Exploding with the fireworks of sensational news, 2020 started out with several big bangs.

The specter of war with Iran, whose lethality through its proxies threaten beyond its borders, loomed like a dark, growing shadow on everyone’s mind. The words assassination, retaliation, patriotism and terrorism were volleyed missile-like between nations and factions. And then, poof — it was over.

Iranian Maj. Gen. Soleimani praying in the Syrian desert in 2017. Source: Tasnim News Agency in Wikimedia.org (see license).

The world was stunned anew by the tragedy of the downed Ukrainian jetliner over Iran’s airspace. And the Islamic government of Iran lost whatever goodwill it had momentarily gained from its oppressed people for the “martyrdom” of its beloved general — by many accounts the second most powerful man in that country.

The hundreds of thousands of Iranian mourners that chanted “Death to America” were suddenly replaced with mourners that openly chanted death to the Ayatollah — surely a capital crime in Iran. For Iranians, and the world, it wasn’t that 176 people died, that a plane was shot down, that some military commander somewhere in a bunker in Iran made a terrible mistake.

It was that most Iranians passengers on that plane represented Iran’s hope and future — young families, professors and graduate students. It was the embracing, smiling wedding photo of an Iranian couple that were passengers on that plane. But most of all, it was the unabashed denial and insolent deception of the Iranian government. And then, poof— the media’s infatuation fizzled and another burning event conflagrated our screens.

The drama of President Trump’s impeachment trial now gnaws away at our minds and galls our sense — the accusations, the blustering, the genuinely felt emotions and the pretenses, and the solemnity and ceremony of the House managers delivering the articles of impeachment of a United States President to the Senate.

Yeah, these opening three weeks of our new decade have been historic and historically dramatic.

But one newsworthy development of 2020 was quietly overshadowed in all the flareups. It’s not that it wasn’t reported. It’s just that it didn’t make into the limelight. And it’s an important one:

Where did the President get the authority for the Soleimani drone strike in Iraq?

Most of us haven’t thought about this, or haven’t thought it through. After all, Soleimani was a commander in Iran’s Islamic Revolutionary Guard Corps, which was designated as a terrorist organization by President Trump on April 8, 2019. Good riddance he is dead, right!

But the question still stands: where did the President get the authority for this military action?

This is not a peculiar question particularly for President Trump. Nor should the question fall in the Iran-U.S. sentiments and sensations. And no, it’s not a Republican or Democrat type of question either.

It’s a constitutional and legal question. It is a question that has pit every President since Nixon against the War Powers Act of 1973 — the law of the land in our country.

Why is the War Powers Act important?

The War Powers Act of 1973 (WPA) is not a plot hatched by Speaker Pelosi against President Trump. And it was not a plot hatched by Speaker Boehner when he brought it into issue against President Obama. WPA is a highly bipartisan law that intends, perhaps naively, to prevent U.S. Presidents from secretly or inadvertently or unwittingly stumbling our country into a war. WPA is a restraint on the President’s military power.

At its core, WPA preserves our democracy at home, and our prestige and power abroad. And yes, it also prevents our brave men and women from dying in endless and undefined wars. Yet, since its enactment, it has been violated in one form or another by virtually every U.S. President.



War, even with a small and weak nation, can have catastrophic consequences. The graveyard of history is littered with many a great empire that secretly or inadvertently or unwittingly stumbled into war.¹

So regardless of our party affiliations, it behooves us Americans to understand WPA, appreciate its history and to follow its development in current news.

On January 4th, the day after the Soleimani drone strike, the President submitted his formal “notification” of that military action to the Speaker of the House and President Pro Tempore of the Senate.² The notification was provided pursuant to WPA. And similar to all his predecessors, President Trump most certainly did not relish the process.

We know that’s exactly how he felt because the next day, with a trace of distasteful defiance, he clarified for Congress that although I’ve notified you this time, I don’t have to do it again. Not missing a beat, on the same day the House Foreign Affairs committee invited the President to “read the War Powers Act”, with a jab and a gibe “that you are not a dictator.”

The President and the House Foreign Affairs Committee sparring on Twitter about the War Powers Act. January 5, 2020.

Yes! The President of the United States and the U.S. House of Representatives were sparring on Twitter.

The tweet exchange between the two branches of our government virtually went unnoticed by most Americans. But it was indeed a big deal.

It was in fact such a big deal that the President doubled down on January 9th, retweeting John Bolton, his former National Security Advisor, agreeing with him that WPA is unconstitutional.

President Trump retweeting John Bolton and agreeing with him that the 1973 War Powers Act is unconstitutional.

And on the same day in a rally in Toledo, Ohio, the President suggested that seeking authorization from Congress for the Soleimani drone strike would have (1) caused undue delay, and (2) that Democrats may have leaked information about the attack to the media — essentially undermining the element of surprise. (See ABC News, RealClear Politics or Times of Israel.)

Congress has neither been idle nor indifferent to the President’s posturing and pronouncements. It is now working on a bipartisan resolution to direct the President to end the use of military force against Iran unless such action (1) is authorized by Congress, or (2) is in cases when the U.S. is defending itself against imminent attack. (See WSJ, NPR, The Hill or FoxNews.)

What’s the backdrop to this brinkmanship between two branches of our government?

Many experts and scholars are of the opinion that our Constitution splits the power to wage war between Congress and the President. Others disagree. Regardless of who is in the right, the framers of the Constitution set the stage for vigorous debate between the two branches of government — a system of checks and balances on war powers.

US Constitution Article I, Section 8:

The Congress shall have the power to declare war, ….

To raise and support Armies,…

To provide and maintain a Navy.

US Constitution Article II, Section 2:

The President shall be commander in chief of the Army and Navy of the United State, …

But despite the unambiguous letters of the Constitution, the Korean War, the Vietnam War, the two Iraq wars and the Afghanistan War were undeclared wars. In fact, America has not declared war on anyone since 1942!

But close to 45,000 Americans died in the Korean non-war that was called a “police action”. The number of American deaths in Vietnam was equally staggering: 58,318, 20% of which were non-combatants.

So if not from a declaration of war, then from what authority have American presidents waged these colossal military conflicts?

Since 1942, the United States has engaged in armed conflict of varying scales using the term “authorization to use military force,” as in the case of Iraq in 2003. This term refers to authorization from Congress. And that’s where WPA comes in.

Events that led up to WPA

This photo was taken by U.S. Navy Destroyer USS Maddox during her engagement with three North Vietnamese torpedo boats in the Gulf of Tonkin, on August 2, 1964. It shows a North Vietnamese boat racing by what appears to be smoke from Maddox’s shells in it wake. Wikimedia.org

On August 6, 1964, U.S. Secretary of Defense Robert McNamara testified before Congress that the North Vietnamese torpedo boats had attacked USS Maddox on August 2 and 4.

If there was any doubt that the first attack on August 2 may have been caused by an accident or a miscommunication in the busy waters of the Gulf of Tonkin (the incidents occurred less than 20 nautical miles off the coast of North Vietnam), its repeat on August 4 clearly exhibited intent on the part of the North Vietnamese. Within 12 hours of the second attack, American bombers retaliated.³

There was a glitch in the story though: the August 4 attack never happened!

A year later President Johnson privately commented about the August 4 attack that “For all we know, our Navy was shooting at whales out there.” And when the government’s report on the August 4 attack was finally declassified in 2005, the question was dispositively answered:

“It is not simply that there is a different story as to what happened; it is that no attack happened that night.”

Despite the false information, the Gulf of Tonkin incident became the excuse for America’s increased military involvement in Vietnam.

President Johnson signing the Gulf of Tonkin Resolution on August 10, 1964. Wikimedia.org

Before committing more American troops, however, President Johnson prudently sought Congressional authorization. According to his Mr. McNamara, his Secretary of Defense, seeking such authorization was very important to the President because he wanted to avoid “the mistake of President Truman had made in Korea,” which was involvement in a foreign war without Congressional approval.⁴

However much genuine Mr. McNamara account may be, it misses an important formula in President’s Johnson overall calculus for the Resolution: the Resolution let the President flex his muscles and show restraint at the time. This was important because in his 1964 election campaign Mr. Johnson ran as the “man of peace”. ³

So it was that on August 10, 1964, a mere six days after the Gulf of Tonkin Incident, the Gulf of Tonkin Resolution was signed by President Johnson.

How come the Tonkin Gulf Resolution did not slow or stymie the escalation of the Vietnam War?

The short answer is unrestrained Congressional authorization. Robert McNamara, who had presented false information to Congress in 1964, had this to say:

“The fundamental issue of the Tonkin Gulf involved not deception but, rather, misuse of power bestowed by the resolution… no doubt exists that Congress did not intend to authorize without further, full consultation the expansion of U.S. forces in Vietnam from 16,000 to 550,000 men, initiating large-scale combat operations with the risk of an expanded war with China and the Soviet Union, and extending U.S. involvement in Vietnam for many years to come.” ²

Under the authority of the Gulf of Tonkin Resolution, President Johnson drastically escalated the Vietnam conflict into open warfare with North Vietnam. All they while, he did not have to consult with Congress for the ongoing war, because no such consultation was required by the Resolution.⁴

In a televised address to the nation on April 30, 1970, President Nixon announced the campaign into Cambodia and explained its necessity. Source: Wikimedia.org

The Resolution permitted President Nixon to take the war to a whole new level. In a televised address to the nation on April 30, 1970, President Nixon announced the campaign into Cambodia and explained its necessity.⁵

The problem was that unbeknownst to the American people and Congress, the U.S. had been secretly bombing Cambodia, an officially neutral nation, almost since the President Nixon’s inauguration in 1969.

It was against this backdrop that in 1973, U.S. Senate began hearings on the secret bombings in Cambodia. All American troops had left Vietnam by then and Congress moved swiftly to restrain Presidential power of war.

The War Powers Act of 1973

WPA is officially known as the War Powers Resolution. It was a bipartisan bill that was vetoed by President Nixon in October 1973, and overridden by Congress into law on November 7, 1973. Below are its most salient and important elements⁶:

Section 2: The President can introduce U.S. armed forces into hostilities or imminent hostilities only pursuant to (1) declaration of war, (2) specific statutory authority, or (3) a national emergency created by attack upon the U.S., its territories or possessions, or its armed forces.

Section 3: The President in every possible instance shall consult with Congress before introducing U.S. Armed Forces into hostilities or imminent hostilities.

Section 4: The President must report to Congress any introduction of U.S. forces into hostilities or imminent hostilities.

Section 5: Use of forces must be terminated within 60 to 90 days, unless Congress authorizes an extension period.

Mr. Trump is in good company in that every President has declared WPA as unconstitutional. Yet, almost all of them have at least acknowledged its existence. For example, between 1975 to 2017, 168 reports were submitted by U.S. Presidents to Congress regarding military actions, almost all of them after the fact. And notably, Presidents George H.W. Bush and George W. Bush sought Congressional authorization prior to military actions in Iraq and Afghanistan.⁶

What’s noteworthy about the War Powers Act is how and how many American Presidents have defied it.

Destroyed and abandoned U.S. helicopters in an Iranian desert in 1980. This was President Carter’s failed attempt to rescue the 52 hostages in Iran. Source: Wikimedia.org.

President Carter did not consult with Congress for this mission in 1980 to rescue the 52 American embassy hostages in Iran. Eight Americans died in that failed rescue mission. And Iran spread American hostages into several locations to make another rescue mission difficult, if not impossible.

The reason President Carter did not engage Congress pursuant to WPA is because he didn’t believe it applied to his case, because

(1) it was a rescue mission, and not an act of aggression against Iran, and

(2) consultation was not possible or required because the mission depended on total surprise.

The frigate USS STARK that was hit by two Iraqi missiles on May 17, 1987. 37 U.S. Navy personnel died and 12 were injured. Wikimedia.org

On May 17, 1987, two Iraqi missiles hit the frigate USS STARK in the Persian Gulf, killing 37 U.S. Navy personnel died and injuring 12. U.S. military presence in the area built up quickly to 11 major warships, 6 minesweepers and over a dozen small patrol boats with other naval assets positioned in Northern Arabian Sea and the Indian Ocean.⁶

Yet, it was not until Sept. 23, 1987, that President Reagan started reporting to Congress. He contended that no reporting was needed because the military incidents in the Persian Gulf or the U.S. defensive reactions to them did not add up to hostilities or imminent hostilities as envisaged by WPA.

A Tomahawk cruise missile from the deck of USS Gonzalez in the Adriatic Sea, launched on March 1999 towards a target in Yugoslavia. Wikimedia.org

Starting in March 1999, President Clinton ordered the U.S. military to take action in Kosovo during the Yugoslav war. By June 1999, more than 7,000 U.S. forces were participating in a NATO-led military operation in Kosovo, with an additional 1,500 troops in the region. The purpose and scope of U.S. military involvement in Kosovo ignited much Congressional activities, debates and measures, but at the end no Congressional consensus on Yugoslavia was reached. In addition, some members of Congress sued President Clinton seeking a judicial finding that he was violating WPA and the Constitution by using military forces in Yugoslavia in the absence of authorization from Congress. The lawsuit was dismissed by a U.S. District Court, and was affirmed on appeal.

The U.S. Secretary of State Hilary Rodham Clinton on the tarmac in Tripoli, Libya, on October 2011. Source: Flickr.com, U.S. Dept. of State.

Despite the U.S. military’s bombing of Libya, in March 2011, Secretary Clinton testified before Congress that the President did not need congressional authority for America’s military intervention in Libya because the situation in Libya did not rise to the level of hostilities under WPA.⁶

This did not go over well with Congress, and they objected that the Obama administration was violating WPA.

By late May 2011, WPA’s 60 day time frame for seeking an extension ran out. But the President refused to seek Congressional authorization under WPA because, he reasoned, U.S. military actions had been transferred to NATO and military involvement was limited.

For rejecting to comply with WPA, President Obama was delivered a rare rebuke by the House. Then Speaker John Boehner said: “I support the removal of the Libyan regime. I support the president’s authority as commander-in-chief, but when the president chooses to challenge the powers of the Congress, I, as speaker of the House, will defend the constitutional authority of the legislature.” (Emphasis added.)

It should be noted that the attack on an American diplomatic compound in Benghazi, Libya, during which the U.S. ambassador and three other Americans died, occurred a year later on 9/11/2012.

President Obama would later lament that the intervention in Libya was his worst mistake.⁷

The flag of the Islamic State of Iraq and Syria. ISIS was designated as a terrorist organization by the U.N. and the U.S. Wikimedia.org

Initially, President Obama relied on WPA notifications to Congress for military actions against ISIS. In Sept. 2014, however, his administration elected to rely on the following Authorizations for Use of Military Force (AUMF) for future military actions⁶:

2001 AUMF: a 2001 joint resolution of Congress authorizing the use of Armed Forces against those responsible for 9/11.

2002 AUMF: a 2002 joint resolution of Congress authorizing the use of Armed Forces against Saddam Hussein’s Iraq government.

What are the takeaways?

An incident can lead to an all out war. In our history, the executive branch has delivered falsified war information to Congress. International incidents can quickly become the moral and legal foundation for escalation of armed conflict. Presidents have used a variety of reasons to circumvent WPA, such as the need for the element of surprise. Similar to President Obama in 2014, on Jan. 4th President Trump cited the 2001 and 2002 AUMFs when he notified Congress about the Gen. Soleimani drone strike, meaning that his administration does not have to comply with WPA’s time frame, reporting and consultations requirements.

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Sources:

Unless specifically linked to a source, the contents of this post were gleaned from the sources below. Please note that the author of this post has no affiliation with the authors and/or publishers of the cited works, and does not have any financial incentives in citing them.

¹ For a good read on how European nations stumbled into World War I see “The Origins of the First World War”, by William Mulligan; or “The Fall of Giants,” by ²Ken Follet (a fabulous fictional historical narrative of World War I).

² “U.S. Killing of Qasem Soleimani: Frequently Asked Questions,” Congressional Research Service Report, January 13, 2020.

³ “Lyndon Johnson and the American Dream,” by Doris Kearns Goodwin, 1976.

⁴ “In Retrospect, The Tragedy and Lessons of Vietname,” by Robert McNamara, 1995.

⁵ “President Nixon, Alone In the White House,” Richard Reeves, 2002.

⁶ “The War Powers Resolution: Concepts and Practice,” Congressional Research Service Report, March 8, 2019.

⁷ See The Guardian, CNN and BBC.