As a fan of The Editors podcast, my ears perked up in the last episode’s tussle between Rich Lowry and Charlie Cooke over the U.S. strike that killed Iranian general Qasem Soleimani. I had argued on NRO last week that President Trump had authority, under the 2001 and 2002 Authorizations to Use Military Force, to kill Soleimani, who not only was responsible for a series of attacks on American forces but was in the middle of planning more to come. Even if a critic, such as Speaker Nancy Pelosi, believed that killing fell outside those past acts, I argued that the Constitution gave the president the power as commander in chief and chief executive to use force without the need for congressional permission beforehand in the event that a foreign nation had already attacked U.S. forces.
Rich, I was pleased to hear, shared that view. It is the same understanding held by Republican presidents, such as Ronald Reagan and the two George Bushes, as well as Democrats — until Obama. But Charlie, to my shock and dismay, disagreed. He argued that Congress’s power to declare war required that it authorize any uses of force abroad. Rich appealed to Charlie’s English respect for tradition by citing Thomas Jefferson’s attacks on the Barbary pirates as a precedent. Charlie responded that the Jefferson example did not support the Trump strike.
As someone who started his career as a law professor writing on war powers, and followed with a book on presidential power, I can’t resist the opportunity to come in on Rich’s side on the Barbary pirates question. While the precedent does not stand as clearly as other examples for the president’s commander-in-chief authority to use force without a congressional declaration of war, it comes very close. And when examined closely, it easily would support President Trump’s strike on General Soleimani with or without the AUMF.
Although history remembers them as outlaws, the Barbary pirates were in fact autonomous regions — Algiers, Tripoli, and Tunis — within the Ottoman Empire, joined by an independent nation, Morocco. Their leaders attacked the shipping of other nations, seized cargos and ships, and sold captured sailors into slavery. Since the days of the Continental Congress, the United States had essentially paid bribes, in the form of tribute (amounting to $10 million under Washington and Adams), to the Barbary nations to allow American shipping to proceed unhindered. Jefferson’s accession to the presidency coincided with demands for higher payments and the impressment of a U.S. Navy frigate, the USS George Washington, by the Dey of Algiers as a courier vessel.
Jefferson had long disliked the policy of paying tribute. In a meeting on May 15, 1801, the cabinet unanimously agreed that Jefferson should send a squadron to the Mediterranean as a show of force. No one in the cabinet, including Secretary of State James Madison, believed that Jefferson had to seek congressional permission. The only legislative authority, if it could be called that, was a statute enacted on the last day of the Adams Administration requiring that at least six existing frigates (American frigates at this time were the best in the world) be kept in “constant service” — an effort to prevent Jefferson from reducing the Navy to zero. Jefferson and his cabinet thought the statute could be read to allow the president to send a “training mission” to the Mediterranean. It is impossible to conclude that this statute amounts to an authorization to use force against the Barbary pirates, and it doesn’t even come close to the AUMFs of 2001 and 2002.
The cabinet also agreed that the president had constitutional authority to order offensive military operations, should a state of war already be in existence because of the acts of the Barbary powers. “The [executive] cannot put us in a state of war,” Treasury Secretary Gallatin said, “but if we be put into that state either by the decree of Congress or of the other nation, the command & direction of the public force then belongs to the [executive].” Jefferson and his advisers clearly believed that the Constitution only required Congress to declare war to undertake purely offensive operations against a nation with which the United States was at peace. As Abraham Sofaer has observed, Jefferson and his advisers assumed they had the authority for the expedition simply by virtue of Congress’s creation of the naval forces — a position no different from that taken by President Washington in the Indian wars.
Jefferson was clear on this in his orders to the naval commanders. The Secretary of the Navy ordered Captain Richard Dale to proceed to the Mediterranean, where, if he found that any of the Barbary States had declared war on the United States, he was to “chastise their insolence” by “sinking, burning or destroying their ships & Vessels wherever you shall find them.” Dale could impose a blockade, which he did at Tripoli, and take prisoners. His orders went well beyond simply protecting American shipping from attack. Upon arriving in Tripoli and discovering that the Bashaw of Tripoli had declared war, Dale issued orders to his squadron to attack any and all Tripolitan vessels. On a resupply mission to Malta in August 1801, the twelve-gun schooner Enterprise under the command of Lieutenant Andrew Sterett encountered a 14-gun Tripolitan corsair. The Enterprise fought for three hours, killed half the enemy’s crew, and after capturing the enemy vessel, cut down its masts, threw its guns overboard, and set it adrift. Sterett’s action produced broad approval in the United States and a joint resolution from Congress applauding the crew.
Jefferson chose to portray his orders differently in his first message to Congress in December 1801. He claimed he had not authorized offensive operations, that Sterett had acted in self-defense, and that the Enterprise had released the corsair because Congress had not authorized offensive operations. “Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel, being disabled from committing further hostilities, was liberated with its crew.” While some scholars have viewed Jefferson’s words as presidential acceptance of Congress’s control over war, Jefferson did not accurately represent Sterett’s offensive attack or the nature of the orders to Captain Dale, nor did he reveal his thinking or that of his cabinet when those orders were cut.
Jefferson then asked Congress to authorize offensive operations, which were already in operation anyway. During the subsequent congressional debates, no one questioned the constitutionality of Jefferson’s orders to the Mediterranean squadron, and several congressmen argued that the president had the power to begin offensive operations because of the existing state of war. Congress ultimately chose to delegate broad powers to Jefferson to take whatever military measures he thought necessary as long as war continued with Tripoli.
Jefferson’s message to Congress presents an example of a president’s rhetoric not matching his actions, since he admitted a constitutional limitation on presidential power that neither he nor his cabinet had previously thought important or had obeyed. On the other hand, Jefferson did not act as aggressively as presidents do today. His orders to attack Tripoli responded to a declaration of war by the enemy. Nevertheless, Jefferson had sent American forces into a hostile area, ordered them to undertake offensive actions, and had no plausible congressional authorization at the time. He could justify his orders on the ground that Congress had created the forces and that a state of war already existed between the United States and Tripoli.
In a published criticism of Jefferson’s message, Alexander Hamilton agreed with the logic of Jefferson’s cabinet. According to Hamilton, no congressional permission to use force was necessary once a state of war already existed: “When a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary.” Hamilton had things right as a matter of international law at the time, and most agree that he was correct on the Constitution. Presidents should not have to wait to seek authorization from Congress when another nation has already attacked or declared war upon the United States.
Rich is surely right that the Barbary-pirates example supports the Soleimani strike. Congress had authorized U.S. military forces to use force in Iraq in 2002. It has never repealed that AUMF, and it has in fact continued to fund the stationing of forces there to fight ISIS and to train Iraqi troops (and perhaps to also play the role of stabilizing Iraq in the face of Iranian expansionism). But even if Congress had repealed the AUMF, or even cut funding and drawn down troops (the real constitutional tools to check the executive), Trump still had constitutional authority under the Barbary-pirates precedent to target Soleimani. Iran had already initiated a state of war with the United States by shooting down U.S. drones, threatening U.S. naval vessels, and shelling a U.S. base resulting in U.S. military and civilian casualties.
President Trump need not wait for congressional approval to use force once attacked, just as Jefferson did not need a declaration of war against the Barbary pirates once they had harassed U.S. shipping. While Trump and Jefferson may be very different presidents, using different forces to fight different enemies (though in the same places, it seems), they both drew on the deep reservoirs of constitutional authority to protect American forces and interests abroad.