Iran War Powers Resolution — S.J.Res.68
BACKGROUND: The Senate passed the measure Feb. 13 by a 55-45 vote under War Power-related procedures that prevent filibusters. The House on Jan. 9 passed a similar measure seeking to force the president to terminate the use of U.S. military actions in or against Iran, by a largely party-line 224-194 vote.
However, that House resolution was in the form of a concurrent resolution (H Con Res 83) that sought to utilize a mechanism in the original 1973 War Powers Resolution under which congressional adoption of a concurrent resolution (which does not go to the president for his signature) can force the president to withdraw U.S. forces or terminate military actions — a procedure that was neutered by a 1983 Supreme Court decision (INS v. Chadha), which found unconstitutional "legislative vetoes" that are not sent to the president for his approval or disapproval.
In the wake of that Supreme Court decision, Congress enacted an alternative enforcement mechanism (PL 98-164) providing that any bill or joint resolution to require the removal of U.S. troops engaged in hostilities where no declaration of war or specific authority had been granted must be considered by Congress under expedited procedures (specifically, those in the 1976 International Security and Arms Export Control Act) — that are being followed by the Senate's resolution. Such measures do go to the president, who can veto them.
U.S.-Iran Relations
The United States and Iran have been geopolitical adversaries since the Iranian Revolution in 1979 that overthrew the existing Iranian government and led to the seizure of the U.S. Embassy in Tehran.
Since then, the United States and other nations have imposed numerous economic sanctions on Iran for a variety of reasons, including Iran's support for terrorism in other nations (often through the use of local militias and other proxy forces), and most importantly because of Iran's pursuit of a uranium enrichment program that could lead to the development of nuclear weapons.
During U.S. operations in Iraq after the 2003 U.S. invasion, and later in Syria, U.S. troops often battled forces supported by Iran — with thousands of U.S. casualties resulting from improvised explosive devices (IEDs) developed and supplied by Iran.
JCPOA & Trump Withdrawal
In 2015 the United States under President Barack Obama and five other nations (China, France, Germany, Russia and the United Kingdom) reached an agreement with Iran under which most international sanctions against Iran were lifted in return for that nation suspending its nuclear program and being subject to inspection to prevent Iran from developing a nuclear weapon.
Under that accord, formally known as the Joint Comprehensive Plan of Action (JCPOA), Iran was permitted to export crude oil and access its assets held in foreign banks. Many conservatives have argued that the JCPOA simply postponed Iran's ability to develop a nuclear weapon while doing nothing to counter Iran's continued development of ballistic missiles and other malign activities in the Middle East, including its continued support for terrorism.
A vocal critic of the JCPOA, President Donald Trump withdrew the United States from the accord in 2018 and imposed harsh economic sanctions under a "maximum pressure" campaign that seeks to force Iran to change its behavior.
Escalating Military Actions
After the U.S. withdrawal from the JCPOA, Iran began taking increasingly aggressive actions, including attacking oil tankers in the Persian Gulf, shooting down a U.S. military drone over the Gulf, and launching a missile and drone attack against an oil refinery in Saudi Arabia.
In late Dec. 2019, an Iranian-backed militia fired rockets at a military base near Kirkuk, Iraq, killing an American contractor and injuring a number of U.S. soldiers and Iraqi security personnel. In response, Trump ordered airstrikes against the militia at sites in both Syria and Iraq, which killed a couple dozen militia members and injured dozens more. Those U.S. strikes prompted outrage among Iraqis, with thousands of militia supporters subsequently storming the U.S. Embassy in Baghdad, breaching the main reception area and setting it on fire.
Stating that Iran had killed the American contractor, Trump tweeted: "We strongly responded, and always will. Now Iran is orchestrating an attack on the U.S. Embassy in Iraq. They will be held fully responsible." Two days later, on Jan. 2, the Pentagon announced that a U.S. drone strike in Baghdad had killed Iranian Maj. Gen. Qassem Soleimani, the head of Iran's Islamic Revolutionary Guard Corps' Quds Force.
Soleimani was seen by many as Iran's second most powerful figure and has been blamed for the killing of hundreds of U.S. troops and thousands of civilians throughout the Middle East — usually through local militias armed and supported by Iran — and the president and administration officials stated that Soleimani was actively planning new attacks against U.S. targets.
Iran immediately threatened major retaliation, and the Pentagon announced it was sending thousands of additional troops to the region. Iran then launched a series of missile strikes on Jan. 7 against two U.S. military facilities in Iraq that caused some damage and numerous injuries (including more than 100 cases of traumatic brain injury) but no deaths. In a national address the following day, Trump announced additional sanctions would be placed on Iran — but sought to publicly de-escalate the situation by calling on Tehran to return to the negotiating table with the U.S. to pursue a deal that "makes the world a safer and more peaceful place."
Since then, neither Iran nor the United States has undertaken any further major military actions. On the night of the missile attack, however, Iran accidentally shot down a Ukrainian passenger jet that had just taken off from Teheran Airport, killing 176 people.
Congressional Notification
Following the strike against Soleimani, the administration officially notified Congress of its actions pursuant to the 1973 War Powers Act (PL 93-148; officially the War Powers Resolution), which requires Congress to be notified within 48 hours of the initiation of any hostilities not covered by a declaration of war or other congressional military authorization.
However, the War Powers notification provided to Congress regarding the Soleimani strike was in the form of a classified document, which angered many lawmakers (particularly Democrats) who say it is important for Americans and their congressional representatives to openly debate the details of policies that could lead to a full-blown war with Iran.
The administration later sent Congress a legally mandated report outlining its legal and policy justifications for the strike. According to Eliot L. Engel, D-N.Y., the chairman of the House Foreign Affairs Committee, the report "makes no mention of any imminent threat and shows that the justification the president offered to the American people was false, plain and simple" and "falsely claims Congress had already authorized the strike under the 2002 Iraq war resolution."
War Powers Act & AUMFs
The War Powers Act was enacted by Congress over the veto of President Richard Nixon, mainly to ensure that the executive and legislative branches share in decisions that could lead to war. The drafters sought to circumscribe the president's authority to use armed forces abroad in hostilities or potential hostilities without a declaration of war or other congressional authorization, yet provide enough flexibility to permit the president to militarily respond to attacks or other emergencies.
The 1973 law requires the president to notify Congress in a timely fashion when U.S. troops are sent abroad with a strong probability they will engage in combat. It states its primary purpose as ensuring "that the collective judgment of both the Congress and president will apply to the introduction of U.S. armed forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." Varying interpretations of "collective" have been at the heart of the debate over the War Powers Act ever since.
9/11 & Iraq AUMFs
Both the congressional authorization for the use of military force (AUMF) enacted in 2001 in the wake of the 9/11 terrorist attacks (PL 107-40) and the 2002 AUMF for Iraq (PL 107-243) provided statutory authorization for the use of military force in accordance with the War Powers Act.
Specifically, each stated: "Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of Section 5(b) of the War Powers Resolution."
Presidents since that time have used those two AUMFs to justify various military actions. Meanwhile, lawmakers from both parties have sought to end the two AUMFs, arguing that the 2001 and 2002 authorizations were not meant to be open-ended and should not apply to fighting terrorist organizations in other countries.
In May 2013 in an effort to partially address the issue, then-President Obama outlined what he called a "comprehensive counterterrorism strategy" to narrow the concept of the ongoing conflict from a "global war on terror" to a collection of disparate fights against diminished networks. As part of the strategy his administration issued Presidential Policy Guidance establishing standard operating procedures for direct action, which refers to lethal and nonlethal uses of force, including capture operations against terrorist targets in areas of active hostilities outside of the United States.
The FY 2014 Defense Authorization (PL 113-66) required the Defense Department to promptly submit to Congress notice of any sensitive military operation once it has occurred. The term "sensitive military operation" includes lethal and capture operations conducted by the U.S. military outside of the United States pursuant to the 2001 9/11 AUMF or any other general authority, except a declaration of war or another specific statutory authorization for the use of force. That 2014 authorization also required the department to report to Congress with an explanation of the legal and policy considerations and approval processes used in determining whether an individual or group could be the target of a lethal or capture operation conducted by U.S. forces, and it required quarterly briefings to Congress outlining counterterrorism operations and related activities.
Recent Legislation
In addition to House approval in early January of the concurrent War Powers resolution that sought to force the president to terminate any military action against Iran (H Con Res 83), lawmakers have moved to used Congress' "power of the purse" given that the Constitution not only gives Congress the sole power to declare war but also to decide whether to appropriate funding to engage in hostilities.
The House last year in its version of the FY 2020 Defense Authorization bill adopted a floor amendment that would have prohibited the use of funds for military force in or against Iran unless authorized by Congress — but that language was dropped during final conference negotiations on the measure (PL 116-92). Also dropped from that measure was House language to repeal the 2002 Iraq AUMF, which also had been added as a floor amendment. The Trump administration has claimed that the 2002 Iraq AUMF could justify future use of military force against Iran.
Identical measures were again considered by the House in late January, as House amendments to the Senate-passed version of HR 550, with each being adopted on largely party-line votes. Those two measures constituted the text of HR 5543 No War Against Iran Act and HR 2456, Repeal 2002 Authorization for Use of Military Force (AUMF) Against Iraq.
Member Concerns
Supporters of the measure, primarily Democrats, argue that U.S. military action against Iran has never been authorized by Congress, and that the 2001 congressional authorization for war in Afghanistan and global terrorism and the 2002 authorization for Iraq do not apply. As opposed to what the president said at the time of the attack against Soleimani, the administration's official justification for the action makes no mention of any imminent threat. President Trump has proven to be what his critics always feared: too impetuous, too ignorant of history, and too volatile to be entrusted with grave issues of national security, they say. His actions have unleashed powerful forces in an already tenuous region — forces that could drag the United States into an unwarranted and unnecessary war of our own making. Rather than extricating U.S. forces from the Middle East as he promised during the 2016 campaign, they say Trump's actions are likely to deepen U.S. involvement in the region, isolate the United States from its friends and allies, provide a lifeline to Teheran's terrorist regime, and lead to more U.S. deaths. If the president intends to take further military action against Iran, he needs to inform the American public of his strategy and get the approval of Congress.
Opponents of the measure, primarily Republicans, argue that directing the president to terminate any operations against Iran would tie his hands at a time when he continues to need flexibility to deal with that malign nation, and signal to Iran's leaders that the U.S. would be unlikely to respond to future attacks. Targeting Soleimani was a bold act that other presidents have not, and would not, have attempted — an act that will restore a measure of deterrence against an enemy state that has refused to abide by international norms, they say. They contend that the Obama administration was all too willing to countenance Iranian aggression and turn a blind eye to Iranian terror, while the 2015 nuclear accord provided the mullahs with funds to pursue ongoing terrorist aggression in Syria, Lebanon, Yemen and elsewhere. Moreover, the United States has long relied upon the 2002 AUMF to authorize the use of force to address terrorist threats emanating from Iraq, such as those directed by Soleimani. With its January missile attack, Iran showed itself willing to take direct military action against the United States, they note. Cutting off funds for U.S. troops in the field would allow Soleimani's heirs to regroup and continue their nefarious and malign ways, all the while rendering our troops sitting ducks.
SUMMARY: This resolution directs the president to terminate the use of U.S. military forces for hostilities against the Islamic Republic of Iran or any part of its government or military, unless explicitly authorized by a declaration of war or specific authorization for use of military force against Iran.
The measure states that nothing in the resolution shall be construed to prevent the United States from defending itself from imminent attack.
Findings
The resolution contains numerous "findings," including that Congress has the sole power to declare war under article I, section 8, clause 11 of the U.S. Constitution and that Congress has not yet declared war upon, nor enacted a specific statutory authorization for use of military force against, the Islamic Republic of Iran — but that U.S. armed forces have been introduced into hostilities (as defined by the War Powers Resolution) against Iran.
It further finds that Section 8(c) of the War Powers Resolution defines the introduction of the U.S. armed forces to include "the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged in, hostilities."
It states that "the 2001 Authorization for Use of Military Force against the perpetrators of the 9/11 attack and the 2002 Authorization for Use of Military Force Against Iraq Resolution of 2002 do not serve as a specific statutory authorization for the use of force against Iran," and that "the question of whether U.S. forces should be engaged in hostilities against Iran should be answered following a full briefing to Congress and the American public of the issues at stake, a public debate in Congress, and a congressional vote as contemplated by the Constitution."
Finally, it states that the president has a constitutional responsibility to take actions to defend the United States, its territories, possessions, citizens, service members and diplomats from attack, and it separately states that members of the U.S. armed forces and intelligence community, and all those involved in the planning of the Jan. 2 strike on Qasem Soleimani, including President Donald J. Trump, should be commended for their efforts in a successful mission.
