By Sam Ozer-Staton

In recent months, amid the onslaught of Covid crises and wrangling over President Biden’s legislative agenda, the topic of national security has slipped from the headlines. But as the debate dies down over the withdrawal of U.S. forces from Afghanistan, national security experts are looking to the Biden administration for an indication of its view on another perennial source of conflict in Washington: the extent of the executive branch’s war powers. 

It’s an age-old question: When should the president have the power to unilaterally initiate offensive military use of force, without first consulting Congress?

That tension is baked into the Constitution itself. Article I grants Congress the authority to “declare war,” while Article II designates the president as “Commander in Chief of the Army and Navy of the United States.”

While constitutional scholars have long argued about whether to interpret Article II expansively or narrowly, the debate was reignited in the wake of President Trump’s unconventional, often improvisational, foreign policy. In particular, the killing of Iranian General Qasem Soleimani, which was carried out via airstrike outside of the Baghdad airport in January 2020, has been criticized for its riskiness and questionable legal footing.

“The Soleimani strike illustrates why these decisions should not be left solely to the executive branch,” said Brian Finucane, who served as a legal adviser to the State Department under both the Obama and Trump administrations. “Previous administrations had refrained from killing Soleimani precisely because of the risk of escalation and endangering U.S. forces in the region. With the Soleimani strike, the Trump administration was playing Russian roulette, except in this case, only one chamber was empty and the gun was pointed at somebody else’s head.”

Aside from the wisdom of the strike as a national security matter, the killing of Soleimani produced a series of legal justifications that, some national security lawyers argue, set a dangerous precedent for future acts of military intervention. 

The Office of Legal Counsel’s (heavily-redacted) opinion justifying the Soleimani killing used its established legal framework for executive branch use of force. But, according to Finucane, writing in Just Security, “The dangers of the Soleimani legal opinions arise not from novel legal theories, but by how those opinions apply longstanding constitutional and international legal frameworks to reach unwarranted conclusions.”

The OLC opinion, which was released on March 10, 2020, outlined a two-part test:

“In evaluating whether a proposed military action falls within the President’s constitutional authority, we have examined first whether the President could reasonably determine that the use of force would be in the national interest, and, second, whether the anticipated nature, scope, and duration of the conflict would rise to the level of a war under the Constitution.”

Trump’s OLC advanced several theories of why the strike passed the test: It cited the 2002 AUMF, which authorized the invasion of Iraq; it argued that Soleimani was “actively developing plans” for further attacks on Americans; and it concluded that the targeted, “circumscribed” strike did not rise to the level of war. The opinion reads, “In sum, given the targeted scope of the mission, the available intelligence, and the efforts to avoid escalation, we concluded that the President could reasonably determine that the nature, scope, and duration of hostilities directly resulting from the strike against Soleimani would not rise to the level of a war for constitutional purposes.”

Did the experts buy that explanation? It depends.

“It’s clearly lawful,” John Bellinger, a former legal adviser to the Department of State under the George W. Bush administration, told NPR in 2020. “It’s clearly an exercise of the president’s constitutional authority as commander in chief and chief executive to use force in the national interest.”

Harold Koh, who held the same position in the Obama administration, disagreed with Bellinger. “[M]ost indications suggest that the strike was illegal. U.S. officials had no business putting this illegal option on President Donald Trump’s desk,” he wrote.

The saga gets to a more fundamental point: OLC opinions are hardly iron-clad. They can be rescinded — or interpreted differently — by subsequent administrations. It takes an act of Congress to rebalance the power between the executive and legislative branches. 

Members of Congress in both chambers have introduced a pair of bipartisan bills that would attempt to do exactly that. A group of progressive Democrats and libertarian-leaning Republicans have sought to bring the bills to a vote.

“Big picture: we’re talking legislative reforms that would move toward restoring Congress’s authority in matters of war,” Finucane explained. “[The bills] would impose an automatic funding cut-off on military operations that Congress has not authorized.”

But even advocates of reform concede that Congress can never entirely claw back control over war powers. “To effectively mitigate the likelihood that future presidents will abuse their authority as Commander in Chief, including through reckless one-off strikes that drag the country into war, requires the executive branch to self-police properly,” Finucane said.

Jack Goldsmith, a Harvard Law professor who led the OLC under President Bush (and who joined Stay Tuned to discuss the Soleimani killing), is more fatalistic about executive power. “Our country has, quite self-consciously, given one person, the President, an enormous sprawling military and enormous discretion to use it in ways that can easily lead to a massive war. That is our system: one person decides,” Goldsmith tweeted in 2020. 

President Biden’s philosophy of executive power is not yet clear. His administration supports the repeal of the 2002 AUMF, which has toiled without a vote in the Senate. But it hasn’t yet released the kinds of OLC opinions that betray a larger interpretation of war powers.

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