The Real Way to Prevent a Repeat of What Just Happened With Iran

Congress is moving closer to passing a rebuke of President Donald Trump’s recent military escalation against Iran, with a War Powers Resolution achieving bipartisan support in the Senate. But Congress has yet to address one crucial thing that could limit current and future presidents from unilaterally launching the country into wars.

Under both the Constitution and international law, generally speaking, military force against or in another country may be used without the authorization of Congress or United Nations Security Council only in response to an “imminent” attack. “Imminence” is meant to be exceedingly narrow—limiting force to exceptional circumstances. The threat of an imminent attack would mean that there is no time for deliberation, and no time to seek affirmative authorization from Congress and a Security Council resolution.

But executive branch actors, including not only Trump’s administration in the past few weeks but also the administrations of George W. Bush and Barack Obama over the past two decades, have stretched the definition of imminence so far that it’s lost its ability to meaningfully restrain or limit unauthorized use of force. No wonder Trump recently tweeted that imminence “doesn’t really matter.”

In the run-up to the Iraq War, lawyers in the Bush administration argued that “imminence” could accommodate a theory of “preventive” self-defense. According to their view, the United States could invade Iraq in order to prevent that country’s use of weapons of mass destruction—the infamous “smoking gun that could come in the form of a mushroom cloud” argument. Of course, top Bush administration officials’ claims that Iraq had those weapons turned out to be disastrously wrong.

And, in preparing an internal legal justification for the targeted killing of Anwar al-Awlaki, a U.S. citizen, in Yemen, the Obama administration adopted a “broader” understanding of “imminence.” They claimed there was no requirement to show clear evidence that a specific attack would take place in the “immediate future,” and instead incorporated concepts like “windows of opportunity” to take action—an approach the administration dubbed “elongated imminence.”

By the time that Trump made his decision to unilaterally assassinate Qassem Soleimani, major general of Iran’s Revolutionary Guard, the executive branch as an institution had already rendered the concept of “imminence” into something closer to “potential.”

It should have been no surprise then that when Secretary of State Mike Pompeo first went on television to defend the Soleimani strike, he did not offer evidence of supposed Iranian actions justifying immediate force but instead dismissively offered existentialism. Pressed on how “imminent” a threat Soleimani posed to the United States, Pompeo rejected even the premise, asserting that whether it was “days and weeks, this is not something that’s relevant.” Ridiculed for that performance, he tweaked his message but didn’t make it any more specific. He told Fox News that there were indeed “a series of imminent attacks” by Iran on the horizon—but “we don’t know precisely when and we don’t know precisely where.”

Expanding the applicability of “imminent,” and thereby the president’s power to use deadly force abroad without authorization from Congress, was all too easy. Courts repeatedly declined to weigh in on this critically important question despite many efforts by brave plaintiffs and by legal advocacy organizations like the American Civil Liberties Union. And Congress has time and again shied away from acting.

That tide appears to be shifting. The House of Representatives last week passed a War Powers Resolution after Trump engaged in hostilities against Iran without Congress’ permission, and the Senate is on the brink of passing its own. But Congress should do more.

As the sole body granted the power to declare war in the Constitution, Congress must restore its role in our system of checks and balances by repealing the 2001 and 2002 Authorizations for the Use of Military Force. Three administrations have now relied on these statutes for war authority far beyond their original purpose, which was to authorize specific conflicts, first against those responsible for the 9/11 attacks, and then against the Saddam Hussein regime in Iraq. Repeal would force the executive to ask for new (and newly justified) congressional authorization for any futures uses of force abroad.

Congress can also enact War Powers resolution reform that incorporates a narrow definition of imminence. In debates on current resolutions coming up for a vote, members of Congress should specifically explain that they disagree with the impermissibly broad Office of Legal Counsel interpretations. They should hold hearings on war powers and specific ongoing conflicts, inviting testimony from experts and scholars who are able to explain the genesis of the concept and how it has been misinterpreted and expanded beyond all recognition—both as a constitutional matter and under international law.

The broad use of “imminence” by the United States is an outlier on the world stage. Other countries do not agree with the expansive definitions of the past 20 years. A more commonly accepted view is that force may be used only if it is necessary and proportionate to repel a concretely imminent attack. The United States has engaged in unauthorized military actions that fall short of those standards.

The consequences of not reining in the ever-expanding interpretations of “imminence” are plain: perpetual wars, secret and unacknowledged killing around the globe, destabilization of entire geographical regions. And above all, hundreds and thousands of people dead and injured—Americans as well as people in Afghanistan, Iraq, Pakistan, Yemen, Somalia, Syria, Libya and Niger, all countries where the executive claims the power to use force today.

The unauthorized strike on Soleimani, and the alarm it has inspired across the country and across both sides of the aisle, should be a wake-up call. Reclaiming congressional authority over matters of war is a tall task, given our presidency’s slide into unilateralism since 9/11. But unless the legislature takes action to confront today’s reality, truly dangerous and potentially unjustified wars will be—for this or any future president—just a tweet away.