The Brief Special Edition: Attacks on Iran
Hi friends,
Like many of you, I woke up this morning to the news that the U.S. and Israel had launched attacks against Iran. The U.S reportedly deployed missiles from warships at sea, as well as U.S. fighter planes. Targets included Iranian air defense systems and the compound of Iranian Supreme Leader Ayatollah Khamenei, and Israeli President Netanyahu has stated that “all indications show” that Khamenei “is no longer with us.”
Iran has since retaliated, firing missiles at Israel and at U.S. air bases across the Middle East. At least 94 people in Israel have been wounded. The U.N. Security Council has called an emergency meeting for Saturday afternoon.
Among the Iranian casualties were at least 85 people at an elementary school for girls in Minab, Iran.
We'll dive into what all of this means below, but those of you who have followed our coverage of U.S. military strikes on vessels in the Caribbean Sea and the abduction of Venezuelan President Nicolás Maduro can likely anticipate what I'm going to say, which is that none of this is legal.
The attacks violate U.S. domestic law
Congress, which has the power to declare war under Article I of the Constitution, has not authorized these strikes. The executive branch has historically (and with respect to this administration, frequently) argued that it can conduct certain strikes without congressional authorization pursuant to the president’s “Commander-in-Chief” authority under Article II of the Constitution. Under that position, which was elaborated upon by the Department of Justice’s Office of Legal Counsel in 2011, the president can authorize military action if that action 1) serves sufficiently important national interests, and 2) if the anticipated nature, scope, and duration of the action are not so extensive that they would constitute a war under Article I of the Constitution. Analysis of whether an action meets this second prong looks at whether there are, or are likely to be, prolonged and substantial military engagements that expose U.S. armed forces to significant risk.
Here, even if you were to accept the president’s statements that the strikes are in the national security interests of the U.S., the second prong has clearly not been met. The president himself described the military actions as “major combat operations” and stated that they were part of a “massive and ongoing effort.” He also stated that “the lives of courageous American heroes may be lost and we may have casualties.”
Representative Mike Levin homed in on President Trump’s language, stating in a social media post, “Those are not the words that describe a limited strike to repel an imminent threat or a sudden attack. They describe sustained warfare…A President may act to repel an imminent attack, but launching an open-ended campaign requires congressional authorization.”
There is already a bipartisan effort underway to limit the president’s power to carry out further military actions against Iran. In the House, Republican Thomas Massie and Democrat Ro Khanna are collaborating on a resolution under the War Powers Act, while Democrat Tim Kaine and Republican Rand Paul pursue a similar effort in the Senate.
Senate Minority Leader Chuck Schumer has called on the Senate to “quickly return to session and reassert its constitutional duty by passing our resolution to enforce the War Powers Act.”
The attacks violate international law
If you haven’t already read our explainer on the law that governs a state’s decision to go to war, called jus ad bellum, I recommend giving it a quick skim. But as a refresher, the U.N. Charter prohibits the threat or use of force against the territorial integrity or political independence of any state, with only a few enumerated exceptions. Those exceptions include when force is authorized by the U.N. Security Council, or when a state is acting in individual or collective self-defense against an armed attack.
Neither of those conditions apply here: the Security Council did not authorize the U.S. and Israel to act against Iran. Nor is there evidence that the U.S. and Israel are acting in self-defense. Even taking Trump and Netanyahu’s most serious claims—that Iran is attempting to rebuild its nuclear weapons program—at face value, the use of force in self-defense must be both necessary and proportional. Whether the use of force is necessary includes an assessment of whether an armed attack is imminent, and there is no evidence that an attack was forthcoming against the U.S. and Israel, either individually or collectively.
President Trump himself stated last June, following strikes by the U.S. and Israel on Iranian nuclear facilities, that Iran’s nuclear infrastructure had been “obliterated.” Even though negotiations between the U.S. and Iran, which went on through last week, did not succeed, as Just Security correctly points out, “Iran would still need to have a nuclear weapons capability and a clear intent to use it against the United States for U.S. strikes in self-defense to be lawful.”
For its part, Israeli officials stated that the joint offensive with the U.S. had been planned for months, which reinforces that the strikes were not in response to an imminent attack by Iran brought on by the failed discussions last week.
What to watch out for
The White House has 48 hours to submit a report to Congress detailing the circumstances under which U.S. armed forces were introduced into hostilities; the constitutional and legislative authority relied on for such action; and the estimated scope or duration of hostilities. I don’t expect many surprises, here—the Trump administration will likely claim it was acting pursuant to Article II of the Constitution, and in self-defense, as it has asserted before, including when it reported to Congress on its strikes on vessels in the Caribbean Sea. Nevertheless, keep an eye out for that report, as well as on the progress of a War Powers Resolution in the House or the Senate.
What to say if you call your representatives
The organization 5Calls has a good script you can adapt, but in short, you’ll want to tell your senators or representatives that you want them to support a bipartisan resolution under the War Powers Act to prohibit the executive branch from taking further military action against Iran without congressional authorization.
I'll do my best to keep you posted as things unfold this week, including through our social media channels, if you’d like to follow us there.
Alexis
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