The Case for an AUMF Against Iran and Its Proxies – The Federalist Society

About 2,500 years ago, the Chinese military theorist Sun Tzu wisely observed that subduing the enemy without fighting was preferable to winning 100 victories in 100 battles. He was talking about deterrence, which is based upon perceptions of strength and will.

Virtually everyone who followed American actions during Operation Desert Storm in 1991 is aware of America's tremendous military strength. Taking on an army that was significantly larger than our own in terms of numbers, in 43 days we killed more than 20,000 Iraqi soldiers and destroyed more than 3,000 of their tanks, while losing fewer than 100 American soldiers in combat and zero M1 Abrams tanks to enemy fire. We fail to deter aggression today not because our enemies believe we lack strength, but because of their well justified perceptions that we now lack the will to resist armed aggression.

A major factor is that the United States Congress is both so partisan and so risk-adverse that it will not stand behind any President if a situation gets risky. Yet Congress insists on playing a central role in foreign affairs, even where no declaration of war is needed.

Four decades ago last month, the Congress insisted that President Reagan obtain formal authorization to continue participating in the international peacekeeping effortwhich involved troops from the United States, Great Britain, France, and Italyto provide a tranquil environment for feuding factions in Beirut to come together and seek to negotiate an end to hostilities.

Every country in the region and every faction involved initially favored the operation. But for largely partisan reasons, congressional Democrats (virtually none of whom criticized the mission on its merits), demanded the President submit a report under the (unconstitutional) 1973 War Powers Resolution and obtain formal congressional authorization to continue the mission. In the end, only two Democrats in the entire Senate voted to continue the deployment, and in the process, they signaled to Iran, Syria, and other regimes in the region that the Americans were short of breath and might easily be driven out. At dawn on October 23, 1983, a Mercedes truck filled with the equivalent of more than 12,000 pounds of TNT crashed through the gate of the Marine Corps barracks and detonated, killing 241 mostly sleeping Marines.

Since then, virtually every time an American President has wanted to oppose aggression or promote peace, members of the opposition party in Congress have sought to go on the record in opposition so that, if things go wrong, they will not be held accountable.

It was not always that way. Following World War II, the country was largely united. When mainland China started shelling and threatening to invade Taiwan in 1955, President Eisenhower asked and quickly received formal legislative approval to use force to defend Taiwan. Mao quickly backed down. Two years later, when Communist aggression threatened to set off a powder keg in the Middle East, Congress again stood behind the President, flexed its muscles, and the bad guys stood down.

Then there was the Cuban Missile Crisis, in October 1962, when a congressional joint resolution authorizing the use of force contributed to deterrence and led to the withdrawal of nuclear missiles based in Cuba.

Because of this long and consistent history of successful deterrence, when President Johnson went to Congress in August 1964 and sought another Authorization for the Use of Military Force (AUMF) , Congress immediately responded by enacting the Gulf of Tonkin Resolution authorizing war by a combined margin of 99.6%. And the two senators who voted nay were defeated in their next reelection bids.

Space does not permit a full discussion of what went wrong in Vietnam. One of the most important factors was the belief of LBJ and his Defense Secretary that we were so strong and North Vietnam so weak that we could prevail by hitting them softly. They forgot President Theodore Roosevelt wise counsel to never hit softly. Another problem was that LBJ did not want to mobilize the American people behind the war because he feared pressure to use nuclear weapons. So our government did very little to inform the American people about what was going on in Vietnam, while Hanoi and its Communist allies around the world launched a brilliant propaganda campaign that persuaded a good number of Americans that we were actually on the wrong side. Even the Pentagon Papers showed that the critics were factually wrong on most of their arguments, and the war in fact was fully justifiable.

In the half-century since the last American troops were evacuated from Vietnam, with the exception of Operation Desert Storm, America appears to have lost its will. When we gave up in Afghanistana policy favored both by President Biden and President TrumpMoscow realized that we had no will to defend other countries, and it invaded Ukraine.

Today, Iran and its proxies are seeking to destroy Israel. And if they become directly involved in that conflict, short of using nuclear weapons, my guess is if Israel survives at all, it will be at a horrific human cost.

For more than four decades, Iran has been launching armed attacks against the United States military, mostly through its proxies. In addition to the 241 Marines murdered on October 23, 1983, most of the thousands of American servicemen killed in Iraq and Afghanistan by IEDs were victims of Iranian intervention. And, even today, Iranian proxies continue to launch rockets and drones at American servicemen in the region. It should be obvious that using mercenaries or even foreign volunteers to commit aggression does not immunize the host actually providing the money and weapons and pulling the strings.

Even the 1973 War Powers Resolution, which I have argued in two separate books is blatantly unconstitutional, recognizes in Article 2(c)(3) the power of the President to commit U.S. armed forces into hostilities pursuant to an attack upon the United States . . . or its armed forces. Given the ongoing attacks by Iran and its proxies against U.S. armed forces over a period of more than four decades, President Biden does not need specific statutory authorization to defend our troops and act collectively pursuant to Article 51 of the UN charter to protect our Israeli friends from armed aggression.

When the Senate consented to the ratification of the UN Charter in 1945 by a 98% margin, it committed the United States to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace. Article VI of the Constitution declares that treaties shall be part of the supreme Law of the Land, and Article II, section 3, obligates the President to take care that the Laws be faithfully executed. A 1945 proposed amendment to the UN Participation Act that would have required congressional authorization before the President could use military force in collective self-defense under the UN Charter received fewer than ten votes.

The goal of authorizing the use of military force would not be to go to war with Iran or its proxies. It would be to deter them from further aggression against Israel. And I know of no action that does not involve the use of major military force that would contribute more to that end than for Congress to unite behind the President and enact an AUMF that clearly authorizes him to use appropriate military force in the event of further aggression by Iran or any of its proxies against Israel.

If they fail to do that, and the situation in the Middle East continues to worsen, the American voters will have an opportunity next year to select new members of Congress who are willing to put the country above their political party and who have the courage to stand united against terrorism.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author.We welcome responses to the views presented here.To join the debate, please email us atinfo@fedsoc.org.

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The Case for an AUMF Against Iran and Its Proxies - The Federalist Society