The Webb (and now Clinton) Iran Legislation

Marty Lederman

In the wake of increasing reports that the Administration is planning to attack Iran, Senator Clinton has announced that she is co-sponsoring Senator Webb's legislation that is said to prohibit the use of funds for military operations against Iran without explicit Congressional authorization.

The Webb bill, S. 759, was introduced in March, referred to the Senate Foreign Relations Committee, and has been languishing since then -- Senator Clinton is the first co-sponsor. Her sponsorship, and the Administration's noises toward Iran, might spur further congressional action.

So what would the Webb bill actually do, if Congress approves it and then somehow overrides the inevitable Bush Veto?

Its operative provision states that "[n]otwithstanding any other provision of law, no funds appropriated or otherwise made available by any Act, including any Act enacted after the date of the enactment of this Act, may be obligated or expended for military operations or activities within or above the territory of Iran, or within the territorial waters of Iran, except pursuant to a specific authorization of Congress enacted in a statute enacted after the date of the enactment of this Act."

The most important thing this prohibition would do would be to eliminate any argument that previous statutes (such as the force authorizations for Al Qaeda or Iraq, or last week's Kyl-Lieberman bill) authorize military action in Iran. It would also prohibit the President from using his Article II powers to engage in such action (although in that case, the Bush Administration has already indicated (see top of page 3 here) that it would -- wrongly -- consider such a limitation to be unconstitutional).

The trickier part is what relation this statute would have with future statutes, including appropriations legislation. Although it purports to limit the use of appropriations "enacted after the date of the enactment of this Act" unless there is a "specific authorization of Congress," the Bush Administration would undoubtedly argue, quite reasonably, that one Congress cannot bind a future Congress to act with any particular degree of "specificity" in order to effect its will. See section III of this 2000 OLC Opinion on Kosovo, which discusses the same question with respect to a similar limitation in the War Powers Resolution. (That provision did not prevent the Clinton Administration from disregarding the time-limit in the WPR, on the theory that subsequent appropriations legislation had authorized extended hostilities.)

The Webb bill would, however, have the effect "of establishing a background principle against which Congress legislates" (Kosovo Opinion). In particular, it would "inform how an executive or judicial branch actor should interpret the intent of subsequent Congresses that enact appropriation statutes that do not specifically reference the [Webb bill]." As the Clinton OLC explained:

On the question whether an appropriation statute enacted by a subsequent Congress constitutes authorization for [Iran] hostilities, it is the intent of the subsequent Congress, as evidenced by the text and legislative history of the appropriation statute, that controls the analysis. The existence of [the Webb bill] might affect this analysis. If the [future] appropriation statute is entirely ambiguous as to whether it constitutes authorization for continuing hostilities, for example, it might be proper for a judicial or executive branch actor to conclude that, because the subsequent Congress was aware of the background principle established by [the Webb law], its failure to refer specifically back to the [Webb bill] evidences an intent not to authorize [Iran] hostilities. If, however, Congress, in enacting an appropriation statute, demonstrates a clear intent to authorize . . . hostilities [in Iran], then it would be appropriate to conclude that the appropriation statute does authorize those hostilities, even though the statute does not specifically refer back to the [Webb bill].

One other important thing to note about the Webb bill: It contains an exception for "[m]ilitary operations or activities connected with the intelligence or intelligence-related activities of the United States Government." This strikes me as a huge loophole, since virtually any military action in Iran will be "connected with" intelligence-related activities in some respect. So Senators Webb and Clinton might want to clarify, in the legislation, exactly what they mean to be exempting here.
Posted 6:41 AM by Marty Lederman [link]