Why It’s So Easy To Start A War
S1: Hey, everyone, quick announcement before we start the show. If you’ve gotten Aleksa at home and you want to play what next on your device, we have built a new skill just for you. Just say, Alexa, enable what next to enable this show on your device and begin playing it to play it after that. You can just say, Alexa, play. What next? All right. Onto the show. Last week, after a U.S. drone strike killed the leader of Iran’s Cuds Force, Kassim Suleimani, the State Department held a special briefing for reporters explaining what exactly had just happened. The briefing was private. There weren’t any cameras. Administration officials weren’t identified by name. But a transcript of the meeting was eventually posted online. These officials, they argued that if they hadn’t killed Sulaimani, hundreds of Americans would be dead. Eventually, they said killing Sulaimani meant they were speaking in a language the Iranian regime understands. Eventually, these officials, they seem to get frustrated. One senior State Department official said, Jesus, do we have to explain why we do these things?
S2: The room laughed, but the reporter kept pushing. They said, yes, you do. Another official weighed in, said you’re going to have to talk to the lawyers. Yeah, it’s it’s pretty remarkable. Donna Hathaway used to be one of those lawyers.
S3: I mean, what’s amazing to me is like in the Obama administration, everything was so carefully vetted. ONA teaches at Yale now, so there’s so many things that have gone wrong here. One of them is that they didn’t bother to notify Congress in advance, but afterwards they just can’t get their story straight.
S1: One national security adviser has said that because Suleimani was killed inside Iraq, he was fair game. Congress long ago authorized force inside that country. Secretary of State Mike Pompeo implied Suleimani was killed to prevent an imminent attack.
S3: They started using the word imminence once. I think the lawyers told them that they had to.
S4: You put out a statement a short time ago that says the decision to eliminate General Suleimani was in response to imminent threats to American lives. What was the nature of those imminent threats?
S5: But then he really couldn’t explain what the imminent threat was when he was pressed on it.
S6: John, I get to talk too much about the nature of the threats, but the American people should know the president. Trump’s decision to remove Kassam Suleimani from the battlefield saved American lives. There’s no doubt about that.
S5: Just makes me wonder, like, where are the lawyers? Like I have they’ve been locked in a room somewhere. Like, why are they not involved?
S7: Owna calls the decision making process here. Amazing and not in a good way. Democratic leaders in Congress seem to agree with her. So today on the show, Owen is going to walk us through the executive branch’s expanding use of military power. As Iran ratchets up the pressure on the red states, how far can Donald Trump go? And is there anything Congress can do about it? I’m Mary Harris. You’re listening to what next. Stick with us.
S1: The U.S. conflict with Iran is evolving quickly. We recorded this conversation on Tuesday morning and by Tuesday night, Iran had fired missiles at U.S. facilities in Iraq. One more escalation in an ongoing tit for tat. Iran was retaliating after the president’s decision last week to kill Kassim Suleimani. I wanted to talk to Owna Hathaway to understand how he got here with the president taking unilateral action, bringing us to the brink of war. Owna told me to understand how this back and forth evolves so quickly. You need to know that the United States doesn’t wage war the way it used to.
S8: In fact, we haven’t actually declared a war in 80 years.
S9: President Roosevelt appears before a joint session of the Senate and House of Representatives and with stern vigour delivers his war message, declaring war means showing up in Congress, making the case the way President Roosevelt did for World War 2.
S10: All right. I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, 1941, a state of war has existed between the United States and the Japanese empire.
S5: That has kind of fallen out of use. We don’t really declare war anymore. Instead, what we do is we pass authorizations for use of military force. And what does that is just basically a law that says to the president, yes, you can use military force and usually has constraints. So it’ll say you can use military force against these enemies for these purposes for this length of time. And so it has details in it that specify what authority Congress is granting.
S1: Congress passed an authorization of military force after 9/11 to go to war in Afghanistan. And then we passed another one to go to war in Iraq. We’ve used these authorizations to justify all kinds of conflicts.
S5: Now, you know, here we are, 20/20, and we’re still using this 2001 authorization. And, you know, it’s too bad Congress hasn’t been involved in making decisions about use of force since.
S11: So how is action like this supposed to work? Like if this killing of Kassim Suleimani was justified? What would it require?
S5: So what should have happened is that the president and his advisers should have gone to Congress and they could have done it in a classified way, provided evidence that there was reason to think that killing Suleimani was going to prevent future attacks. Explain what the reasoning was. He would have probably come under some really serious questions. People would have asked, are you sure that killing him is going to solve more problems than it creates? Are you sure that this is the least dangerous option as opposed to a number of other options for dealing with the kind of problem that you have, the kind of consultation that we want so that we don’t take foolish action? If he had been able to answer this questions to the satisfaction of members of Congress, then you would have had an authorization for use of military force allowing him to proceed against Iran. He didn’t do any of that. He didn’t even warn Congress that there was a chance of something like this was going to happen. He didn’t consult broadly. He didn’t even notify our allies, who then were stuck in the region with their exposed troops, who had no idea that this was coming and who all of a sudden were potentially subject to attacks from Iranian assets and proxies. So he didn’t do any of the stuff that normally would be required to take this kind of a military action if a president wants to skip all this.
S1: The way President Trump did when he authorized lethal force to be used against Kassam Suleimani, most lawyers agree he needs to make the case that the country is under imminent threat legally. That allows him to avoid seeking congressional approval. It also allows him to avoid looping in our allies under the U.N. charter.
S5: You have to seek U.N. Security Council authorization to use force unless you’ve been attacked. That’s an Article 51. Is that the provision of the U.N. charter, that sort of an exception to the usual rules? And there’s a narrow exception to that, which suggests that, OK, you may not have yet been attacked, but you’re just about to be attacked. You have really good reason to think you’re going to be attacked. And so in those instances, you can also act in self-defense. So it solves two separate legal problems. It solves both the domestic law problem and international problem. The only catch here is it doesn’t seem that they have the evidence that that was true. They don’t seem to be able to show us that, in fact, there was any imminent attack that required this strike at this moment without any moment for deliberation or even a chance to notify the Gang of Eight in Congress, which is really amazing, that no Democrats were formally notified that the strike was going to happen.
S11: I have to say, when when I hear you talking about this, about how we really need to justify these actions more, I look back and think about, you know, my memories and how I perceive the U.S. presidency and U.S. actions abroad. I’ve never felt like U.S. presidents have been especially constrained when it comes to war powers in my lifetime. I don’t feel like I’ve ever seen a U.S. president not be able to exert deadly force when he’s wanted to. Is that fair?
S3: Well, you know, it’s not entirely fair. I think presidents have been more constrained than we might think.
S5: So think back to President Obama and his red line in Syria. He said, you know, if there’s a chemical weapons attack, that’s a red line. We’re going to respond. And then there was one. And he decided he needed to go to Congress for authority to respond. Surprising so many of his advisers, Congress said no. They said no. We don’t want to give you that authority. We don’t want to get embroiled in another. Mideast war, and so he didn’t take the strike. Much the chagrin of some of his advisers. So there have been several instances where presidents have been limited by their understanding of what the domestic and international law requires.
S3: And those rules are there for good reason, because if you go to war and you don’t have Congress on your side and you don’t have international partners on your side, you’re really not very likely to win the war. You need support from other states. You need Congress to be on board or you’re just not going to be able to sustain the effort that you need to in order to succeed in a military adventure.
S12: You’ve really studied the last hundred years of war and how our understanding of war has changed, our understanding of the tactical use of war has changed. I’m wondering how you think the people who made this decision to kill Kassams Suleimani.
S11: Understand or maybe misunderstand the last hundred years of how we thought about war.
S5: Yeah, I think that the problem here is that people don’t realize that that for hundreds of years the rules were that states could go to war whenever they wanted, really if there was any wrong out there. States could respond to that, wrong with the use of military force. And that was not just sort of a breakdown of the law. That was the law. If a state failed to repay debts, you could go to war. If a state assassinated a member of your government, you could go to war. If a state interfered with a trade relations, you could go to war. Those were the rules.
S11: What you’re saying is that diplomacy was war.
S5: Yeah. I mean, it was the centerpiece of the international legal order. War was the foundation of how the world worked for hundreds of years. And we made the decision to change that first with the 1928 Kelly brand pact and then reaffirming that after World War 2 in the UN Charter, which prohibits states from using force against one another.
S11: But in some ways, what happened in the last week, it seems to me like a really extreme version of what a lot of American presidents have done to sort of push this idea of keeping their executive power over war. I’m wondering if you can lay out how executives have sort of pushed the envelope here and how Congress has responded.
S5: There’s no doubt that presidents since the end of World War 2 have pressed their own executive authority to act, and they’ve been helped by a lot of things. So one thing they’ve been helped by is that they the courts very rarely weigh in. So if a president takes an action and Congress doesn’t like it, it has fairly limited options for responding to it. When members of Congress have tried to go to court, the courts have just kicked it out on what we call political question doctrine, baseless, saying, look, this is a political fight. We’re not going to get in the middle of it or what we call standing doctrine. That is, you know, youre a member of Congress. And really the way that you should be solving this is trying to do it through legislation. Don’t come to us. So the courts have really almost never weighed in. And what that means is that presidents have been able to get away with a lot of things that by any reasonable interpretation are not consistent with the constitutional order.
S11: I mean, I think we forget that like the Korean War wasn’t officially a war.
S5: Yeah, right. I mean, it was formerly a police action. I guess it was authorized by the U.N. Security Council, of course. But the US Congress never voted on it.
S11: After Vietnam, Congress acted to curb the president’s power when it came to war. How did that happen?
S5: Yeah. So in 1973, after the revelations that the president had been carrying on a secret bombing campaign in Cambodia, Congress finally decided it was time to do something about it. And so they enacted what’s called the War Powers Resolution, which is a law that basically sets out a set of procedural rules that requires the president to notify Congress, to consult with Congress, to continue reporting to Congress. When you say report, what do you mean by that? Yeah. So one of the requirements under the War Powers Resolution is that within 48 hours of introducing the US armed forces into hostilities, the president has to report to Congress and say, here’s what we’re doing, here’s why we’re doing it and explain what his plans are. And that then triggers a 60 day clock that if Congress has not authorized that action within 60 days, he has to withdraw. And that process was not meant to sort of supersede the constitutional rules, of course, but was meant to kind of give effect to congressional role in warmaking. And it did help. But there’s been a series of problems with that resolution have over time led to it’s more or less being gutted and effectively kind of left by the wayside.
S1: And that’s because when this War Powers Resolution was passed back in 1973, it was a little vague. Congress wanted to be informed on a broad spectrum of actions, what they described as hostilities. That lack of specificity backfired.
S5: The problem is they didn’t say that carefully enough. And so that has made this term a really flexible one. And during the Obama administration, they drove a truck through that. The administration said that our intervention in Libya was not hostilities under the war powers resolution.
S3: And therefore, the president didn’t have to stop participating in the NATO led intervention in Libya after 60 days. And that kind of made the whole idea that the war. Powers Resolution would provide a significant constraint on continuing operations. Really pretty weak, and I think it was pretty much the death knell to the War Powers Resolution as part of the reason we really do need a new one.
S11: You’ve been saying for years that Congress needs to rein in the executive branch when it comes to war powers. And now with this action against Kassams Khulumani, it seems like Congress is more interested in doing that. No. Nancy Pelosi has said she wants to call a vote this week to limit the president’s actions against Iran. But I want to talk about like how how would that even work?
S5: So this resolution that Pelosi is supporting is going to be pretty narrow, most of which is really dedicated to saying, hey, Constitution says we Congress are the ones who declare war, not you, president, and you need to come and consult with us.
S11: So it’s really just about this situation. It’s not about the broader issue.
S5: Exactly. It’s really just about this current situation. And, you know, we really do need to step back and think about how to re set our war powers system. The Constitution clearly gives a role to Congress, but Congress has not successfully played that role and it needs better tools for effectively preventing the president from unilaterally going to war. I mean, among the tools it has is its appropriations power. It can limit appropriations and say that it’s not going to pay for things. The problem is that they have these appropriations bills now that are so huge that do everything that the U.S. military needs to to do. And so very hard for Congress to stand its ground on one thing that cares about, because it doesn’t want to leave our soldiers in the field unequipped to be able to defend themselves. So we need some more tools. And Congress needs to really sit back and think about how to get itself back in the game, because it just has been ineffective over the last several decades. And and that’s not good for the country.
S11: Yeah, I mean, it seems to me like Nancy Pelosi’s option here is kind of dead on arrival. I mean, earlier this year, Congress tried to remove troops from Yemen, pass a bill that would remove troops from hostilities there, and the president simply vetoed it.
S5: Yeah, this is the big problem. Right. So even if you can get it through the Senate, which is a big question mark, you then face a likely veto from the president, an almost certain veto from the president. And then the question is, can you get a veto proof majority in the House and the Senate? And that seems just a very slim possibility. It nonetheless can serve an important function of Congress sort of stating its view or the very minimum at the House, stating its view that it does not support military action in Iran. And I do think that’s better than nothing. You’re absolutely right. Like in terms of is it gonna stop the president from waging a war if he’s really determined to do so? No, it won’t do that.
S11: It seems to me a lot of people are talking about this as a problem with the Trump administration. But we’re also watching Democratic presidential candidates and what they’re seeing about war powers right now. None of them seem to want to give up their executive powers here either.
S3: Well, I think that they actually are more willing to open the door to reforming war powers than than you might think. One silver lining at the current set of events and how out of hand things have become and how clear it is to everyone now that the system is just really broken. Finally, I think people are like this may not be so great. Maybe we should look at these rules and decide to put some more constraints on the president’s authority to go to war all by himself. And if you look at the statements that various Democratic members have put out there, they are much more constrained in terms of their views of unilateral executive authority. Course, they vary a good deal across them. And I think that’s really important because while I don’t think there’s much chance of significant reform while President Trump is in office, I do think there will be a brief window for reform when a new president comes into office, whether it’s this next election or the election after. And we need good ideas for how to reform war powers and get Congress back into the mix.
S13: Owna Hathaway, thank you so much for joining me. Thank you so much.
S1: Owna Hathaway is a professor at Yale Law School. She’s also the author of The Internationalists How a Radical Plan to Outlaw War Remade the World, and that’s the show. What Next is produced by Daniel Hewitt. Mara Silvers, Jason De Leon and Mary Wilson. I’m Mary Harris. I will catch you back here tomorrow.
