Who Decides on War With Iran?
Iraq is a wreck and Afghanistan is deteriorating, but that doesn't
foreclose war with Iran. To the contrary, there is no evidence that the
president realizes how much destruction he has wrought. Give him enough
time, he seems to believe, and pro-American democracies will bloom across
So why not make it a trifecta? Attack Iran, destroy its nuclear
facilities, smash the mullahocracy, and establish a liberal society. It's
all a fantasy, of course, but no more fantastic than administration
policy in Iraq.
Assessing the intentions of Washington would be difficult no matter who
was president. This administration is even tougher, since policymakers
seem fixated on fantasy rather than reality. No matter how bad things
appear to be, the president, at least, appears to believe the opposite.
Moreover, he has surrounded himself with officials willing to drink the
Kool-Aid. How different Robert Gates will be at the Pentagon remains to
The signs are not good, however. President George W. Bush publicly gave
the green light to an Israeli strike, indicating that he would understand
if the Olmert government attacked Iran. Of course, no one but the
president believes that the Iranians, or anyone else in the world, would
treat such an attack, even if carried out without American support, as
anything other than a U.S. action.
Vice President Richard Cheney has been even more direct. "The United
States is keeping all options on the table," he stated earlier this
year. Indeed, "we join other nations in sending that regime a clear
message: we will not allow Iran to have a nuclear weapon."
In The New Yorker, Seymour Hersh reports that Cheney told an
administration group before the election that military action would never
come off the table. The White House has dismissed Hersh's article as
being "riddled with inaccuracies," and former Deputy Secretary
of State Richard Armitage thinks military planning has slowed. But this
president has proved himself to be largely impervious to the advice of
outsiders and the impact of changing circumstances.
Many of the people who helped dump America into Iraq think the U.S. must
attack Iran. Joshua Muravchik, a cheerful member of the dwindling band of
neocon warriors, writes, "We must bomb Iran." Other observers
Joseph Cirincione of the Center for American Progress and John Pike,
director of GlobalSecurity.org, for instance believe an attack on Iran
is likely if not inevitable.
The mind recoils at the likely consequences. Iran is larger, more
populous, and possesses a more effective military than Iraq. Tehran has
dispersed and hardened its nuclear sites, making destruction of its
nuclear program more difficult.
Bombing might not be enough; an invasion would be a true horror show.
Either action likely would destroy the indigenous democracy movement,
cementing support for the regime.
Tehran enjoys close ties with leading Shi'ite political and religious
figures in Iraq. The majority of Iraqis already view attacks on U.S.
occupation forces as legitimate. Iran might be able to spark a national
intifada, engulfing Americans across Iraq. Washington could not win such
a fight, whatever "victory" would mean.
Disgust with perceived U.S. lawlessness would swell within allied states,
and hatred of perceived U.S. hostility would swell within Muslim states.
Tehran could undertake a concerted campaign to destabilize pro-American
regimes, an effort that would be aided by rising popular hostility toward
Washington. Finally, Iran probably would promote terrorism against (and
within) the U.S., joined by newly energized al-Qaeda cells and local
One could still argue that accepting a nuclear-armed Iran would be more
costly than attempting to coercively disarm Iran. But surely military
action should be a last resort. No serious policymaker should think of
going to war under such circumstances as long as any peaceful option
This president and his cronies have a particular obligation to proceed
with care. They already frivolously started one war plunging another
society into a cauldron of sectarian violence. And they did so after
making inaccurate claims about the threat posed, implausible predictions
about the ease of transforming the occupied land, and ridiculous promises
about alleged progress toward democracy and peace to be achieved. And,
naturally, the president has neither acknowledged mistakes nor accepted
responsibility. America cannot afford a second, even bloodier, more
Moreover, it would not be enough for this administration to decide on
war. It should win the assent of the public. It must win a vote of
The latter is particularly important, given the impending transfer of
control on Capitol Hill. For six years the Republicans paused while
giving the administration a blank check only to genuflect when the
president motored by. The GOP's response to prior Bush assertions of
authority "fell somewhere between somnolent and supine," notes
Boston University professor Andrew Bacevich. While Democrats will find it
difficult to force the administration to change course in Iraq cutting
off funds for troops in the field is a political nonstarter they can
say no to further military adventures, especially one so fraught with
danger as attacking Iran.
Unfortunately, the president thinks he should govern as a king. When
Congress was considering a measure to authorize the use of force
regarding Iraq, President Bush rejected proposed Senate language: "I
don't want to get a resolution which ties my hands." Last year, when
testifying about possible military action against Syria, Secretary of
State Condoleezza Rice stated, "I don't want to try and circumscribe
presidential war powers. And I think you'll understand fully that the
president retains those powers in the war on terrorism and in the war on
Alas, President Bush is only following in the footsteps of his
predecessors. Shortly after taking office, President Bill Clinton claimed
that "the Constitution leaves the president, for good and sufficient
reasons, the ultimate decision-making authority." He welcomed a vote
on his war on Kosovo, but only if Congress backed him.
President George H.W. Bush stated that "I don't think I need
it" when asked if congressional approval was necessary before
attacking Iraq the first time. Why? "Many attorneys," he said,
had "so advised me." Too bad none of these presidents,
including Clinton, a law professor who once taught constitutional law,
apparently bothered to actually read the Constitution.
The Constitution is clear. Article 1, Sec. 8 (11) states that
"Congress shall have the power
to declare war." Today, of
course, presidents prefer to make the decision for war themselves. In
effect, American presidents are claiming possession of power comparable
to, if not greater than that, of the general secretary of the Soviet
Communist Party. As then-Defense Secretary Caspar Weinberger rightly
criticized the Evil Empire:
"Now who among the Soviets voted that they should invade
Afghanistan? Maybe one, maybe five men in the Kremlin. Who has the
ability to change that and bring them home? Maybe one, maybe five men in
the Kremlin. Nobody else. And that is, I think, the height of
Now who among Americans will vote to attack Iran? Should one man in the
White House make that decision, it would also be the height of
immorality. The Founders would have thought so.
They criticized the British king because he could unilaterally drag his
nation into war. President Abraham Lincoln, a "strong"
president apt to act on his own authority, nevertheless reflected,
"Kings had always been involving and impoverishing their people in
wars, pretending generally, if not always, that the good of the people
was the object."
The Framers consciously rejected such a system. They understood this
promiscuous warmaking "to be the most oppressive of all kingly
oppressions; and they naturally resolved to so frame the Constitution
that no one man should hold the power of bringing this oppression upon
us," stated Lincoln.
Still, some Americans opposed the proposed Constitution because they
feared that it gave the chief executive similar authority to that of the
British monarch. Don't worry, explained the great friend of executive
power Alexander Hamilton. The president's authority was "in
substance much inferior to it. It would amount to nothing more than the
supreme command and direction of the land and naval forces
of the British king extends to the declaring of war."
The Founders wrote the Constitution as they did because they feared that
presidents would act as they do now, like kings. Explained James Madison
in 1793, it is necessary to adhere to the "fundamental doctrine of
the Constitution that the power to declare war is fully and exclusively
vested in the legislature."
Bush legal adviser John Yoo, now a law professor at the University of
California (Berkeley), believes that this is all rhetorical fluff, that
the president can do essentially whatever he wants: "The
Constitution creates a presidency that is uniquely structured to act
forcefully and independently to repel serious threats to the
nation." What of the Constitution's clear grant of power to
Congress? Argues Yoo, "this clause allows Congress to establish the
nation's legal status under international law." That is, the
legislature is graciously allowed to note the fact that the president has
unilaterally plunged the nation into war. So much for being a co-equal
Constitutional convention delegates did change Congress' power from
"make" to "declare" war, but the intent was to give
the president authority to confront a sudden attack, not initiate a
conflict. There is a difference, recognized by average people if not
Bush-friendly law professors, between attacking a country that has not
threatened America and responding to an attack. The nation's Founders
understood this, and expressly intended to require congressional assent
for the former. They wanted to make war less likely.
The president "is not safely to be entrusted with" the power to
decide on war, said George Mason of Virginia. Mason spoke of
"clogging rather than facilitating war." James Wilson advocated
a strong presidency, but was pleased that the proposed constitution
"will not hurry us into war." Instead, "It is calculated
to guard against it. It will not be in the power of a single man, or a
single body of men, to involve us in such distress." Thomas
Jefferson wrote of creating an "effectual check to the dog of war by
transferring the power of letting him loose."
The Founders were all too prescient. Presidents have routinely deceived
the public, lied to Congress, and abused the political system when taking
America into war. One need only look at Iraq, with the shameless
manipulation of dubious intelligence, to see why genuine oversight by
independent legislators is desperately needed regarding any proposal by
any president for war.
What argument can be made by those who would have today's presidents
possess yesterday's monarchical powers? There always will be potential
gray areas; a world in which nuclear missiles can deliver destruction
almost instantaneously and hijacked airliners can be turned into cruise
missiles for transnational organizations is not a simple one.
But most cases, such as attacking Iraq in 2003 and Iran in the future,
are clear. The president must go to Congress.
Naturally, chief executives have been creative in offering reasons to
short-circuit the constitutional requirement. One claim is that the
president is the commander in chief, and therefore can use the military
any way he desires.
However, the president must fulfill his responsibilities within the
framework established by the Constitution and subject to the control of
Congress. He cannot just create a military Congress must authorize the
forces and approve the funds. He cannot establish whatever ranks he wants
and promote whomever he desires. Congress must make those decisions.
Similarly, Congress is tasked with setting the rules of war including
governing the treatment of prisoners, something this president also
ignored and organizing the militia. The president can negotiate a
treaty ending a conflict, but the Senate must ratify it.
Another contention is that the president has some unspecified,
ill-defined "foreign affairs power" that reduces the explicit
war powers clause to a nullity. However, the Founders consciously
circumscribed the president's foreign policy authority by vesting
countervailing power in Congress, including the responsibility to declare
war. If the president, any president, can unilaterally order an attack
halfway around the globe on a nation that has not attacked the U.S.,
posed an imminent threat, or provided a traditional casus belli, the
Constitution is dead. And if conservatives treat the Constitution as dead
when it suits them, they should stop complaining when federal judges,
liberal activists, and Democratic politicians do the same.
Are there any legitimate exceptions to the congressional war power? Some
analysts would have Americans believe that in the modern world it is
simply impractical to involve legislators in foreign
No one thinks that 535 legislators should manage the ensuing war that's
why the Constitution names the president commander in chief. But Congress
must decide whether or not the president will have a war to run, just as
they must decide on the size and kind of military he will have to command
in such a war.
Some would expand the president's power to use the military for
"defensive" purposes. Defensive means defensive, however.
Constitutional convention delegate Roger Sherman of Connecticut explained
that "the executive should be able to repel and not to commence
In an uncertain world, presidents also like to argue that they must be
able to respond instantaneously to unpredictable events. Fair enough, but
there is almost always time to go to Congress before going to war. There
never was any hurry to attack Iraq. Indeed, has the prelude to a war ever
been longer or more obvious?. There is no hurry to bomb or invade Iran,
even if policymakers decide such a strategy to be necessary. Nor would a
congressional vote tip off Tehran to an imminent attack: Congress could
vote on a conditional declaration of war, authorizing action only if
certain conditions were met.
Today, the favorite presidential excuse for claiming the right to
unilaterally initiate war is that everyone else does it. We are told that
there have been literally hundreds of military deployments without
These precedents are thin. Legal scholar Edward Corwin notes that these
examples are largely "fights with pirates, landings of small naval
contingents on barbarous or semi-barbarous coasts, the dispatch of small
bodies of troops to chase bandits or cattle rustlers across the Mexican
border, and the like." Some can be justified as responding to
warlike acts of others; some are minor fights seemingly within a
commander's natural discretion.
Anyway, the Constitution does not disappear because past presidents have
ignored it and past Congresses have let them get away with doing so.
Routine executive lawlessness actually increases the need to strictly
enforce the war powers provision today. Congress should provide not
reflexive support for presidential adventures, but rather, in Andrew
Bacevich's words, "exercise independent judgment, an obligation that
Democrats outraged at what they saw as persistent abuses by Presidents
Richard Nixon, Ronald Reagan, and George H.W. Bush suddenly gained a
strange new respect for executive power when President Bill Clinton was
preparing to invade Haiti and attack Serbia. Republicans routinely
defended executive privilege for "their" presidents and then
criticized Bill Clinton's propensity to unilaterally bomb other
countries. Now the GOP again sees the value in treating the president
like a king.
Obviously, presidents and Congresses tend to read the Constitution
differently depending on partisan circumstances. But its meaning is clear
and doesn't change.
The last president who really understood this was Dwight Eisenhower, one
of the few chief executives with command experience in the military. He
respected the Constitution enough to announce, "When it comes to the
matter of war, there is only one place that I would go, and that is to
the Congress of the United States." As should President Bush, if he
wants to attack Iran.
Democrats in Congress would be doing Americans and the Constitution a
favor by insisting that they expect the president to abide by the
nation's fundamental law as he decides on policy toward Iran (and other
nations). Whatever the target and whatever the reason, American
presidents cannot lawfully risk the lives of young Americans in foreign
adventures without congressional consent. The decision of war and peace
is far too important to leave to one man, however honest, smart, or