Decoding the Senate's "Iran War" Resolution

The Kyl-Lieberman amendment "to express the sense of the Senate regarding Iran" has been the subject of much controversy and press coverage in the Democratic presidential primary. However, there has not been much of analysis of what Kyl-Lieberman actually entails.

One of the most common claims is that it gives George W. Bush the authority to invade Iran. As a sense of the Senate amendment, Kyl-Lieberman is meaningless on its own.

The problem is that, in conjunction with the 2002 Iraq War resolution, an overzealous Bush administration can read it as providing them with the authority to invade Iran, at least once the bill, H.R. 1585, becomes law.

In particular, Subsection A of Section 3 of the Iraq War resolution reads as follows:

AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

The first clause is the worrisome one. Back in 2002, Senator Dick Durbin offered an amendment to modify this clause, replacing "the continuing threat posed by Iraq" with "an imminent threat posed by Iraq's weapons of mass destruction". In the floor debate, Durbin noted that a failure to amend the language in the first clause is equivalent "to [saying] in the age of terrorism that preemption is the answer." Unfortunately, his amendment failed, 30-70. Chris Dodd was the only one of the 2008 presidential candidates to vote for it.

This overly broad "continuing threat" authorization makes Kyl-Lieberman worrisome. Consider clause 2 of subsection b of the Kyl-Lieberman amendment:

(2) that it is a critical national interest of the United States to prevent the Government of the Islamic Republic of Iran from turning Shi'a militia extremists in Iraq into a Hezbollah-like force that could serve its interests inside Iraq, including by overwhelming, subverting, or co-opting institutions of the legitimate Government of Iraq;

The authority given to the president to "defend the national security of the United States against the continuing threat posed by Iraq" is still in place. This clause from Kyl-Lieberman states that preventing the government of Iran "from turning Shi'a militia extremists in Iraq into a Hezbollah-like force" is a "critical national interest," meaning it affects our national security. If such a Hezbollah-like force came about, it would be contributing to the "continuing threat" posed by Iraq.

Therefore, the Bush administration could argue that based on Congress's statements in Kyl-Lieberman, they have authority stemming from the Iraq War resolution to invade Iran . Specifically, they could claim that invading Iran will prevent them from creating a Hezbollah-like force in Iraq, thereby defending "the national security of the United States against the continuing threat posed by Iraq." Although this is somewhat of a stretch of the law, the Bush administration has claimed legal authority for actions that require a far greater stretch of the law than this would, so it is still something to be worried about.

A second common claim relates to clause 3, which urges the executive branch to designate the Islamic Revolutionary Guards Corps as a terrorist group :

(3) that the United States should designate Iran's Islamic Revolutionary Guards Corps as a foreign terrorist organization under section 219 of the Immigration and Nationality Act and place the Islamic Revolutionary Guards Corps on the list of Specially Designated Global Terrorists, as established under the International Emergency Economic Powers Act and initiated under Executive Order 13224

The claim is that this language is the most controversial part of the bill and does the most to push us towards a war with Iran. This claim fails to stand up to scrutiny.

First of all, under the Immigration and Nationality Act (8 USC Sec. 1189), the Secretary of State has the discretion to designate organizations as foreign terrorist organizations. Although Congress is given a seven-day period to choose to decide to block such a designation, if they do not act, the designation becomes law. Thus, if the Bush administration wanted to declare the Revolutionary Guards as such, they could have done so on their own.

Second of all, consider the legal ramifications of designating a group as a Foreign Terrorist Organization. They include: making it unlawful for anyone in the United States to provide the FTO "material support," preventing members of FTOs from entering the United States and allowing for the deportation of members already here, and requiring U.S. financial institutions who possess or control funds of an FTO to notify the Office of Foreign Assets Control of the U.S. Department of the Treasury.

The financial provision is the most important, as it allows the Office of Foreign Assets Control to freeze the assets of the Foreign Terrorist Organization. None of these ramifications provide the administration with any authority for military action.

Most importantly, Iran has been designated as a State Sponsor of terrorism since January 19, 1984. Thus, even if sponsoring a terrorist organization gives the president authority under, say, the 2001 authorization of military force to invade that country, the designation of the Revolutionary Guards as an FTO has no effect. After all, based on that line of reasoning, the administration had the authority to invade Iran immediately upon the AUMF's passage.

Finally, Jane Hamsher and others have claimed that Senator Obama is a hypocrite for claiming he'd have voted against Kyl-Lieberman had he been present, because he co-sponsored "the equally bellicose anti-Iranian S.970 bill."

After the Kyl-Lieberman vote, I noticed something that seemed to strongly contradict her claim. Half of the 20 Democrats who voted against Kyl-Lieberman (Barbara Boxer, Sherrod Brown, Maria Cantwell, Chris Dodd, Dan Inouye, Ted Kennedy, John Kerry, Amy Klobuchar, Blanche Lincoln and Jon Tester) are also co-sponsors of S.970.

A read-through of the bill confirmed that S.970 was significantly less bellicose than Kyl-Lieberman. The bill deals solely with economic measures against Iran. Granted, even this bill may not have been necessary, given that intelligence indicates Iran stopped their nuclear program in 2003. However, S.970 is clearly not a warmongering bill.

Consider this line from Section 2 of the Act:

(8) Nothing in this Act should be construed as giving the President the authority to use military force against Iran.

I think that makes it pretty clear that S. 970 cannot be used to claim authority for attacking Iran. Unfortunately, the same cannot be said about Kyl-Lieberman.

Comments

[Grannysue]

Don't you just love the picture of all those cowards hugging each other!

[Tellmethetruth]

Another MAJOR VOTE OBAMA DIDN'T BOTHER TO SHOW UP FOR! Clinton didn't vote right, and Joe Biden as usual was right on the money!

No sense in asking Obama what his opinion is on Iran as when given the opportunity to make his voice heard didn't show up to the vote on the job the taxpayer's elected him to do. (He has missed 80% of the Senate votes since September 1, 2007).

Not only did Biden get his vote right, but he recognized Cheney had written up plans to attack Iran - and Biden has been very, very public since August of 2007 that he would fight for impeachment of Bush/Cheney if they did anything against Iran based upon phoney WMDs and without an Act of War Declared by Congress.

Way to Go Joe Biden!!! Once again, Joe was right!

www.joebiden.com

[Wilburrr]

HEY! No problem!! I just wrote my senator (John Kyl) and asked him to drop his support for Kyl-Lieberman and support S.970. I sure he'll be on board with that....

[Plowboy]

For all their pretenses, their rejection of the Durbin amendment is solid proof that the Senators knew the truth: that Iraq had no WMDs. They also know that Iran is no threat to us. But truth is not with them.

Well, on this, as on several other issues, we must give Dodd a pass. Perhaps that is why our totally owned and operated MSM keeps him below the horizon while promoting interrest in their "leading" candidates. It doesn't pay to be on the side of right and justice on our political scene today. Wonder why? Cui bono?

[geobushono]

Why don't we just give Conn to israel ......it'll reduce tensions in the ME...

[strangelet]

Good analysis. I would agree that the "disclaimer" in S970 accounts for the different voting patterns on the two items.

One thing that you neglected to mention is that S970 contains essentially identical language to Kyl regarding designating the IRG as a terrorist organization. It may be your opinion that this provision is not the most controversial, or war-provoking, but it is extremely inflammatory -- declaring part of the military of a sovereign state to be a terrorist organization is not far from declaring that they are at war with us.

You're right that the Sec of State can do it anyhow, but either the Kyl amendment or S970 sort of promises that Congress won't overturn the declaration.

As to your observation that the Bush admin has advanced some stretchy legal weaseling, you are of course right. However, the most worrisome issue is the "continuing threat" part of the AUMF, which is law. The Kyl amendment is "sense of the Senate", which is, specifically, not law. For what it's worth, Lieberman's floor comments indicate that the "intent" of the amendment (also not law) is not to encourage military action.

My point is that military intervention in Iran to prevent the Iranification of the Iraqi government could be justified as a national security matter under the AUMF just as well (and just as speciously) without the Kyl amendment as with it. The only things that would (at least legally) keep Bush from advancing such an argument would be a law modifying the AUMF; or one prohibiting military action against Iran without specific Congressional authorization.

[TRichards]

Lieberman -- Bush without the courage to stand up and say, "Yes, I'm an autocratic nut case."

Bush is Bush. Lieberman is Lieberman except when he becomes "Joe" and backpedals a bit on his hardline stances when he's up for election.

What a turd!

[robotfog]

Lieberman and Bush kiss each other on the mouth yet again.

Can we kick Connecticut out of the union for voting Lieberman into office?

Then Rhode Islanders can march in and expand the size of their state

[grannysharp]

What would you expect from Lieberman??? after all it was the republicans that got him elected.

[Anastasia]

This is one reason why Hillary and her much touted "experience and judgement" is so much fluff.

Not having learned anything from the Iraq war debacle, she doubled down on her earlier mistake of voting to give Bush a blank check to wage war, by tacitly giving him permission to start another, this time with Iran, who is far more capable of fighting back.

Thank god for the NIE. Otherwise, war with Iran would be an inevitability.

[Sundialsvc4]

Very, very astute. Are you a lawyer?

I was wondering when anyone would read the phrase in that second act:

"Nothing in this act gives the President the authority to..."

is NOT THE SAME AS what you might ASSUME it means. It does NOT MEAN:

"The President is not allowed to..."

What we are seeing here is a Congress that is with great determination seeking to aid-and-abet war crimes perpetrated by the entire United States Government, while giving themselves "plausible denial."

We see this application of "plausible denial" most obviously in Rep. Pelozi and Sen. Reid, but hundreds of others are lurking behind the close cousins, "apparent ineffectualness" and "pointing fingers."

It is, ladies and gentlemen, the largest crime ever perpetrated in the history of man. And I do NOT say that casually. Think about it. Think about it for a long, long time. But hurry.

[larryvotes]

There was a nationwide event by Moveon.org yesterday addressing this concern. Everyone should contact their representative and have them support HR 64 and HR 3119. Both of these resolutions tell Bush he does not have permission to invade/attack Iran. HR 3119 has a corresponding resolution in the Senate introduced by Virgina Senator Jim Webb. Get active on this NOW !
Thanks

[ThomasHobbes87]

Why hasn't this President been dealt with already?

[BarryLeonardini]

Kyl-Lieberman is another indication that U S foreign policy is centered on the criminal Israeli state.