Who Decides on War With Iran?

by Doug Bandow

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 the Mideast.

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 be seen.

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 operatives.

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 remains.

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 catastrophic misadventure.

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 Congress.

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 Iraq."

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 immorality."

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 … while that 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 branch.

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 policymaking.

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 war."

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 congressional approval.

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 transcends party."

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 popular.