No congress, no peace

Mother Jones, May-June, 2007 by Jonathan Schwarz

Gauging the Bush administration's true intentions toward Iran is not easy. Each week brings a new story that hints at a struggle between the hardliners who'd like to take down one more point on the Axis of Evil and the realists who prefer one disastrous Middle East conflict at a time. Given the administration's track record, uncoordinated and sporadic attempts by members of Congress to prevent an attack on Iran will restrain it no more than would cobwebs. Yet Congress does possess the power to stop a war--if it chooses to exercise it. If we wake up one morning to find cruise missiles flying, the responsibility will not be Bush's alone. It will also belong to a Democratic-controlled Congress that could have acted but decided not to.

What, then, would a serious congressional strategy to block a war with Iran look like? Constitutional scholars and congressional staff agree there's no one magic answer. The alarming truth is that 220 years after the adoption of the Constitution, there are few settled answers about what legal powers the executive branch possesses to start a war. But there are several steps Congress could take to make a war with Iran politically very difficult for the White House.

Unfortunately, the Constitution isn't much help here. It does state that Congress alone has the ability to declare war, but precedent, inertia, and technology have eroded this power almost to naught. (In the age of intercontinental ballistic missiles, the commander in chief can launch an apocalyptic nuclear strike without so much as a courtesy call to the speaker of the House.) The 1973 War Powers Act requires the president to "consult" Congress before launching military action; if he doesn't receive further authorization, he must cease operations within 60 days. But this leaves the door wide open for all sorts of attacks--a massive bombing campaign could certainly be carried out within two months. Bill Clinton arguably breached the War Powers Act during his 78-day Kosovo bombing campaign, without consequences.

The limiting factor on a determined president, then, is not whether an attack is legal. Rather, it is how high a political price he's willing to pay. Just because Bush can launch an attack on Iran in the absence of congressional action does not mean he can legally do so in contravention of congressional action. If Congress specifically forbids Bush from attacking Iran, and he does so anyway, it would precipitate a political crisis. Fortunately, Congress has some powerful tools at its disposal. Here's what it could do:

Cut Off Funding

Congress' biggest constitutional bargaining chip is the power of the purse. It could send an extremely strong message by stipulating in future supplemental defense appropriations bills that none of that money could be spent on attacking Iran. Freshman Senator James Webb (D-Va.) tried to add such a restriction to the $124 billion in supplemental appropriations that went before Congress earlier this year. There is an inexact precedent for this in the 1982 Boland Amendment, which prohibited U.S. intelligence agencies from covertly spending money to overthrow the Sandinistas in Nicaragua. The Reagan administration's attempts to circumvent this law became the genesis of the Iran-Contra scandal.

The Bush administration might well claim such a requirement was an unconstitutional infringement on the president's authority to defend the country and the troops from Iranian "meddling" in Iraq, and proceed with an attack on Tehran anyway. To prevent this, Congress could make such a funding prohibition "non-severable" from the rest of the appropriations bill. This means that if the president ignored that particular section of the bill, the entire bill could become inoperative. Congress also could prohibit Bush from using any other funds to attack Iran, essentially challenging the administration to blatantly violate federal law.

Close the Loopholes

Both of the Authorizations to Use Military Force (AUMFS) passed by Congress--in September 2001 for Afghanistan, and October 2002 for Iraq--contain language that might conceivably be used to justify an attack on Iran. The 2001 AUMF authorized the president to use force not just against the perpetrators of 9/11 but also against anyone who "harbored such organizations or persons." After the U.S. invasion of Afghanistan, Iran arrested several senior members of A1 Qaeda. Though they are apparently being held as bargaining chips with the United States, someone could argue that Iran is in fact "harboring" them.

Attacking Iran under the 2002 AUMF, which gave the president power to defend against "the continuing threat posed by Iraq," is even more of a reach. But squaring that kind of circle is what executive branch lawyers are for. As a former Bush administration official told me, "If I had to make the case for war with Iran, I would definitely look to the 2002 authorization. So that's one loophole Congress would want to nail shut." Congress would be prudent to rewrite both AUMFs to explicitly exclude action against Iran.