You might find it surprising that Baghdad
International Airport Strike that killed Iranian Major General Qasem Soleimani
and nine others was completely legal under American law. The legislation that
governs situations like this is the War Powers Resolution passed by Congress in
the wake of the Vietnam War. The purported purpose of the Resolution was to “fulfill
the intent of the framers of the Constitution of the United States and insure
that the collective judgment of both the Congress and the President will apply
to the introduction of United States Armed Forces into hostilities, or into
situations where imminent involvement in hostilities is clearly indicated by
the circumstances, and to the continued use of such forces in hostilities or in
such situations.” [1]
The Resolution recognizes that the “constitutional
powers of the President as Commander-in-Chief to introduce United States Armed
Forces into hostilities, or into situations where imminent involvement in
hostilities is clearly indicated by the circumstances, are exercised only
pursuant to (1) a declaration of war, (2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its
territories or possessions, or its armed forces.” But it goes on to abandon
that principle in its subsequent provisions.
If the President engages in a military attack,
he must submit a report to the Speaker of the House and the President Pro
Tempore of the Senate within forty-eight hours, and must thereafter submit
reports to Congress no less than once every six months. [2] While the
President is required in that report to set forth his purported constitutional
and legislative authority for his action, there is nothing that requires that
he receive prior congressional authorization.
After that, the President isn’t required
to cease the military operation for sixty days. [3] And he gets an
extra thirty days if he “determines and certifies to the Congress in writing
that unavoidable military necessity respecting the safety of United States
Armed Forces requires the continued use of such armed forces in the course of
bringing about a prompt removal of such forces.” The President must, however,
remove the military forces if the Congress directs it by a concurrent
resolution.
Now the Resolution does provide that no new authority for introducing American forces is granted to the President by the legislation. [4] But that provision is potentially meaningless where presidents have conceived of themselves as having a free hand in international military operations. And the Resolution basically allows the President to conduct whatever military actions he wants within a sixty-day window.
Now the Resolution does provide that no new authority for introducing American forces is granted to the President by the legislation. [4] But that provision is potentially meaningless where presidents have conceived of themselves as having a free hand in international military operations. And the Resolution basically allows the President to conduct whatever military actions he wants within a sixty-day window.
Of course, the Baghdad International
Airport Strike was immediately over and done with. Therefore, there is no
question of violating the sixty-day window. The President’s action is
completely in line with the War Powers Resolution.
The problem is that the Constitution gives
the War Power to Congress [5], and it has no
provision for the President to go off and start a war on his own within any
prescribed time period. But the way the War Powers Resolution is drafted, the
President can initiate a nuclear war with China, justifying it by saying that
China is a threat to American control of the Pacific. He might have to withdraw
all American forces within sixty or ninety days without further authorization
from Congress; but if he started a conflagration like that, Congress would be
boxed into a corner.
“In the early draft of the Constitution
presented to the Convention by its Committee of Detail, Congress was empowered ‘to
make war.’ Although there were solitary suggestions that the power should
better be vested in the President alone, in the Senate alone, or in the
President and the Senate, the sentiment of the Convention, as best we can
determine from the limited notes of the proceedings, was that the potentially
momentous consequences of initiating armed hostilities should be called up only
by the concurrence of the President and both Houses of Congress. In contrast
to the English system, the Framers did not want the wealth and blood of the
Nation committed by the decision of a single individual; in contrast to the
Articles of Confederation, they did not wish to forego entirely the advantages
of executive efficiency nor to entrust the matter solely to a branch so close
to popular passions.
“The result of these conflicting
considerations was that the Convention amended the clause so as to give
Congress the power to ‘declare war.’ Although this change could be read to give
Congress the mere formal function of recognizing a state of hostilities, in the
context of the Convention proceedings it appears more likely the change was
intended to insure that the President was empowered to repel sudden attacks
without awaiting congressional action and to make clear that the conduct of war
was vested exclusively in the President.” [6]
Thus, the President’s power when it comes
to starting wars is restricted to repelling sudden attacks. Presidents may have
not so restricted themselves in recent memory, but that’s what the Constitution
says. So, did the drone attack that killed Qasem Soleimani qualify?
There certainly was no attack against
American troops underway. And The New York Times reports that there were
“disputes in the administration about the significance of what some officials
said was a new stream of intelligence that warned of threats to American
embassies, consulates and military personnel in Syria, Iraq and Lebanon.” And
one official “described the intelligence as thin and said that General
Suleimani’s attack was not imminent because of communications the United States
had between Iran’s supreme leader, Ayatollah Ali Khamenei, and General
Suleimani showing that the ayatollah had not yet approved any plans by the
general for an attack.” [7]
Who one believes will doubtlessly be based
on partisan considerations. But it seems a stretch that General Suleimani was
on the verge of any attacks on American interests at the time he was killed. If
he was, President Trump should have to make that case to Congress.