14 February 2020   Leave a comment

As required by law, the White House sent in a report, called a 1264 notification, to justify the use of force against Iranian general, Qassem Soleimani. There are two interesting aspects to the report. First, the report legitimizes the use of force on the inherent powers of the President as Commander in Chief as specified in Article II of the Constitution. The Commander in Chief rationale only works in the case of an “imminent” attack, and that word appears nowhere in the 1264 report. The Trump Administration is no longer using that justification.

Second, the report invokes the 2002 Authorization for the Use of Military Force (AUMF) that the Congress passed to justify the use of force against al Qaeda and its affiliates.The AUMF argument also lacks legal force since General Suleimani was not an agent of al Qaeda, and was in fact an avowed enemy of al Qaeda. Interestingly, the State Department had argued in 2019 that the decision to kill Suleimani was not based upon the AUMF: “State Department officials repeatedly assured lawmakers last year that ‘the administration has not, to date, interpreted either the 2001 or 2002 AUMF as authorizing military force against Iran, except as may be necessary to defend US or partner forces as they pursue missions authorized under either AUMF.'”

Neither of these justifications has any validity in the strike against Suleimani which leaves us in a very difficult situation. The Congress has passed a War Powers Resolution that requires the President to seek the approval of Congress for any further strikes against Iran. National Puclic Radio reports: “The vote was 55-45 — with eight Republicans joining all Democrats to pass the measure. The tally fell far short of the two-thirds needed to override a presidential veto.” President Trump will likely veto the resolution so it will not have the force of law. But the vote does send a strong signal that any military action against Iran will be scrutinized carefully. It is also a significant act, as described by The Washington Post:

“This is only the third time ever that the full Senate has used its authority under the 1973 War Powers Resolution to block a president from using military force abroad. All three efforts were against Trump — with a Republican-led Senate.

“The first such vote came in late 2018 when the GOP-led Senate ordered an end to U.S. military operations abroad in Saudi Arabia’s war in Yemen. The second took place last year, when both the Democratic House and Republican Senate agreed to a measure — vetoed by the president — to curtail U.S. military involvement in Yemen.”

It seems as if Congress is finally getting the message about defending Congress’s rights on the issue of war and peace. Perhaps, if the Senate changes its composition in the 2020 election, we can expect a more enduring statement on those rights.

Posted February 14, 2020 by vferraro1971 in World Politics

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