Debate re: Legality of Attacking Iran

Thanks to commenters Marty Lederman, David Bibo and Jeremy Telman for raising interesting issues about my earlier post.

Re: the War Powers Resolution.  This is a funny statute.  It seems to both give and take war-making power from the President, all the while disclaiming any intent to alter the pre-existing constitutional framework or to itself constitute authorization for the use of force (in section 8(d)).  The OLC Bosnia opinion does say in fn 9 that OLC does not "understand the [WPR], in itself, to provide statutory authorization for introducing troops into hostilities."  But it also says that the WPR "recognizes and presupposes the existence of unilateral Presidential authority to deploy armed forces into hostilities" (quoting OLC Haiti opinion).  With Jackson's Youngstown schema providing the interpretive framework for analyzing presidential-congressional power, why wouldn't Congress's (1) recognition in the WPR of the President's inherent constitutional power to do x, plus (2) Congress's knowledge that Presidents have claimed constitutional authority to do x, plus (3) Congress's knowledge that Presidents have acted on that understanding = "an implied authorization of Congress" (quoting Youngtown) for the President to do x in the future?  The post 9-11 John Yoo OLC opinion takes the position that the WPR is "a recognition of, and support for, the President's pre-existing constitutional authority" (emphasis added) re: war-making.  I don't think that Yoo's is the best reading of the WPR; but it's not a crazy one; and given that the Yoo opinion does not seem to have been disclaimed, I don't think it's exactly right to say, as Marty does, that the Executive branch has "always conceded" that the WPR is not itself a grant of authority to the President.

Re: Iran and al Qaeda.  I don't think it's a stretch to say that Iran "aided" al Qaeda pre-9/11 and "harbored" al-Qaeda post-9/11, within the meaning of Congress's post-9/11 AUMF. 

First, Congress gave the President the sole authority to decide whether a given nation aided, harbored, etc. within the meaning of the statute.  The language reads that the President is authorized to use force against nations "he determines" aided, harbored, etc. al Qaeda.  So I don't agree with Marty that the unstated views of members of Congress about which nations might be covered by the statute is relevant.  Whateve their private thoughts then or now, the members of Congress enacted a law that allows the President to determine which nations are covered by it.  (An originalist might say that is an unconstitutional delegation of Congress's war powers to the President, but Marty and most other non-originalists would likely disagree.  Or not?  It's an interesting issue.). 

Second, a number of credible public sources attest to Iran's pre-9/11 assistance to al Qaeda and post-9/11 harboring of al Qaeda operatives.   These sources include the 9/11 Commission, George Tenet's new book, and Richard Clarke's Against All Enemies (2004).  I mentioned in my Huffington Post piece the 9/11 Commission's finding that Iran aided transit in and out of Afghanistan for a number of the 9/11 hijackers.  Let me quote another source, here Richard Clarke, at pp. 283-84: 

"When the Bush administration talked about Iraq as a nation that supported terrorism, including al Qaeda, and was developing weapons of mass destruction, those comments perfectly suited Iran, not Iraq.  It was Tehran that had funded and directed Hezbollah since its inception.  It was Hezbollah that had killed hundreds of Americans in Lebanon (the Marine barracks) and Saudi Arabia (Khobar Towers). . . . While the 'ties' and 'links' between Saddam and al Qaeda were minimal, al Qaeda regularly used Iranian territory for transit and sanctuary prior to September 11.  Al Qaeda's Egyptian branch, Egyptian Islamic Jihad, operated openly in Tehran.  It is no coincidence that many of the al Qaeda management team, or Shura Council, moved across the border into Iran after U.S. forces finally invaded Afghanistan."

If this President or another President "determines" that Iran falls within the post-9/11 AUMF, the statute allows him to use "all necessary and appropriate force" in response.  While some would argue that international law might not sanction retaliation for an attack if the retaliatory measure is meant only to punish the aggressor and not to also preempt a future attack, I think Congress likely authorized purely punitive retaliation in the statute and so superseded (for domestic U.S. law purposes) any contrary international law.  Even if one believes that either the AUMF itself on its face, or the interpretive regime imposed by the Supreme Court for reading the AUMF, mandates compliance with international law, it would not be difficult for a President to argue that a military attack on Iran is designed to prevent or deter future support for terrorism by Iran against the United States; it would be harder to argue that force is needed to preempt an imminent attack.  The level of imminence required by modern international law is of course a hotly debated issue.  How forceful a response by the U.S. would be authorized (the statute says "all necessary and appropriate force") is also a hard question, and would depend on whether punishment is sufficient rationale, or whether preemption or even prevention are required. 

Re: the Iraq authorization.  I agree that a U.S. military action against Iran purporting to be authorized by this statute must be constrained in extent and objective by the authorizing language.  A full-scale U.S. assault on Iran aimed at regime change would obviously not be authorized by the Iraq statute.  But how about attacks on all major Revolutionary Guards facilities?  That would be a pretty massive attack by the U.S., and would likely to lead to forceful responses by Iran, counter-strikes by the U.S., etc., i.e., warfare.  If it's true that the Rev Guards are supplying lots of weapons, training, money, transit, safe haven and perhaps their own personnel to multiple deadly attacks on U.S. forces by Iraqi insurgents, it seems to me that taking a serious whack at the Rev Guards would be both justified under international law, including the Security Council resolutions and principles of customary law, and justified for U.S. law purposes by the Iraq statute (authorizing President to use "necessary and appropriate" force to implement UN resolutions). 

Let me finish by just noting that my original piece did not mean to suggest that a full-scale war with Iran would be obviously and clearly authorized under any one of the three statutes.  My intent was to point out that three current statutes could arguably justify large-scale uses of force against Iran, that the current Congress has arguably signaled to Bush that it will not tie his hands regarding attacking Iran, and that Congress has a political and constitutional responsibility to play a much more active role in debating and deciding this incredibly important issue.  Thanks again for the interesting comments. 

Comments

[Jeremy Telman]

Just a few quick points.

I see no inconsistency between Marty's description of the WPR and the Bosnia opinion's view that the WPR "recognizes and presupposes the existence of unilateral Presidential authority to deploy armed forces into hostilities." Under our constitutional allocation of war powers, the President has always had constitutional power to authorize the use of force to "repel sudden attacks." So it may be that John Yoo and I are in partial agreement here. However, I would describe the WPR as a gloss on and a limitation of the President's power to repel sudden attacks and not as a power to engage unilaterally in war-making.

I don't disagree with your readings of the various statutes. Those statutes are ridiculously broad and could be used to justify just about any imaginable use of force. So I also agree with you that Congress should bestir itself and give the President clearer guidance as to the limits of the AUMF and the authorization for the use of force in Iraq. The political branches share war powers and so they ought to cooperate. It would be bad faith and bad policy for the President to pursue war with Iran purportedly based on congressional authorizations when it is quite clear that Congress would not support a new military adventure. Forcing Congress to use or to threaten to use its power of the purse to thwart the President's exercise of his foreign affairs powers is no way to manage foreign policy or to engage with the world.

I think I have a more significant disagreement with you on the last-in-time doctrine. My understanding of how that doctrine works is that a legislative enactment will only supersede an international obligation if Congress is express and explicit about its intention to place the United States in violation of international law. It therefore is not enough -- not nearly enough -- if one can argue that "Congress likely authorized purely punitive retaliation in the statute" if purely punitive retaliation is inconsistent with international law -- and I believe it is. Nothing in the AUMF makes clear Congress' intention to authorize the use of force in violation of international law.

I think we also disagree about the meaning of the phrase "necessary and appropriate" in the context of use of force. I take those words to incorporate international norms requiring that use of military force be a last resort, limited to cases of self-defense, and proportional to the threat posed. I thus read that language to preclude the use of force for punitive purposes. It would be absurd to claim that use of force was "necessary" to deter Iran's Revolutionary Guards from aiding insurgents in Iraq since, so far as I know, diplomacy has not even been attempted.

[Dave Glazier]

Having both lived through the tumultuous era in which the War Powers Act was adopted and written my undergraduate honors thesis on the subject, I think the fairest reading of the statute was that it was a largely symbolic political "smack-down" against a discredited President who was widely resented for continuing the Vietnam War for four years after being elected on a platform of "peace with honor." To infer that this statute could somehow be fairly read as authorizing ANY expansion of presidential warmaking is to ignore its political context and legislative history. In fact I think it is fair to describe WPA proponents as actually overselling the bill's ability to reign in the executive at the time of its enactment since a statute obviously cannot deprive the President of powers granted by the Constitution. But there was simply NO way that Congress was entertaining even the remotest possibility of expandind executive authority. Any implication that the President can unilaterally employ the armed forces of the United States in combat without explicit congressional sanction should therefore be construed as limited to actual instances in self-defense. To my reading, that means either responding to an actual armed attack, or else pre-emptive employment in the narrow sets of circumstances defined by Daniel Webster in the wake of the Caroline incident and subsequently widely endorsed, that is "a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation."

There is no way that Iranian nuclear development, particularly short of actual weaponization, can ever meet that threshhold. And since we purport to be talking law, which is supposed to apply evenhandedly, we need to seriously ask ourselves if we really want a rule that would effectively say that "a nation prone to the unilateral use of armed force which posseses a nuclear arsenal it might use is subject to pre-emptive attack?" If that is to be a rule of international law, which proponents of preemptive attacks against "rogue nations" seem to imply it should be, then you've just said that any number of other nations, starting with Iran and North Korea, are lawfully entitled to attack the United States. Certainly no other nation has used military force more times against more other nations in the modern era than the U.S. has. No one has a comparable nuclear delivery capability or arsenal, and few other nuclear powers have not at least renounced first use, whereas our government has recently sought to modernize its weaponry to make it more feasible for tactical use!