Having accused President Bill Clinton of preparing " a near-fatal blow to the framers’ carefully crafted restraints on the president’s war-making power" ["A Betrayal of the Constitution," Sept.19 1994, Page25], I write now to concede (with some relief) that the not-quite-invasion of Haiti ended up doing less damage to the constitutional fabric than I had feared.

I also respond below to a rebuttal by Lee A. Casey and David B. Rivkin Jr. ["In Constitutional Interpretation, Read the Framers’ Words," Oct. 3, 1994, Page 24], who defend-as well as anyone could, perhaps-a position bordering on the frivolous: that the framers of the Constitution gave the president sweeping power to invade any nation in the world without congressional consent.

President Clinton committed an unconstitutional act (in my view) by ordering an invasion of Haiti on Sept. 18 without a prior congressional vote of approval. But the importance of that act as a precedent for future presidents planning unconstitutional adventures was limited, thanks to some careful lawyering by Walter Dellinger, head of the Justice Department’s Office of Legal Counsel (and thanks also to the last-minute deal with Haiti’s milijary that averted actual hostilities.)

In a Sept. 27 response to an inquiry from Senate Minority Leader Robert Dole and others, Dellinger offers a set of after-the-fact legal rationales for the unconsummated invasion that have the significant virtue of being narrow and Haiti specific. The assistant attorney general’s letter will be of less value to those claiming broad presidential power to launch future invasions than to those opposing such claims.

Conspicuously absent from the seven-page letter is the sort of assertion of broad presidential power to initiate hostilities abroad that had recently been made by (among others) Secretary of State Warren Christopher. Nor does Dellinger rely upon or endorse such precedents as the 1983 invasion of Grenada by Ronald Reagan or the 1989 invasion of Panama by George Bush.

Rather, the Dellinger letter rests on "a combination of three factors" as the legal basis for "not only the actual deployment begun on September 19, but also the military operation that was planned, and in part initiated" before the Haitian military caved in. The three factors are: (1) an obscure provision of the Defense Department Appropriations Act of 1994, adopted in October 1993, expressing "the sense of Congress that funds appropriated by this Act should not be obligated or expended for United States military operations in Haiti unless … the President transmits to Congress a written report" making certain representations (which President Clinton did, on Sept. 18); (2) "the structure of the War Powers Resolution" of 1973, which " makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by Congress"; and (3) "circumstances that sufficed to show that the operation was not a ‘war’ within the meaning of the Constitution’s reservation to Congress of the power "to declare war."

The "circumstances" Dellinger cites included "the full consent of the legitimate government" of Haiti-that is, Jean-Bertrand Aristide, the elected president -in-exile-and "the limited antecedent risk that United States armed forces would encounter significant armed resistance or suffer or inflict substantial casualties."

It is most unlikely that certain of these factors and circumstances-the consent of the target nation’s legitimate government, the expectation of minimal casualties, and a congressional resolution like the one on Haiti-will be present to justify any future invasion. None of them were present for Grenada in 1983, Panama in 1989, or Iraq in 1991.

And Dellinger does not claim that any one of the props on which his letter relies would alone suffice. "We are not suggesting," his letter stresses, "that the United States cannot be said to engage in ‘war’ whenever it deploys troops in a country at the invitation of that country’s legitimate government."

None of this is to say, however, that the Dellinger letter is ultimately persuasive in contending "that the President possessed the legal authority to order" an invasion of Haiti.

First, while Congress chose unduly broad language in the October 1993 resolution, it clearly did not authorize an invasion (nor does Dellinger claim it did). Such "sense of Congress" resolutions do not have the force of law, as Dole noted in proposing this one; it was framed as a (hortatory) limitation on the president, not a grant of power, and it was adopted with reference to the then planned peaceful deployment of a few hundred troops for such duties as training Haitian police and building roads.

Second, Dellinger’s reliance on the War Powers Resolution is undercut by its express disclaimer of any intent "to alter the constitutional authority of the Congress or of the President." While the 1973 law does assume that presidents will sometimes unilaterally introduce troops into hostilities, they can legitimately do so only when speed and surprise are imperative, as in hostage-rescue missions.

Third, Dellinger’s claim that the planned invasion of Haiti was not a "war" flouts the intent of the framers. As John Hart Ely shows in his 1993 book, War and Responsibility, the framers "meant that all wars, big or small, ‘declared’ in so many words or not, . . . had to be legislatively authorized."

The work of Ely and others also eviscerates the brazen claims by Republican presidential-power mavens like Casey and Rivkin that the framers lodged in the president the power to launch even a D-day-scale invasion without the prior consent of Congress.

As Leonard Levy writes in his 1988 book, Original Intent and The Framers’ Constitution, "The evidence is abundant and easily obtainable that the Framers intended Congress to control the making and conduct of war." This evidence includes statements to that effect by virtually every one of the framers who addressed the subject, including James Madison (who said "the Constitution . . . vested the question of war in the legislates"), George Washington, James Wilson, Alexander Hamilton, and John Marshall (who, as chief justice, wrote in Talbot v. Seeman (1801) that "the whole powers of war [are] vested in Congress").

Casey and Rivkin treat the framers’ avowed intent as somehow irrelevant to their-own "originalist" interpretation. They take refuge in the claim that in the 1780s, the words declare war were understood as reserving to Congress only "the power to create a legal state of war" and as leaving to the president the unfettered power of English monarchs "to use … military force." But none of the authorities cited by Casey and Rivkin supports this narrow construction.

The best evidence of what the "declare war" clause (Article I, Section 8) and related provisions meant to those who wrote and ratified the Constitution is what they said the provisions meant. And as Levy details, they "did not understand the power to ‘declare’ war as any different from the power to determine on or make it," except that they allowed the president the power to repel sudden attacks on the United States.

If any doubt about this interpretation remained, it would be erased by the Constitution’s additional assignment to Congress of the powers to issue letters of marque and reprisal and to raise and support armies, and by its restriction of the states’ power to "engage in war" without the consent of Congress.

As Abraham Sofaer concludes in his 1976 study, War, Foreign Affairs and Constitutional Power: The Origins: " The ratification debates confirm what the Constitution suggests-that Congress was to have the final say in foreign and military affairs."

The claim by self-described originalists that the Constitution empowers the president to make war is, in Levy’s words, "a stance that sheds light either on their ignorance or on their hypocrisy."