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« State Secrets and Executive Oversight | Main | Debate re: Legality of Attacking Iran »

May 18, 2007

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.

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