Calling the potential war with Iraq a political rather than a legal issue, a federal judge in Boston refused yesterday to issue a temporary restraining order that would have prevented the Bush administration from attacking without a declaration of war from Congress.
A group of unnamed military personnel, along with relatives of people in the armed forces and six members of the US House of Representatives, had filed suit, claiming that Congress had abdicated its war powers to the executive branch when it passed a resolution backing military action in Iraq last October.
US District Judge Joseph L. Tauro agreed with Justice Department lawyers who argued that the judiciary has no power to intervene in matters of foreign policy except in cases where Congress and the president are strongly and clearly in conflict. The judge denied the plaintiff's request for a temporary restraining order and ordered their lawsuit dismissed.
''The issues raised in this case are political questions beyond the authority of this court to resolve,'' Tauro said at a hearing.
Tauro said he could not tackle the issue of the constitutionality of the October resolution because Congress had ''clearly . . . not acted to bind the president from engaging in a war on Iraq'' and was, therefore, not in direct conflict with the executive branch.
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John Bonifaz, a Boston lawyer who represented the plaintiffs, called Tauro's decision ''wrong'' and vowed an immediate appeal. Bonifaz said Congress created a dangerous situation by investing all the power to wage war with one man, President Bush.
Plaintiff Charles Richardson of Jamaica Plain, whose son, Joseph, is a US Marine assigned to the American forces massing in the Persian Gulf, said he was disappointed by Tauro's decision.
''It would have taken a strong judge to rule on the merits of this case,'' said the elder Richardson.
Justice Department lawyers read a statement from Attorney General John D. Ashcroft. ''As the court held, Congress and the president are speaking with one voice in deciding that force may be necessary to compel Iraq to end its . . . weapons programs, to end its support of international terrorism, and to comply with the UN's resolutions,'' the statement read.