The imminence ploy

How 'imminent threats' act as the executive branch's license to kill

Mike Pompeo.
(Image credit: Illustrated | BRENDAN SMIALOWSKI/AFP via Getty Images, kotoffei/iStock, -slav-/iStock)

The Trump administration's assassination of Iranian Gen. Qassem Soleimani was necessary, Secretary of State Mike Pompeo said in a Fox News interview Thursday night, because the Quds Force leader would have attacked us at any moment. "There is no doubt that there were a series of imminent attacks being plotted by Qassem Soleimani," Pompeo said. "We don't know precisely when and we don't know precisely where, but it was real."

That's not what "imminent" means.

If you do not know the timeline of an attack, by definition you do not know whether it is imminent. A reporter mentioned as much to Pompeo at a press briefing Friday morning, but he refused to concede the point, pretending he'd been asked to provide a precise timestamp — "I don't know exactly which minute" — immediately before admitting he couldn't even say what day an attack may have occurred.

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Between Pompeo's obfuscation, a memo on the strike from the White House to Congress, and the total lack of specific evidence provided by the Trump administration (President Trump said in a Fox interview Friday the threat was "probably" against the U.S. embassy in Baghdad and three other embassies), it seems pretty clear there was never an attack imminent. Indeed, The Washington Post reports, "[l]awmakers left classified briefings with U.S. intelligence officials ... saying they heard nothing to suggest that the threat posed by the proxy forces guided by Soleimani had changed substantially in recent months" — months Pompeo reportedly spent pushing Trump to authorize this very strike.

So why pretend there was an imminent threat if there wasn't? The answer helps explain how American foreign policy became a dangerously unchecked region of the president's domain.

The Constitution gives the power to "declare war" to Congress. As we know from James Madison's notes from the Constitutional Convention, this was a deliberate word choice intended to permit the president "the power to repel sudden attacks" as commander-in-chief but to forbid the executive branch authority to "commence war." (This is grade school civics stuff, I know, but it bears rehearsing as we never have a chance to see the process in action.) The delay this built into the war-starting process was a feature not a bug. It was a means, in Madison's words, of "clogging rather than facilitating war [and rather] facilitating peace."

The War Powers Act of 1973 formally ceded some of the power to commence war which the executive branch had functionally usurped already. The president could start wars of his own accord, the act provided, so long as he told Congress about it within two days and ended the war within 90 days unless Congress declared war or passed an authorization for use of military force (AUMF) before the deadline hit.

Even this minimal limit, which — with the help of political inertia and facile equation of war funding with support for the troops — is really no limit at all, proved unacceptable to American presidents. Congress passed an AUMF in 2001 to go after the perpetrators of the 9/11 attacks and an AUMF in 2002 for the war in Iraq. In the last two decades, those documents have been stretched beyond all plausibility to cover U.S. military interventions across the Middle East and North Africa. Incredibly, the administration claimed this week that the Iraq AUMF, which literally never uses the word "Iran," somehow authorized the Soleimani strike.

Here's where "imminent threats" come in. The president has always been permitted to defend the country against incoming attacks. If the Pentagon detects a missile heading for Times Square, the president does not have to ask Congress if he can do something about it. So the obvious strategy, for a president eager to dispense with congressional involvement in foreign policy altogether, is to make every situation an imminent threat.

The tactic is effective. After all, you wouldn't want to be the member of Congress whose whining about constitutional procedure and other nerd crap like that got Americans killed, would you? Fears and false claims of imminent threats thus undergird the entire shift toward executive war-making. Congress is too slow, the argument goes, so waiting for congressional deliberation and approval makes us unsafe.

The Trump administration and its allies have leaned hard into this rationale since the Soleimani assassination. Besides Pompeo's incoherent and evolving story of an imminent threat, Trump retweeted a thread from Sen. Lindsey Graham (R-S.C.) declaring he would "oppose any War Powers resolution ... so as to allow this president to have the latitude he needs as commander-in-chief" because the "last thing America needs is 535 commanders-in-chief." Graham has gone on to note that most "military engagements in our history have been conducted without a formal declaration of war" — as if past lawlessness could justify present lawlessness — and announced his laughable belief that the War Powers Act is "unconstitutional" because it reserves too much foreign policy authority to Congress. Meanwhile, former White House Press Secretary Sarah Huckabee Sanders graced us with the revelation that she "can't think of anything dumber than allowing Congress to take over our foreign policy" by exercising its constitutional authority.

This imminence ploy is clever, but it is a ploy we need to reject. If the executive branch can use "imminent threats" as a universal excuse for commandeering congressional war powers, those powers do not meaningfully exist and the president is less commander-in-chief than warlord-in-chief.

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