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Regaining Congressional authority

Charles Rice | Tuesday, October 9, 2007

What constitutional and moral issues could arise if President Bush orders an attack on Iran? General David Petraeus’ report to Congress concluded that “Iran plays a harmful role in Iraq … by providing lethal capabilities to the enemies of the Iraqi state.” President Bush has increased American naval and air forces in the region. It would be no surprise if he ordered an attack on Iran, not only to prevent Iranian aid to Iraq’s insurgents, but also to prevent Iran from acquiring nuclear weapons in a more remote future. Such an attack would be primarily a presidential, rather than a Congressional, initiative.

The Constitutional Convention, on Aug. 17, 1787, gave Congress power to “declare” rather than “make” war and left “to the Executive the power to repel sudden attacks.” “The Executive,” said delegate Roger Sherman, “[should] be able to repel and not to commence war.” The result was what former Supreme Court Justice Robert Jackson called a “twilight zone” of concurrent powers of Congress and the president.

Even in 1787, the formal declaration of war was becoming outmoded. Congress has declared war only five times. The president has put forces into combat more than 200 times, almost always with prior or later Congressional approval. But no president has admitted that he must have such approval. The courts would probably stay out of a controversy between the president and Congress on this issue, treating it as a nonjusticiable political question.

According to the Constitution, therefore, Congress decides whether to go to war. The president, as “Commander in Chief of the Army and Navy of the United States,” decides how to fight the war. Congress has no power to tell the president how to fight a war. Congress could, of course, refuse to appropriate funds for the war; a two-thirds vote would be needed in each house to override a presidential veto of such a refusal. Or the House could impeach the president, but a two-thirds vote in the Senate would be required to convict and remove him from office.

Congress, in its response to 9/11 and in 2002 on Iraq, surrendered to the president its power to decide whether to go to war. It gave the president a free pass to use military force “as he determines to be necessary and appropriate.” An attack on Iran would be covered by that blank check if the president, in his discretion, judges that attack to be necessary to accomplish the mission in Iraq. Thus, in his Aug. 20 address to the American Legion, President Bush said, “I have authorized our … commanders … to confront Tehran’s murderous activities. … We’ve conducted operations against Iranian agents supplying lethal munitions to extremist groups.” In accord with that presidential authority, the bills introduced by Congressman Walter Jones (R-NC), Senator James Webb (D-VA) and others to require Congressional approval for an attack on Iran properly make exceptions to that requirement for an actual or imminent attack by Iran, hot pursuit of combatants into Iran and intelligence gathering activities in Iran.

A different issue would arise if the attack on Iran were alleged to be necessary to forestall Iran’s development of nuclear weapons in the comparatively remote future. That would involve “the dreadful alternative” posed by French Foreign Minister Bernard Kouchner on Sept. 20, “the Iranian bomb or the bombing of Iran.” Such an attack to prevent “the Iranian bomb” could fairly be regarded, not as a proximate incident of the war in Iraq, but as a new war. The constitutional reservation, in principle, to Congress of the decision whether to go to war could raise not only a constitutional issue, but also a moral one as to whether such an attack on Iran would satisfy two requirements of the just-war doctrine – that the war be waged by proper governmental authority and that it be “the last recourse,” as Pope John Paul II put it, “after having exhausted every other peaceful solution.”

The citizen, lacking the necessary information, is obliged to give a strong benefit of the doubt to Congress and the executive, as to whether a war is both lawful and just. But at some point, if the attack on Iran were clearly a new war rather than a necessary incident of the Iraq war, and if that attack were clearly a presidential rather than a Congressional initiative, a reasonable person could regard that attack as unjust because not initiated by the proper authority and perhaps also because not initiated only as a last resort.

Congress in 2002 had the duty to examine the reasons alleged for the war on Iraq and to make the decision itself. Instead, it surrendered to the president its most awesome responsibility: To decide whether the U.S. shall go to war. To be sure, Congress has ratified the Iraq war by appropriations and otherwise. But that ratification does not excuse the failure of Congress to decide the issue of war in the first place. Nor would it justify a repeat abdication by the conferral on the president of a blank check for a new war on Iran. In any event, having given the president a blank check to decide on war with Iraq, Congress will find it difficult, if not impossible, to resist the expansion of that authorization beyond Iraq and to reclaim its rightful power in this case.

The framers gave us a republic, not a monarchy. They did well in reserving the decision on war to the elected representatives of those who would fight it. Congress owes it to the members of the volunteer armed forces, the best among us, and to the American people, to reclaim its role through hearings and other processes by which Congress itself would make the decision as to whether an attack on Iran would be a new war and, if so, whether the U.S. should wage it. As Elbridge Gerry said in the Constitutional Convention, he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”

Professor emeritus Charles Rice is on the Law School faculty. He can be reached at 633-4415 or rice.1@nd.edu.

The views expressed in this column are those of the author and not necessarily those of The Observer.