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.