Couldn't you argue that both Clinton's actions in Serbia (and the countless other non-congressionally authorized uses of force by presidents in the past) are also wrong, and therefore, so is this Iran strike? I'm not sure we just have to accept past actions as being okay just because nobody checked them at the time
Also not sure if any scholarship has been done on this part of the issues of the president's unilateral military force, but the idea of actions being justified if they are in the "national interest" concerns me. Why should we defer to each administration's interpretation of what the national interest is? It's not at all clear to me that bombing these Iran nuclear facilities, erasing or at least greatly setting back chances of a diplomatic way of monitoring Iran's nuclear capabilities, and thereby risking escalation is in the "national interest" at all. It just seems like a term with no meaningful restraints. Maybe a president could argue that assassinating the leader of another state he doesn't like or mass-killing immigrant refugees who intend on coming to the US could be in the "national interest" as well. Seems like a term without any meaningful limits, but with all the justificatory force for any unilateral military action.
You can certainly make this argument--and many scholars have indeed made this point. The challenge is that we have decades of use of an OLC-established legal standard that has been used by all modern Presidents to justify taking military action without prior military action. In law, precedent matters a great deal. The challenge is to reconcile the sole right of Congress to declare war with the President's role as Commander in Chief in Article II. Since at least 1973, Congress has largely stopped engaging in any debate on how to reconcile this issue, and since the later 1970s the Courts have declined to get involved as well. As a result, the legal standard has been left to the President's lawyers at OLC to develop, and they--as you note--have created a standard that really doesn't limit unilateral action as well. I am persuaded that the only way we right this ship is to force either the Courts or Congress to get involved. One mechanism might be to force military action to stop unless there is affirmative Congressional approval.
Couldn't you argue that both Clinton's actions in Serbia (and the countless other non-congressionally authorized uses of force by presidents in the past) are also wrong, and therefore, so is this Iran strike? I'm not sure we just have to accept past actions as being okay just because nobody checked them at the time
Also not sure if any scholarship has been done on this part of the issues of the president's unilateral military force, but the idea of actions being justified if they are in the "national interest" concerns me. Why should we defer to each administration's interpretation of what the national interest is? It's not at all clear to me that bombing these Iran nuclear facilities, erasing or at least greatly setting back chances of a diplomatic way of monitoring Iran's nuclear capabilities, and thereby risking escalation is in the "national interest" at all. It just seems like a term with no meaningful restraints. Maybe a president could argue that assassinating the leader of another state he doesn't like or mass-killing immigrant refugees who intend on coming to the US could be in the "national interest" as well. Seems like a term without any meaningful limits, but with all the justificatory force for any unilateral military action.
You can certainly make this argument--and many scholars have indeed made this point. The challenge is that we have decades of use of an OLC-established legal standard that has been used by all modern Presidents to justify taking military action without prior military action. In law, precedent matters a great deal. The challenge is to reconcile the sole right of Congress to declare war with the President's role as Commander in Chief in Article II. Since at least 1973, Congress has largely stopped engaging in any debate on how to reconcile this issue, and since the later 1970s the Courts have declined to get involved as well. As a result, the legal standard has been left to the President's lawyers at OLC to develop, and they--as you note--have created a standard that really doesn't limit unilateral action as well. I am persuaded that the only way we right this ship is to force either the Courts or Congress to get involved. One mechanism might be to force military action to stop unless there is affirmative Congressional approval.
Very helpful Chuck. Whenever I despair of reasoned debate, I know I can rely on you to educate and inform.