Monday, January 6, 2020

The War Powers Resolution Is Unconstitutional

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.

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.

Meanwhile, the War Powers Resolution gives too much rein to belligerent presidents. It should be repealed and replaced with legislation that better reflects the restrictions on presidential action that are contained in the Constitution.