Reflections on the War Powers Debate

House Chamber, Washington, D.C.

January 10, 2020

Mr. Speaker:

Throughout the debate yesterday on the so-called war powers resolution, some fundamental misunderstandings surfaced that I feel need to be addressed.

The first misunderstanding is that the justification for the attack that killed Soleimani was that he was an evil terrorist responsible for the deaths of hundreds of Americans.  There are a lot of evil terrorists out there, but that doesn’t give the  President authority to launch attacks on foreign countries to kill them.   

What DID give the President that authority in this case was the fact that Soleimani was acting as an armed combatant against U.S. forces in a war zone in which Congress had authorized the President to take military action when it adopted the Authorization for the Use of Military Force in Iraq in 2002.  I hate to shock my woke colleagues but killing active enemy combatants is what war is all about.  And it is a war that Congress started with that act.

That act provides "The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to … defend the national security of the United States against the continuing threat posed by Iraq.”  The very nature of this authority includes combatting hostile militia and armed proxies acting within Iraq against American forces.  That is exactly what the President did.

The authorization to use military force didn’t end with the defeat of Saddam Hussein any more than the president’s military authority in Japan and Germany ended with the defeat of Hirohito and Hitler.  In those cases, the President’s authority didn’t terminate until 1952 and 1955 respectively, and the President’s military authority in Iraq remains in effect until the President and Congress terminate it.

The second misunderstanding is that the President’s action was an attack on Iran.  It most certainly was not.  It was carried out in the theater of war defined by Congress against a combatant who was commanding hostile forces against American troops.  Not only did the President act entirely within his legal authority as commander-in-chief, but within his moral responsibility to protect American military and diplomatic personnel and American citizens in Iraq.

The third misunderstanding is that the War Powers Act is applicable in this circumstance.  The War Powers Act governs only those circumstances when the President responds WITHOUT congressional authority to an attack upon the United States, its territories or possessions or its armed forces.  In this case, the President already HAD congressional authority.

The fourth misunderstanding is that the attack on Soleimani was equivalent to President Obama’s attack on Libya.  These are two entirely different matters.

The attack on Libya had no congressional authorization and the War Powers Act was not applicable because Mr. Obama’s military attack was not in response to an attack on the United States, its territory or possessions or its armed forces.  It was entirely unprovoked, entirely unauthorized and accordingly, it was entirely illegal.

We need to get back to some basic understandings about the constitutional parameters of war powers.

The American Founders made a sharp distinction between starting a war and waging a war, for some very good reasons.  They understood that this most solemn and lethal decision should not be entrusted to one individual whose authority would be greatly augmented by it.  The decision to start a war was given exclusively to Congress to assure that every voice in the country was heard and that Congress, having taken that stand, would be obligated to put the resources of the country behind that war and those fighting it.

But once the war is begun, the Founders wanted a single commander-in-chief directing it with clear and unambiguous authority.  There is no surer path to military disaster than having 535 squabbling prima donnas second-guessing every decision being made.  

Thus, the President can wage war but cannot declare it and the Congress can declare war but cannot wage it.  

The Founders debated these principles thoroughly during the Constitutional Convention.  They recognized that the President needed certain residual military power to repel an attack when Congress could not act.  I believe The War Powers Act faithfully defines these circumstances and establishes a framework to contain them.  

But the War Powers Act does not give the President the authority to launch military attacks EXCEPT in response to a direct attack on our country – nor can it limit the President’s authority as commander-in-chief once Congress DOES authorize war.  

I believe the 2002 Authorization for the Use of Military Force in Iraq was a colossal mistake. It created a dangerous power vacuum, it was never supported with the full resources of the United States, and it was without provocation.    

But there should be no re-writing of history here.  It may have been George W. Bush who advocated for the war and Bush, Obama and now President Trump who have waged it -- but it was Congress’ adoption of the AUMF that formally started it.  

And once started, only the President can wage it.  President Trump inherited this mess and history will judge how well he handles it.  Certainly, in this instance, the President not only had unmistakable authority to order the attack, he had a moral imperative to do so to.

What is crystal clear from the debate yesterday that if the Democrats had their way, Soleimani would be alive today and the attack on American troops that he was in the final stages of planning would have unfolded.   We would likely today be mourning the loss of very many American lives.   

If the President, knowing that the attack was coming, and in full possession of the opportunity and authority to stop it, had taken the Democrats’ advice and done nothing, he would have been deeply culpable for the loss of those Americans.  It is shocking that even in hindsight, this is the course the Democrats have made clear that they would have taken.  

Which brings me to the nature of the resolution the House passed yesterday.  The separation of war powers between the legislative and executive branches has been badly blurred in recent decades, and I do believe we need to re-establish not only the constitutional principles that separate the declaring of war from the waging of war, but also the American tradition that we go to war only when we have been attacked.  And when we must go to war, we have the utmost obligation to put the entire might, resources and attention of the nation behind it and get it over with as quickly as possible.  

That is a legitimate debate to have – but that’s not what the House did yesterday.  Yesterday, it deliberately and recklessly undermined the position of the United States government and the United States armed forces that we sent to Iraq, shredding the tradition that politics stops at the waters edge.  At a perilous moment, the House refused to stand behind the war that it had authorized in 2002, refused to protect the men and women that it placed in harm’s way and gave a hostile foreign power a major propaganda victory.  That is yet another stain upon the honor of this House, and one which should be deplored and condemned through the ages to come.

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