Bill Barr’s Extreme Views on War Powers Mean Congress’s Window to Stop War with Iran is Now

For those who believe a U.S. war with Iran would be disastrous for regional stability, U.S. national interests, and the civilians who would be caught in the crossfire—and for those who believe any decision on bringing the country into war must require public debate and congressional approval—this is a worrying  moment. In this post, we will explain (1) why President Trump’s stated preference for staying out of war with Iran is not a sufficient anti-war insurance policy; (2) why Attorney General William Barr’s extreme past positions on unilateral presidential power could cut out any required role for Congress in authorizing or rejecting war; and (3) what Congress can—and must—do to retain its constitutional role and to keep the administration from dragging the country into a war it doesn’t need or want.

The analysis that follows is relevant not only to war with Iran, but also the prospect of military adventurism under this administration whether in Venezuela or elsewhere.

Question 1: President Trump doesn’t appear to want a war—so why worry?

Perhaps the most comforting facts for those who fear we are headed toward war with Iran are that President Trump ran on a platform of avoiding elective wars in the Middle East, has stated that he doesn’t want a war, and is being pushed to avoid one by prominent voices in the Fox News commentariat that he monitors closely. Contrast this with President Trump’s tweet on Sunday: “If Iran wants to fight, that will be the official end of Iran. Never threaten the United States again!”

But whatever the President may say he wants on any given day, the “maximum pressure” campaign that he and his team have launched against Iran has set the two countries on what International Crisis Group (which employs one of us) describes as a “collision course.” While the President sometimes signals that he wants to tap the brakes, it’s not at all clear that National Security Advisor John Bolton—who wields a tremendous amount of power over national security policymaking in this administration —wants the same thing. In the meantime, for every report of de-escalation that surfaces in the press, we see countervailing evidence of a still-tense situation in which steps that the administration has  already taken create an ongoing and unacceptably high risk of war by misjudgment or miscalculation.

What about legal safeguards? After all, our Constitution invests considerable war powers in Congress precisely because the framers wanted a brake on imprudent war-making by the executive branch. It might be reassuring to think that constitutional design will protect us from being drawn into hostilities that could escalate to a full-blown war. Not necessarily.

Over the years, successive presidents have staked out increasingly expansive claims of unilateral authority to use force without congressional approval, as reflected in opinions of the Office of Legal Counsel (OLC) in the Department of Justice. And while even these opinions could not—at least in recent years—fairly be read to justify unilaterally drawing the country into full-blown war, we should not stake much on OLC serving as a brake, considering the views of the current Attorney General under whom that office sits. Even read against the backdrop of OLC’s executive-power-friendly past opinions, Attorney General Bill Barr’s views on the President’s unilateral war powers stand out as alarmingly expansive.

Thus, if Congress wants to hold the country back from war, it cannot rely on the White House to come and ask for its input. Calling on the administration to provide briefings and records in response to reports that it may be seeking to “lay the groundwork to justify military action” by “disregarding intelligence or distorting its meaning” is a helpful and necessary step, as Reps. Schiff, Engel, and Smith did last week. But if Congress really wants to steer the administration away from war, it must do more. By prohibiting the use of funds for waging war with Iran, Congress would be acting within the core of its constitutional powers and applying the strongest anti-war medicine at its disposal. That’s exactly what it should do.

Question 2: What do we know about Barr’s views on the President’s unilateral Article II authority to wage war?

The short answer is that Barr appears to take an extremely broad view of presidential authority to take the country to war unilaterally, and appears to see essentially no role for Congress in constraining the Executive Branch.  

The longer answer begins with an interview that Barr sat for with the University of Virginia’s Miller Center in 2001, which Bobby Chesney surfaced and thoughtfully analyzed in this Lawfare piece from December 2018. In it, Barr recalled a critical juncture during his time as the Deputy Attorney General in the George H.W. Bush administration during the run up to the first Gulf War. The U.S. had deployed 500,000 troops to Saudi Arabia with the stated purpose of preparing to defend it against potential aggression. The U.N. Security Council had issued a string of resolutions condemning Iraq, culminating in Resolution 678, authorizing member states to use “all means necessary” (the U.N. term of art for authorizing  military action) to restore peace and security. Bush asked Barr whether he would need congressional authorization before he could send the amassed troops to invade Iraq. Three aspects of Barr’s account stand out as especially alarming.

First, Barr is remarkably dismissive of the role of the government lawyer in this space. Barr says that while he believed that Bush had constitutional authority to launch an attack against the Iraqis without authorization from Congress,

(I)t didn’t much matter what I thought, because that’s what he [Bush] was going to do … He didn’t put 500,000 troops over there for them to sit there, and there was no doubt in my mind that he was going to go on the offensive unless the Iraqis withdrew unilaterally. He believed that he had the authority to do it, and that’s ultimately more important than what I believe.

Whether or not Barr read Bush correctly, Barr’s fatalistic view of the President’s potential to act on his own hunch about the law—and Barr’s own seeming lack of reflection (or concern) about this possibility—suggest an extreme obsequiousness to the President’s views on a complex and weighty matter of constitutional law.  It offers precious little reason to believe that he would not defer to the current President’s views about the need for congressional approval to use force, against Iran or otherwise. That is profoundly concerning. If the Attorney General does not push back on overbroad presidential claims to unilateral power, then there are few other internal contenders who might do so, and none outrank the Attorney General. It also opens the gates for other senior national security officials who have legal training to shape developments. To name a few, National Security Adviser Bolton and Secretary of State Pompeo are both trained as lawyers, and might seek to cultivate in the President an exalted sense of his legal authorities.

But perhaps more important, the Attorney General is duty-bound to uphold the Constitution and fight for the rule of law. The American people—and indeed the President—deserve an Attorney General who understands the gravity of his role and acts accordingly. Barr has given us ample reason to believe he is not fulfilling that role.

Second, in his 2001 interview, Barr also laid out an expansive—if not fully explained—view of the President’s inherent war-making authorities. Barr acknowledged extensive debates about whether there was a need for Congressional approval, but nevertheless stated that when asked whether the President could invade Iraq—not some one-off strike but a full ground invasion involving, in his terms, 500,000 U.S. troops—he told the President, unequivocally, “there’s no doubt that you have the authority to launch an attack.”  Barr further explained why he thought the President enjoyed this authority “under the Constitution as commander-in-chief, and [he] gave him some different theories.”

In addition to this vague reference to the President’s commander-in-chief power, Barr offered two more specific arguments. First, he said that he offered an in-the-alternative theory, what he describes as a “bootstrap argument,” that a congressional authorization might be inferred from U.N. Security Council authorization of the use of force. Barr’s suggestion that a UN Security Council resolution could constitute congressional authorization is mystifying enough. But it is even odder considering that Barr himself had previously dismissed the legal force of the UN Charter, erroneously expressing just two years prior — in a 1989 OLC opinion when he was head of that office — that the treaty obligations in the Charter do not provide a legally binding constraint on the President. At any rate, this particular theory is irrelevant in the current Iran context because the Security Council has not adopted any applicable resolution.

More important to the present Iran context, Barr offered a separate rationale that we will call a “force protection” argument.  He recalls telling the President, of the 500,000 troops the United States had already deployed to Saudi Arabia, “(Y)our job as Commander-in-Chief is to make sure those troops are not preemptively attacked. If you feel as Commander-in-Chief that in order to protect your Army in the field you have to launch first, you can absolutely do that.”

Because Barr hints that he only reached his discussion of the UN authorization and force protection arguments after he’d already laid out some other theories (apparently relying solely on the Commander-in-Chief Clause of the Constitution), it is hard to get a full sense from the 2001 interview of precisely where he thinks Bush derived his authority to invade Iraq without congressional authorization. But regardless of what other theories he might have in mind, the notion that Bush could unilaterally launch a ground war in the Middle East on the basis of ill-defined concerns about the safety of 500,000 troops he had himself moved into the region is extraordinary.

Third, Barr gives us some insight into the limits he sees operating on Congress when it comes to constraining the President.  Of a resolution that was pending in Congress that would have stated the President could not use force without approval, Barr says, “It’s irrelevant. It’s not a statute. It’s just an expression of opinion. They can’t change the Constitution by expressing their opinion on the matter. I would say you could still do it.”

As Chesney points out, Barr’s answer focuses on the possibility of Congress passing a non-binding resolution, not a statute. Consequently, the interview doesn’t definitively answer how Barr would interpret the President’s authority in light of a congressional statute curbing presidential war powers passed with a veto-proof majority.

Moreover, Barr’s advice is mixed. Ultimately, even he tells the President to engage Congress: “I think it’s better to get up there and engage, to get up there and see if we can head off that kind of resolution and, in fact, get a resolution in support of it.” Referencing the familiar framework for executive power laid out in the concurring opinion by Justice Jackson in Youngstown, Barr suggests that the President will be on the firmest ground if he acts with, rather than against, Congress. This advice seems to have been offered, however, only as a prudential matter, not out of a sense of legal obligation to consult Congress or affirmatively gain its authorization. Barr ends this passage of his interview by recalling that he assured the President that “even if they don’t [pass something supportive], I think you’re okay.”

Question 3: Is Barr correct about the President’s Commander-in-Chief authority? And how close to or far from Executive Branch precedent is he?

One way to benchmark Barr’s views is to look at them next to the criteria articulated by OLC in recent decades. While there are some outliers (in particular a sweeping 2002 opinion signed by Jay Bybee suggesting that the President could, of his own initiative, launch a war in Iraq even if he did not have congressional authorization), OLC has in its opinions before and since applied a two-part inquiry that at least seeks to cabin unilateral presidential action. The first inquiry asks whether the President can reasonably determine that the military action serves a sufficiently important “national interest.” The second looks at the anticipated “nature, scope, and duration” of the military engagement and asks whether it rises to the level of “war” in the constitutional sense. If so, the military engagement would require congressional authorization because Congress, not the President, was vested in Article I of the Constitution with the power to “declare war.”

Neither of these tests is especially confining. As Professors Jack Goldsmith and Curt Bradley have compelling explained elsewhere, the “national interests” test has become almost infinitely elastic, both because of the range of situations it has embraced, and because it is extremely difficult to second guess the President’s judgment of what might serve as a sufficiently important national interest to justify the use of military force. (Or at least, OLC tends to believe it is not well-placed to serve as a meaningful check on such presidential assertions; we query whether this is a prudent approach or an abdication of its responsibility to provide meaningful legal guidance, but that is a topic for another day.)

Turning to the second inquiry, OLC has opined that the President does not run afoul of the “nature, scope, duration” limit if at the outset of hostilities the President does not anticipate a long engagement in which there is considerable risk of long-term entanglement and danger to U.S. troops. Such an OLC analysis was sufficient to allow, for example, President Obama to launch an air campaign in Libya  (with safeguards against escalation and use of ground forces in place) and President Trump to launch two rounds of missile strikes against Syria without congressional approval.

Still, unlike the “national interests” test, this second inquiry does—or at least should—impose some limits on the extent of the President’s power that would constrain action in the Iran context—and by any fair assessment would have as well had it been applied in Barr’s Iraq analysis. Interestingly, Trump’s own OLC has recognized these limits in a recent opinion. Specifically, an April 2018 OLC opinion on the use of force in Syria reiterated the test and stated that the “declare war” clause reflected “a deliberate choice of the Founders, who sought to prevent the President from bringing the Nation into a full-scale war without the authorization of Congress.” That opinion also stated that Congress’s war “powers further oblige the President to seek congressional approval prior to contemplating military action that would bring the Nation into a war.”

But OLC issued this opinion in 2018 prior to Barr becoming Attorney General, and it is not at all clear that he subscribes to it. Worryingly, in Barr’s interview regarding the first Gulf War he articulates no limiting principle on the President’s unilateral war-making authority. That may in part be because Barr did not share the full sweep of his thinking during the interview, but even so, it is hard to imagine any rule that would place a ground invasion involving 500,000 US troops on the not-war side of the constitutional line.  

Perhaps Barr believed his force protection argument—i.e., the idea that President Bush could unilaterally order lethal operations to protect the troops he had deployed to the region if he perceived them to be under threat of attack—overcame any congressional prerogatives that might otherwise be relevant. But that is also an extreme position to stake out. It is one thing to argue that the President can use proportionate force to protect U.S. forces from the threat of imminent attack (even if, as in this case, the President himself sent the forces into harm’s way). But it is another thing to suggest that the vague invocation of a threat of unspecified magnitude could justify launching a land war involving half a million U.S. soldiers.   

Question 4: Why are we focusing on Barr’s constitutional views? Doesn’t the White House think it has authority to attack Iran under an existing AUMF?

It is true that the Trump administration appeared to float a trial balloon arguing that the 2001 Authorization for Use of Military Force (AUMF) authorizes force against Iran based on scant and ill-specified connections to al-Qaeda. Two Just Security articles co-authored by one of us (with Steve Vladeck and with Brian Egan) explain why this argument is spurious.

We should be vigilant against claimed congressional authorization for a war with Iran. But in light of Barr’s extreme views on unilateral Presidential authority to wage war, it appears the more likely concern is that he will advise the President that he need not rely on statutory authority at all, regardless of the intended nature, scope, or duration of the conflict. The President need not rely on a tortured statutory argument if his Attorney General stands ready to back him up on a sweeping assertion of constitutional authority (or, he can raise the statutory argument only in the alternative).

In recent weeks, reports have surfaced about a Pentagon plan to deploy 120,000 troops to up the ante in the ongoing cycle of provocations with Iran. Whether this was a ploy by the Pentagon to scare the war-wary President away from escalating the crisis further, saber rattling towards Iran, or a trial balloon that Trump himself popped, it recalls the fact pattern that lay before Barr in 1991 in certain key respects.  If President Trump did indeed order 120,000 troops to the Gulf (or a “hell of a lot more”—as he said would be the case if he were to order a mass deployment), Barr’s 1991 logic suggests that the Attorney General would find it a relatively trivial task to identify a force protection argument for asserting the President’s unilateral Commander-in-Chief authority, and offers no assurance at all that he would consider congressional approval to be necessary.

Question 5: What can Congress actually do about it?

Congress is not entirely blameless in presidential war powers grabs of the last decades. Congressional pushback and public expectation that the President cannot go to war unilaterally are the main constraints on the President’s ability to do so. To the extent members of Congress resign themselves to executive encroachment on their power, they make it a fait accompli. So if Congress must act, what can it do?

First, members of Congress must make clear that they view Barr’s view, as expressed in 1991, as wrong, and egregiously so. Members of Congress should present their own legal position to counter Barr’s, and even to counter OLC’s less aggressive but still highly permissive view of the President’s unilateral powers. At a minimum, Congress should provide the redlines that are missing from the OLC opinions–laying out in clear and certain terms the circumstances in which the President cannot act without congressional approval.

Second, Congress should exercise its so-called power of the purse–the appropriations power that is at the core of its constitutional prerogatives–to make clear that it will not fund an unauthorized war. To do so, Congress could pass a funding restriction, stating that congressional appropriations may not be used for military operations against Iran except pursuant to a subsequent Act of Congress specifically authorizing such action. Even OLC’s most recent permissive opinion justifying unilateral use of force against a foreign nation without congressional authorization acknowledged that “it is Congress that must appropriate the money to fight a war or a police action.”  

And while it should not be necessary given how preposterous the administration’s AUMF reading is, Congress should also include in its appropriations restriction a provision stating explicitly that no existing statutes authorize force against Iran.    

Third and finally, as discussed in this article (by one of the authors), Congress could designate particular officials inside the U.S. government with obligations to make critical decisions, or to provide reports or certify facts to Congress, such as information about threat levels that could be used as a justification to escalate a crisis. By designating specific officials, rather than relying on the President or his own hand-picked designee, Congress can change the terms of the debate inside the executive branch, as well as harness these individuals’ reputational interests in complying with the law. By, for example, requiring threat reports or testimony directly from the Office of the Director of National Intelligence, Congress can create bureaucratic hurdles to the White House meddling in the intelligence community’s products. By placing funding restrictions specifically on the Department of Defense, Congress can harness the bureaucratic processes within that agency to regulate its compliance with law.     

* * * * *

Prior constitutional showdowns over allocation of war powers between Congress and the President have generally resulted in the President acting as he pleased, either with congressional support or without. The war powers question thus acquired an almost academic quality. Scholars debated whether the President must have congressional approval to act or whether it was enough that Congress had not affirmatively grumbled.  Yet the effect of these debates on actual policy was minimal. Perhaps the years of parsing fine points of constitutional law when everyone knows the President is going to continue to fight ISIS, or launch missiles at Syria, anyway have numbed us to what is at stake here.  

But the risk the country currently faces of a disastrous war with Iran brings the underlying purpose behind these constitutional questions into stark relief. This is about whether the people demand public debate and investment in a decision whether to invade another nation, likely kill thousands, place American lives at risk, and embroil the country in what may well be another war with disastrous long-term consequences for the region and globe and without clear end in sight.

 

IMAGE: WASHINGTON, DC – MAY 15: U.S. President Donald Trump listens to Attorney General William Barr during the 38th Annual National Peace Officers’ Memorial Service at the west front of the Capitol May 15, 2019 in Washington, DC. (Photo by Alex Wong/Getty Images)

 

About the Author(s)

Tess Bridgeman

Senior Editor at Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@bridgewriter).

Rebecca Ingber

Associate Professor of Law at Boston University Law. Currently Non-Resident Senior Fellow, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@becingber).

Stephen Pomper

U.S. Program Director for International Crisis Group, Served in the Obama Administration as the National Security Council's Senior Director for Multilateral Affairs and Human Rights. Currently Non-Resident Senior Fellow, Reiss Center on Law and Security at NYU School of Law. You can follow him on Twitter (@StephenPomper).