on the next round. And it admits that the chances are that one of those mad, bad Shiites is going to succeed in sinking a tanker and not inconceivably a U.S. warship.

Now I know how you feel about the War Powers Act--I think it's unconstitutional too. But I've put together some data I got from the Justice people, and here's a way you can share your problems with Congress, which you told me you'd like to do, without compromising your position on the War Powers Act.

In 1984, Congress provided for the expansion of the federal judiciary, but specified that not more than one-half of the new vacancies could be filled before the end of 1984. Motives? Obvious. You objected to the provision as unconstitutional --but went ahead and nominated the first half of the judges.

That's the general direction you should head on the War Powers Act.

It specifies, as was pointed out at the NSC meeting a week ago, that you must inform Congress when dispatching U.S. military forces to an area where it is reasonable to suppose that hostilties are imminent. Well, God knows hostilities are imminent in the Persian Gulf. They're not only imminent, they're history. And then --the Act says--after sixty days, either you keep the military engaged where you sent them, or you bring them back, depending on whether Congress ratifies or disputes your deployment of the military, and their mandate.

Now what you can do is proceed to advise Congress--as specified by the War Powers Act. You can ask Congress to deliberate what you have done, and to debate it, and to arrive at a conclusion as to whether you have acted in the best interests of the United States (and of Israel, don't forget; maybe we should give the West Bank to the Sandinistas, and pick up that vote while we're at it?). Now: You can, in your letter of transmittal, advise Congress that in your opinion the War Powers Act is not constitutional and that in advising Congress of the possibility of hostile action you are not acquiescing in the hysterical anti-militarism of the post-Vietnam period (don't put it that way: Tony will give you some nice, elegant language). Then at the end of the sixty-day period, if Congress confirms you in your action, fine--there is no constitutional crisis. If Congress does not confirm you, you just tell the military to continue to do what they're doing, and we wait and see what happens . . .

What could happen? Well, though it sounds cuckoo to talk about Congress asking the courts for an injunction against you, that's exactly what happened in 1952 when President Truman took over the steel industry. Yup, they actually got out an injunction against him. Truman said he was acting in consequence of the powers inherent in a Commander-in-Chief (we were fighting like hell in South Korea). It went up to the Supreme Court, as you will remember, and the Court ruled that he had acted unconstitutionally.

I know it's none of my business to stray any further at this point, but it would be interesting, wouldn't it, if the Court of Appeals ruled in favor of you--i.e., ruled that the Act was unconstitutional; and then the Supreme Court came in 4-4, letting stand the Court of Appeals ruling? Meanwhile, Robert Bork is answering dumb questions before the Biden Committee. Nice paradox here, because Bork would probably approve of the War Powers Act. So you could publicly thank Senator Biden, and continue to exercise the prerogatives of the Commander-in-Chief. How're we doing, boss?