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Trump Administration's Iran Policies Raise Questions About the Executive's Authority to Use Force Against Iran

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In the face of rising tensions between Iran and the United States, some members of Congress have urged the Trump administration to clarify whether it believes it has congressional authorization to use force against Iran. In June of 2019, the U.S. State Department issued a letter stating that it had not “to date” interpreted either the 2001 or the 2002 Authorization for Use of Military Force (2001 AUMF and 2002 AUMF, respectively) “as authorizing military force against Iran, except as may be necessary to defend U.S. or partner forces engaged in counterterrorism operations or operations to establish a stable, democratic Iraq.”

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References

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1 See Letter from Eliot Engel, Chairman, H. Comm. on Foreign Aff. and Ted Deutch, Chairman, H. Subcomm. on the Middle East, North Africa, and Int'l Terrorism, to Marik String, Acting Legal Adviser, U.S. Dep't of State (June 25, 2019), available at https://foreignaffairs.house.gov/_cache/files/6/f/6f43caff-89cd-4a7f-bfe7-841db9f5d305/3D06F9947687C18E9BB46C8A50603AEB.ele-deutch-letter-to-string-aumf-iran.pdf [https://perma.cc/MWH7-M9XB] [hereinafter House Letter]; Letter from Michael S. Lee, Senator, et. al., to Donald J. Trump, President (June 18, 2019), available at https://www.scribd.com/document/413785563/Kaine-Lee-Call-on-President-Trump-to-Explain-New-Deployments-to-the-Middle-East-Warn-Against-War-With-Iran, [https://perma.cc/67R9-97N3] [hereinafter Senate Letter].

2 Letter from Mary Elizabeth Taylor, Assistant Sec'y, Bureau of Legis. Aff., to Eliot L. Engel, Chairman, H. Comm. on Foreign Aff. (June 28, 2019), available at https://foreignaffairs.house.gov/_cache/files/8/4/84c1fa85-94cf-43c8-84a1-472972ec9c11/CCDEB9BD152E93A97B89332218E2A89C.aumf.pdf [https://perma.cc/9YLU-59FL] [hereinafter State Department Letter]; see also Tess Bridgeman & Ryan Goodman, Unpacking the State Dept Acknowledgement that 2001 and 2002 AUMFs Don't Authorize War Against Iran, Just Security (July 3, 2019), at https://www.justsecurity.org/64807/unpacking-the-state-dept-acknowledgment-that-2001-and-2002-aumfs-dont-authorize-war-against-iran. The 2001 AUMF authorizes the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001). The 2002 AUMF authorizes the president to use force to “(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.” Pub. L. No. 107–243, 116 Stat. 1498 (2002).

3 See White House Press Release, Statement from the National Security Advisor Ambassador John Bolton (May 5, 2019), at https://www.whitehouse.gov/briefings-statements/statement-national-security-advisor-ambassador-john-bolton-2 [https://perma.cc/N3GP-E7XW].

4 U.S. Dep't of Defense Press Release, Statement from Acting Secretary of Defense Patrick Shanahan on Additional Forces to U.S. Central Command (June 17, 2019), at https://www.defense.gov/Newsroom/Releases/Release/Article/1879076/statement-from-acting-secretary-of-defense-patrick-shanahan-on-additional-force [https://perma.cc/S5SQ-NNYQ].

5 Senate Letter, supra note 1.

6 For more about this designation, see Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 609 (2019).

7 Review of the FY 2020 State Department Budget Request: Before the S. Comm. on Foreign Relations, 116th Cong., at 1:20:30 (Apr. 10, 2019) (testimony of Secretary of State Mike Pompeo), available at https://www.foreign.senate.gov/hearings/review-of-the-fy-2020-state-department-budget-request-041019. Paul did not ask Pompeo about authorization under the 2002 AUMF. See id.

8 Id. at 1:21:54.

9 Id. at 1:22:46.

10 Id. at 1:23:08.

11 Oversight of the Trump Administration's Iran Policy: Before the H. Comm. on Foreign Affairs, 116th Cong., at 32:54 (June 19, 2019) (statement of Special Representative for Iran Brian Hook), available at https://www.youtube.com/watch?v=FKK_fABJjl4.

12 Id. at 34:15, 34:34.

13 Id. at 34:55.

14 U.S. Cent. Command Statement, U.S. Air Forces Central Command Statement on the Shoot Down of a U.S. RQ-4, at https://www.centcom.mil/MEDIA/STATEMENTS/Statements-View/Article/1882519/us-air-forces-central-command-statement-on-the-shoot-down-of-a-us-rq-4 [https://perma.cc/X6FE-NJSV] [hereinafter Cent. Com. Statement].

15 Letter from Majid Takht Ravanchi, Ambassador of Iran to the UN, to António Guterres, Secretary-Gen. of the UN (June 20, 2019), available at https://www.justsecurity.org/wp-content/uploads/2019/07/Iran-UNSC-Letter-S_2019_512_E.pdf [https://perma.cc/9FWY-AZHF] [hereinafter Iran Article 51 Letter]. Under Article 51 of the UN Charter “[m]easures taken by Members in the exercise of … self-defence shall be immediately reported to the Security Council … .” UN Charter, Art. 51.

16 Iran Article 51 Letter, supra note 15.

17 Cent. Com. Statement, supra note 14. For discussion of the disagreement between the United States and Iran with respect both to the location of the drone and to the law of the sea as it relates to control over the Strait of Hormuz, see Mark Nevitt, The Missing Piece in US-Iran Drone Dispute: Navigational Freedoms and the Strait of Hormuz, Just Security (June 28, 2019), at https://www.justsecurity.org/64725/the-missing-piece-in-us-iran-drone-dispute-navigational-freedoms-and-the-strait-of-hormuz.

19 See Michael Shear, Eric Schmitt, Michael Crowley & Maggie Haberman, Strikes on Iran Approved by Trump, Then Abruptly Pulled Back, N.Y. Times (June 20, 2019), at https://www.nytimes.com/2019/06/20/world/middleeast/iran-us-drone.html.

20 Ellen Nakashima, Trump Approved Cyber-Strikes Against Iranian Computer Database Used to Plan Attacks on Oil Tankers, Wash. Post (June 22, 2019), at https://www.washingtonpost.com/world/national-security/with-trumps-approval-pentagon-launched-cyber-strikes-against-iran/2019/06/22/250d3740-950d-11e9-b570-6416efdc0803_story.html; Julian E. Barnes, U.S. Cyberattack Hurt Iran's Ability to Target Oil Tankers, Officials Say, N.Y. Times (Aug. 28, 2019), at https://www.nytimes.com/2019/08/28/us/politics/us-iran-cyber-attack.html.

21 House Letter, supra note 1.

22 State Department Letter, supra note 2.

23 For a recent, formalized articulation of the position of the Department of Justice's Office of Legal Counsel relevant to this issue, see April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. 1 (May 31, 2018) (slip op.) (concluding that the president could order air strikes against Syria under his independent constitutional authority in response to Syria's use of chemical weapons against its own citizens); see also Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 522 (2018).

25 Id.

26 Seyed Abbas Araghchi (@araghchi), Twitter (July 18, 2019, 10:03 PM), at https://twitter.com/araghchi/status/1152081448704196611 [https://perma.cc/6ME4-UYP4].

27 U.S. Dep't of State Press Release, First Anniversary of President Trump's New Iran Strategy (May 8, 2019), at https://www.state.gov/first-anniversary-of-president-trumps-new-iran-strategy [https://perma.cc/6ZAY-H6BG].

28 U.S. Dep't of State Press Release, Executive Order to Impose Sanctions on the Office of the Supreme Leader of Iran (June 24, 2019), at https://www.state.gov/executive-order-to-impose-sanctions-on-the-office-of-the-supreme-leader-of-iran [https://perma.cc/AJ8S-HJA7].

29 Iran to Restore Arak Reactor to Original Design from July 7, Mehr News Agency (July 3, 2019), at https://en.mehrnews.com/news/147161/Iran-to-restore-Arak-reactor-to-original-design-from-July-7. In response, the United States called for a special session of the International Atomic Energy Agency. U.S. Mission to Int'l Orgs. in Vienna Media Note, United States Requests Special Meeting of IAEA Board of Governors (July 5, 2019), at https://vienna.usmission.gov/media-note-united-states-requests-special-meeting-of-iaea-board-of-governors [https://perma.cc/5CR4-UM8R]; see also U.S. Mission to Int'l Orgs. in Vienna Media Note, Statement by the U.S. Mission Spokesperson on the Special IAEA Board of Governors Meeting Agenda Item 1 (July 10, 2019), at https://vienna.usmission.gov/media-note-statement-by-the-u-s-mission-spokesperson-on-special-iaea-board-of-governors-meeting-on-iran [https://perma.cc/67AX-GP73] (stating that during this special session “Board Members expressed their concern that Iran is expanding its proliferation-sensitive nuclear activities”).

30 Babak Dehghanpisheh, Iran Says It Will Further Breach Nuclear Deal in One Month Unless Europeans Act, Reuters (Aug. 5, 2019), at https://www.reuters.com/article/us-mideast-iran/iran-says-it-will-further-breach-nuclear-deal-in-one-month-unless-europeans-act-idUSKCN1UV1TV.

31 Zack Budryk, Pompeo Doubles Down on Blaming Iran for Oil Attacks: “This Was a State-on-State Act of War, The Hill (Sept. 22, 2019), at https://thehill.com/homenews/sunday-talk-shows/462488-pompeo-doubles-down-on-blaming-iran-for-oil-attack-this-was-a (noting additional sanctions and deployments ordered by the Trump administration in the wake of this incident and describing Pompeo as saying that “he and President Trump are ‘looking for a diplomatic resolution’ but ‘we're prepared to do the things we need to do’”).

Trump Administration's Iran Policies Raise Questions About the Executive's Authority to Use Force Against Iran

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