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Terence Jeffrey / Jan. 8, 2020

The President Has the Authority to Repel Attacks, Not Start Wars

House Speaker Nancy Pelosi's understanding of the constitutional authority of the president when it comes to using military force seems to depend on the party affiliation of the president in question.

House Speaker Nancy Pelosi’s understanding of the constitutional authority of the president when it comes to using military force seems to depend on the party affiliation of the president in question.

Pelosi supported former President Barack Obama — a Democrat — using military force against the Libyan regime of Moammar Gadhafi without prior congressional authorization.

But she opposed President Donald Trump — a Republican — using military force in Iraq to kill the leaders of two State Department-designated terrorist organizations: Gen. Qassem Soleimani, commander of Iran’s Quds Force, and Abu Mahdi al-Muhandis, leader of Kata'ib Hezbollah.

On constitutional grounds, Pelosi was wrong both times.

In 2011, Obama used U.S. airpower to intervene in Libya’s civil war on the side of rebels hoping to overthrow Gaddafi. He did not seek congressional authorization for this. Nor did Congress give it.

Instead, Obama cited a resolution by the U.N. Security Council to justify his actions.

“And so at my direction, America led an effort with our allies at the United Nations Security Council to pass a historic resolution that authorized a no-fly zone to stop the regime’s attacks from the air, and further authorized all necessary measures to protect the Libyan people,” Obama said on March 28, 2011.

Obama argued that had he not ordered the U.S. military to intervene in Libya’s civil war, it would have done irreparable damage to the credibility of the U.N. Security Council — something he could never let happen.

“The writ of the United Nations Security Council would have been shown to be little more than empty words, crippling that institution’s future credibility to uphold global peace and security,” Obama said.

Pelosi supported Obama’s military intervention in Libya and his use of a resolution from the U.N. Security Council — rather than the U.S. Congress — to claim the authority to take that action.

On March 23, 2011, she issued a statement “regarding the ongoing U.S. military action in Libya.”

“Acting upon the United Nations Security Council’s resolution to use ‘all measures necessary’ to protect the Libyan people and the Arab League’s call for a no-fly zone, the United States joined the international community in preventing an imminent humanitarian crisis in Libya,” she said.

Her statement did not claim that American lives were endangered by Gadhafi’s forces. Nor did she call for Obama to get congressional authorization for the military action he was taking.

On March 28, 2011, after Obama delivered his speech stating that the U.S. military intervention in Libya was necessary to protect the “future credibility” of the U.N. Security Council, Pelosi issued a statement applauding him.

“I commend the president for his courage in taking this action and salute our men and women in uniform for their part in saving lives,” she said.

President Trump launched his military intervention against Soleimani and Muhandis on quite different terms. He was not acting to defend the “future credibility” of the U.N. Security Council. He was acting to defend American lives.

“Soleimani was plotting imminent and sinister attacks on American diplomats and military personnel, but we caught him in the act and terminated him,” Trump said.

“We took action last night to stop a war,” he said. “We did not take action to start a war.”

Pelosi immediately criticized Trump’s attack on Soleimani for lacking congressional authorization.

“The Administration has conducted tonight’s strikes in Iraq targeting high-level Iranian military officials and killing Iranian Quds Force Commander Qasem Soleimani without an Authorization for Use of Military Force (AUMF) against Iran,” she said in a statement issued on Jan. 2.

On Jan. 5, she repeated this criticism in a letter to her congressional colleagues.

“As Members of Congress, our responsibility is to keep the American people safe,” she said. “For this reason, we are concerned that the Administration took this action without consultation with Congress and without respect for Congress’s war powers granted to it by the Constitution.”

Which side would the framers take: Trump’s or Pelosi’s?

The Constitutional Convention debated the war power on Aug. 17, 1787 — with James Madison taking notes.

The original draft of the Constitution would have given Congress the power to “make” war.

Pierce Butler was the only delegate who suggested giving this power to the executive instead. “He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it,” say Madison’s notes.

Madison and Elbridge Gerry immediately countered Butler’s proposal.

Madison “and Mr. Gerry moved to insert ‘declare,’ striking out ‘make’ war; leaving to the executive the power to repel sudden attacks,” say the notes.

While Roger Sherman would have maintained the language giving Congress the power to “make” war, he agreed that the president must be denied the power to start one.

“The Executive shd. be able to repel and not to commence war,” he said.

No one defended Butler’s pro-presidential position. But Gerry sharply criticized it.

“Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war,” say the notes.

George Mason then backed Madison and Gerry’s proposal.

“Mr. Mason was agst. giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it,” say Madison’s notes. “He was for clogging rather than facilitating war; but for facilitating peace. He preferred ‘declare’ to ‘make.’”

The convention adopted Madison and Gerry’s language. The Constitution gives the president the power to repel a sudden attack but not to start a war.

Obama’s military intervention in the Libyan civil war had no constitutional justification.

Trump’s discretely targeted attack on two terrorist leaders planning to kill Americans is constitutionally justifiable as repelling an attack.

But no president, Republican or Democrat, may commence a war against Iran — or any other would-be adversary — unless it is first authorized by Congress.

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