Inside the Trump-Pelosi tug of war over Iran war powers

President Donald Trump and House Speaker Nancy Pelosi are tangling over the legal authorities necessary to attack Iran.

al-monitor Speaker of the House Nancy Pelosi, joined by fellow Democrats, speaks during a news conference about legislation the House has passed at the Capitol in Washington, U.S., Dec. 19, 2019.  Photo by REUTERS/Erin Scott.

Jan 7, 2020

The House is set to vote on legislation this week to constrain President Donald Trump’s ability to strike Iran, setting up a largely partisan dispute between Capitol Hill and the White House.

Speaker Nancy Pelosi, D-Calif., argued in a letter to the Democratic caucus this week that Trump’s assassination of Iranian Maj. Gen. Qasem Soleimani in Iraq violated “Congress’ war powers granted to it by the Constitution” as lawmakers never authorized a strike against Iran.

Meanwhile, the White House maintains that the Soleimani strike was legal under the 2002 military authorization that allowed President George W. Bush to invade Iraq and Trump has threatened to respond to any Iranian retaliation with disproportionate force.

Pelosi has designated Rep. Elissa Slotkin, D-Mich., a former CIA and Defense Department analyst specializing in Shiite militias, to introduce a resolution limiting Trump’s ability to strike Iran under the 1973 War Powers Resolution. Sen. Tim Kaine, D-Va., has introduced similar legislation in the Senate.   

1973 War Powers Resolution: Congress passed the War Powers Resolution during the end of the Vietnam War in a bid to wrest constitutional war-making authorities back from the White House.

The 1973 bill stipulates that the president cannot introduce US forces into “hostilities” absent a congressional authorization or “national emergency” created by an attack on the United States or its armed forces. It also lays out expedited procedures that allow any lawmaker to force a vote to remove US forces from any unauthorized hostilities that the president initiates.

“If Congress has been clear it opposes a military operation, that really hamstrings the president’s ability as a legal matter to move forward with a military operation,” said Oona Hathaway, a former legal adviser to the State Department and Pentagon under the Barack Obama administration. “It makes his legal position a lot more tenuous.”

But lawmakers have historically shown little interest in actually using the War Powers Resolution to end myriad unauthorized US military interventions abroad — at least not until the Trump administration.

Yemen war powers: Presidential hopeful Sen. Bernie Sanders, I-Vt., made history last year after Congress passed his war powers resolution directing Trump to remove US forces from “hostilities” against Yemen’s Iran-backed Houthi rebels. Sanders’ Yemen resolution secured support from six Republicans to pass 54-46 but did not have the votes required to override Trump’s veto.

Syria war powers: Another presidential hopeful, Rep. Tulsi Gabbard, D-Hawaii, has also introduced multiple resolutions in a bid to force Trump to withdraw US troops from his “secure the oil” mission in Syria, but she has yet to force a floor vote amid division within the anti-war coalition that supports the war powers legislation on Iran and Yemen. 

2002 Iraq war authorization: The anti-war activists are also lobbying Democratic leaders to vote on a repeal of the 2002 Iraq war authorization, which national security adviser Robert O’Brien cited as the legal justification for the Soleimani strike last week. The State Department first laid the legal groundwork last year in a letter to Congress that argued the 2002 Iraq authorization could be used to strike Iran in order to “defend US or partner forces engaged in counterterrorism operations to establish a stable, democratic Iraq.”

Subsequently, House Democrats adopted an amendment from Rep. Barbara Lee, D-Calif., to repeal the 2002 Iraq war authorization as part of last year’s defense authorization bill. However, House Armed Services Chairman Adam Smith, D-Wash., agreed to drop the provision from the final bill last year during negotiations with the White House and Senate Republicans.

2001 counterterrorism authorization: The State Department legal justification also argued that the 2001 military authorization could be used to justify an attack against Iran as an act of self-defense. Congress overwhelmingly passed the brief authorization in the wake of the Sept. 11 attacks, and every president since George W. Bush has used it to justify counterterror operations against myriad groups in more than 40 countries across the globe. Lee — the only lawmaker to vote against that authorization in 2001 — has unsuccessfully sought to repeal that authorization as well.

Hathaway told Al-Monitor that if Congress passes its Iran war powers legislation, it would reaffirm that Congress does not view either the 2002 or 2001 authorizations as providing “any legal authority for military operations against Iran. And it puts on the table that this would, if the president continues to proceed, be an unconstitutional act.”

Classified: The Trump administration continues to face questions as to whether Soleimani was planning an “imminent” attack on US or allied forces and has refused to publicize the evidence, raising questions about the self-defense legal justification. The War Powers Resolution also requires the White House to report to Congress within two days after the president introduces US forces into hostilities, including an assessment of “the scope and duration of such hostilities or situation.”

The White House has submitted the required notification to Congress but classified the entire document. Senate Minority Leader Chuck Schumer, D-N.Y., and Foreign Relations Committee top Democrat Bob Menendez, D-N.J., have called on Trump to declassify the notification for the public. (The War Powers Resolution does not specify whether the notification should remain unclassified.)

What’s next: Assuming the Iran war powers bill passes the House, it faces an uphill battle in the Senate, where even Republicans who voted for Sanders’ Yemen resolution as a rebuke of Saudi Arabia have shown little appetite for using the same mechanism to limit Trump’s military activity against Iran. And even then, Congress probably would not have the votes to override a likely veto from Trump.

Further down the line, anti-war advocates and some legal scholars are already talking about updating the 1973 War Powers Resolution to make it more relevant to 21st century conflict.

“You’re ultimately talking about legislation written after Vietnam in response to the abuses of that error,” said Stephen Miles, the director of Win Without War, the anti-war coalition pushing the Iran war powers bill. “It’s quite possible that Congress is going to reevaluate going forward whether or not they need to change the law again and address the kind of modern realties and the abuses we’re seeing by this administration, but also abuses we’re seeing by the last several administrations as well.”

Still, that’s a tall order for lawmakers who have struggled to update military authorizations that are nearly two decades old.

“Down the road, there should be comprehensive war powers reform, but this is not the time for that,” said Hathaway. “Both because this president would never sign anything and because we’re really in the middle of a crisis.”

Joe Snell contributed to this report

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