Donald Trump is, however, only the last in a long line of presidents who have ignored the Constitution and attacked another country without authority.
The practice began after World War II, the last war officially declared by Congress. President Truman referred to the three-year long Korean “war” as a “police action.” In 1965, ten years after the beginning of the Vietnam War, President Johnson justified the “conflict” on the basis of a congressional resolution passed after the Gulf of Tonkin incident.** The resolution was never intended as a long-term measure. It, nevertheless, became the basis of the authorization for a war that lasted another ten years. Every president since then has initiated some level of military action without a declaration war.
Even when Congress has approved military action (eg, the first Iraq War), there has been no actual congressional declaration of war. President George HW Bush started the first Iraq war in 1991 on the basis of the congressional Authorization for the Use of Military Force (AUMF). In initiating the second Iraq War, President GW Bush used a similar resolution, authorizing military force against terrorists. “The authorization granted the President the authority to use all ‘necessary and appropriate force against those whom he determined ‘planned, authorized, committed or aided’ the September 11th attacks.” Nothing was said in the resolution about Iraq (which had nothing to do with 9/11), the prolonged war in Afghanistan, an attack on Iranian military officers or a declaration of war.
While the issue has been noticed and occasionally debated, Congress has never been willing to challenge a president’s use of military force, even when it becomes indistinguishable from a war. This is a serious abrogation of congressional constitutional responsibility.
To be sure, limiting the military authority of the Commander-in-Chief is no simple matter. We are continuously involved in “hot spots” around the world, and immediate military action is sometimes required. The issue, however, can be politicized, delaying action further. Nevertheless, congressional debate and the approval of a reasonable process to give Congress its constitutional voice is necessary.
Is President Trump’s ordering the killing of General Soleimani any different from the actions of every other American president since the 1950s? Well, in theory and according to the Constitution, no. What makes Trump’s actions more objectionable and dangerous is the potential political impact on the US presence in the Middle East. For years, the military has had the intelligence and military capability to kill Soleimani and has considered using it. But always a decision has been made not to engage Iran for fear of wider military confrontation in the Middle East.
Since the killing, the President and his advisers have tried continually to provide public justification for the attack, but each attempt has withered under examination. Justification has changed every few days. Even the President’s closest advisors have been unable to come up with evidence for any of these justifications, for example, that four embassies were in danger of imminent attack.
To repeat, the killing of Soleimani is not unconstitutional; it certainly is not an impeachable offense. It does highlight, however, that the Constitution’s requirement for a congressional declaration of war is insufficient for the nature of modern warfare or for the political polarization of government that makes almost any controversial action impossible. It is also not prepared for a president with Donald Trump’s disdain for the Constitution, ignorance of international politics, or for his of penchant for impulsively acting on his own.
While President Trump’s killing of Soleimani is no worse an assault on the Constitution than those of all other presidents since 1950, this President has highlighted how crucial it is for Congress to limit presidential war powers.
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** The Gulf of Tonkin incident was the allegation that a Vietnamese vessel attacked
an American ship. This allegation, it
turns out, was untrue. The attack never
happened. But it became the reason for
congressional action anyway.
