The U.S. attack on Iran’s nuclear facilities has raised an important constitutional issue. The U.S. Constitution gives Congress the authority to declare war. It was a wise and appropriate principle. Wars are perhaps the most consequential actions a nation can take. They can put a nation’s very survival at risk and endanger military and civilian lives. Wars also reshape the economy and must by nature place some limits on citizens’ constitutional right to control government actions. Congress is designed to be the representative and guarantor of the right of citizens to govern themselves.
Therefore, the idea was that the United States could not wage war without the consent of Congress, nor avoid war if Congress deemed it necessary. As commander in chief of the military, the president could decide how a war would be waged but not whether there would be a war.
The last time the United States followed the Constitution in going to war was in December 1941, after the attack on Pearl Harbor, when it declared war on Japan. In response, Japan’s allies, Germany and Italy, declared war on the United States. Since that time, the United States has waged numerous wars and military actions decided upon solely by the president, acting as commander in chief, without congressional action. The constitutional requirement for Congress to approve war has been ignored. Though Congress retains the option to vote against the funding of wars, it has exercised this power rarely and only marginally, since doing so once a war is underway and American lives are already at risk is politically and morally fraught.
This constitutional erosion since World War II is largely due to changes in technology and the nature of modern war. When the Constitution was written, the U.S. engaged in wars much more slowly. Mobilizing and invading a country took more time than it does today. Surprise attacks like Pearl Harbor were rare – and even Pearl Harbor did not threaten the immediate survival of the U.S. military or the nation. Afterward, there was still time to convene Congress and secure a formal declaration of war. Given the isolationists’ strength in Congress, a war declaration prior to the Japanese attack would have been time-consuming and may have failed. But the nature of time in war has changed dramatically, especially over the past 20 years. A modern Pearl Harbor might defeat the U.S. military in a few hours.
Another critical change is in communication and transparency. A congressional debate over going to war in the 18th century could unfold without the knowledge of the would-be adversary. Even if a spy were present, it would take substantial time to relay that information. Today, by contrast, congressional debates are by nature public. Even if a secret session were called, spies in Washington could immediately alert the target nation, introducing the danger of a preemptive strike on U.S. forces.
In other words, technological advancements have rendered the 18th-century framework of war declaration obsolete. A congressional debate over the strike on Iran’s nuclear facilities would have eliminated a fundamental necessity of war: surprise. It would also undermine a fundamental element in diplomacy: the ability to credibly threaten military action unless the other side makes concessions. If the president cannot make such threats without a public congressional debate, then the threat becomes less immediate and less persuasive. Both the secrecy and ambiguity essential to war and diplomacy are compromised.
This reality has, since the end of World War II, shifted the power to initiate war from Congress to the commander in chief. If war is imposed on the U.S., it must respond long before Congress is convened to debate and vote on its response. If the U.S. initiates war, surprise is essential for success.
The first instance of this shift was the Korean War in 1950. When North Korea invaded the South, the U.S. – which had forces available in Japan and elsewhere in the region – needed to act quickly to block the attack. President Harry S. Truman ordered U.S. forces into action without a declaration of war, citing authorization under the United Nations treaty. Every U.S. military action since then has similarly bypassed a formal declaration, sometimes using mutual defense treaties ratified by Congress as justification.
Formal declarations of war have become globally obsolete. For the past 80 years, presidents from both parties have initiated wars – some successful, others not; some lasting hours, others years. Congress has been sidelined not by conspiracy but by the speed and complexity of modern warfare. It is dangerous to allow any part of the Constitution to be ignored because of the precedent it sets concerning what should be the sacred foundation of the republic. The clause on declarations of war must be amended as the Constitution allows. However, returning the war-making decision to Congress is likely impossible. Time constraints and the need for secrecy make it unworkable. One possibility, granted a poor one, is that Congress could create a special committee of a small handful of members to represent it at meetings dealing with the war option. But war has become so complex, and international relations so dynamic, that it is difficult to see this as a solution for many reasons.
Insisting Congress approve every military action no longer aligns with reality. Nor does requiring a “direct threat” to be apparent before action is taken. For example, al-Qaida carried out the 9/11 attacks, and though diminished, it still operates with some protection from Iran. Al-Qaida used civilian aircraft as weapons against the United States. If Iran developed a nuclear device, placed it on a ship under a false flag and detonated it in New York Harbor, the result would be catastrophic. Iran’s past and present relationships with groups like al-Qaida create plausible grounds to consider it a direct threat to the United States.
I have no idea if this is on Iran’s mind, or whether U.S. intelligence is capable of detecting and blocking such an attack. I personally find this scenario unlikely but not impossible. But given the vast danger it could pose and the history of Iran’s relationship with al-Qaida, it is a possibility that cannot be dismissed. The need to convince Congress of this risk would take time and put Iran on alert.
The critical argument here is that at this point in history, technology has rendered declarations of war obsolete. I do not like the idea of presidents unilaterally taking the country into war. American wars since 1945 have not always gone well and were not always needed. Checks and balances are the foundation of the Constitution’s architecture, and war is the most serious of matters. This is not a matter of Republicans or Democrats, conservatives or liberals. Perhaps a new constitutional convention can solve this problem, but it is hard to imagine a solution.
