Twenty-four years ago this week, I represented a group of bipartisan members of Congress in challenging the Obama administration’s decision to attack Libya without a declaration of war.
It is a curious anniversary of the litigation, because many of the politicians and pundits who supported (or remained silent on) the action of President Barack Obama are now appalled that President Trump is considering an attack on the Iranian nuclear facility at Fordow, which is buried deep in a mountain.
Later, some Democratic members would move to expand presidential powers to launch attacks without approval. Sen. Tim Kaine (D-Va.), the drafter of the current legislation to limit Trump’s authority, drafted legislation in 2018 to put the authorization for use of military force on virtual autopilot. That was during the first Trump administration, and I testified against that legislation as a virtual authorization for “endless war.”
In 2011, Obama approved a massive military campaign that not only attacked Libya’s capital city but also armored columns of the Libyan military. The clear intent was regime change supported by then Secretary of State Hillary Clinton, who also rejected the need to consult with Congress, let alone secure approval before launching a massive attack on another nation.
Today, Trump is contemplating the use of the Massive Ordnance Penetrator or “bunker buster” bomb, to destroy the facility. It may be the only weapon that can reach the underground enhancement areas, and it can only be delivered by American B-2 Spirit stealth bombers.
It takes courage to oppose such actions by a president of your own party or against an unpopular foe. Notably, among my clients 24 years ago was Rep. Ron Paul (R-Texas), the father of Sen. Rand Paul (R-Ky.) who also believes that a president should secure approval of Congress before any such attack occurs.
The other group that would demand such approval was the Framers themselves. They saw foreign entanglements and military interventions as the markings of despots and tyrants.
At the Constitutional Convention, delegate Pierce Butler insisted that a president should not be able to “make war but when the nation will support it.” Nevertheless, he did not even receive a second to his motion because the Framers demanded real checks on this power. They imposed that limit by only allowing the nation to go to war with the express declaration of Congress.
Article I, Section 8, Clause 11 states that the “sole” authority to declare war rests with Congress.
In 1793, George Washington supported the denial of this power to a president as a clear and binding promise that “no offensive expedition of importance can be undertaken until after they have deliberated upon the subject and authorized such a measure.”
The Framers thought that they had solved the problem. In the Pennsylvania ratification convention, James Wilson explained the need for congressional approval as a guarantee that no one will “hurry us into war [since] it is calculated to guard against it.”
The purpose of such approval is not just to limit foreign wars but to secure the support of the people before such wars are commenced. After all, presidents get the glory of wars, but citizens pay the cost in lives and treasure.
Politicians, however, quickly became leery of taking such ownership over wars. Congress became increasingly passive in the face of popular military engagements, using ambiguous “authorizations” to preserve the ability to later insist that they were never really in support of wars.
While some of us opposed the Iraq War, politicians like then-Sen. Joe Biden (D-Del.) were all-in on the invasion. Yet, when he ran for president, Biden insisted that he had opposed the long, drawn-out war.
Then there was Sen. John Kerry. During the Democratic primary in 2004, Kerry portrayed himself as against the Iraq War, even though he had also voted for it. Later, when confronted by George Bush in the general election over his vote against spending $87 billion to rebuild Iraq and Afghanistan, he offered his notorious response that “I actually did vote for the $87 billion, before I voted against it.”
Despite the clear text of the Constitution, courts have repeatedly allowed this circumvention of Article I. Congress has only declared 11 wars while allowing more than 125 military operations, including Vietnam, Korea and Afghanistan. Congress has not declared war in the 80 years since World War II.
In my case, the Obama administration would not even refer to an attack on another nation as a “war.” It insisted that it was a “time-limited, scope-limited military action,” or a “kinetic action.” The court allowed the war to proceed.
Both Congress and the courts have effectively amended the Constitution to remove the requirement of war declarations.
As a result, the precedent favors Trump in arguing for his right to commit troops unilaterally. Whereas Kaine and others insist that there has been no attack by Iran on the U.S., Trump can cite the fact that Iran has killed or wounded thousands of Americans directly or through surrogates, including attacks on U.S. shipping through its Houthi proxy forces in Yemen.
More importantly, he can cite decades of judicial and congressional acquiescence.
For my part, I think the Framers were right then and they are right now. We have shown just how right they were with decades of undeclared wars and so little accountability.
The fact that these actions are presumptively unconstitutional is an inconvenient fact buried in decades of war hype and hypocrisy.
That is why Trump is unlikely to go to Congress and, as a matter of precedent, he does not have to. He will assume the same power his predecessors enjoyed, including recent Democratic presidents. With that history and politics on his side, Trump could turn Fordow into the most expensive hole in history.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
