“Everybody is deeply concerned about Congress getting cut out,” said one Democrat after hearing from Pompeo, Dunford, and Shanahan.
Members of Congress emerged from two closed-door briefings on Tuesday to say that senior Trump officials provided little clarity about whether the administration believes it has the authority to go to war with Iran without additional legislative approval.
Democratic lawmakers have been warning that Iran hawks in the Trump administration are laying the groundwork for armed conflict with Tehran. The warnings began two weeks ago, after National Security Advisor John Bolton announced that U.S. naval ships and bombers were being sent to the region in case of hinted Iranian-backed attacks on American troops, interests, or allies. But under what authority the administration would be able to engage militarily remains a hotly debated issue on Capitol Hill.
Democrats pronounced themselves unsatisfied after back-to-back House and Senate briefings by Secretary of State Mike Pompeo, Defense Secretary Patrick Shanahan, and Joint Chiefs Chairman Gen. Joseph Dunford.
“Everybody is deeply, deeply concerned about Congress getting cut out of what’s transpiring over there, and they weren’t able to give enough assurance that we would be consulted,” said Rep. Raja Krishnamoorthi, D-Ill., who sits on the House Intelligence Committee. “I think that’s a huge, huge question that’s going unanswered.”
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Article I of the Constitution gives Congress the exclusive power to “declare war.” Article II provides the president with the authority to direct U.S. forces as commander in chief, including the power to act in self-defense to “repel sudden attacks” against the United States. The scope of those powers has been an evolving debate since the early days of the country. Presidents across administrations have taken an increasingly expansive view of their warmaking authority, drawing lines around military activity determined to be below the threshold of war. Congress last declared war in 1942. Instead, presidents have used their Article II powers to claim legal authority to direct various combat operations, like President Obama’s use of airstrikes in Libya. Many legal scholars argue that the Congress has abdicated its powers, in part, by failing to update the 2001 and 2002 authorizations for the use of military force, or AUMFs, used by three administrations since the Sept. 11 attacks to prosecute wars in Afghanistan, Iraq, and the “global war on terror.”
The debate over U.S. military strikes against Iran or Iranian-backed proxies is the most recent test case. Lawmakers worry that Trump administration officials might try to bypass Congress by claiming justification for such strikes under the 2001 AUMF, which declared war against al Qaeda and its “associated forces." Legal scholars overwhelmingly believe that Iran does not fall under that AUMF — but the Trump administration has sparked speculation that it is weighing shoehorning Iran into it by linking al Qaeda to the regime in Tehran.
Rep. Adam Smith, D-Wash, chairman of the House Armed Services Committee, said officials provided no such assurances that they would not use the 2001 AUMF.
“They refused to say that they wouldn’t. It was asked very directly,” Smith told Defense One.
But Sen. Chris Murphy, D-Conn., a leading critic of Trump's foreign policy, said he believed Pentagon officials, at least, did not think they had the authority for offensive strikes on Iranian targets. “There were clearer answers on authorizations I’ve heard in previous briefings,” Murphy said, following the briefings.
“Pompeo is never going to answer a question on authorization, so I’m not saying it came from Pompeo. But…from DOD they seemed to make it clear they did not have authorization beyond self-defense,” he said. “I think they said, ‘We can’t use the  AUMF’.”
Republican lawmakers say they believe Trump would not need to seek a new AUMF because the administration is lawfully using its Article II authority to protect U.S. forces and interests in the region. Sen. Lindsey Graham, R-S.C., an ally of the president’s, answered in one word when asked if there was a need for a new authorization: “No.” Former Senate whip, John Cornyn, R-Texas, called the notion “a hypothetical.”
Graham said that he told the Pentagon and State Department leaders, “If one American is injured or killed by actions coming from Iran directly or indirectly, and you don’t respond, you will be up here explaining why you let those Americans get hurt and did nothing about it.”
Democrats note that even the president’s authority to strike defensively is not unlimited. In order to continue any kind of long-term engagement, Murphy said, “you still have to come back [to Congress] after that.” In theory, the War Powers Act requires the president to seek congressional approval for continuing a military action after 60 days — although that law has been fiercely disputed under the Trump administration.
Tensions between the U.S. and Iran have been rising since Trump pulled out of the nuclear deal last year, which traded sanctions relief for certain curbs on the regime’s nuclear weapons program. Republicans have long derided the deal as too narrow in scope and have kept Iran as a central focus of their national security policy. Pompeo and Bolton, in particular, long have been proponents of a harsher approach to Iran.
Two weeks ago, Bolton, Pompeo, Shanahan — and the top generals in charge of U.S. troops in Europe and the Middle East — began warning about new threats from Iran, later specifying that the regime was plotting an imminent attack on U.S. troops in the Middle East. The Defense Department hurried an aircraft carrier strike group to the region, and dispatched B-52 bombers and a Patriot missile defense battery.
Trump administration officials throughout have insisted they are not seeking war with Tehran.
“We do not want the situation to escalate. This is about deterrence, not about war. We’re not about going to war,” Shanahan told reporters on Tuesday after the briefing.
He and Republican lawmakers said Tuesday those ship and bomber movements had backed Tehran away from the brink.
“The immediate concerns about escalation, I think, begins to resolve, but the danger is still present as long as you have a theocratic government in charge [of Iran] that’s determined to kill Americans and wipe our allies off the map,” Cornyn said.
Trump has been publicly ambivalent about military engagements in the Middle East since his 2016 campaign, pledging to return U.S. troops from long wars in Syria, Iraq, and Afghanistan while encouraging regional powers to do more of their own fighting. On Monday, Trump in a tweet threatened “the official end of Iran” if they “want a fight.” But in the past two weeks, he has stated repeatedly he does not want war and wants regime leaders to “call” him. One Iranian official later called Trump “not quite balanced and stable” and rejected his offer. "This is all in his imagination. Now he wants us to call him? This is a crazy president!”
Democratic lawmakers fear a miscalculation. “I don’t think the administration is looking for a fight, but they’ve backed into the precipice of a conflict that might be hard to get out of,” Murphy said.
Worse, Democrats say, the administration failed on Tuesday to lay out a strategy for dealing with the heightened tensions.
“They didn’t tell us how they were planning to get them to talk,” Murphy said. “It just seems to be a process of blind escalation with the hopes that the Iranians will come to their senses at some point.”