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Iran

Spekkio

He bowls overhand.
Agreed, but that has always been the case. That is not a power that Congress has rescinded in any way. Anyhow, the second point is that you don't have to imagine a scenario, because there's nothing stopping any POTUS from acting unilaterally to start a nuclear war.
I understand that. The policy was crafted during the Cold War when things like smartphones didn't exist. It's outdated. And when I say that Congress rescinded that power, it's because if they didn't pass a bill authorizing the President to launch nuclear weapons in certain cases, then that power would be retained by Congress under Article I.

It's worth noting, though, that the President cannot order a nuclear strike by himself. The SECDEF has to agree to it.

Imagine POTUS receives intel that China is goading North Korea into launching a limited nuclear strike against our allies in West Pac. Upon launch warning, POTUS decides to launch a retaliatory strike against NK and China. Many would argue that goes beyond self defense. Does POTUS have a constitutional duty to get the Congress to authorize a major escalation?
There's a lot to peel back here...

The Constitution gives Congress the ability to declare war, the power to ratify treaties (Senate), and the power to raise and fund an Army.

From the War Powers Act:
USC 50 section 1541 said:
It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations...

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
USC Section 1547 said:
(a)Inferences from any law or treaty. Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred— ...

(2)from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this chapter.
Seems like a pretty reasonable bill that executes Article 1 with very specific limitations on what the President can do and even looks like they thought about your exact scenario. Probably because this was a bipartisan bill passed in the wake of Vietnam to check the President's use of force and had to overcome Nixon's veto. So back to your question:

The Senate would have to ratify any international treaty, so the first stop is whether that treaty buys us into taking action AND Congress has passed a subsequent bill authorizing military action pursuant to the treaty per USC 50. Assuming that has happened, then yes the President can execute his strike.

If those two things did NOT happen, then the President (according to the War Powers Act) has to ask for Congressional authorization. USC 50 allows the President to commit forces in American self-defense... and not just self-defense, but an attack creating a 'national emergency'; it does not allow the President to commit forces to protect another country. And our SIOP also does not allow the President to use nuclear weapons in this fashion.

What has happened since is that every President since Nixon has used section 1544 (the requirement to withdraw forces after 60 days) as an implicit blank check to use the military in short-term ops whenever it's politically convenient, ignoring the fact that the reason for committing forces has to meet one of the 3 criteria set in section 1541 (declaration of war, specific statute, or in response to an attack resulting in a national emergency). Congress has done very little to stop it other than the expected political grand-standing by the opposing party. By the time they deliberate about it, the forces are already committed, so backing out is harder than approving funding to finish the job. Until the job takes exponentially longer and costs a lot more money and men than advertised. Based on the language in the section 1541 of the law, I don't think that was the original intent and that's the part of the law that could use revision/clarification. I would also like Congress to change/clarify the meaning of the word "consult" in Section 1542.

And this is where we're at with Trump. Taken in totality, I don't believe it was the intent of the law to allow a President to unilaterally order another country's high-ranking officer to be killed without seeking Congressional approval. But the 60-day clause will be used to argue that Trump had that authority, and he's certainly not the first President to use it. I don't think that the 2001 AUMF and Operation Inherent Resolve authorized him to conduct that strike since they are both very clear about the belligerents and Iran isn't one of them. However, Congress kicked the can with failing to approve an authorization for Operation Inherent Resolve and that set the precedent of blurring the lines on what these bills actually say and who we're supposed to be fighting (the original Iraqi authorization for force was very explicitly against Saddam's forces, which hasn't existed for over a decade, but now we're saying it's good to go to justify taking action against ISIS).

At the end of the day, as you like to say, this is all mental masturbation because the Democrats will cry about it, Republicans will cheer about it, and Sean Hannity will give an open invite to give Trump fellatio on the air while all the other news network hosts call for Trump to be jailed.

The use of nukes is that one caveat to the normal process of properly authorizing force. We've talked ourselves into it being in a special category because of the Cold War need for rapid action in self-defense, but we've overlooked the potential for non-self defense use of nukes, for which there is virtually zero checks on the President's power to wage the most serious kind of warfare. Short of a constitutional amendment, I don't think there's a way to change that.
I don't buy the 'nukes are a caveat to the normal process' argument. Despite the way they act sometimes, there are a lot of smart people in DC that can (and did) craft a policy that accounts for these situations that doesn't allow the President to just do whatever he wants.

The unfortunate fact is that most Congressmen simply don't want the responsibility anymore. If they did, the framework is there in plain black-and-white to hold a President accountable for over-stepping his authority.
 
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Brett327

Well-Known Member
None
Super Moderator
Contributor
He's a repeat offender. He'd never make it on Twitter. :D

Something something, pedantic history lesson on a topic most people already understand... followed by some analysis that went immediately off the rails.
 

HAL Pilot

Well-Known Member
None
Contributor
I don't believe it was the intent of the law to allow a President to unilaterally order another country's high-ranking officer to be killed without seeking Congressional approval
He might have been a high ranking officer but he was also designated a terrorist leading a terrorist organization. The terrorist designation is what made him a legitimate target without our being at war with Iran. Anything else is just chaff and irrelevant.
 

Griz882

Livin' On the Right Side of the River From Pags!
pilot
He might have been a high ranking officer but he was also designated a terrorist leading a terrorist organization. The terrorist designation is what made him a legitimate target without our being at war with Iran. Anything else is just chaff and irrelevant.
Agree. His rank and military position are not relevant in this case. His was killed in a foreign country, in the company of know terrorists, and had a long history of planning and funding international destabilization efforts. During the Cold War the US kept Special Forces in Berlin who operated in a similar manner. Had they been killed by the Soviets it would have been equally justified.
 

Spekkio

He bowls overhand.
Needs a TLDR.
The answer to your question is yes, the President is required by law to seek Congressional approval to use force in the scenario you posted.

Something something, pedantic history lesson on a topic most people already understand... followed by some analysis that went immediately off the rails.
Oh, your question was rhetorical because you're smarter than everyone and not actually interested in discussion on a complex issue. I should have known.
 
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Spekkio

He bowls overhand.
He might have been a high ranking officer but he was also designated a terrorist leading a terrorist organization. The terrorist designation is what made him a legitimate target without our being at war with Iran. Anything else is just chaff and irrelevant.
We agree that he was a legitimate target and everyone knows that Iran funds and equips terrorist organizations.

However, the 2001 AUMF is specific in its language and does not give POTUS the authorization to kill someone just by labeling him a terrorist.

I don't lose sleep over the issue, but if everything were functioning properly the President could and would have gotten Congressional authorization to take military action against Iran at least two administrations ago.
 

Brett327

Well-Known Member
None
Super Moderator
Contributor
The answer to your question is yes, the President is required by law to seek Congressional approval to use force in the scenario you posted.
No he's not. He can launch a nuclear strike at any time without consultation with congress. There's no mechanism to stop him, which was my point for people to consider.

It wasn't a rhetorical question, and you spent 3/4 of your post on a review of the law. We're all aware of the law. That was wasted effort on your part, and I suspect an annoyance to the rest of us.
 

Griz882

Livin' On the Right Side of the River From Pags!
pilot
However, the 2001 AUMF is specific in its language and does not give POTUS the authorization to kill someone just by labeling him a terrorist.
You are wrong. Feel free to read "U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities," May 2013. It clearly lists five metrics for making a drone strike...the strike in question meets the criteria of all five.
 

squorch2

he will die without safety brief
pilot
The core conflict is this:

does executive branch designation of a senior member of a state as a terrorist run afoul of the legislative branch's sole ability to declare war?

(lots in here to consider, esp. 2nd+ order effects)
 

robav8r

D-FENS
None
Contributor
The core conflict is this:

does executive branch designation of a senior member of a state as a terrorist run afoul of the legislative branch's sole ability to declare war?

(lots in here to consider, esp. 2nd+ order effects)
Does designation as a terrorist of someone who was/is a senior member of a state, trump the latter?
 
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