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War power limitations on the president—putting the recent House resolution in perspective

The War Powers Resolution was passed in 1973 by both Houses of Congress, overriding the veto of President Nixon. It was passed to reassert Congressional authority over the decision to send American troops to war.  After President Nixon ordered the bombing of Cambodia without Congress’s consent, Congress passed the War Powers Resolution of 1973, intended to limit the president’s authority to conduct war.

At the time, President Richard Nixon vetoed the bill on constitutional grounds, arguing that the measure would define presidential war powers “in ways which would strictly limit his constitutional authority.” Nonetheless, a two-thirds majority in each congressional chamber overrode the veto.

The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without a congressional authorization for use of military force or a declaration of war by the United States.

There have been several instances when the President has not notified Congress within the required 48 hours.  In the case of the attack on General Soleimani the Trump administration made such a notification.  However it would be easy to argue that Congress has already authorized military activities in Iraq and therefore that such a notification was not required.

Yesterday Congressional Democrats, seemed  blissfully unaware of then-President Barack Obama’s rather expansive interpretation of the War Powers Resolution of 1973 during his strategically disastrous 2011 operation to oust Libyan strongman Muammar al-Qaddafi, suddenly seemed to care an awful lot about constitutional norms and separation of powers principles. Intellectual hypocrisy again.

Specifically, Speaker Nancy Pelosi’s House of Representatives debated whether to Congressionally impose War Powers Resolution limitations upon President Trump’s unilateral ability to ratchet up militancy actions with the Islamic Republic of Iran. In their crusade to hamstring the president’s conduct of his foreign policy vis-à-vis the Iranian regime, House Democrats even found several libertarian-leaning Republican allies.

In my opinion this exercise was misguided, because the War Powers Resolution is, and always has been, unconstitutional.  It has never been challenged in the courts.  This most recent effort was really an attempt by the Democrats to embarrass the president.

The Constitution divides foreign affairs powers between the legislative and executive branches. Among other enumerated powers in Article I, Section 8, Congress has the ability to “declare War,” “raise and support Armies,” “provide and maintain a Navy,” “make Rules for the Government and Regulation of the land and naval Forces,” “provide for calling forth the Militia,” and “provide for organizing, arming, and disciplining, the Militia.”

On the other hand, Article II of the Constitution provides that “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” The very first clause of Article II also vests the president with “[t]he executive Power” — meaning a “residual” foreign affairs power that encompasses all those powers not expressly delegated to Congress in Article I, Section 8.

Many legal scholars have conducted a careful, line-by-line overview of Congress’s enumerated powers and have concluded that the constitution does not provide a legislative means that could feasibly justify the War Powers Resolution. The most likely candidate is the Declare War Clause, but that provision happens to be woefully misunderstood by many lawyers and politicians across the ideological spectrum.

Congress can intervene to halt a president if it views a reckless warmonger is using the manifold tools it has at its disposal:

  • Decreasing the size of the Pentagon’s budget by going line item-by-line item and removing various offensive-oriented materiel from the Department of Defense’s arsenal, or using its more general power of the purse to defund a war effort in its entirety
    • This was what eventually happened in the Vietnam War case.

This interpretation of the Declare War Clause should not be nearly as controversial as it is. At the 1787 constitutional convention, the Framers actually conscientiously substituted out “make War” with “declare War.” In so doing, James Madison explained that it was imperative to leave to the president the “power to repel sudden attacks.” This ought to make a great deal of sense; as Alexander Hamilton would explain only six months after the constitutional convention in The Federalist No. 70, “[d]ecision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number.”

Finally, in Article I, Section 10, the Constitution precludes a state from “engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” The Framers were therefore aware of multiple verbs — “make” and “engage” — that could have clearly conveyed the meaning of an initiation of hostilities. But they didn’t use those words, and they didn’t use them for a reason. The Framers understood that there was great merit to leaving decisions such as the commencement of hostilities to one man, and not to a fractious Congress.

Congress already has a number of tools at its disposal to push back against a crusading commander-in-chief. As Andrew McCarthy wrote this week at Fox News, “No statute is needed to provide Congress with the power to frustrate unauthorized presidential war-making. The Constitution empowers the legislature to do so by simply refusing to appropriate funds for military action.” But the Declare War Clause means something fundamentally different than what many believe it does.

No president, to date, has abided by the war powers act!  Grenada, Lebanon, Panama, Libya being cases in point. They have avoided a legal show down by advising Congress after the fact of military action.  President Obama in 2016 wrote: “I am providing this supplemental consolidated report, prepared by my Administration and consistent with the War Powers Resolution (Public Law 93-148), as part of my efforts to keep the Congress informed about deployments of U.S. Armed Forces equipped for combat.”  The term “consistent with” has been used by multiple presidents.  They were saying that their notification was not “as required” by the resolution, but “consistent with” it..  This wording was used to avoid a legal challenge to the requirements for notification of Congress for fear of the president losing to a liberal judiciary and thus a resulting limitation on presidential power.

The debate over the war powers of the Congress versus the President will continue and in most cases it will be highlighted when a house of Congress is controlled by a political party that does not control the White House.  This is what we have just observed.

The strategic question is highlighted by the preemptive attack versus defensive reaction.  If the War Powers goal of the House Democrats was to take away the president’s ability to preempt an Iranian attack it is both a strategic mistake and inconsistent with the war powers resolution.  This is precisely what the Democrats sought: The resolution “requires the president to consult with Congress in every possible instanced before introducing United States Armed Forces in hostilities.” As a perceived new limitation on the ability of the president to use the military to protect US interests it would be tantamount to strategic surrender to the Iranians by denying the president multiple strategic options.  This action thus must surely be nothing more than the Democrats expressing their angst against a successful presidential action.

The debate over war powers will most likely continue and will most likely never been  finalized because the extreme answers available are strategic mistakes and such is realized by most clear thinking personnel.

Where are we going

One thing about getting older is that my personal data base has gotten much larger, however through all of the political battles and discussions of war and peace that I have observed and participated in I have never seen a political party that through its hypocrisy, lies and lack of constitutional grounding do so much to destroy our republic and divide the country.  I am going to list some activities and then focus on the international situation in the post-Soleimani era.  The Democrats have:

  • Weaponized impeachment such that every future president who is opposed by the other party in the House of Representatives is an odds on favorite to be impeached for looking cross-eyed during the state-of-the-union.
    • Now we hear that the House Intelligence Committee may consider the Soleimani attack as ground for another article of impeachment. (This could be an event filled with hypocrisy as all of Obama’s drone strikes are discussed.)
  • The Speaker of the House is now seeking to micro-manage the President by proposing legislation that would limit the President’s authority in the current dust-up over the death of General Soleiman. The result would be to contribute to the overall lessening of presidential power that the Democrats seek given their lack of competitive candidates for the 2020 election.
  • The left and their media allies are treating General Soleimani as a hero, not the butcher that he was. Of course they couldn’t congratulate the President for exploiting intelligence and attacking General Soleimani before he could launch his next terrorist attack.
    • These critiques include questioning every military move made by the administration. The current media frenzy suggests that Saddam Hussein was correct when he determined that the US center of gravity was/is the body bag.  Unfortunately, military operations are dangerous events and there will be casualties.  But preemptive actions are designed to limit civilian and other casualties.
    • By being afraid to suffer casualties (or even to appear that way) we are emboldening our enemies to try and inflict casualties. Thus, we should blame the Democrats and their media cohorts for every soldier, sailor airman or Marine who may become a casualty.  My liberal friends will challenge this logic only because they know that it is correct and that hurts.  Deterrence is about perceptions and the media and the Democrats are providing the wrong perceptions. 
      • Deterrence can include bluster. They have 35 targets and we have 52.  Have they tried to hit 2 of their targets with their attack in Kenya and the cyber-attack against the national library?  If so then we should expect several reactions in the coming days.  The management of these targets will tell us a lot—whether there is an attempt to manage escalation or not.
      • The composition of targets will also tell us a lot—casualty producing targets versus infrastructure/war fighting capabilities.

So where are we going?  The Iranians are most likely emboldened by all of the political noise coming from the Democrats.  This in ways seems like Deja vue all over again.  The North Vietnamese could never defeat the United States on the battlefield but they undermined the political will to finish the fight.  The current messages that our opponents are seeing is that the political will to fight has again been undermined—not by the acts of the Iranians or any of their proxies but by the desire of the left and the media to destroy this President and our current form of government.

We can only hope that people with reason will step forward as new leaders of the Democratic Party.

Attack kills Quds Force leader

As was to be expected after the US attack on General Qassem Soleimani the media speculation, comparisons with the Clinton impeachment and scare mongering has dominated the “news” media.

First we should establish the known facts:

  • A US strike[i] killed General Qassem Soleimani, the powerful head of Iran’s elite Quds Force, in Baghdad
    • The Quds have been responsible for the death of hundreds of US personnel in Iraq.
    • The attack unfolded early on Friday local time in a precision strike on two cars that were carrying Soleimani
    • Soleimani had just arrived in Baghdad on a flight from Syria and was leaving the airport when he was hit
  • The attack also killed Abu Mahdi al-Muhandis, leader of Iranian militias in Iraq which led the attacks on the US embassy in Baghdad.
  • Both the US Secretary of Defense and Secretary of State have stated unequivocally that the Iranians, using their proxies such as Hezbollah, Hamas and the militias in Iraq were plotting attacks against US personnel and interests in the region.[ii]
    • The attack has therefore been categorized as a deterrent or preemptive attack.[iii]

The media hype has focused on the unrest that this attack is going to create.  The speculation includes:

  • Terrorist activities in the middle-east against US military and other targets
  • Attacks by “sleeper” cells in the US
  • Efforts by Iran to close the Straits of Hormuz
  • Attacks against Israel by Iranian proxies
  • Cyber-attacks anywhere in the world

The media has even gone so far in at least one case to refer to the attack as an assassination.  Of course this is an attempt to create another article of impeachment as assassination is against a US avowed practice as outlined in an Executive Order signed by Ronald Reagan.  This attempt is far fetched, but shows how desperate some “pundits” are.  The General was a military combatant on a battlefield and had just been responsible for an attack on a US embassy.  End of the assassination impeachment idea!

Each of the above attacks by Iran is possible.  One can be sure that US, Israeli and Saudi forces are watching for any and all such attacks.  One can also expect that any indicator of the possibility of a given type of attack could cause another pre-preemptive effort.

What if this attack, when coupled with the effect of the embargoes against Iran, is the tipping point that causes Iran to truly seek accommodation by pledging to withdraw its support of proxy forces throughout the region and agreement to adhere to a realistic regime of inspections and limits on its nuclear program in exchange for the lifting of the embargo.  Most will find this unlikely.  It does clearly define the US goal vis-à-vis Iran.

A possible scenario is that Iran does seek revenge by one of the above types of attacks and it is soundly stopped or pre-empted.  How many such rebuffs can Iran tolerate before internal domestic pressures cause political change?

Finally. Might this attack convince the Ayatollah Ali Khamenei that he is also at risk and be another cause of an Iranian reversal of policy?  Only time will tell, but all of the gloom and doom punditry is most likely just irresponsible punditry.

A follow up attack today killed another Quds Force leader.

 

As this gets posted the media is full of reportedly inflamed rhetoric from Iran and its proxies. Reportedly Iran has at least 35 targets on its target list, which could include US bases, ships, etc. and Saudi and Israeli targets.  We will follow such engagements, preemptions and reactions and report again in coming days.[iv]

[i] 1.  The speculation also abounds on the nature of the attack.  In one article the attack is described as an airstrike, a drone attack and a helicopter attack.  For sure it was one of these.  Each could launch precision munitions that could track and engage the two vehicle convoy.  The exact platform from which the munitions were launched may never be released.

2 ‘General Soleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region,’ the Pentagon statement said.

3..  Obviously, there was an ongoing surveillance of Soleimani using multiple means.  The New York Times reported that Friday’s attack drew upon a combination of highly classified information from informants, electronic intercepts, reconnaissance aircraft and other surveillance techniques. This shows how important the General’s activities were.

4. John Bolton is even reported as hoping that this will be the beginning of efforts to cause regime change in Iran. We will see.

The response to the Iranian attacks on Saudi oil facilities

Preamble:  We have taken a sabbatical from writing articles for the last 18 months in response to the venom that is out there in the media.  However, the US response to the Iranian attacks seems to indicate a completely new US approach to global stability.  Therefore I felt duty bound to spell out my thoughts and respond to those who can only see their hate of this administration.

The recent Iranian attacks on the Saudi oil facilities in north eastern Saudi Arabia indicate an escalation by the Iranians.  Why?  Do the Iranians perceive that the US is powerless because of the Democratic calls for impeachment?  Are the sanctions and limits on Iranian oil exports taking such a toll that the Iranians feel that the world will react to Saudi oil output short falls and try to force the US to relax its containment of Iran?

The lack of an American kinetic response has the world wondering what has changed in the US approach to the world.  By listening to the president’s speech at the UN yesterday it is now very clear that the President does not see the US as the world’s policeman.   In the name of regional stability the US is deploying defensive capabilities to Saudi Arabia.

The recent attacks show the deficiencies of the Saudi military.  In spite of extensive expenditures their missile defense capabilities are still inadequate in the face of Iranian cruise missiles.  Reports indicate that the problems are both the training of the force and the needs of a modern missile defense.

Missile defense requires the ability to intercept multiple types of missiles through a complex spectrum of missile types.  Most missile defense systems can be overcome by a volume of missiles.  The Israeli “Iron Dome” system attempts to discriminate based on a calculation of impact points.  Will incoming missiles hit critical assets?  The Saudi system has not reached the degree of sophistication required to make such a discrimination automatically.

The lack of a kinetic attack illustrates the new Trump Doctrine—allies must protect themselves and respond to attacks using their own capabilities.  The US will assist where necessary to maintain stability until the allies have developed their own capabilities.  This approach means that the Saudis and the Gulf Cooperative Council members should respond to threats.  The US may provide technical assistance in such a response, but one should not expect US forces attacking Iran unless US forces have been directly engaged by Iranians.

The military situation in the Gulf is truly asymmetric, but in a different way than the discussion of conventional forces versus terrorists or unconventional forces.  The Iranians have devoted a significant part of their defense development to offensive missiles and small attack boats, while the Gulf States have focused on air power and defensive forces.  As noted above the Iranian missile assets can most likely overpower the defenses of the Gulf States.  However, a series of preemptive attacks might go a long way in leveling the battle field.  One could even envision the Apache attack helicopters that the Saudis have being able to go in under the Iranian radar and doing extensive damage.

Will the Saudis/Gulf States respond?  The answer to this question is probably in the Iranian hands.  If they push the opportunity that they may perceive exists because of the political situation in the US they may in fact cause a reaction with extensive US support.  On the other hand if the new status quo continues nothing may happen. The status quo favors the Saudis and the Gulf States as the political situation in Iran may continue to deteriorate and they can enhance their defensive and offensive capabilities.

Strong demands –who are they aimed at?

Secretary of State Mike Pompeo said on Monday that the Trump administration will embark on an “unprecedented” pressure campaign against Iran meant to fundamentally change its foreign policy. Delivering his first major foreign policy address as top diplomat at the Heritage Foundation, a Washington think tank, Pompeo listed 12 sweeping and uncompromising conditions for a new nuclear deal with Tehran after President Donald Trump withdrew from an existing one earlier this month.

Pompeo said that the JCPOA put the world at risk because of its fatal flaws. Therefore the list of US demands is long” because Iran’s activities are bold in scope, “We didn’t create the list – they did.” There were reported to be twelve demands, but a thorough reading of his speech makes it 15:  (the number doesn’t matter the message does)

  1. We will apply unprecedented financial pressure on the Iranian regime. The leaders in Tehran will have no doubt about our seriousness. The departments of Treasury and Commerce are already working on the sanctions.
  2. I will work closely with the Department of Defense and our regional allies to deter Iranian aggression.
  3. We will ensure freedom of navigation on the waters in the region. We will work to prevent and counteract any Iranian malign cyber activity. We will track down Iranian operatives and their Hezbollah proxies operating around the world and we will crush them. Iran will never again have carte blanche to dominate the Middle East.
  4. We will also advocate tirelessly for the Iranian people. The regime must improve how it treats its citizens. It must protect the human rights of every Iranian. It must cease wasting Iran’s wealth abroad. We ask that our international partners continue to add their voice to ours in condemning Iran’s treatment of its own citizens.
  5. Iran must declare to the IAEA a full account of the prior military dimensions of its nuclear program, and permanently and verifiably abandon such work in perpetuity.
  6. Iran must stop enrichment and never pursue plutonium reprocessing. This includes closing its heavy water reactor.
  7. Iran must also provide the IAEA with unqualified access to all nuclear sites throughout the entire country.
  8. Iran must end its proliferation of ballistic missiles and halt further launching or development of nuclear-capable missile systems.
  9. Iran must release all U.S. citizens, as well as citizens of our partners and allies, each of them detained on spurious charges.
  10. Iran must end support to Middle East terrorist groups, including Lebanese Hezbollah, Hamas, and the Palestinian Islamic Jihad.
  11. Iran must respect the sovereignty of the Iraqi Government and permit the disarming, demobilization, and reintegration of Shia militias.
  12. Iran must also end its military support for the Houthi militia and work towards a peaceful political settlement in Yemen.
  13. Iran must withdraw all forces under Iranian command throughout the entirety of Syria.
  14. Iran must end support for the Taliban and other terrorists in Afghanistan and the region, and cease harboring senior al-Qaida leaders.

These demands are broad in scope and in essence call for the end of Iran’s goal as to the creation of a caliphate across the Middle East from Egypt to Afghanistan.  There are some wide ranging and probably on their face impossible to achieve.  The center of gravity of his remarks appears to be a call for regime change. He said that we ask the Iranian people: Is this what you want your country to be known for, for being a co-conspirator with Hezbollah, Hamas, the Taliban, and al-Qaida? The United States believe you deserve better.

With a regime change all of the other goals become more possible.

With a regime change all of the other goals become more possible.When one sees this hard line approach to Iran (North Korea’s partner or client in weapons building) he must wonder how Kim Jun Un he sees the on again of again upcoming summit.  Kim responded negatively to President Trump’s Libya analogy, with cause.  Things went well for Libya for about 10 years before the revolution stared and was supported by NATO with arms and air support until the government was overthrown and Qaddafi killed.

In this complex world such examples provide the wrong message to both the Iranians and the North Koreans.

As things progress in the processes that have been started with North Korea and Iran we will watch them with interest and report on them when needed and appropriate.