How US has laid legal grounds for Iran strike
Trump administration has been busy working on ways to justify military action
The Trump administration has opened the door to virtually every legal authority it might use to justify military action against Iran, from tying Iran to al-Qaida, to President Donald Trump’s assertion that it would not involve American ground troops and “wouldn’t last very long”.
Democrats, and some Republicans, have tried repeatedly to pin the administration down, including last week’s unsuccessful attempt to muster 60 Senate votes for an amendment requiring Trump to ask Congress before launching any military engagement.
When asked directly about legal justification, senior administration officials have offered vague assurances that any action would “consistent with our Constitution”, as Secretary of State Mike Pompeo said last month, or they deferred to lawyers.
Concern about the possibility of US military action against Iran has grown since the administration cited new intelligence that Iran or its proxies were planning to attack US troops or American interests in the Middle East.
Although Trump canceled a US strike against Iran following the shooting down of a US drone, the administration has continued to lay the legal groundwork for a strike.
Pompeo, in both public and classified testimony, according to lawmakers, has said there are ties between Iran and al-Qaida. Such a relationship would seem to provide the foundation for military action against Iran under the 2001 congressional Authorisation for Use of Military Force (AUMF) against the perpetrators of the al-Qaida attacks that year.
However, such a determination has doubters even within the administration. Defence officials have taken unusual steps in recent weeks to
distance themselves from Pompeo’s assertion, amid fears that the administration may be driving toward a conflict that would be long, costly and detrimental to American interests.
In a statement, Commander Rebecca Rebarich, a Pentagon spokeswoman, said the department “does not believe 2001 AUMF can be used against Iran”. That position has been affirmed by the Pentagon’s top lawyer, Paul Ney Jr, according to officials.
Taking up a suggestion to ask government lawyers about both the 2001 AUMF and a subsequent 2002 congressional resolution authorising the US invasion of Iraq, Armed Services Committee Chairman Eliot Engel, wrote last week to Marik String, who became acting State Department legal adviser six weeks ago.
Engel asked for “any and all legal analysis” relating to whether either measure was “applicable to any actions that could be undertaken by the Executive Branch in or against the Islamic Republic of Iran”.
The brief reply from the State Department’s legislative affairs bureau said: “The administration has not, to date, interpreted either AUMF as authorising military force against Iran except as may be necessary to defend US or partner forces engaged in counterterrorism operations or operations to establish a stable, democratic Iraq.”
Democrats have interpreted that response as leaving the door open to administration assertions that such authorisation is justified in the future.
“We’re very concerned the administration hasn’t categorically said Congress hasn’t authorised war with Iran,” a Democratic congressional aide said.
Three successive administrations have cited the 2001 AUMF as a basis for fighting an array of militant groups across the Middle East, South and Central Asia, and Africa, as Congress has failed in repeated efforts to pass a new authorisation that would apply to military actions that seem far afield from those originally authorised.
The other legal authority available to the president, short of Congress’s approval under its constitutional authority to declare war, is the president’s own constitutional power as commander in chief of the armed forces, in charge of keeping the nation secure. Here, previous presidents and the current Justice Department have laid a broad foundation for action that Congress has done little to constrain.
The only public statement the administration has made interpreting those powers was a May 31, 2018, opinion by the Justice Department’s Office of Legal Council on authority for the April 2018 US airstrikes against Syrian chemical weapons facilities, which determined the strikes were legal because of national interests and their limited scope and duration.
The second test examined whether US troops would be directly involved in hostilities, noting that the Clinton administration OLC, in judging the Bosnia deployment, concluded that the size and duration of operations, and the deployment of ground troops, were key tests.
In an interview last week with Fox Business host Maria Bartiromo, Trump said that “If something should happen, we’re in a very strong position. It wouldn’t last very long, I can tell you that. It would not last very long.”