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Has Congress Already Authorized Bush to Attack Iran?

Based on existing laws, the Bush administration could plausibly claim that Congress has already authorized military strikes against Iran.
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When Democrats took over Congress in January, they vowed to restore "checks and balances" and promised that President Bush would receive no more "blank checks" from Congress. But while Democrats have reasserted Congress's role on the Iraq war, they have yet to responsibly address another pressing security issue: Iran. The Bush administration appears to be seriously contemplating attacking Iran because of its worrisome nuclear program, support for terrorism in Iraq and around the world, and hegemonic ambitions in the Middle East. Recent polling shows most Americans oppose military action against Iran while sanctions and diplomacy might still work, and many also doubt the administration would handle a confrontation with Iran competently.

Yet, based on existing laws, the Bush administration could plausibly claim that Congress has already authorized military strikes against Iran. Congress has a responsibility to the American people to uphold the constitutional principle of separation of powers and make it clear that President Bush has no blank check to attack Iran.

Congressional authorization for an attack on Iran is arguably granted by three different statutes currently on the books:

1. The War Powers Resolution of 1973:

The Resolution states that Congress recognizes the President's constitutional authority to use
force during "a national emergency created by attack upon the United States... armed forces." With evidence that Iran is supplying weapons, intelligence, training and perhaps personnel to Iraqi insurgents attacking U.S. forces, this statute could be invoked as implicit congressional authorization to attack Iran.

2. The 9/11 Force Authorization:

Just after 9/11, Congress authorized the President to use force "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." Based on public information, it is an easy case to make that Iran both "aided" al Qaeda before 9/11 and "harbored" al Qaeda after 9/11. The 9/11 Commission reported that Iran helped transit al Qaeda trainees - including some of the 9/11 hijackers - across the Iranian-Afghan border. And the Bush administration has long accused Iran of harboring al Qaeda operatives since 9/11; the State Department stated in 2003 that al Qaeda members fleeing Afghanistan "have found virtual safe haven" in Iran.

3. The Iraq Force Authorization:

The statute Congress passed in fall 2002 authorizing military force against Iraq allows the President to use force to "enforce all relevant United Nations Security Council Resolutions regarding Iraq." After the U.S.-led invasion, the Security Council issued resolutions authorizing coalition forces to "take all necessary measures" to secure Iraq, including "preventing and deterring terrorism," "ensur[ing] force protection" and "counter[ing] ongoing security threats posed by forces seeking to influence Iraq's political future through violence." Iran's actions arguably fall within this authorization in several ways. Besides supporting Shiite Iraqi insurgents in attacking U.S. forces and Sunni civilians, Iran's military appears to be entering Iraqi territory: its recent seizure of British sailors apparently took place in Iraqi waters, and last fall Iranian troops apparently crossed into Iraq and attacked U.S. and Iraqi forces there.*

In light of these three statutes and Bush's confrontational rhetoric, recent actions of the new Democratic leadership in Congress could be read as a green light for President Bush to attack Iran. In early 2007, as the administration's posture towards Iran became more bellicose, Democrats introduced bills in both houses declaring that the President lacked statutory authority to attack Iran. But press reports said the Democratic leadership tabled these bills at the urging of moderate and conservative Democrats who support a hard line against Iran and did not want to "tie the hands" of the President. Then on May 17th, the House leadership brought two Iran bills to a vote. After mere minutes of debate, many Democrats joined Republicans to vote against language declaring that no previously enacted laws authorize the President to attack Iran. It would not be surprising if observers in the U.S. and abroad read these actions as an implicit green light to Bush. This impression is bolstered by statements from leading Democratic presidential contenders: Clinton, Obama, Edwards, Dodd and, reportedly, even Feingold have said that all options for dealing with Iran must be on the table. Recently, the Democratic House leadership agreed to allow a vote on attacking Iran in mid-May; but legislative procedures arranged by the leadership and Republicans likely ensure that the issue will disappear quickly and quietly.

Democrats in Congress must do better. They should promptly hold hearings, demand briefings and intelligence reporting from the Bush administration, fully and openly debate the merits of using military force against Iran, and pass a resolution one way or another. The fiasco in Iraq illustrates the dangers of letting this incompetent executive branch plan and run a war without any real congressional oversight. Done correctly, congressional intervention now could help make sure that intelligence about Iran is analyzed properly, nonmilitary solutions are explored fully, the costs as well as benefits of military force are weighed responsibly, and post-war scenarios are anticipated realistically.

If Congress finds that no foreseeable circumstances justify a U.S. attack on Iran, it should pass a resolution to that effect, even without a veto-proof super-majority. While President Bush could still claim statutory (and constitutional) authority to attack, he would have to explicitly defy the current Congress to do so.

If Congress does find the threat of force is necessary to curb Iran, Congress should pass a force authorization statute clearly defining U.S. objectives. For example, defining the objective as halting the Iranian nuclear program, not regime change, could help build international support for the U.S. and benefit diplomatic efforts by reassuring Iran that the U.S. would hold its fire if Iran abandoned its nuclear ambitions. To end speculation that the Bush administration might use tactical nuclear weapons against fortified targets in Iran, Congress could also pass a "no first use" against Iran statute. This could help reassure the world of our sanity and prevent further fraying of international norms against development and use of nuclear weapons.

Far from improperly tying the hands of the President, congressional involvement could be beneficial in many ways, not least by resurrecting the constitutional doctrine of separation of powers. Whatever its views on Iran, Congress has a constitutional responsibility to make those views known.


* Both Congress's Iraq and September 11 force authorizations also allow the President "to take action to deter and prevent acts of international terrorism against the United States." The
administration might claim that the danger of Iran supplying WMD to terrorists to attack the United States triggers this authority as well.

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