A United States Air Force B2 Spirit. This file is licensed under the Open Government Licence version 1.0.
OPERATION MIDNIGHT HAMMER—UNCONSTITUTIONAL? DEPENDS ON THE POLITICAL WINDS
INTRODUCTION
Since Congress overrode Nixon’s veto in 1973, the War Powers Resolution has been the subject of uniform disdain by Presidents regardless of party. Whether or not its provisions are an appropriate intrusion into the Article II authority of the Chief Executive to act as Commander in Chief of the Armed Forces and the branch responsible for the foreign affairs policies of the United States, the cowardice and fecklessness of Congress has turned it into a vestigial relic. Perhaps this is due to the ever-changing nature of warfare, which causes us to join issue with non-state and state-sponsored actors in limited actions that nonetheless place our military in harm’s way. Missile and drone strikes and bombings short of traditional movement of large formations of troops and equipment into hostile territory have created a gray area used by Presidents from Reagan to Clinton and all since, who have skirted its provisions in favor of advancing foreign policy objectives by limited but lethal force. Trump hit Syria and killed the terrorist General Soleimani in his first term. President Reagan sent Marines to Beirut, leading to the tragedy of October 1983 at the hands of Iran’s proxy Hezbollah, when hundreds of Marines were killed in their barracks. Panama and Grenada were invaded by Reagan and Bush. Clinton bombed Kosovo and sent Rangers into a meat grinder in Somalia, as well as military actions all over the Middle East. The rock star was Obama, who in 2011 initiated military action through sustained air strikes in Libya, demoting the War Powers Resolution in favor of a UN Resolution, and, along with Hillary Clinton, wrecked Libya for the ages while using semantics to avoid the trigger words “war” and “regime change.” Congress sputtered and blathered, but Obama had his way, and we became part of NATO for a time, engaged in combat without any authorization. Americans, including an ambassador, died. Hillary got the Democratic nomination in the 2016 election. It all depends on who is pulling the trigger. The Resolution has become the appendix of the American body politic.
SOME BACKGROUND
The War Powers Resolution (WPR) states that the President’s powers as Commander in Chief to introduce U.S. forces into hostilities or imminent hostilities are exercised only pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national emergency created by an attack on the United States or its forces. It requires the President in every possible instance to consult with Congress before introducing American Armed Forces into hostilities or imminent hostilities unless there has been a declaration of war or other specific congressional authorization. It also requires the President to report to Congress any introduction of forces into hostilities or imminent hostilities, Section 4(a)(1); into foreign territory while equipped for combat, Section 4(a)(2); or in numbers that substantially enlarge U.S. forces equipped for combat already in a foreign nation, Section 4(a)(3). Once a report is submitted “or required to be submitted” under Section 4(a)(1), Congress must authorize the use of forces within 60 to 90 days, or the forces must be withdrawn. The foregoing is from a Congressional Research Service piece by Richard Grimmett in 2012. It summarizes the procedures that have been objected to by Presidents who must act in a new age of threats and asymmetrical warfare. In 1973, no one saw a future Al Qaeda, ISIS, or numerous violent proxies on the horizon who would test our ability to act quickly with force without a declaration of war or other authorization.
The last declaration of war by Congress was in 1942, when it issued a formal declaration of war against Hungary, Romania, and Bulgaria, all Nazi proxy states. Since then, Congress has issued more limited Authorizations for Use of Military Force (AUMF) in 1991, 2001, and 2002. Presidents since 2001 have utilized the 2001 AUMF for various military interdictions of terrorist cells and strongpoints, including individual members. It reads as follows:
“Public Law 107–40 107th Congress Joint Resolution To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens;
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad;
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence,
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States;
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:
Now, therefore, be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE. This joint resolution may be cited as the ‘Authorization for Use of Military Force.’ SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.
(b) WAR POWERS RESOLUTION REQUIREMENTS.—(1) SPECIFIC STATUTORY AUTHORIZATION.— Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.”
Put simply, Presidents since the enactment of this AUMF have used its authority to target terrorists all over the world. It doesn’t take much to tie in many of these organizations as aiding or harboring those who supported the attack and the aftermath. In fact, many have argued that neither an AUMF nor other Congressional declaration is necessary for any Commander in Chief to attack and deter terrorists wherever they may be. As a U.S. Senator, Marco Rubio, now Secretary of State, advocated this position. Does a diligent President seek Congressional approval from a Congress more interested in political posturing and fundraising as a measure of Constitutional fealty or does he act given his Article II responsibilities? This has guided the decisions of both Republicans and Democrats since 1973 and before.
PRESIDENT TRUMP’S REPORT TO CONGRESS UNDER THE WAR POWERS ACT SHOULD INCLUDE SOME IMPORTANT HISTORY
Iranian proxies and Iran directly have been killing Americans for decades. In Iraq, American intelligence reports established that over 600 United States military force members were killed directly by Iran. Hundreds more were maimed in IED attacks with Iranian-marked components. In 2019, the United States declared both the Iranian Revolutionary Guard Corps (IRGC) and its Quds Force as international terrorist organizations. De facto conflict between the United States and the IRGC existed from the 2019 withdrawal by Trump from the disastrous Joint Comprehensive Plan of Action—a one-sided piece of Obama-engineered appeasement that had too many loopholes to keep Iran from obtaining the ultimate weapon of terror—a nuclear weapon. The IRGC promptly resolved to directly and indirectly engage in actions against the United States and its allies, including Ayatollah Khamenei himself authorizing a strike against the ARAMCO refinery in Saudi Arabia. In addition, the group Kata’ib Hezbollah (KH) was directly guided by the IRGC and Soleimani and directed several rocket attacks against U.S. forces in Northern Iraq. When Trump’s strike against Soleimani was authorized, the leader of KH was with him, and U.S. intelligence had evidence that he was planning future attacks against our forces and diplomats. During the gutless Biden Administration, Iranian proxies guided by the IRGC attacked American outposts in Syria and Iraq with little to no response. Predictably, Democrats in Congress, seeing an upcoming election resolved in May 2020:
“To direct the removal of United States Armed Forces from hostilities against the Islamic Republic of Iran that have not been authorized by Congress”
This evidenced a politically skewed opinion by Congress that neither the 2001 nor 2002 AUMFs authorized military action against Iran despite the evidence of Iranian complicity in guiding and financing the hostile actions against U.S. forces in the region. President Trump vetoed the measure and highlighted the actions of the outlaw regime, stating:
“TO THE SENATE OF THE UNITED STATES:
I am returning herewith without my approval S.J. Res. 68, a joint resolution that purports to direct the President to terminate the use of United States Armed Forces in hostilities against Iran. This indefinite prohibition is unnecessary and dangerous. It would weaken the President’s authority in violation of Article II of the Constitution and endanger the lives of American citizens and brave service members.
This joint resolution is unnecessary because it rests upon a faulty premise. Due to my decisive actions and effective policies, the United States is not engaged in the use of force against Iran. As Commander in Chief, I will always defend our Nation against threats to our security.
In response to an escalating series of attacks by Iran and Iranian-backed militias on United States forces and interests in the Middle East, on January 2, 2020, United States Armed Forces eliminated Qassem Soleimani, the head of Iran’s Islamic Revolutionary Guard Corps-Qods Force, as he was traveling in Iraq. The purposes of this strike were to protect United States personnel, deter Iran from conducting or supporting further attacks against United States forces and interests, degrade the ability of Iran and Qods Force-backed militias to conduct attacks, and end Iran’s strategic escalation of attacks against and threats to United States interests.
On January 7, 2020, Iran launched 16 ballistic missiles against United States and coalition forces in Iraq. These attacks resulted in no fatalities. The next day, in an address to the Nation, I noted that ‘Iran appears to be standing down’ and emphasized that ‘the United States is ready to embrace peace with all who seek it.’
One day later, this resolution was introduced. Its apparent aim was to prevent an escalation in hostilities between the United States and Iran. Yet no such escalation has occurred over the past 4 months, contrary to the often dire and confident predictions of many.
S.J. Res. 68 is also unnecessary because it incorrectly implies that the military airstrike against Qassem Soleimani in Iraq was conducted without statutory authority. The resolution states that ‘the 2001 Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) against the perpetrators of the 9/11 attack and the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243; 50 U.S.C. 1541 notes) do not serve as a specific statutory authorization for use of force against Iran.’ The strike against Soleimani, however, was fully authorized under both the Authorization for Use of Military Force Against Iraq Resolution of 2002 (‘2002 AUMF’) and the President’s constitutional authorities as Commander in Chief and Chief Executive.
The United States has long relied upon the 2002 AUMF to authorize the use of force for the purpose of establishing a stable, democratic Iraq and for addressing terrorist threats emanating from Iraq. Such uses of force need not address only threats from the Iraqi government apparatus but may also address threats to the United States posed by militias, terrorist groups, or other armed groups in Iraq. This has been a consistent application of the statute across Administrations, including the last Administration, which relied upon it to conduct operations in response to attacks and threats by Iran-backed militias in Iraq. Moreover, under Article II, the President is empowered to direct the use of military force to protect the Nation from an attack or threat of imminent attack and to protect important national interests.
In addition, S.J. Res. 68 is dangerous because it could hinder the President’s ability to protect United States forces, allies, and partners, including Israel, from the continued threat posed by Iran and Iranian-backed militias. The resolution states that it should not “be construed to prevent the United States from defending itself from imminent attack.” But this overlooks the President’s need to respond to threats beyond imminent attacks on the United States and its forces.
Protecting the national security of the United States involves taking actions to de-escalate threats around the world, including threats posed by Iran and Iranian-backed militias. Iran and Iranian-backed militias have a long history of attacking United States and coalition forces. As demonstrated by the recent indirect fire attacks on January 26, 2020, on the U.S. Embassy in Baghdad and on March 11 and 14, 2020, on Camp Taji, Iraq, Iran and Iranian-backed militias continue to present a threat. This resolution would impede the President’s ability to counter adversarial forces by anticipating their next moves and taking swift actions to address them decisively.
For all of these reasons, I cannot support this joint resolution. My Administration has taken strong actions, within statutory authority, to help keep our Nation safe, and I will not approve this resolution, which would undermine my ability to protect American citizens, service members, and interests. Therefore, it is my duty to return S.J. Res. 68 to the Senate without my approval.”
I suspect that the use of specialized munitions to target exclusively the nuclear capabilities of Iran, which would be at the disposal of the IRGC and its leader Khamenei, would fit within the parameters of the 2001 AUMF as well as the inherent Article II authority of any Commander in Chief to deter future attacks. Neither the Israeli Knesset nor the American Congress opens their sessions with chants of “Death to Iran.” The International Atomic Energy Agency determined that Iran was up to enriching for military-grade aims and not for purely domestic peaceful energy goals. Any American president should have the ability to interdict jihadist threats on our soil and our deployed assets. Over the years Congress has sat and watched and whined as Presidents exercised this authority, right or wrong. They have rarely, if ever, withheld funds for such operations, as they would see a loss of political capital. The aims of politics have shattered any notion of constitutional fealty, and it comes down to who is in office and who owns the majority in Congress. Trump, like any other Commander in Chief sees this history of Congressional fecklessness and erosion of its war-declaring authority as little deterrence to what his team sees as an existential threat and his responsibilities as President.
CONCLUSION
The preferred path for any decision to introduce American forces into hostilities would be to seek Congressional authority. The problems with this have been made evident depending on the temperature in the room. I would not entrust the safety and security of Americans to Congressional radicals who side with rogue states and have little knowledge of the body count of Americans at the hands of the IRGC. Pelosi knows more about insider trading than terror threats. The United States, based upon both Article II authority and the 2001 AUMF’s broad mandate, removed a tool from the arsenal of a declared terrorist organization. No other Iranian military assets or economic infrastructure were hit. The leadership is intact. With a nuclear weapon, the IRGC would be better able to finance terrorism and promote destabilization. The destruction of the United States and Israel are the stated goals of the IRGC as the true arm of the Iranian state. What comes next is a question. There is no clear answer when dealing with Iran, with whom we have been in de facto conflict since 1979, when our embassy was overrun and hostages taken. It may turn out to have been a tactical mistake as well as a political miscalculation. I weigh in cautiously in favor of this action. In October 1983 I deployed to Beirut and U.S. Naval vessels on station in Beirut Harbor. We were a deployed trial team supporting the fleet as they were on station for months and had to run boards and court martials. I saw firsthand the aftermath of the baseless killing of hundreds of my shipmates as a young Navy JAG officer. The surviving Marines who transited back and forth on the supporting ships had that stare, and we all knew what it was. I rode back on a plane with a Marine fact-finding team and the records of the dead. It became personal for me. Excuse my editorial bias. I hope for the safety of our deployed assets and that this was the right decision. The IRGC won’t go away quietly, but they may have met their match.
Mike Imprevento
June 23rd, 2025
