In this week’s anniversary, I recall how, 24 years ago, I stood with a bipartisan group of Congress members to challenge the Obama administration’s choice to strike Libya without a formal declaration of war.
It’s intriguing how many who either supported or stayed silent during those actions by President Obama later expressed horror when President Trump contemplated an attack on Iran’s nuclear facility in Fordow, nestled in the mountains.
Interestingly, some Democrats sought to expand presidential powers to act without Congressional approval. For instance, Senator Tim Kaine from Virginia worked on laws aimed at restricting Trump’s authority; the laws introduced in 2018 allowed military action to almost operate on autopilot. During Trump’s first term, I opposed these laws, arguing they effectively sanctioned endless warfare.
Back in 2011, Obama’s military campaign not only launched attacks on Tripoli but also targeted Libyan army convoys. This action appeared to be driven by a desire for regime change, with former Secretary of State Hillary Clinton’s support, while bypassing necessary consultations with Congress.
Now, Trump is considering using powerful “bunker-buster” bombs to obliterate the facility, as these bombs are among the few capable of reaching deeply buried targets and can only be deployed by American B-2 stealth bombers.
It takes a certain fortitude to challenge the actions of a sitting president, especially when it concerns military actions against an unpopular adversary. One of my clients from two decades ago, Congressman Ron Paul from Texas, who happens to be Senator Rand Paul’s father, believed firmly in needing Congressional approval for such military operations.
The framers of the Constitution shared this sentiment. They viewed military entanglements as hallmarks of tyranny. In fact, a representative named Pierce Butler argued that any war declaration should have national support.
Yet, even during their time, there was a push for checks on this power. They insisted on an explicit declaration of war from Congress.
According to Article 1, Section 8, along with Article 11, it is Congress that holds the exclusive power to declare war.
George Washington, in 1793, asserted a denial of that authority for the president, emphasizing that significant military actions should not be undertaken without careful deliberation and approval.
The framers believed they had resolved the issue. During the Pennsylvania Ratification Convention, James Wilson articulated the importance of Congressional approval to prevent hasty movements into warfare.
This requirement aimed not only to limit foreign conflicts but also to ensure that public support was considered before engaging in war. After all, while presidents may gain glory from victories, the citizens bear the cost in lives and resources.
Nevertheless, politicians have grown hesitant to assign accountability for military actions. They’ve evolved to adopt a more passive role regarding military involvement, often using ambiguous authorizations that allow them to later deny actual support for wars.
Some of us opposed the Iraq war, but many politicians, like Joe Biden, who was heavily involved in the invasion, later claimed opposition to it when running for president.
Similarly, Senator John Kerry, during the 2004 Democratic primary, portrayed himself as anti-Iraq war, despite his earlier vote for it. He even famously stated he’d “voted for it before he voted against it.”
Despite the Constitution’s clear language, courts have enabled deviations from Article 1, allowing Congress to declare only 11 wars, while overseeing more than 125 military operations, including conflicts in Vietnam, South Korea, and Afghanistan. It’s been 80 years since Congress declared war during World War II.
In my experience, the Obama administration refrained from classifying its military actions as wars, labeling them instead as “limited military engagements.” Courts allowed these actions to move forward.
Consequently, both Congress and the judiciary have effectively altered constitutional requirements for war declarations.
This has, unfortunately, set a precedent that supports Trump’s claim to unilaterally deploy military force. While Kane and others argue there were no Iranian attacks on U.S. interests, Trump could counter that Iran has caused numerous casualties among Americans either directly or via proxy conflicts, including actions against U.S. ships facilitated by Iranian forces in Yemen.
More critically, he can draw on decades of judicial and congressional acceptance of such actions.
Reflecting on this, I find the framers’ concerns incredibly prescient, as today we witness a long history of undeclared warfare and inadequate accountability.
It’s inconvenient to acknowledge the unconstitutional nature of these actions, yet it remains buried under layers of war rhetoric and political hypocrisy.
This might explain why Trump seldom turns to Congress; by precedent, he feels he doesn’t have to. He assumes the same authority wielded by previous presidents, including the most recent Democratic leader. With this historical context on his side, Trump stands poised to transform Fordow into a significant target.
