War Powers Commander In Chief Congress

Targeting Terrorists, Waging War, and Beyond…

What actions a U.S. President may (and may not) take alone.

RECENT HISTORY

• Two Weeks Ago: An American was killed (& others wounded) by rocket fire the U.S. blamed on Iran. The U.S. killed approx. 2 dozen members of the Iranian-backed militia in Syria & Iraq.
• Ten Days Ago: Violent protest threatened U.S. embassy in Baghdad.
• Last Week: The U.S. killed Iran’s top general (Qasem Soleimani), the leader of the Islamic Revolutionary Guard Corps-Quds Force.

CURRENT LAW

U.S. CONSTITUTION: President is the “Commander in Chief” but only Congress has power to declare war.

WAR POWERS ACT: Passed in 1973 after the Vietnam War established procedures left unanswered in the Constitution about military decisions. Requires the President to consult with Congress before deploying (or withdrawing) U.S. forces where hostilities are imminent.

HOWEVER…

• The U.S. may attack in “self-defense” without congressional approval to stop an upcoming or “imminent threat” but not for PAST actions.
• This is why you’ve heard the White House use the term “imminent” to describe the latest attack on the Iranian General; the term carries legal weight & validation for not consulting congress.
• Critics challenge if that was indeed the case, and want to know the timeline.

“We had specific information on an imminent threat and those included attack on US embassies. Period, full stop.”

Sec. of State Mike Pompeo, Friday January 11th. When pressed to define the timeline of an “imminent threat” he added: “We don’t know exactly which day it would have been executed, but it was very clear. Qasem Soleimani himself was plotting a large-scale attack on American interests and those attacks were imminent.”

“At this point in time, the United States has not thus far provided any information suggesting that there was an imminent attack against the American interest.”

UN expert on extrajudicial executions Agnès Callamard. Those who question the legality point to the evolving narrative from the administration, including the Dept. of Defense’s statement on the day of the killing that said it was “aimed at deterring future Iranian attack plans” without more urgent, immediate specifics.

“If the facts are as the Defense Department said, then the president relatively clearly has Article II authority to act in self-defense of American lives,”

University of Texas School of Law professor and international security law specialist Bobby Chesney. Pres. Trump revealed Soleimani was targeting 4 U.S. embassies. Some lawmakers briefed on the intelligence shared by the White House say it lacked specifics. Sen. Mike Lee (R-UT) called it the “worst”‘ briefing he has attended.

Uncharted Territory?

• Debate over a President’s ability to “eliminate” threats surfaced in the past (e.g.: the killing of Osama Bin-Laden).
• The killing of Gen. Soleimani differs as he was a gov’t official of a country rather than a terrorist group.
• However, the U.S. designated Iran’s Islamic Revolutionary Guard Corps a “foreign terrorist organization” in 2019, the first time America gave this designation to part of a foreign gov’t.

This week, in reaction to the targeting of Soleimani, the House of Representatives passed a measure voting in favor of limiting Pres. Trump’s future actions in Iran. It’s a largely symbolic vote that passed mostly on partly lines. A similar measure is unlikely to pass in the Senate.