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Last week, Michael Hayden, once the Director of the CIA and earlier, of the NSA, spoke to CNN about the Joint Comprehensive Plan of Action. In a timid endorsement of the accord, he told the network that Congress should consider approving the Iran Deal, but only on certain conditions. One caught my eye:
Hayden argued that when Congress votes on the issue next month, it could add an authorization for use of military force, clearing the way for swift military action against Iran if that country moves to rekindle its military nuclear program.
A conditional, shelf AUMF for Iran, tacked on now to make the JCPOA more palatable to skeptical hawks—what could possibly go wrong?
To be fair, Hayden conceded that he hadn’t fleshed out his idea fully, saying that if he were at a meeting of the National Security Council, “people would be yelling at [him] for not having specifics.” Even so, it’s not the first time that the proposal has been floated by a public official. Back in March 2014, all-things-Iran-negotiation-expert and Brookings scholar Bob Einhorn suggested that Congress pass a prior authorization for the use of military force against Iran, in a chapter of a report called Preventing a Nuclear-Armed Iran: Requirements for a Comprehensive Nuclear Agreement. There, Einhorn argued that “Congress could take legislative action to give the president prior authorization to use military force in the event of clear evidence that Iran has taken steps to abandon the agreement.”
It is no doubt important to work to strengthen the Iran deal, by de-incentivizing Iranian cheating. But it would be imprudent to authorize force against Iran at such a great remove from its use, while contemplating—hoping—that its use ultimately would prove unnecessary.
Some reasons why:
Passing an AUMF might hurt as much as it helps, or even hurt more. No doubt Hayden and company see the measure as likely to stoke fear and thus ensure compliance by the Iranians. That’s one possible outcome, sure, but not the only one. Middle of the road Iranians might just as well see an AUMF as adding sour bellicosity to a deal ostensibly meant to avert conflict—if not also as evidence of bad faith. As for hardliners, a force authorization, however conditional, could hand politically useful cover to officials and clerics eager to cheat on Iran’s side of the deal.
The doubtful efficacy can be paired with this downside, too: A rainy day Iran authorization likely would be a tough nut to crack legislatively. Under Einhorn’s formulation, for example, the president would be required to present “evidence” that Iran had cheated, before any force authorization could kick in. But as previous debates have shown, it’s not obvious what counts as evidence and at what threshold Congress should be convinced. Given the predictable political wrangling, a conditional AUMF thus present a great risk: the worst of all possible outcomes for deterring an Iranian breakout would be one wherein an administration spent significant resources to get a preemptive authorization only to end up failing.
And that’s only if an administration was in a spending mood. Absent congressional will or a strong push from the executive branch, force authorizations can be hard to craft, as the go-nowhere ISIS AUMF discussion well illustrates. Congress and the White House couldn’t there agree on fundamentals like scope, sunsets, and the like; the project thus has been all but scuttled, despite noble persistence by some in the House and Senate. To put the point differently, the JCPOA is itself the source of a pronounced and ongoing political dispute. It is therefore hard to see how that dispute wouldn’t color negotiations over an Iran AUMF’s contours.
This further distinguishes the Iran situation from some AUMF precedents. It is true that, with 2002’s eye-crossingly bad American Servicemembers Protection Act, Congress conditioned the use of force on an uncertain and distant, if not altogether unlikely future event: The imprisonment, in the Hague dock, of a member of the U.S. military or like person. Likewise, in the fifties, Congress also authorized force in Formosa (nowadays Taiwan) and the Middle East, on both occasions proclaiming that congressional backing would lapse upon a determination that regional peace and security is “assured,” either by U.S. action or something else. There was no triggering event to speak of, as in the “Hague Invasion Act” example, but the legislature did acknowledge that our forces might never deploy.
Yet the Formosa and Middle East statutes were passed quite quickly, and in response to specific threats—attacks on nationalist-held territory by Chinese communists, and Nasser’s annexation of the Suez canal. We see no comparable, precipitating events right now with respect to Iran. And all three of the examples described above were the result of either loud public appeals by the president or, at least, broader presidential and congressional support. If the President is especially enthusiastic about a military strike anytime soon, or wants Congress’s advance sign off for one, he certainly hasn’t said so. (To be sure, the President has spoken publicly about Iran and the use of force; but I interpret his recent statements, including yesterday’s letter to Senator Robert Menendez, as conveying only President Obama’s view that military action always remains one option among several, should Iran seek a nuclear weapon.)
A prior authorization could instead limit the options a future president has in responding to minor-to-medium violations of the Iran deal. As previous debates have demonstrated, the drumbeat to war, once initiated, can be hard to resist, and hawkish members of Congress would likely turn to calling on the president to strike quickly and without any congressional discussion. It is difficult to imagine some future president standing in the East Room and proclaiming that, in the noble and bold tradition of restraint—of not making full use of the powers conferred on him by the legislature—he will hold off on striking Iran. As Einhorn himself argues, today’s circumstances are dramatically different than what they would be should Iran actually violate the deal and break towards a nuclear weapon; in such an event, “the inhibitions against the use of force would be much weaker,” even without an AUMF. Iran surely already knows this.
Finally, a note on the role of Congressional oversight: what would it say about the current state of our politics if Congress were to pass a pre-emptive AUMF against a state we ostensibly are seeking to avoid war with, while failing to pass an AUMF against a foe almost everyone agrees we should fight and that are already bombing? Such a bizarre outcome would make for quite a further indictment of congressional responsibility over war powers.
If the Iran deal is going to go through—and by all whip counts it most certainly will—Congress should take steps to bolster it, and ensure its enforcement going forward. But Congress should seek to authorize force against Iran if, and only if, a pressing need arises. One hasn’t yet, and there are many downsides to a just-in-case AUMF.