The good news this week is that World War III has not begun—at least not yet. That seems to make the assassination of Qassem Soleimani a short-term victory for the president, or at least the media is playing it that way. “All is well!” Trump proclaimed on Twitter. Given the absence of any US deaths in Iran’s retaliatory strikes, many seem content to take him at his word. Yet I must dissent. There were always two major criticisms of the Soleimani killing: the first related to its potentially destabilizing (to say the least) consequences, the second regarding its questionable legality. For now both sides seem to be doing what they can to avoid another round of escalations, permitting Trump to portray himself as not only a very stable but a very strategic genius. I’m more interested in the legal/constitutional issues.
According to the Constitution, Congress is supposed to have the sole power to declare war, but no president has respected that in decades. Trump submitted a fully classified letter to Congress, keeping the American people in the dark about the real reasons for this dangerous escalation. An official familiar with the relevant intelligence reportedly dismissed it as suggesting only “a normal Monday in the Middle East.” This week Trump claimed that unspecified intelligence showed Soleimani was planning an imminent attack on four US embassies, but his own defense secretary, Mark Esper, admitted he knew nothing about it; still, Esper said, he took the president at his word. This president—at his word!
Earlier presidents abused the war-making power—such as Lyndon Johnson’s misuse of sketchy intelligence to win passage of the 1964 Gulf of Tonkin Resolution that increased the American presence in Vietnam. Both he and Richard Nixon massively expanded US involvement in Southeast Asia, without further authorization from the legislature. In 1973, Congress passed the War Powers Resolution to prevent that kind of steady military build-up. Yet nobody had ever really even tried to enforce the law until last year, when Vermont senator Bernie Sanders assembled an impressively bipartisan coalition to block US involvement in the Saudi-Iranian proxy war in Yemen. Trump vetoed it, as he would the non-binding resolution recently passed by the House of Representatives (if it ever got out of the Senate) to block war with Iran.
I’m no constitutional originalist—I don’t believe in dogmatic obedience to long-dead honkies (or anyone else). As I wrote last week, I’m fully prepared to rip up that 232 year-old pact and start over. I’m with Jefferson, who thought any constitution should rewritten every twenty years or so.
Yet I can’t help but wonder what this scenario would have looked like to the Founders. Undoubtedly, these amateur scientists would have many questions about how the bomb worked. As students of human nature and believers in progress they would be appalled that, after centuries of experimenting and tinkering, this—human extinction, by remote control, in the blink of an eye—is what we’ve come up with.
Think, too, about their reaction as political scientists. What would they have made of the president’s ability to vaporize an individual ten thousand miles away (even if that person is a US citizen!), or to unilaterally bring on the apocalypse, on nothing more than a whim? Setting aside all the technological, geopolitical, and other variables that would make the crisis we face today unrecognizable to the founders, the idea that the president could wake up and decide to assassinate a political and military official of a country with which the United States is not at war, and to cite in his defense only a nineteen year-old “authorization of military force,” passed nearly unanimously amid a terrifying national emergency, which nobody alive thought had anything to with the country whose second most powerful official he is now targeting—for all their flaws, their commitment to generational slavery and dispossession of the natives, this would have undoubtedly have appalled the framers of the American government. When a clause as important as the delegation of war-making powers is wantonly ignored without consequence, how can America still be said to be a republic?
The problem is not Trump’s temperament, but the power he wields—the power any president wields. “No person, whether brilliant or deranged, should have the power to wage war currently possessed by the President of the United States,” foreign-policy scholar Stephen Wertheim wrote last week. This is the point—Trump’s erratic and narcissistic personality makes him uniquely unqualified to hold high office, but no person even of remarkable intelligence and estimable moral character should wield the power endowed in the presidency today.
While I think the Soleimani assassination was foolish and dangerous, and an act of war, it reveals far deeper and even more worrying issues about any president’s ability to even potentially embroil the United States in deadly—possibly apocalyptic—armed conflict without having to consult any mediating or moderating influences (i.e. “adults in the room”). As everyone was freaking out (I was too) about the bombing in Baghdad, I came across a thread on Twitter, which I now frustratingly am unable to find, laying out the process by which the president could launch a nuclear attack if he so wanted. Basically he just picks up the phone, IDs himself, talks to some higher-echelon national security people (but is under no obligation whatsoever to seek their approval or respect their advice), and that’s it; the guys in the Midwestern siloes who will receive the order to let loose the bombs will likely be young (possibly drunk or stoned), and have no information other than the president’s order to go by. They are surpassingly unlikely, in other words, to contravene a direct order from the White House. Within five minutes of the president picking up the phone, the bombs will be in air, and no power on earth could turn them around.
So what should be done? The War Powers Resolution, meant to modernize the war-making provision of Article I of the Constitution, is obviously not up to the task. First: We should pass a bill before Congress which would make it official policy never to use nuclear weapons except in retaliation for their use against us. The military currently conducts war games in which the US responds to much lower-intensity attacks by Iran (though still serious, i.e. sinking an aircraft carrier) by dropping nukes on the Islamic Republic. Barack Obama’s administration actually drew up a formal policy document, now inherited by Trump and his crew of kleptocratic miscreants, laying out—rather vaguely—the circumstances in which such a “first strike” would be appropriate. The president’s latitude for deciding when such circumstances pertain remains, for practical purposes, almost infinite. A year ago, Elizabeth Warren introduced a bill to make “no first strike” national policy. Other current Democratic presidential contenders, including Bernie Sanders, Pete Buttigieg, and Joe Biden, also support that change. There is so much so seriously wrong with our world, but as the father of a young child, I like that Warren’s bill becoming law would be one less thing to worry about in the middle of the night.
Second: In 2013, I wrote an essay for Salon exploring the history of the idea of a war referendum—putting the question of using military force up for a binding popular vote—and whether it could work today. These days I’m a bit more skeptical, mostly because armed-force decisions sometimes do need to be made quickly. But I still think the war referendum should be considered and instituted whenever possible. As I wrote then: “Perhaps the people who would be tasked with fighting and paying for war should be directly asked whether they agree there ought to be one.”
Agree? Disagree? Think I’m a no-good naif, a millennial nincompoop? Offended by “honky”? Let me know by replying to this email. I’d also love any links to articles you come across related to US division and fracture, or anything else of note. And as always please forward to anyone you think’d be interested. Thanks for reading!