Law is Irrelevant to the U.S. Attack on Iran
And Congress is on the hook as much as the president
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We’re already seeing a debate about the legality of President Trump’s use of force in Iran. I’ve grown cynical about these debates. Law is the language we use when criticizing presidential war powers—and it has been since the beginning of the nation. But the truth is that there are only political constraints.
As I’ve been saying for a while, there are no effective legal limitations within the executive branch. And courts have never gotten involved in articulating constraints in this context. That leaves Congress and the American people. They have occasionally risen up to constrain the president’s deployment of troops and uses of force—for example, in Vietnam, and in Lebanon in 1983, and in Somalia in 1993. But those actions are rare and tend only to happen once there is disaster.
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The Office of Legal Counsel opinions on the presidential use of force are famously promiscuously permissive. Some will now invoke the single acknowledged OLC limitation on unilateral uses of force to criticize the Iran attack. As the opinion justifying the attack on ISIS in 2014 explained: If the “‘anticipated nature, scope, and duration’ of the planned military operations, analyzed in light of the applicable historical precedent” amount to “war,” the president must secure prior congressional approval.
President Trump in his statement about the attack said: “The lives of courageous American heroes may be lost, and we may have casualties,” and that “that often happens in war.” Does that implicate the OLC limitation and require him to seek congressional approval? It would be very easy for OLC to conclude not.
First, I am not aware of any episode in which this standard was invoked to deny the president the authority to use force. It has been mentioned only in opinions justifying force and it has been fudged in various ways.
Second, OLC made clear in its Libya opinion that the “anticipated nature, scope and duration” test “will be satisfied only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” (Emphasis added.) If the president reasonably thinks or represents that there is no anticipated “prolonged” military engagement, or no anticipated “significant” risk to U.S. personnel over a “substantial period,” the supposed limitation does not come into play. Moreover, as the ISIS opinion acknowledged, “military operations that do not include the introduction of ground troops are less likely to constitute a ‘war’” that requires congressional authorization. And who knows what other qualifications the current OLC might make.
Third, a whole bunch of other OLC opinions can be invoked to justify this strike without recourse to the “anticipated nature, scope, and duration” opinions. Consider the Iraq opinion, still on the books, which said:
[W]e believe that the President’s constitutional authority to undertake military action to protect the national security interests of the United States is firmly established in the text and structure of the Constitution and in Executive Branch practice. Thus, to the extent that the President were to determine that military action against Iraq would protect our national interests, he could take such action based on his independent constitutional authority; no action by Congress would be necessary. For example, were the President to conclude that Iraq’s development of WMD might endanger our national security because of the risk that such weapons either would be targeted against the United States, or would be used to destabilize the region, he could direct the use of military force against Iraq to destroy its WMD capability. Or, were it the President’s judgment that a change of regime in Iraq would remove a threat to our national interests, he could direct the use of force to achieve that goal. Were the President to take such action, he would be acting consistently with the historical practice of the Executive Branch. (Emphasis added.)
The italicized sentences fit Trump’s justification for this use of force. There are many other OLC opinions and precedents that could be invoked to justify it here.
Fourth, what about constitutional text, which gave Congress the power to “declare War” and other controls over the uses of military force? The meaning of these provisions remains highly contested among the scholars who have examined them closely. And for better or worse, the practice over almost 250 years has been growing unilateral presidential uses of force, more or less in lockstep with the larger and larger and more and more powerful now-global standing armies that Congress has provided the president.
Fifth, what about the War Powers Resolution? Swiss Cheese. As OLC has explained, “the Resolution’s ‘structure . . . recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces’ into hostilities or circumstances presenting an imminent risk of hostilities” for 60 days. And as the State Department has made clear, the resolution does not apply after 60 days if by then the mission, exposure of troops, risk of escalation, and military means are “limited”—a standard deemed satisfied by the Libya mission. And if those porous limits were not exploited, the Trump administration could draw on (and arguably already has drawn on) a very long (but not unanimous) line of administrations that deemed the WPR an unconstitutional infringement of Article II.
Sixth, what about the U.N. Charter? The United States has for a long time been construing its provisions so broadly as to be no constraint at all, especially in non-first-strike self-defense situations like Iran, which through its proxies has used force against U.S. troops for decades.
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None of the above is meant to justify the Iran strikes or endorse them. I’m praying for U.S. troops and for everyone involved, and hoping for the best. But it is hard to be optimistic given the terrible U.S. record with violent military disruptions and regime changes in and around the Middle East in my lifetime. Maybe this time will be different.
My point is that the rhetoric of legal constraint, and debates about the legality of presidential uses of force, are empty. And they deflect attention from Congress’s constitutional responsibility to exercise its political judgment and the political powers that the framers undoubtedly gave it to question, to hold to account, and (should it so choose) to constrain presidential uses of force.
As Walter Dellinger wrote for OLC 30 years ago: “in establishing and funding a military force that is capable of being projected anywhere around the globe, Congress has given the President, as Commander in Chief, considerable discretion in deciding how that force is to be deployed.” Congress in giving the president a gargantuan military, and in its “oversight” and lack of imposed constraint, is as responsible for the use of force against Iran, for better or worse, as the president.
Thanks to Matt Fidel and Tia Sewell for editorial assistance