The War Powers Act & Congress’s Authorization For Use Of Military Force
Trump had the authority to target Soleimani based on the two relevant Congressional AUMF’s (Iraq & 9-11) in force. Moreover, Trump has complied with the War Powers Act.
I explained in a prior post that the attack authorized by President Trump, targeting the Iranian General Qassem Soleimani and Abu Mahdi al-Muhandis at a time when men on Iraqi soil, was fully within Trump’s Constitutional powers. Further, I explained that no law can act to constrain those powers. That said, what other laws touch on this situation and is Trump in compliance with them?
Congress has the sole power to “declare war.” But, that said, Congress has no “war-making” capability (sorry, Kevin Williamson). Indeed, the power of Congress to “make war” was explicitly considered at the Constitutional Convention, and the language, by a 7 to 1 vote, was changed to “declare war,” so as to leave the President unencumbered when responding to “surprise attacks.”
So there is obviously a tension in the Constitution between the President’s power to command the military and to direct a military response to attacks versus the Congress’s sole power to “declare war.” In our nation’s history, Congress has formally: declared war on eleven occasions; authorized the use of military force on thirteen occasions; and, funded military actions authorized by the U.N. Security Counsel on seven occasions. By comparison, past Presidents have deployed U.S. forces outside of our border and into conflicts on “at least 125 . . . occasions.”
After the Vietnam War, Congress addressed this tension in the Constitution by passing the War Powers Resolution, 50 U.S.C. s. 1541 – 1548. All Presidents since have maintained that the Resolution is an unconstitutional encroachment on the President’s powers. That said, all Presidents have more or less complied with the Resolution, and when they haven’t, Congress has complained, but has not taken the President to Court to test the constitutionality of the law.
50 U.S.C. §1541(c) states that the President has the authority to commit soldiers to combat under Congressional authorization or, absent that, “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” President Trump could claim authority on any of those grounds.
Soleimani and al-Muhandis were both involved in attacks on our armed forces and on the territory of the United States when the two men choreographed the storming and occupation, for two days, of part of our Embassy in Baghdad. Thus, as recognized by Congress in the War Powers Resolution, President Trump had inherent authority to order a strike on Soleimani and al-Muhandis.
Further, in 2002, Congress passed and the President signed the Authorization for the Use of Force in Iraq. That states, in relevant part:
The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to— (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
That AUMF is still is still in force. Consequently, the President had statutory authority to take all actions within the borders of Iraq to defend U.S. personnel and interests. The fact that Soleimani was not Iraqi, but rather an Iranian citizen is of no relevance. It is not customary to ask enemies in Iraq what their nationality of origin is prior to killing or capturing them. Soleimani had voluntarily placed himself in Iraq to coordinate with al-Muhandis. He was within the jurisdiction provided by the AUMF.
Finally, as to targeting Soleimani, an Iranian citizen, there is yet one more applicable law. In 2001, Congress passed and the President signed the Authorization for the Use of Force. That states, in relevant part:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Under the plain terms of AUMF, President Trump is authorized to attack Iran and Iranian interests. Iran was involved in harboring and facilitating al Qaeda’s operations, both before and after 9-11.
“Simply put, the 9/11 hijackers never would have been able to train in Afghanistan had it not been for Soleimani’s support and Iranian free-passage. The same holds true for Iran’s subsequent safe-haven to senior Al Qaeda operatives in IRGC bases inside ran.”
Bin Laden himself stated that Iran was al Qaeda’s “’main artery’ for men and money” in the years after 9-11. That satisfies the conditions Congress placed on choosing targets per the AUMF. Moreover, not only was Iran’s support for al Qaeda a government policy, it was likely overseen by Soleimani.
When Mike Pence pointed out that we had an alternative justification to target Iran generally, and Soleimani specifically under the AUMF, the progressive left went into high dudgeon. From the USA Today:
Although there were links between Al Qaeda and Iran, it was “not true” that Iran was behind the 9/11 attacks, Byman said.
As the bipartisan report from the 9/11 Commission concluded, “We have found no evidence that Iran or Hezbollah was aware of the planning for what later became the 9/11 attack.”
The tweet drew condemnation from experts, journalists and former government officials, who pushed back on the statement.
The “push back” is that no one has proven that Iran had knowledge of al Qaeda’s plans before the 9-11 attack. That is completely meaningless.
All Iran had to know is that al Qaeda was a terrorist organization that targeted the U.S. That’s it. And al Qaeda already had a long history of that prior to 9-11. The fact that the Iranians did not know the specifics of the 9-11 attack before it happened is meaningless. We put people in jail all the time as accomplices based on the crime to which they were an accomplice, so long as they had reason to know that something illegal was about to happen. The plain language of the AUMF does not require foreknowledge of the attack, only support before or after the attack for al Qaeda. And on that, there is more than ample evidence of support both before and after.
As to the remainder of the War Powers Resolution, Trump has been in complete compliance. To go down the checklist.
50 U.S. Code § 1542, requires Trump to consult Congress before placing troops in a combat zone. It is inapplicable because our soldiers are in Iraq per the AUMF of 2002. There was no lawful requirement that Trump brief Congress prior to taking action against two combatants in Iraq.
50 U.S. Code § 1543, requires Trump, “in the absence of a declaration of war,” to make a written report to Congress after deployments into a combat zone “(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.” Trump has authorized a significant increase in troop levels and has provided a classified written report to Congress, presumably on that basis.
The remainder of the code deals with how Congress is to then consider whether to authorize force, declare war, or to require that the President cease hostilities and return home the soldiers involved. Bottom line, Trump, both as a matter of Constitutional law and in accordance with the duly passed laws by Congress, has acted lawfully.
On a final note, Nancy Pelosi responded to Trump’s War Powers Resolution Report with a public statement. When she claims, factually, that “[t]his initiation of hostilities was taken without an Authorization for Use of Military Force (AUMF) against Iran,” that is just false, given that the AUMF discussed above.
To the extent Pelosi calls for Trump to now articulate “a bonafide de-escalatory strategy that prevents further violence,” he already has. Besides stating he has no plans to attack Iran so long as Iran does not attack the U.S., Trump informed Congress by tweet today:
The United States just spent Two Trillion Dollars on Military Equipment. We are the biggest and by far the BEST in the World! If Iran attacks an American Base, or any American, we will be sending some of that brand new beautiful equipment their way…and without hesitation!
— Donald J. Trump (@realDonaldTrump) January 5, 2020
These Media Posts will serve as notification to the United States Congress that should Iran strike any U.S. person or target, the United States will quickly & fully strike back, & perhaps in a disproportionate manner. Such legal notice is not required, but is given nevertheless!
— Donald J. Trump (@realDonaldTrump) January 5, 2020
That is the only strategy briefing to which Iran or Pelosi is entitled (and for many of the same reasons, come to think of it.)