Legality of Attacking Iran

Thanks very much to Bobby and the other folks at National Security Advisors for inviting me to join the blog.  I'm very much looking forward to dialogue with readers and co-bloggers.  So here goes my inaugural post:

Ever since it included Iran in the axis of evil, the Bush administration has made clear that stopping Iran from getting nuclear weapons and changing the regime in Tehran are important U.S. policy objectives.  Tensions between the U.S. and Iran probably peaked in late 2006 and early 2007.  Iran repeatedly boasted of its efforts to move forward with nuclear development and the U.S. responded with a serious of provocative actions and statements, e.g., deployment of two carrier groups to the Gulf; announcement of a new plan to "capture or kill" Iranian operatives found in Iraq; repeated statements by principals (Bush, Cheney, Rice) that "all options" were on the proverbial table for dealing with Iran's nuke problem.  In the last month or two, the Bush adminstration has noticeably reduced the frequency of public threats against Iran (Cheney is, of course, not with the program though).  And the U.S Dept. of State just announced it will hold "high level" "face to face" talks with Iran at the end of this month.  The stated topic is Iraq but this could well lead to further discussions about other even more contentious issues. 

But this diplomatic lull could well be the calm before the storm.  Seymour Hersh of the New Yorker, who has done outstanding reporting about Bush administration planning for an attack on Iran, said last year that administration insiders describe Bush as "messianic" in his belief that only he -- and not any of his potential successors -- will have the fortitude to take out Iran's nukes, and so likely thinks he must act before leaving office.  Also Bush's reckless gambler's character suggests he may choose to double down in the Middle East by taking a second shot at military transformation of the region.

Given Bush's views and Iran's determination to get a bomb, it is worth thinking about the legality of a U.S. attack on Iran.  A U.S. attack could of course vary significantly in level of force, targets, objectives and stated rationales -- all of which could bear on the legal issues.  Some professors and pundits have started debating the international law angles.  I plan to discuss those issues here in the future.  The legality under U.S. law is also an interesting question.  I recently wrote something for Huffington Post arguing that three laws currently on the books can plausibly be read to authorize an attack on Iran.   The laws are the post 9-11 authorization for the use of military force (AUMF); the Iraq force authorization; and the War Powers Resolution.  I'd be interested to hear what readers think about the legal question I raised. 

Of course Bush doesn't believe that he needs congressional authorization to do much of anything.  He made signing statements to the effect that the AUMF and Iraq authorization were unnecessary because he had all the authority he needed under Article II of the Constitution.  A John Yoo-authored OLC legal opinion -- that is apparently still considered valid by the administration -- concludes that "the Constitution vests the President with the plenary authority . . . to use military force abroad" and "full control of the military forces of the United States."  (To be fair, Democratic administrations, most notably Truman and Clinton's, also claimed Art. II constitutional authority to use military force abroad in the absence of congressional authorization.  But they did not claim that this authority was plenary and wholly uncontrollable by Congress.)   

Even though the Bush administration does not believe it needs congressional authorization for an attack on Iran, its weakness and isolation domestically and internationally likely mean that the administration would, in the event it was planning to attack, very much like to claim support from a more credible institution, such as the U.N., NATO or the U.S. Congress.  My guess is there is a 0% chance the U.N. Security Council would ever bless an attack on Iran, and about a 0.05% chance that NATO would.  So Congress will be the only option for getting political/diplomatic cover.  In light of that, I think it is highly significant that, as I noted, three current laws could be read to authorize an attack and, since the January 2007 Democratic takeover of Congress, bills or amendments to declare that Bush lacks statutory authorization to attack Iran have twice failed to pass or been tabled.  Is this, in Justice Jackson's terms, an invitation to presidential initiative?

Comments

[David Bibo]

Great inaugural NSA post, Professor Kent. Glad to see you blogging here since I missed out on taking your class this past semester.

I tend to believe, along the lines of your HuffPo piece, that standing law would provide more than enough legal footing for Bush to attack Iran. I found Jack Goldsmith's argument about key elements of the 9/11 AUMF language being "unreviewable" disturbing yet compelling. Prior to your mentioning it, however, I hadn't considered how easily the administration could glean authorization for Iran attacks from the Iraq AUMF. However, an argument that Iran is "seeking to influence Iraq's political future through violence" would seem me to very easily pass muster if Bush really wanted to go there.

A related post from roguelystated.com: http://roguelystated.com/2007/05/05/bushs-power-are-we-at-the-lowest-ebb-yet/

[Jeremy Telman]

There are arguments, both constitutional and statutory, for the legality of an attack on Iran as a matter of U.S. law. However, absent U.N. Security Council authorization, or some sort of self-defense argument (which would be quite a stretch here) such an attack would be illegal as a matter of international law.

My question for Andrew is what role international law considerations play in the analysis of the legality of an attack on Iran as a matter of U.S. law. Even if one views the AUMF, the Iraq force authorization or the WPR as authorizations for such an attack (and such arguments strike me as exceedingly implausible), before we simply conclude that they trump international obligations under the last-in-time doctrine, there must first be an attempt to reconcile legislative enactments with international obligations. One way to do that would be to say that the legislative enactments were not intended to and do not place the U.S. in violation of any of its international obligations. Therefore, to the extent that an invasion of Iran would violate international law, the legislative enactments do not authorize any such invastion.

The Article II argument is tougher to deal with but a similar argument could be made.

[Marty Lederman]

Hey, Andrew.

The War Powers Resolution is not itself a grant of any authority to the President. It says so expressly (sec. 8(d)(2)), and the Executive branch has always conceded as much. See, e.g., note 9 of http://www.usdoj.gov/olc/bosnia2.htm

I suppose that *if* the Administration could show that Iran is harboring Al Qaeda, then the AQ AUMF might be read to give the President *some* authority to engage in very limited ("necessary and appropriate") action to stop such harboring. But hardly anything approaching a full-scale war.

Similarly, *perhaps* the Iraq AUMF could be read to allow very discrete actions against Iran to the extent Iran is violating Security Council Resolutions -- limited to conduct "necessary and appropriate" to end such violations.

But presumably you're asking about something much more substantial by way of attack and, if so, I think it not really credible to argue that the two AUMFs are authorization, for two principal reasons.

First, it's simply preposterous to suggest that any members of Congress, let alone a majority, intended to authorize such significant conduct against Iran. The notion that Congress authorized such large-scale attacks on Iraq would be viewed by all 535 legislators as ridiculous -- as absurd as, say, the suggestion that the AUMF authorized violations of FISA. (Oh, wait.)

Second -- and Jeremy beat me to this -- the Court in cases such as Hamdi and Hamdan has suggested that it will construe AUMFs to be consistent with, and not to authorize -- indeed, I think, to prohibit -- conduct in violation of the laws of war. And so if such an attack would violate the laws of war, including modern treaties, the AUMFs not only don't authorize it, they likely prohibit it. (I happen to think the Court is correct in such statutory presumptions, FWIW.)

But none of this matters. If the Bush Administration attacks Iran, it might claim support from one or both of the AUMFs (not the WPR), but no one -- repeat, no one -- in Congress, the courts or the public will give that argument a moment's notice, mostly because of the first point above, i.e., everyone will realize that's it's 100% bullshit.

Therefore, the real legal "action," such as it were (i.e., any serious debate) would be on the asserted *constitutional,* not statutory, basis for the President's action.