U.S. President Donald Trump addresses a joint session of the U.S. Congress on February 28, 2017 in the House chamber of the U.S. Capitol in Washington, DC. Trump’s first address to Congress focused on national security, tax and regulatory reform, the economy, and healthcare. (Photo by Win McNamee/Getty Images)
More aggressive efforts that go beyond imminent threats would—and should—require prior congressional approval.
By Dr. Tess Bridgeman / 06.04.2018
In a policy speech at the Heritage Foundation last week, Secretary of State Pompeo set out a list of 12 grievances against Iran. While many involve desirable ends, they have rightly been critiqued as a “pipe dream” – a wish list divorced from any strategy, whose realization was made more wildly unrealistic after the U.S. abrogated its commitments and withdrew from the multilateral Iran nuclear deal (or JCPOA), creating another self-inflicted schism with our allies. It’s no secret that some of President Donald Trump’s most senior advisors, including National Security Adviser John Bolton, would prefer to address Iran’s nuclear program through regime change than by upholding a diplomatic solution that was working by all serious accounts. While stopping short of threatening war, Pompeo’s claim that the administration’s goal is to achieve a comprehensive agreement with Iran rings hollow. The real goal seems to be pressuring the regime to the point of collapse or goading Iran into breaking its nuclear commitments, “giving the United States and Israel an excuse for military action,” as Carol Giacomo explained. But one of Pompeo’s demands raises a different question: might the Trump administration also try to claim that military force against Iran is already authorized by Congress under the 2001 authorization for use of military force (AUMF) by arguing that the government in Tehran harbors al-Qa’ida (AQ)?
Pompeo’s list of demands included the following: “Iran too must end support for the Taliban and other terrorists in Afghanistan and the region, and cease harboring senior al Qaeda leaders.” He argued that Iran “continues to serve as sanctuary for al-Qaeda, as it has done since 9/11, and remains unwilling to bring to justice senior al-Qaeda members residing in Tehran.” And he asked “the Iranian people” whether they want their country to be “known for… being a co-conspirator with Hezbollah, Hamas, the Taliban, and al-Qaeda?” Pompeo’s speech isn’t the first time we’ve heard this allegation from the administration. President Trump’s May 8th prepared remarks abandoning the JCPOA also included, in his opening paragraph, an allegation that Iran “supports terrorist proxies and militias such as Hezbollah, Hamas, the Taliban, and al-Qaeda.”
These statements clearly serve the Trump administration’s broader narrative about Iran and its support for terrorism. But could they also indicate an attempt to justify war on grounds beyond Iran’s nuclear program? If so, would the administration be able to make a serious claim that the 2001 AUMF authorizes a use of force against Iran on these grounds? What about under draft AUMF proposals introduced in the Senate Foreign Relations Committee?
It’s important to note that the President retains limited authority to use force under Article II of the Constitution (I make no comment on whether it would support military action against Iran). That said, if a military campaign is anticipated to last longer than 60 (or 90) days, at which point the War Powers Resolution would require the President to withdraw unless Congress authorized the use of force, the President would have to rely on statutory authority to use force.
Would the alleged activity be sufficient to bring Iran within the 2001 AUMF?
Pompeo’s speech argues that Iran harbors and/or supports at least some members of AQ. Would this bring Iran under the scope of the 2001 AUMF? That statute authorizes force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…” As I described in greater depth before, this is generally understood to refer to AQ (who “planned” and “committed” the 9/11 attacks), and the Taliban in Afghanistan (which “harbored” AQ at the time of the attacks). The Executive Branch has long claimed the 2001 AUMF also implicitly authorized the use of force against “associated forces” of AQ and the Taliban, and more recently against ISIL as a successor to AQ.
So far as the public is aware, the “harboring” prong has been applied only to the Taliban in Afghanistan. It’s accordingly hard to tell precisely what standard might be applied to a new “harboring” claim. First, it’s questionable whether the 2001 AUMF would apply to a country harboring AQ today, as opposed to a country that “harbored” (past tense) those groups on or before 9/11, the clear intent of the statutory authorization. But Pompeo claimed rather obliquely that Iran has served as a “sanctuary” for AQ “since 9/11.” Second, if harboring AQ after 9/11 would suffice, the “harboring” that the Taliban in Afghanistan did before 9/11 (including allowing military-style training camps and a vast network of operatives) is a far cry from what the Executive is claiming with respect to Iran now. Pompeo and Trump’s allegations are made at a high level of generality, but could refer to the same three AQ members living in Iran, possibly detained there, who were sanctioned by the Treasury Department (under then-President Obama). At least without more information, it’s hard to see how this adds up to a legitimate claim that the 2001 AUMF would authorize the use of force against Iran for having “harbored” those who committed the 9/11 attacks.
What about an “associated forces” theory? The Trump administration has thus far retained the Obama administration’s definition of associated force: an organized, armed group that has “entered the fight” alongside one of the existing groups, in hostilities against the United States. Thus far, Pompeo’s belligerent but rhetorical question to “the Iranian people” asking whether they want their country to be a “co-conspirator with” the Taliban and AQ is probably the closest we’ve seen to making such a case, and it stops well short of making it. That said, associated forces determinations are currently made by the Executive Branch alone, often based on classified facts, and only periodically reported to Congress (and only after military action has been conducted against the associated group).
Finally, it’s well settled that the AUMF authorizes force against AQ itself, raising the possibility that Trump could seek to target AQ within Iran. It is not at all clear that the administration believes such targets exist, but neither can it be ruled out. In such a case, Trump could presumably argue, as the U.S. argues in Syria now, that the use of force against terrorist groups within a state that is “unable or unwilling” to address the threat posed by that group does not trigger an international armed conflict with that state. Of course, in the context of a use of force within Iran, the consequences would likely be similar to a direct use of force against the state given how escalatory the action would be.
Whatever the asserted legal basis, at least some members of Congress are concerned that the Administration may try to claim it already has statutory authority to use force against Iran. This may be a space to watch as the Trump administration continues to inflame tensions with Iran.
Would the Corker-Kaine AUMF better constrain the President’s authority?
The answer would depend on whether Trump seeks to use force against Iran (as an “associated force”), or whether he seeks to use force within Iran for the purported purpose of countering those non-state actors. The former is ruled out under the Corker-Kaine AUMF because the term “associated forces” is defined to exclude “a sovereign nation.” (I would argue, however, that because the Corker-Kaine AUMF essentially amounts to the codification of an ever-expanding forever war and shifts Congress’s authority to the President, there are better ways for Congress to make clear that the 2001 AUMF does not authorize force against nation states as “associated forces.”)
If the question is whether the Corker-Kaine AUMF would provide a meaningful check on the President if he decided to use force against AQ inIran (assuming such targets exist), the short answer is no. The Corker-Kaine draft explicitly authorizes the use of military force against 8 groups in 6 countries, not including Iran. However, as I argued here, the process it sets up for the President to add new groups or designate new countries where force can be used has no meaningful Congressional check: a supermajority of both Houses would need to disapprove the President’s addition, or the new group or country is swept in and deemed to have been blessed by the Congress. In addition, by allowing the President to use force against new associated forces and their successors (a full embrace of the “daisy chain” approach to bringing new groups within the AUMF’s coverage), the Corker-Kaine AUMF could provide statutory authority to use force against currently unforeseen groups that the President may decide are in Iran in the future.
As Sen. Menendez put it in a May 16 hearing on the proposal, the Corker-Kaine AUMF gives the President “the keys to the kingdom to decide against whom we wage war, when, and where.” Worse, it gives the “appearance of congressional control through procedures to disapprove,” after the President has already begun to use force in the new country, without providing a real check on the President’s ability to continue to do so. Thus, while the President could claim the same authority under the 2001 AUMF, the Corker-Kaine expansion mechanism would arguably put such a claim on stronger footing than a unilateral Executive Branch determination under current law.
Would Senator Merkley’s AUMF constrain the President’s authority?
Yes. Sen. Merkley’sproposed AUMF is much more narrowly tailored and goes much further toward reasserting Congress’ constitutional role in authorizing the use of force, while still providing expedited procedures to expand that authority in certain, limited circumstances. It authorizes force against only AQ, the Taliban, and ISIL, and only in Iraq and Afghanistan. It explicitly does not authorize force against any foreign state, and, like the Corker-Kaine AUMF proposal, excludes foreign states from the definition of new groups.
Unlike the Corker-Kaine proposal, however, it requires an affirmative vote by the Congress before the President is authorized to use force in new countries or against new groups. It also contains a number of other important checks on the President’s ability to expand the scope of the current armed conflicts. Notable constraints include a sunset of the overall authority; sunsets as to individual groups if they are no longer engaged in active hostilities as a party to a conflict between a named group and the United States or no longer demonstrate “a credible ability to conduct a substantial attack against compelling” U.S. interests; and an explicit requirement that the authority only be used in a manner that is consistent with international law, which is implied but not explicit in current statutory text and the Corker-Kaine proposal.
Would the House-passed NDAA amendments constrain the President’s authority?
For members of Congress who are worried about the Trump administration claiming authority to use force against Iran, Sen. Merkley’s AUMF is a far better affirmative constraint on the President’s authority than the Corker-Kaine draft or the 2001 AUMF as currently interpreted by the Executive. But a new AUMF of any stripe is unlikely to pass in the near future. Likely for this reason, a bipartisan group of congressional members introduced two amendments to an annual, must-pass piece of legislation – the National Defense Authorization Act (NDAA) for 2019 – that seek to constrain the President’s ability to use force against Iran. These amendments were included in the version of the bill that the House passed last week. The text of each amendment is as follows:
Amendment 114: “Nothing in this Act may be construed to authorize the use of the Armed Forces of the United States against Iran.”
Amendment 115: “It is the sense of Congress that the use of the Armed Forces against Iran is not authorized by this Act or any other Act.”
Amendment 114 is the more limited in scope of the two. It is a “rule of construction” providing only that nothing in the NDAA authorizes the use of force against Iran. By its terms, then, it may be helpful in clarifying that any aggressive provisions of the next NDAA directed toward Iran do not authorize military force. But it would not take the “harboring” or “associated forces” arguments under the 2001 AUMF off the table (as much of a stretch as those theories may be on currently known facts). It also would not preclude reliance on the 2002 AUMF to use force against Iran in some future scenario stemming from conflict in Iraq. In other words, it would not provide any additional limits on the President’s ability to claim that other congressional statutes somehow provide him authority to use force against Iran.
What’s more, neither amendment would affect the President’s Article II authority to use force. They would not cut off funding for a potential use of force against Iran. Nor would they address the potential use of covert action authorities to use force against Iran. In addition, should the President try to argue that a use of force against an AQ target in Iran is not a use of force “against Iran,” neither amendment would arguably preclude the President from claiming statutory authority for such action. (But as noted above, the escalatory consequences would likely be similar to a direct use of force against Iran.)
Subject to those limitations, amendment 115 arguably has a broader preclusive effect than 114, by unequivocally establishing that no existing statute (including the 2001 or 2002 AUMFs) authorizes military force against Iran. This would take the “harboring” and “associated forces” theories for a statutory basis to use force against Iran off the table. That said, it is a non-binding, “sense of Congress.” While the Executive Branch would arguably need to grapple with it in some manner in constructing a legal justification under existing statutes, it wouldn’t present the kind of hard legal bar that a binding provision would create.
One final note here: The administration already claims that the 2001 AUMF authorizes the use of force in self-defense against those who directly interfere with the conduct of its counter-ISIL campaign in Syria. That claim is arguably distinct from a claim that a direct use of force against Iran in any other context is permissible. In other words, amendment 115 would not hamper the former type of operations in Syria. That said, even if amendment 115 were read to take the 2001 AUMF basis for such operations in Syria off the table, some combination of Article II authority and potentially unit self-defense theories could still be used to respond to potential Iranian military actions that threaten counter-ISIL forces. Indeed, more aggressive efforts that go beyond such imminent threats would—and should—require prior congressional approval.
In sum, both amendments are helpful and certainly better than nothing given the unrealistic prospects of Congress passing an AUMF that constrains the President’s existing authority anytime soon. Neither, however, would act as a hard legal bar against the administration’s claiming statutory authority to use force against Iran, if it ever had the facts to back up such an assertion.
Originally published by the Just Security, New York University School of Law, under a Creative Commons Attribution-No Derivs-NonCommercial license.