Jonathan Steven­son

The New York Review of Books - - Contents - Jonathan Steven­son

‘My But­ton Works!’

It’s a bullish time for ex­ec­u­tive power. Pres­i­dent Don­ald Trump’s con­cep­tion of it is so ex­pan­sive that he has as­serted that he can par­don him­self. The Supreme Court has re­in­forced that con­cep­tion by up­hold­ing Trump’s bla­tantly anti-Mus­lim ex­ec­u­tive order re­strict­ing im­mi­gra­tion. And Judge Brett Ka­vanaugh’s prob­a­ble con­fir­ma­tion will pro­duce a de­ci­sively rightlean­ing court likely to be def­er­en­tial to a Repub­li­can pres­i­dent like Trump. Trump’s be­lief that pres­i­den­tial author­ity is prac­ti­cally monar­chi­cal, his bel­liger­ent pos­tur­ing to­ward coun­tries such as Iran and North Korea, and his cav­a­lier dis­re­gard for le­gal pro­ce­dure have made many ob­servers won­der if he will try to start a cat­a­strophic war, and what safe­guards ex­ist to con­strain him if he does.

In No­vem­ber 1973 Congress passed the War Pow­ers Act, over Pres­i­dent Richard Nixon’s veto. The Viet­nam War, which had be­gun as an ad­vi­sory mis­sion twenty years ear­lier, had turned dis­as­trous in the hands of the will­ful and self-de­ceiv­ing John­son ad­min­is­tra­tion and then the cyn­i­cal Nixon team. The act was meant to give the leg­isla­tive branch a mea­sure of con­trol over mil­i­tary en­gage­ments by con­strain­ing the pres­i­dent’s power to use mil­i­tary force with­out a con­gres­sional dec­la­ra­tion of war or other statu­tory au­tho­riza­tion.

Un­der Ar­ti­cle I of the Con­sti­tu­tion, only Congress can de­clare war. But Ar­ti­cle II makes the pres­i­dent the com­man­der-in-chief, and in that ca­pac­ity pres­i­dents have ini­ti­ated and sus­tained armed con­flict with­out ex­plicit con­gres­sional per­mis­sion. Nei­ther Korea (a “po­lice ac­tion,” as Tru­man put it) nor Viet­nam was a de­clared war, yet over 100,000 Amer­i­cans and mil­lions of Asians died dur­ing them.

The War Pow­ers Act was de­signed to pre­clude that kind of es­ca­la­tion. Un­der it, the pres­i­dent can still de­ploy US forces be­fore ob­tain­ing con­gres­sional ap­proval. But the White House has to no­tify Congress within fortyeight hours any time Amer­i­can troops and other mil­i­tary as­sets are read­ied for com­bat or en­gaged in hos­til­i­ties, in­clud­ing in self-de­fense. Af­ter that, the US can­not stay in the con­flict for more than sixty days (with an ad­di­tional thirty days for with­drawal) un­less Congress de­clares war or pro­vides statu­tory au­tho­riza­tion. In ef­fect, then, the pres­i­dent can au­tho­rize tac­ti­cal mil­i­tary ac­tion with­out prior con­gres­sional ap­proval in re­sponse to an emer­gent at­tack or threat, but must ob­tain such ap­proval for any en­su­ing mil­i­tary build-up or strate­gic es­ca­la­tion. In ad­di­tion, “where im­mi­nent in­volve­ment in hos­til­i­ties is clearly in­di­cated by the cir­cum­stances,” the act re­quires the pres­i­dent to con­sult Congress be­fore un­der­tak­ing mil­i­tary ac­tion. In this re­spect, the War Pow­ers Act ar­guably bars pre­ven­tive mil­i­tary ac­tion—i.e., ac­tion to pre­clude an at­tack that an ad­ver­sary is ca­pa­ble of but that is not im­mi­nent—with­out prior au­tho­riza­tion from Congress.

Over the past forty-five years, the ef­fec­tive scope of the act has re­mained more or less the same. Hawks don’t want to press fed­eral courts to clar­ify how widely it ap­plies for fear of a rul­ing that would re­strict ex­ec­u­tive power. Doves are afraid the courts will ex­pand it. The courts them­selves are wary, too. They tend to re­gard dis­putes be­tween the White House and Congress about the ap­pli­ca­bil­ity of the act as po­lit­i­cal ques­tions in­ap­pro­pri­ate for ju­di­cial re­view. It is im­pos­si­ble to show how many pre­ven­tive mil­i­tary ac­tions the act has de­terred. Congress has oc­ca­sion­ally in­voked the War Pow­ers Act to limit Amer­i­can mil­i­tary com­mit­ments—for ex­am­ple, Pres­i­dent Ron­ald Rea­gan’s de­ploy­ment of troops to Le­banon in 1983—but more am­bigu­ous in­ter­ven­tions, par­tic­u­larly those with a prom­i­nent hu­man­i­tar­ian di­men­sion like the ones in So­ma­lia and Kosovo in the 1990s, slipped through the statu­tory cracks. While many leg­is­la­tors were an­guished over So­ma­lia, Se­nate Ma­jor­ity Leader Ge­orge J. Mitchell ar­gued that the act ex­empted hu­man­i­tar­ian in­ter­ven­tions in which US troops were un­likely to en­gage in com­bat, while Pres­i­dent Ge­orge H.W. Bush sug­gested that the War Pow­ers Act was un­con­sti­tu­tional. Pres­i­dent Bill Clin­ton de­clined to con­sult Congress about Kosovo, peremp­to­rily as­sert­ing the con­sti­tu­tion­al­ity of the US air cam­paign on the ba­sis of his author­ity as chief ex­ec­u­tive and com­man­der-in-chief.

Three days af­ter the at­tacks of Septem­ber 11, 2001, a shocked and pan­icked Congress passed the Au­tho­riza­tion for Use of Mil­i­tary Force (AUMF) by a vote of 98–0 in the Se­nate and 420–1 in the House. (Cal­i­for­nia rep­re­sen­ta­tive Bar­bara Lee was the one dis­senter.) The law gave the pres­i­dent author­ity to use all “nec­es­sary and ap­pro­pri­ate force” against any­one he de­ter­mined had “planned, au­tho­rized, com­mit­ted or aided” the at­tacks, or har­bored such per­sons or groups. Three suc­ces­sive ad­min­is­tra­tions have used the AUMF to jus­tify mil­i­tary ac­tion in Afghanistan, across the Mid­dle East and North Africa, and in sub-Sa­ha­ran Africa.

The

US in­va­sion and occupation of Iraq was un­der­taken es­sen­tially on the pre­text of keep­ing Sad­dam Hus­sein from pro­vid­ing al-Qaeda with weapons of mass de­struc­tion that he sup­pos­edly (but did not in fact) pos­sess. Congress over­whelm­ingly ap­proved the in­va­sion (297–133 in the House, 77–23 in the Se­nate), which was also sup­ported by many jour­nal­ists and an­a­lysts. En­er­getic and thought­ful ar­gu­ments for the le­gal­ity of pre­ven­tion, based mainly on self-de­fense, were made be­fore the in­va­sion and in its im­me­di­ate af­ter­math. The cur­rent con­sen­sus that the wars in Iraq and Afghanistan were strate­gic dis­as­ters has tended to in­val­i­date these po­si­tions. But lit­tle has been done to limit the ex­ec­u­tive branch’s broad dis­cre­tion over mat­ters of na­tional se­cu­rity. The Bush ad­min­is­tra­tion acted il­le­gally when it au­tho­rized what was eu­phemisti­cally called the “en­hanced in­ter­ro­ga­tion”—that is, tor­ture—of sus­pected ji­hadists. Se­nior Jus­tice De­part­ment lawyers, in­clud­ing the head of the Of­fice of Le­gal Coun­sel (OLC), which is charged specif­i­cally with ad­vis­ing the ex­ec­u­tive branch on con­sti­tu­tional is­sues, drafted or ap­proved memos that ad­vanced ten­den­tious le­gal ar­gu­ments. The Obama ad­min­is­tra­tion was es­pe­cially fond of drone strikes as a means of coun­terter­ror­ism en­force­ment, ex­pand­ing their use well be­yond the level seen dur­ing the Bush years, to the con­ster­na­tion of some con­sti­tu­tional and hu­man rights lawyers. Don­ald Trump cam­paigned on a plat­form of what often looked like Amer­ica-first iso­la­tion­ism, and in June he sus­pended joint US–South Korea mil­i­tary ex­er­cises to pla­cate North Korean leader Kim Jong-un dur­ing their sum­mit in Sin­ga­pore. But for the most part he has turned out to be a hawk­ish ad­vo­cate of Amer­i­can dom­i­nance. Trump also clearly has lit­tle knowl­edge or ap­pre­ci­a­tion of es­tab­lished con­sti­tu­tional and other le­gal con­straints on pres­i­den­tial power, and holds le­gal ar­gu­ments in greater con­tempt than ei­ther of his two im­me­di­ate pre­de­ces­sors. He has ex­horted gov­er­nors to dispatch Na­tional Guard units to po­lice the Mexican bor­der in the ab­sence of his cov­eted wall, which would ar­guably vi­o­late an 1878 statu­tory pro­vi­sion cir­cum­scrib­ing the use of mil­i­tary forces for do­mes­tic law-en­force­ment pur­poses un­der the prin­ci­ple of posse comi­ta­tus. Ac­cord­ing to Bob Wood­ward’s new book, Fear, Trump wanted to as­sas­si­nate Syr­ian pres­i­dent Bashar al-As­sad in re­sponse to his chem­i­cal­weapons at­tack on civil­ians in April 2017, de­spite an ex­ec­u­tive order pro­hibit­ing as­sas­si­na­tions, which has been in place and hon­ored since 1976. Sec­re­tary of De­fense James Mat­tis de­cided to ig­nore him.

Trump’s de­ci­sion to with­draw from the nu­clear deal with Iran—a de­tailed 159-page doc­u­ment with which Iran had been com­ply­ing—on the non­sen­si­cal ba­sis that Iran’s provo­ca­tions in the Mid­dle East vi­o­lated its “spirit” was clearly a pre­text for weak­en­ing Iran’s in­flu­ence in the re­gion and free­ing the United States to at­tack its nu­clear fa­cil­i­ties, which could cause a ma­jor re­gional war. Trump has de­rided at­tempts to min­i­mize civil­ian ca­su­al­i­ties in drone strikes as “mi­cro­man­age­ment,” loos­ened tar­get­ing cri­te­ria, del­e­gated in­creased op­er­a­tional author­ity to the Pen­tagon, and de­creased the trans­parency of the de­ci­sion-mak­ing process. In the past year his ad­min­is­tra­tion has es­ca­lated its op­er­a­tions against al-Shabaab, the al-Qaeda–linked group based in So­ma­lia, and in­creased the num­ber of US troops de­ployed there from fifty to five hun­dred with­out con­gres­sional au­tho­riza­tion. (A Green Beret was killed in So­ma­lia in early June.) Like­wise no ex­ist­ing con­gres­sional au­tho­riza­tion ar­guably cov­ered the mis­sile strikes Trump launched against Syria in April 2017 and April 2018 in re­sponse to Bashar al-As­sad’s chem­i­cal weapons at­tacks. As the strikes did not tar­get any ji­hadist el­e­ments, they fell out­side the scope of the AUMF and were al­most cer­tainly il­le­gal. It’s fairly clear that Trump isn’t in­clined to share war pow­ers with an­other branch of govern­ment.

So far, Trump’s fickle pol­icy to­ward North Korea, lurch­ing from dan­ger­ous

brinkman­ship to clue­less pla­ca­tion, has not pro­duced any di­rect con­fronta­tions be­tween him and Congress. But it has showed his re­sis­tance to any kind of over­sight or guid­ance. The sum­mit’s re­sults asym­met­ri­cally fa­vored North Korea: Py­ongyang made no ma­jor con­ces­sions that it hadn’t al­ready made and bro­ken, while Wash­ing­ton im­plic­itly rec­og­nized North Korea as a nu­clear power and agreed to relieve mil­i­tary and eco­nomic pres­sure on the regime. Prece­dent as well as post-sum­mit US in­tel­li­gence re­ports sug­gests that any ten­ta­tive deal will slowly un­ravel and that the par­ties will re­turn to the sta­tus quo ante. In that case, the Trump ad­min­is­tra­tion would likely feel com­pelled to take an even more ag­gres­sive stance against Py­ongyang than it had ini­tially, when Trump and Kim traded in­cen­di­ary threats and Trump se­ri­ously con­sid­ered a lim­ited mil­i­tary strike on North Korea. Trump might ini­ti­ate a war against North Korea to neu­tral­ize its nu­clear weapons ca­pa­bil­ity even if no at­tack against the United States or Amer­i­can in­ter­ests were forth­com­ing—in other words, start a pre­ven­tive war of choice with­out seek­ing con­gres­sional au­tho­riza­tion.

It is im­por­tant to con­sider what would con­strain Trump if he tried to start an armed con­flict with Iran or North Korea with­out ad­e­quately in­form­ing, con­sult­ing, or ob­tain­ing au­tho­riza­tion from Congress.

When Nixon started to drink heav­ily and be­have in­creas­ingly er­rat­i­cally dur­ing the Water­gate scan­dal, Sec­re­tary of De­fense James Sch­lesinger, in a sin­gu­larly “pa­tri­otic act of trea­son,” is be­lieved to have orally in­structed the Joint Chiefs of Staff to ig­nore any or­ders from the White House ini­ti­at­ing mil­i­tary ac­tion with­out his sig­na­ture.* Sec­re­tary of State Henry Kissinger tac­itly re­in­forced this ex­trale­gal stratagem by as­sum­ing con­trol of US na­tional se­cu­rity pol­icy. This in­volved rais­ing the alert lev­els of US mil­i­tary forces, in­clud­ing nu­clear ones, dur­ing the Yom Kip­pur War in late Oc­to­ber 1973. Se­nior mem­bers of the Trump ad­min­is­tra­tion with mil­i­tary ex­pe­ri­ence— pu­ta­tively among the few “adults in the room”—may well con­sider the pres­i­dent as dan­ger­ous and in­com­pe­tent in mat­ters of na­tional se­cu­rity as Nixon was in 1973–1974. But it seems ever less likely that they will rein the pres­i­dent in, ei­ther through open re­sis­tance or by dis­creetly drag­ging their feet. H.R. McMaster, who was a three-star army gen­eral on ac­tive ser­vice when he was na­tional se­cu­rity ad­viser, is gone, and in any case was un­able to find a way to fi­nesse Trump’s im­pulses. The same goes for White House chief of staff and for­mer marine gen­eral John Kelly, whose own hawk­ish views and ide­o­log­i­cal sym­pa­thies have in­clined him to back Trump; Kelly now ap­pears dispir­ited and on the verge of leav­ing the ad­min­is­tra­tion.

That leaves James Mat­tis. Sch­lesinger was a no­to­ri­ously ar­ro­gant civil­ian tech­no­crat with a fiercely in­de­pen­dent streak, whereas Mat­tis is a for­mer fourstar marine gen­eral hy­per­sen­si­tive to the pres­i­dent’s—even this pres­i­dent’s— con­sti­tu­tional sta­tus as com­man­der-inchief. And even if he re­solved to cur­tail Trump’s author­ity, Mat­tis could find it more dif­fi­cult to do so than Sch­lesinger did Nixon’s: in April 2018, when Trump was weigh­ing whether to strike Syria again, Mat­tis re­port­edly asked him to ob­tain con­gres­sional au­tho­riza­tion first. Trump ig­nored the re­quest, Mat­tis fell in line, and Amer­i­can and al­lied mis­siles flew. Trump then cut him out of the loop in Sin­ga­pore when he de­cided to sus­pend US–South Korea mil­i­tary ex­er­cises.

Re­cent ad­di­tions to Trump’s for­eign pol­icy team aren’t likely to res­train him, ei­ther. By ap­point­ing Mike Pom­peo as sec­re­tary of state and John Bolton as na­tional se­cu­rity ad­viser, Trump has sur­rounded him­self with civil­ians whose ideas mir­ror his own ag­gres­sive for­eign pol­icy in­stincts and his hos­til­ity to the rules-based post­war lib­eral order. Like Trump, both Pom­peo and Bolton are hawks who be­lieve in Amer­i­can pri­macy. Pom­peo, who has lit­tle ex­pe­ri­ence in ex­e­cut­ing for­eign pol­icy, is an overt Trump loy­al­ist un­likely to se­ri­ously chal­lenge the pres­i­dent. In Bolton, Trump has ap­pointed a man with a sim­i­larly im­petu­ous and ex­plo­sive tem­per­a­ment whom nei­ther Mat­tis nor Kelly fa­vored for the post. Although Rex Tiller­son and McMaster, Pom­peo and Bolton’s re­spec­tive pre­de­ces­sors, were, broadly speak­ing, mod­er­ate re­al­ists, they laid the ground for the White House’s bu­reau­cratic au­ton­omy. Tiller­son drained the State De­part­ment of tal­ented and ex­pe­ri­enced per­son­nel, dis­il­lu­sion­ing those who re­mained; McMaster was un­able to es­tab­lish a process at the Na­tional Se­cu­rity Coun­cil that would co­or­di­nate the flow of in­for­ma­tion and de­ci­sion-mak­ing among the dif­fer­ent in­tel­li­gence agen­cies. While Pom­peo has scut­tled Tiller­son’s grand plan to stream­line the State De­part­ment, it is still reel­ing from his depre­da­tions. Bolton, for his part, has forced per­son­nel changes at the NSC with­out vis­i­bly im­prov­ing in­ter­a­gency co­op­er­a­tion or its li­ai­son with Congress.

The ab­sence of ef­fec­tive bu­reau­cratic or­der­li­ness was painfully ev­i­dent in Trump’s re­cent un­set­tling per­for­mances that stunned other se­nior US govern­ment of­fi­cials, in­clud­ing his lop­sided con­ces­sions to North Korea at the Sin­ga­pore sum­mit, his alien­ation of Eu­ro­pean al­lies at the NATO sum­mit, his ob­se­quious­ness to­ward Rus­sian pres­i­dent Vladimir Putin in Helsinki, and his reck­lessly im­pro­vised Iran pol­icy. Trump’s el­e­va­tion of two of­fi­cials so clearly un­con­cerned with in­ter­a­gency con­sen­sus, mod­er­a­tion, and co­or­di­na­tion re­flects his de­ter­mi­na­tion to max­i­mally ex­ploit the lee­way cus­tom­ar­ily af­forded the pres­i­dent in for­eign pol­icy.

Re­cent rev­e­la­tions in Wood­ward’s book and in the es­say by an anony­mous se­nior ad­min­is­tra­tion of­fi­cial pub­lished on Septem­ber 5 in The New York Times have only re­in­forced per­cep­tions of an un­hinged pres­i­dent. These sources cite in­stances in which con­sci­en­tious sub­or­di­nates have re­strained Trump’s dan­ger­ous im­pulses. While these anecdotes may re­as­sure some peo­ple that the coun­try re­mains in sound hands in spite of Trump’s gross de­fi­ciency as a leader, per­haps more will ob­serve that re­straint has arisen on an un­sys­tem­atic and highly con­tin­gent ba­sis, and that the avoid­ance of dis­as­ter may have been largely a mat­ter of luck.

In

Congress, there is grow­ing con­cern that Trump might start an unau­tho­rized war. While he oc­ca­sion­ally in­vokes the sep­a­ra­tion of pow­ers cyn­i­cally and with­out le­gal cred­i­bil­ity in order to in­su­late him­self from crit­i­cism—as when he claimed he couldn’t do any­thing about the sep­a­ra­tion of fam­i­lies at the bor­der be­cause Congress wouldn’t let him—Trump has no pa­tience for con­sult­ing Congress even when it comes to ar­eas, like the dec­la­ra­tion of war, over which the Con­sti­tu­tion gives the leg­isla­tive branch sig­nif­i­cant power. Obama’s pro­fes­so­rial re­spect for the Con­sti­tu­tion and ex­plicit re­jec­tion of tor­ture re­stored some faith in the le­gal in­tegrity of the OLC. Although the OLC is in­sti­tu­tion­ally re­sis­tant to fla­grant politi­ciza­tion, since it is part of the Jus­tice De­part­ment as op­posed to the White House, the tor­ture memos showed that the of­fice was far from im­mune to it. A bid­dable OLC, as the one in the Ge­orge W. Bush ad­min­is­tra­tion some­times was, could surely find enough ju­rispru­den­tial wig­gle room to ad­vise Trump that he could by­pass Congress on the way to war. Ac­cord­ingly, there has been some bi­par­ti­san pres­sure in Congress for mea­sures that would cir­cum­scribe Trump’s war pow­ers. But such mea­sures have not yet got­ten wide sup­port. In May 2017, Se­na­tors Tim Kaine (a Demo­crat from Vir­ginia) and Jeff Flake (a Repub­li­can from Ari­zona) in­tro­duced leg­is­la­tion that would limit the reach of the AUMF to coun­tries where ji­hadists or af­fil­i­ated groups were ac­tively “en­gaged in hos­til­i­ties against the United States.” The bill went nowhere, get­ting mired in com­mit­tee.

Then, on Oc­to­ber 4, 2017, in south­west Niger, fifty heav­ily armed lo­cal ji­hadists sus­pected of be­ing af­fil­i­ated with ISIS am­bushed a com­bined pa­trol of US sol­diers and Nige­rien troops. Four US Green Berets and five Nige­rien troops were killed dur­ing an ex­tended gun bat­tle. Even many in­formed na­tional se­cu­rity ob­servers, in­clud­ing Repub­li­can se­na­tors on the Se­nate Armed Ser­vices Com­mit­tee like Lind­sey Gra­ham of South Carolina, claimed they were sur­prised that the US had troops de­ployed in Niger at all. (In fact, the ap­prox­i­mately eight hun­dred US sol­diers sta­tioned there con­sti­tute the sec­ond-largest US de­ploy­ment in a sin­gle coun­try on the African con­ti­nent, af­ter the Com­bined Joint Task Force–Horn of Africa in Dji­bouti.) The am­bush re­vived con­gres­sional con­cern about whether the Trump ad­min­is­tra­tion—and the ex­ec­u­tive branch more gen­er­ally—should be more ac­count­able to Congress and the pub­lic for car­ry­ing out com­bat op­er­a­tions as the mil­i­tary ef­fort against ter­ror­ism spreads be­yond Iraq and Afghanistan.

The cir­cum­stances in Niger also raised a com­pli­cated le­gal ques­tion about con­gres­sional over­sight. If, as the Pen­tagon has claimed, the sol­diers were there merely on an ad­vise-an­d­e­quip mis­sion or to pro­tect a US base be­ing con­structed for in­tel­li­gence, sur­veil­lance, and re­con­nais­sance, their ac­tiv­i­ties fell un­der the De­fense De­part­ment’s gen­eral author­ity, un­der Ti­tle 10 of the US Code, over those and other tra­di­tional mil­i­tary ac­tiv­i­ties. But if the US forces were in­volved in coun­terter­ror­ism re­con­nais­sance or a po­ten­tial cap­ture ef­fort against a lo­cal ji­hadist net­work with am­bigu­ous ties to al-Qaeda or ISIS, as some Nige­rien sources told the press, the er­rant op­er­a­tion might have fallen un­der Ti­tle 50 author­ity. These are often clan­des­tine and con­joined with CIA op­er­a­tions, and they are sub­ject to more strin­gent (though less trans­par­ent) con­gres­sional scru­tiny than US mil­i­tary ac­tiv­i­ties in the re­gion had gen­er­ally re­ceived.

Also in early Oc­to­ber 2017, Sen­a­tor Bob Corker (Repub­li­can of Ten­nessee), chair­man of the Se­nate For­eign Re­la­tions Com­mit­tee, dis­turbed by Trump’s “fire and fury” tweet di­rected at Kim Jong-un in Au­gust and sub­se­quent spi­ral­ing rhetoric, im­plied in an in­ter­view with The New York Times that Trump was un­fit for of­fice and said he could put the na­tion “on the path to World War III.” In re­sponse, Trump de­rided him as “Lid­dle Bob Corker” in a tweet. On Oc­to­ber 26, Demo­cratic se­na­tors in­tro­duced a bill, named the “No Un­con­sti­tu­tional Strike Against North Korea Act of 2017,” that would bar the pres­i­dent from launch­ing a pre­emp­tive strike—con­ven­tional or nu­clear—against North Korea with­out an im­mi­nent threat or ex­press con­gres­sional con­sent. The bill was in­tro­duced in the House on the same day. In No­vem­ber the Se­nate For­eign Re­la­tions Com­mit­tee held hear­ings on the pres­i­dent’s gen­eral author­ity to wage nu­clear war. Ex­pert tes­ti­mony pro­vided ten­u­ous re­as­sur­ances: nu­clear first use by the United States re­quires con­gres­sional au­tho­riza­tion in the ab­sence of an im­mi­nent threat, and mil­i­tary of­fi­cers are en­ti­tled to dis­obey or­ders they con­sider il­le­gal. Trump’s tweeted crack in Jan­uary that his “Nu­clear But­ton” was “much big­ger & more pow­er­ful” than Kim’s fur­ther dis­com­fited the bill’s spon­sors, who elicited sup­port for it from their own Twit­ter fol­low­ers.

Af­ter in­tense com­mit­tee de­bate on the AUMF two days af­ter Trump’s sec­ond set of air strikes against Syria in April 2018, Corker in­tro­duced a re­vised ver­sion of Kaine and Flake’s bill. While the new leg­is­la­tion would con­tinue to au­tho­rize the pres­i­dent to use nec­es­sary and ap­pro­pri­ate force against al-Qaeda, the Tal­iban, ISIS, and des­ig­nated af­fil­i­ates, it would not au­tho­rize the use of force against any na­tion-state and would re­quire the pres­i­dent to re­port to Congress all

new des­ig­nated af­fil­i­ates, the ba­sis for the des­ig­na­tion, and each new coun­try in which the United States was us­ing mil­i­tary force within forty-eight hours; such a re­port would set off the six­ty­day limit pre­scribed by the War Pow­ers Act. Pom­peo had broadly sup­ported such a mea­sure as a House mem­ber, and six of twenty-one com­mit­tee mem­bers cospon­sored the bill.

The bill has been jus­ti­fi­ably crit­i­cized as con­tain­ing loop­holes that still af­ford the pres­i­dent too much lee­way to ex­pand mil­i­tary con­flict. But since its in­tent was to re­assert con­gres­sional war-mak­ing author­ity, floor de­bate would likely fix such prob­lems. Pre­dictably, how­ever, the Trump ad­min­is­tra­tion has not en­dorsed it. Speaker of the House Paul Ryan and Se­nate Ma­jor­ity Leader Mitch McCon­nell have con­sis­tently thwarted floor votes on war au­tho­riza­tion mea­sures. The new AUMF has not been sched­uled for such a vote, and the No Un­con­sti­tu­tional Strike bill has gone nowhere in com­mit­tee in ei­ther house.

Be­sides leg­isla­tive ac­tion, there is an­other pos­si­ble le­gal means of con­strain­ing Trump, but not a promis­ing one. Leery se­na­tors and rep­re­sen­ta­tives could sue him in fed­eral district court in the hope of ob­tain­ing a declara­tory judg­ment—a le­gal res­o­lu­tion of dis­puted in­ter­pre­ta­tion of law to in­form fu­ture ac­tion—that the War Pow­ers Act re­quires the pres­i­dent to ob­tain Congress’s ap­proval be­fore un­der­tak­ing pre­ven­tive mil­i­tary ac­tion. In Camp­bell v. Clin­ton (2000), thir­ty­one House mem­bers chal­lenged the le­gal­ity of Pres­i­dent Clin­ton’s con­duct of the Kosovo war on the grounds that it vi­o­lated both the war pow­ers clause of Ar­ti­cle 1 of the Con­sti­tu­tion and the War Pow­ers Act. The district court avoided a sub­stan­tive rul­ing, how­ever, by dis­miss­ing the case on the grounds that the plain­tiffs lacked stand­ing— one of sev­eral pro­ce­dural de­vices courts use to avoid hav­ing to make a de­ci­sion—and the court of ap­peals agreed.

Lawyers for the plain­tiffs in a case against Trump might ob­serve that Camp­bell v. Clin­ton was de­cided be­fore Septem­ber 11 and in par­tic­u­lar be­fore the 2003 in­va­sion and occupation of Iraq, which de facto nor­mal­ized pre­emp­tive and pre­ven­tive mil­i­tary ac­tion. Even if the le­gal­ity of pre­emp­tion— that is, mil­i­tary ac­tion to fore­stall an im­mi­nent at­tack—is rea­son­ably well es­tab­lished as a jus­ti­fi­able form of self­de­fense, that of pre­ven­tion—that is, mil­i­tary ac­tion to pre­clude an at­tack of which the tar­get is merely ca­pa­ble—is not. While Congress did au­tho­rize the Iraq in­ter­ven­tion, no fed­eral court has ruled on the con­sti­tu­tional and other le­gal con­straints on pre­ven­tive wars. The present court, their ar­gu­ment would con­tinue, should pro­vide needed clar­ity on pre­ven­tive mil­i­tary ac­tion that would not be au­tho­rized by Congress un­der the War Pow­ers Act and that could es­ca­late into a ma­jor (and pos­si­bly nu­clear) war. Such a rem­edy seems un­likely given the fed­eral courts’ tra­di­tional def­er­ence to the White House on for­eign pol­icy. In any case, a rul­ing ad­verse to the pres­i­dent would in­evitably reach the Supreme Court, which would prob­a­bly re­verse it. Con­sti­tu­tion­ally and statu­to­rily, Congress stands un­steadily be­tween Trump and war, and an as­sertive Congress re­mains the most re­li­able mech­a­nism for rein­ing him in. Much of Trump’s base is tol­er­ant of his brinkman­ship as long as it seems to work. In view of the tribal de­vo­tion that many Repub­li­can vot­ers have shown to­ward Trump and their ap­par­ent will­ing­ness to grant him im­pe­rial power, they might be in­clined to de­fend his ex­ec­u­tive pre­rog­a­tive to go to war.

At the same time, polls in­di­cate that most Amer­i­cans, af­ter years of frus­tra­tion and loss in Iraq and Afghanistan, are wary of more war. It’s easy to for­get that Trump ran on a quasi-iso­la­tion­ist plat­form, as he now ap­pears to be set­ting the stage for mil­i­tary ac­tion against Iran. Di­vided pop­u­lar opin­ion on ex­ec­u­tive war-mak­ing power could in­duce the Repub­li­can con­gres­sional ma­jor­ity to draw the line be­fore any sit­u­a­tion es­ca­lates. But if Congress waits for Trump to move de­ci­sively to­ward pre­emp­tive or pre­ven­tive war with Iran or North Korea, there might not be enough time or bu­reau­cratic fric­tion to stop him. —Septem­ber 13, 2018

Richard Nixon

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