The six-month “interim” agreement between Iran and the U.S. and other nations on Iran’s further development of its nuclear capacity has now gone into effect. Many Americans of both political parties believe it is a bad deal — one that will not lead to a suspension of Iran’s efforts to acquire nuclear weapons. The Israelis and the Saudis agree with them. We too have grave doubts.
What if the skeptics are right? We had better think that possibility through very carefully — and do it now. President Obama and key leaders in Congress have stated that the acquisition of nuclear arms by Iran is unacceptable. The president has assured the public, and our allies, that he will not let it happen. If the president is speaking truthfully on this matter, then the possibility of the failure of the “interim” deal means that the United States must be prepared to deploy military force to destroy Iran’s nuclear-development sites.
No American wants that to become necessary. Yet is there any reason to suppose that, if it does, the constitutional debates over presidential authority to take military action will be any more helpful than the embarrassment attending President Obama’s “red-line-already-crossed,” on-again, off-again handwringing over the use of military force against the Assad regime in Syria this past September? Can anyone fail to imagine Iran’s leaders chortling at the sight of America’s Congress debating a resolution authorizing the use of military force, all the while that Iran takes advantage of the time to prepare to defend its weapons against a U.S.-led attack?
If the president means what he is saying, such an authorization to use military force is the constitutionally appropriate course. If he is serious in his public pronouncements that he will not permit Iran to acquire a nuclear weapon, and if members of Congress mean it when they make the same vow, there is a strong constitutional case for taking the necessary legal steps now, in advance of the point of crisis.
The Constitution vests in Congress, and not the president, the power “to declare War” — that is, to authorize offensive military hostilities against an enemy nation, power, or force. The Framers’ deliberate choice of the word “declare” rather than “make” — on a famous motion made by James Madison at the Constitutional Convention — was designed to leave the president the power to “repel sudden attacks” and wage defensive war even without Congress’s having acted. (The word switch also made clear that the conduct of war was to be vested exclusively in the president as commander-in-chief, and not micro-mangled by Congress.)
It is clear, then, that the president may act to repel attacks on the nation. But it is constitutionally less clear how far this “defensive” war power can be leveraged. Could it justify preemptive military strikes on a foreign nation’s facilities or forces, in order to prevent an attack? We think the president’s constitutional power to act alone in such circumstances sufficiently doubtful to warrant a congressional enactment explicitly authorizing the use of force if the president determines the circumstances justify it. Such a strictly proper constitutional course would have placed on firmer ground the many dubious instances of unilateral presidential war-making in our nation’s distant and very recent past.
Consider two recent examples. President Obama’s unilateral decision to use military force in Libya in 2011, whatever its policy merits, was plainly unconstitutional: Congress did not authorize such force; a treaty commitment, decision by military allies, or even a U.N. resolution cannot constitutionally substitute for such authorization, and in no plausible sense could the action be regarded as defending the United States from a sudden or imminent attack. It was a humanitarian military intervention in a foreign civil war. The Obama administration’s legal justification would be laughable were it not so outrageous: The president may initiate offensive military action whenever he judges it to be in America’s interest, the administration lawyers wrote. The Declare War Clause power of Congress applies only to a “war,” and this was not a war because the president did not consider it to be one. Besides, merely bombing a foreign nation does not constitute “war,” the administration claimed.
Such arguments can scarcely be made with a straight face. And so, when contemplating an offensive military strike against Syria this past September, the administration gave up trying to do so. It hemmed and hawed, blustered and dithered, and finally asked Congress for authorization to use force — all the while denying that such authorization was needed. The result was politically, militarily, strategically, and constitutionally disastrous. Congress balked at an administration without a plan, Syria was granted weeks to prepare, and Russia came to the rescue of the murderous Syrian regime. The Obama administration was left embarrassed, the Syrian people were left abandoned, American credibility abroad was left seriously weakened, and Vladimir Putin suddenly became a plausible candidate for a Nobel Peace Prize.
And the Iranian regime was left emboldened to take advantage of the situation: The empty interim deal with Iran is exactly what one might expect when America negotiates from a position of weakness and vacillation.
It is essential not to repeat the Syria mistake with respect to Iran. A disastrous but foreseeable outcome would be that Iran strings the Obama administration along for (another) half year, using that time to prepare, presenting the U.S. with a Hobson’s choice between war and nuclear appeasement, and hoping that a divided Congress would then debate for weeks whether to authorize military force — while Iran dashes for nuclear breakout, arms for defense, and threatens to attack American allies in the Middle East.
That is why Congress should act now to authorize force and then leave it to the president to determine whether the diplomatic, strategic, and national-security circumstances at some point require him to use it. The Iranians will not like it. The Obama administration might not like it, either — on the grounds that Iran would not like it, and that this would hamper negotiations — but this should not stop Congress. The administration should be pressed to accept an American position of strength as a way of strengthening its hand for negotiations.
Making clear America’s commitment to stopping Iran from acquiring nuclear weapons, its willingness to back up that commitment by force if necessary, and its repentance of the constitutional handwringing and inconstancy that so recently characterized the debacle regarding Syria could do a world of good. A prospective authorization to use force does not necessarily mean war. It means that America is prepared for war — constitutionally prepared — if the circumstances require war. And that might be the best road to a true peace.
— Robert P. George is McCormick Professor of Jurisprudence at Princeton University. Michael Stokes Paulsen is university chair and professor of law at the University of St. Thomas.