Last Wednesday, administration officials, in what they evidently considered an optional concession to inferiors, gave a short (75 minutes), closed-door congressional briefing on military action against supposedly imminent threats from Iran. Presidential freedom to unilaterally commit acts of war unrelated to imminent threats would amount to an uncircumscribed power to undertake not just limited preemptive actions but to wage preventive war whenever a president unilaterally decides this might enhance national security.
Lee is famously mild-mannered but wasn’t after what he called an “insulting and demeaning” briefing in which executive branch officials instructed Congress concerning what it can debate: The briefers, who included Secretary of State Mike Pompeo and Defense Secretary Mark T. Esper, warned that making military action subject to congressional authorization might encourage Iranian aggression. Sen. Christopher A. Coons (D-Del.) asked whether, if the administration decided to take the extreme action of assassinating Ayatollah Ali Khamenei, Iran’s supreme leader, it would at least notify Congress. The briefers would not say so.
Congress last declared war on June 5, 1942, against Hungary, Bulgaria and Romania, with a war already raging. This was 78 years and many wars ago. A power neglected, like a muscle never exercised, atrophies. Now, Graham explicitly says that even debating, not a declaration of war but merely the wisdom of past military actions and necessary authorization for future ones, means “empowering the enemy.”
Last April, Pompeo was asked during a Senate hearing: Is the 2001 Authorization for Use of Military Force against al-Qaeda and other nonstate actors responsible for 9/11 sufficient authorization for the president to wage war more than 18 years later against Iran? Pompeo laconically said he would prefer to “leave that to lawyers” — presumably those he employs.
With a few exemplary exceptions, notably Sen. Tim Kaine (Va.), congressional Democrats, too, have been situational ethicists about their responsibilities regarding war. The Obama administration’s shambolic intervention in Libya’s civil war, the costs of which are still mounting, proceeded unaccompanied by congressional authorization but swaddled in executive branch sophistries. Barack Obama’s Justice Department vigorously defended what no one denied — that presidents may initiate military action without congressional approval. The issue, however, was that the administration, which had said the intervention would last “days, not weeks,” then said that thousands of airstrikes, which caused numerous casualties over seven months and had the intended result of regime change, did not constitute “hostilities.”
Wednesday’s briefing caused Lee to endorse Kaine’s proposal to direct the president to stop engaging in hostilities against Iran or any portion of its government or military unless continuation is explicitly authorized by a congressional declaration of war or other authorization of force. Senate passage of this would take Democratic unanimity and two more Republicans joining Lee and Kentucky’s Rand Paul in supporting it. The House presumably would concur. Though Senate Republicans would subsequently sustain a presidential veto, virtues are habits, and this exercise might be the beginning of congressional involvement in decisions about war and peace becoming habitual.
Presidential discretion is presumptively greatest regarding foreign relations. And many aspects of the modern age — weapons of mass destruction; the swift, perhaps surreptitious and potentially intercontinental delivery of such weapons; the multiplication of violent nonstate actors — have radically altered the context in which the Framers’ spare language in the Constitution’s pertinent provisions must be construed: The Congress has the power “to declare war” (also to “raise and support armies” and “maintain a navy”); the president is commander in chief of the armed forces.
Concerning limits on presidential discretion, there is a large gray area. However, the activity of unilaterally preventive wars is not in it.
Coons asked the briefers this: Suppose that in coming months the administration concludes that Iran, having shed the nuclear agreement’s constraints, is about to acquire a nuclear weapon. Would you need authorization from Congress prior to strikes meant to prevent this? The briefers would not agree even to consultation with Congress, though Coons several times restated and narrowed the question. Congress should not be surprised when the executive branch takes Congress’s responsibilities regarding war no more seriously than Congress does.