I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, January 12, 2007

The President's power to attack Iran

(Updated below - Update II - Update III - Update IV - Update V)

In response to Joe Biden's warning to Condoleezza Rice that an attack on Iran would "generate a constitutional confrontation in the Senate," Josh Marshall says: "A comment like that doesn't come out of the blue." Maybe, but it is worth underscoring what the administration's views are as to its authority to attack Iran.

Last April, Seymour Hersh wrote an article in The New Yorker warning that the administration "has increased clandestine activities inside Iran and intensifed planning for a possible major air attack." That article was published just as I was finishing writing How Would a Patriot Act?, and so I added an Epilogue examining the Bush administration's views as to the President's power to commence a war, or order an attack, against Iran.

The Epilogue emphasizes that the radical theories of presidential power adopted by the administration (and applied to general lawbreaking, warrantless eavesdropping, torture, indefinite detentions of U.S. citizens) applied clearly and fully to Iran, i.e., that those theories -- which were and still are the formally adopted positions of the Executive Branch -- absolutely mean that the President has the power to commence a war with Iran, and that not only would he not need Congressional approval to do so, but Congress would lack the power to stop him even if it tried:

As a nation, we can and should engage in vigorous debates over whether a military offensive against Iran is desirable, prudent, disastrous, or just plain crazy. But it is just as crucial that we realize that the Bush administration has embraced theories of executive power which assert that the president has the authority to initiate a military attack on Iran regardless of whether the American people, or their representatives in Congress, approve of such an attack. . . .

As the Iran debate proceeds, it is necessary to remember that the president believes he is the "sole organ" in all such matters, and he has full, limitless and unchecked authority to do whatever he wants.

The rationale and documentation on which I based those conclusions are set forth here, here, and here. The title of the infamous Yoo Memorandum -- the Bible of Onimpotent Presidential Power Theories -- is: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and the Nations Supporting Them. The Bush administration has not changed one comma in any of its formally adopted positions concerning presidential power, and that Memorandum standing alone, along with multiple other sources (discussed in the linked posts), leave no do doubt as to the administration's views.

At the Senate confirmation hearing of Robert Gates last month, this exchange occurred with Sen. Byrd:

BYRD: Do you believe the president has the authority, under either the 9/11 war resolution or the Iraq war resolution, to attack Iran or to attack Syria?

GATES: To the best of my knowledge of both of those authorizations, I don't believe so.

That does not really answer the question as to whether the President has authority inherently to attack Iran (as opposed to whether he has authority under the two prior Resolutions), but to the extent Gates was stating that additional Congressional authorization would be needed, that is plainly not the expressed position of the Bush administration.

The only time previously that I am aware of when a top Bush official was asked that question was when Condoleezza Rice appeared before the Senate Foreign Relations Committee in April, 2006October, 2005. She suggested (albeit evasively) that the President had the inherent power to attack Iran:

Last October, Secretary of State Condoleezza Rice was asked by members of the Senate Foreign Relations Committee whether the president would circumvent congressional authorization if the White House chose military action against Iran or Syria. She answered, "I will not say anything that constrains his authority as commander-in-chief."

When pressed by Senator Paul Sarbanes about whether the administration can exercise a military option without an authorization from Congress, Rice replied, "The president never takes any option off the table, and he shouldn't."

It should be a top priority (of Congressional Democrats and the media) to get a clear answer from the administration on this question now, rather than, say, after hostilities have commenced (more so than they have already).

UPDATE: The superb Charlie Savage of The Boston Globe reported last November that Vice President Cheney actually urged the first President Bush (when Cheney was his Defense Secretary) not to seek Congressional approval for the Persian Gulf War, arguing that the President had the power to start whatever wars he wanted regardless of whether Congress approved or not:

"I was not enthusiastic about going to Congress for an additional grant of authority," Cheney recalled in a 1996 PBS "Frontline" documentary. "I was concerned that they might well vote 'no' and that would make life more difficult for us."

Notice that, in Cheney's mind, if Congress had voted "no" on the question of whether to declare war (or provide the President with the authorization to use military force), that would not have meant that they couldn't start the war. It just would have "made life more difficult" for them. Those who control the Bush administration do not believe that they need Congressional approval to wage wars, or even that Congress has any power to prevent such wars once the President decides war is necessary for American security.

UPDATE II: As JAO notes in Comments, the War Powers Act of 1973 -- enacted over the veto of Richard Nixon -- requires the President to obtain authorization from Congress if military forces are to be deployed for greater than 60 days, which also can be understood to mean that the President is free to deploy the military for up to 60 days without Congressional approval (the scope of that power, i.e., the circumstances under which the President can do so, is unclear and disputed). But even that very mild and permissive framework is rejected by Dick Cheney as an unconstitutional abridgment of the President's powers:

But I think if you look at things like the War Powers Act, for example, adopted in the aftermath of the Vietnam conflict, that that was an infringement on the President's ability to deploy troops. It's never really been tested. I think it's probably unconstitutional.

That was from a speech Cheney gave in June, 2006, so he has been thinking about this issue, obviously. It seems clear based on this statement (and Cheney has made the same point many times) that the Bush administration does not accept, and would not adhere to, even the modest limitations placed by the 1973 War Powers Act on the President's power to order military action.

UPDATE III: Kudos to Chris Matthews, who last night tried diligently and repeatedly (though unsuccessfully) to pin down the always evasive Tony Snow on the question of whether the President would seek Congressional authorization before attacking Iran (h/t reader RK):

MATTHEWS: Tony, will the president ask Congress‘ approval before any attack on Iran?

TONY SNOW, WHITE PRESS SECRETARY: You‘re getting way ahead of yourself, Chris. Nobody here is talking about attacks on Iran. . . .

MATTHEWS: Well, he did say we‘re going to disrupt the attacks on our forces, we will interrupt the flow of support from Iran. Does that mean stopping at the Iranian border or going into Iran?

SNOW: Well, again, I think what the president is talking about is the war in Iraq, Chris.

MATTHEWS: So he will seek congressional approval before any action against Iran?

SNOW: You are talking about something we‘re not even discussing...

MATTHEWS: Well, you are, Tony, because—look at this.

I recently ordered the deployment of an additional carrier strike group to the region.”

Isn‘t that about Iran?

SNOW: It‘s about—yes, it is, in part. And what it is, is it‘s saying, “Look, we are going to make sure that anybody who tries to take aggressive action. But when Bill Clinton sent a carrier task force into the South China Sea after the North Koreans fired a missile over Japan, that was not as a prelude to war against North Korea. You know how it works. . . .

MATTHEWS: My concern is we‘re going to see a ginning-up situation whereby we follow in hot pursuit any efforts by the Iranians to interfere with Iraq. We take a couple shots at them, they react. Then we bomb the hell out of them and hit their nuclear installations without any action by Congress. That‘s the scenario I fear, an extra-constitutional war is what I‘m worried about.

SNOW: Well, you‘ve been watching too, too many old movies featuring your old friend Slim Pickens is what you‘re doing now, come on.

MATTHEWS: No, I‘ve been watching the war in Iraq is what I‘ve been watching. As long as you say to me before we leave tonight that the president has to get approval from Congress before making war on Iran.

SNOW: Let me put it this way. The president understands you‘ve got to have public support for whatever you do. The reason we‘re talking to the American public about the high stakes in Iraq and why it is absolutely vital to succeed is you‘ve got to have public support. And the president certainly, whenever he has taken major actions, he has gone before Congress.

In light of all the known facts, I think a prudent, rational person would take Snow's non-answer to be a decisive "no" in response to the inquiry as to whether the President would require or seek Congressional approval before waging war on Iran. Until one hears otherwise, definitively and unambiguously from the administration, that is the only reasonable working assumption.

UPDATE IV: The always astute Dover Bitch (one of the joys of blogging - the most unlikely phrases flow so abundantly from one's mouth) makes an important and interesting point: the Bush administration tried and failed to insert language into the 2002 Iraq AUMF which would likely have authorized military force against Iran by allowing the use of force to "restore international peace and security in the region."

D.B. has the details. As she demonstrates, Congress specifically refused to include that language because it did not want to authorize military action against Iran (or Syria).

UPDATE V: As Silent Patriot notes in Comments, Rice, in March of 2006, was also asked by Tim Russert whether the President had the power to attack Iran without Congressional approval, and she evaded the question then, too, again by implying that the President might have that authority:

QUESTION: Do you believe if the President chose to embark on military action with Iran, he would go to Congress for authorization first?

SECRETARY RICE: I'm not going to speculate on that. The President is clear that he keeps all of his options on the table. But, Tim, I think speculating about how we might set up military action isn't helpful at a time when we really are concentrating on the diplomacy. But I want to be very clear --

QUESTION: But you wouldn't go to Congress?

SECRETARY RICE: Well, Tim, of course the Administration went to Congress the last time. And I would just ask people to look at the history of how this President has acted. He has taken Congress as a full partner in these matters. But I'm not going to get into a discussion of what the President may or may not do constitutionally.

(Rice was even more evasive when asked this same question yesterday by Jim Webb).

Rice, of course, is correct that the administration sought and obtained Congressional approval before invading Afghanistan and Iraq, but it did so only when it was assured beforehand that Congress would provide such authorization (I recall Joe Biden, during a Senate Foreign Relations Committee hearing, all but begging the administration not to invade Iraq without first allowing Congress to authorize the war). It seems highly unlikely that the administration could obtain authorization to attack Iran, which means that its prior requests for authorization hardly constitutes evidence that they would not attack Iran without first seeking Congressional approval.

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