If Trump Wants a War With Iran, He May Have to Win a Different Battle First

A controversial law enacted in the days following 9/11 could provide the president with the legal means to go to war with the Islamic Republic, but some senators are mobilizing to stop him

Sailors standing on deck above a hole the U.S. Navy says was made by a limpet mine on the damaged oil tanker anchored off the United Arab Emirates, June 19, 2019.
Fay Abuelgasim,AP

WASHINGTON — As tensions continue to rise between Iran and the United States, lawmakers in D.C. are expressing concern over the Trump administration’s handling of the crisis. Most of the criticism is coming from the Democratic side of the aisle, but some Republicans have also raised questions and warned the White House against military action without Congress’ authorization.

On Tuesday, a bipartisan group of senators sent a letter to President Donald Trump regarding his recent decisions to deploy 1,900 U.S. soldiers to the Middle East. The group of senators wrote that they “remain concerned that increasingly escalatory actions by both sides will lead to an unnecessary conflict.” The letter was signed by four Democrats — Tim Kaine (Virginia), Bernie Sanders (Vermont), Chris Murphy (Connecticut) and Jeff Merkley (Oregon) — and two Republicans: Mike Lee (Utah) and Rand Paul (Kentucky).

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A key part of the letter was concerned not with the escalation itself but the legality of military action against Iran. The senators wrote: “We want to reiterate that, as of this date, Congress has not authorized war with Iran and no current statutory authority allows the U.S. to conduct hostilities against the Government of Iran. To that end, we expect the administration to seek authorization prior to any deployment of forces into hostilities or areas where hostilities with Iran are imminent.”

The senators’ warning touches on a decades-old constitutional debate. The U.S. Constitution defines the president as the commander-in-chief of the military (Article II, Section 2), but states that Congress is the branch of government with the power “to declare war” (Article 1, Section 8).

On the House of Representatives’ official historical website, this reasoning is explained with a 1848 quote from America’s 16th president, Abraham Lincoln: “Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our [Constitutional] Convention understood to be the most oppressive of all Kingly oppressions and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”

Iran Tensions
AP/Haaretz

The current debate over the legality of military action against Iran revolves around the Authorization for Use of Military Force (AUMF), a law passed by Congress in 2001 that gave then-President George W. Bush the authority to “use all necessary and appropriate force against those nations, organizations, or persons” he deemed responsible for the 9/11 terror attacks (i.e. Al-Qaida and the Taliban in Afghanistan). The concern on Capitol Hill is that the Trump administration will try to use this legislation as the legal basis for taking military action against Iran.

According to press reports this week, Secretary of State Mike Pompeo told members of Congress in a recent closed briefing that he believes the 2001 legislation could serve as a legal basis for action. NBC News reported last month that some officials close to Trump believe the president “may not need Congress to go to war with Iran,” because he can simply rely on the 2001 legislation.

This is a key issue. If Trump were to seek congressional approval for military action against Iran, it’s very likely he would fail. The Democratic majority in the House of Representatives has been overwhelmingly critical of his Iran policy, and even in the Senate — where Republicans enjoy a small majority — passage of such a law is far from certain. “Everyone knows it will be very difficult to get Congress to authorize another war. That’s why they probably think their best shot is using the 2001 law,” a congressional staffer involved in the discussions tells Haaretz.

The House of Representatives voted Wednesday to repeal that law, but it would be difficult to pass such a measure in the Republican-controlled Senate. As long as the AUMF law remains in place, Trump’s advisers will be able to try to use it to provide legal grounds for any actions against Iran.

The debate has become even more urgent following the news Thursday that Iran shot down a U.S. drone, an act described by the U.S. military as an “unprovoked attack,” further ratcheting up tensions between the two countries.

Stretching the law

In 2014, the Obama administration used the AUMF law as its legal basis for military action in Iraq and Syria against the Islamic State and other Islamist terror organizations. The administration came under fire from both political parties for doing so — but claimed it had no other choice, since Congress had failed to pass a new resolution providing the president with authorization for such actions.

Senators Bernie Sanders, left, Chris Murphy and Mike Lee in Washington, March 2019. All three were signatories to a June 18 letter to President Donald Trump regarding his recent decisions to deploy 1,900 U.S. soldiers to the Middle East.
J. Scott Applewhite,AP

“We were accused of stretching this law, and there was an interesting debate among lawyers and legal experts about it,” recalls Philip Gordon, who was a senior adviser to Obama on Middle East policy.

Gordon tells Haaretz that he “thought the criticism was legitimate, but so was the argument that our action was within the boundaries of the law — because ISIS and other terror groups we operated against had some relation to Al-Qaida. Reasonable people and lawyers could argue it either way.”

Sen. Rand Paul is one of the lone Republicans to openly question Trump’s current moves regarding Iran, and he was also a vocal critic of Obama’s reliance on the 2001 law. The Democratic co-signees on this week’s Trump letter also offered similar warnings at the time.

Obama was criticized in 2014 for lacking congressional authorization to conduct those military strikes in Syria and Iraq. However, when he expressed support for a draft resolution in 2015, Congress could not agree on its clauses. Eventually, Obama continued the anti-ISIS operation without new congressional authorization, and Trump did the same upon entering office in 2017.

Gordon believes that while using the 2001 law as justification for an anti-ISIS campaign is worthy of debate, the same cannot be said with regards to Iran. “Congress clearly did not authorize the use of force against this country,” he says. “There’s really no way you can attach this to Iran.”

A banner showing images of U.S. President Donald Trump, left, Secretary of State Mike Pompeo and National Security Adviser John Bolton.
Ahn Young-joon,AP

Trump has expressed contradictory messages concerning Iran. He has threatened military action, but also repeatedly said he wants to negotiate with the Islamic Republic. On Wednesday, the Daily Beast reported that Fox News anchor Tucker Carlson has privately been encouraging Trump not to escalate the situation with Iran or to allow hawkish advisers — such as Pompeo and National Security Adviser John Bolton — to set the tone on Iran policy.

During the 2016 presidential election campaign, Trump tried to present himself as an opponent of the Iraq War, even though he supported it back in 2003. He won the support of isolationist and libertarian voters by denouncing “stupid wars” in the Middle East. He also promised to withdraw all U.S. forces from Syria, and argued with his own advisers about their wishes to extend the U.S. presence in Afghanistan. But his actions regarding Iran — his withdrawal from the nuclear deal and his increasing use of sanctions against Tehran — have seemingly increased the likelihood of military confrontation.

Some Trump allies have proposed a different argument in justifying military action against Iran, focusing on the timeline of Iranian hostilities in the Gulf area. Sen. Tom Cotton (Republican of Arkansas) believes Trump has legal grounds to attack Iran in response to recent attacks on international oil tankers and ships, which different intelligence agencies around the world say were likely conducted by Iranian forces.

“Unprovoked attacks on commercial shipping warrant a retaliatory military strike,” Cotton told CBS last weekend, adding that “the president has the authorization to act to defend American interests.”

‘Serious confusion’

During a House Foreign Affairs’ subcommittee hearing on current tensions with Iran on Wednesday, several Democrats warned about the threat of military escalation — and tried to understand how the administration was planning to justify any potential use of military force in the future. The only witness who spoke at the hearing was the U.S. special envoy for Iran, Brian Hook.

Rep. Ted Deutch (Democrat of Florida), who heads the foreign affairs subcommittee on the Middle East, North Africa and international terrorism, said at the hearing that there was “serious confusion about the intentions” of Trump’s Iran policy. He also accused the administration of “isolating the United States from our allies” by withdrawing from the Iran nuclear deal, warning that the U.S. is now facing the challenge with a “fractured international community.”

Rep. Ted Deutch, left, meeting Prime Minister Benjamin Netanyahu during a visit by U.S. congressmen and congresswomen to Israel, July 2018.
Amos Ben Gershom / GPO

Deutch voted against the Iran deal in 2015, but has been one of several Democrats who, despite their opposition to the deal, criticized Trump’s withdrawal from it last May. He said in his opening statement Wednesday that Trump’s actions had “undermined U.S. credibility.”

A similar message was offered by Rep. Eliot Engel, who chairs the House Foreign Affairs Committee and was another Democrat who voted against the nuclear deal four years ago. Engel said during Wednesday’s hearing that a war with Iran “without the approval of Congress” is “absolutely not an option,” and that for the Trump administration, “Your first step is right here on Capitol Hill.”

Several members asked Hook about the legal grounds the administration could use for military action against Iran and, specifically, if there was any intention to use the AUMF law. Hook did not directly answer these questions, instead offering a general pronouncement that any actions by the administration would be legal and taken after consultations with lawyers.

Hook also said the Trump administration’s pressure campaign on Iran “was working,” and that the administration is not seeking a war with Iran but rather, new negotiations. He also raised the notion of a “comprehensive deal” between the two countries that would eventually include the normalization of relations — an ambitious goal that even the Obama administration did not fully seek.

He cautioned, however, that such a milestone could only be achievable if Iran dramatically changes its policies on multiple fronts.

Gordon tells Haaretz that the Trump administration’s main problem will be if it tries to rely on the 2001 legislation for an attack on any of Iran’s nuclear facilities, which have no ties to Al-Qaida or the Taliban. Iran announced earlier this week that it will break the uranium stockpile limit it had agreed to under the 2015 nuclear deal by next week. This would constitute a major breach of the deal and could further escalate the situation.

Analyzing the current situation, a Republican congressional staffer tells Haaretz that “if Trump actually tried to get congressional authorization” for military action against Iran, “some Republicans would have voted against it because the Republican base isn’t enthusiastic about new military adventures in the Middle East. But if he insists on bypassing Congress, most of the party will find ways to support him. Especially if it’s a limited strike, not a new war.”

The problem, warn critics of this approach, is that a limited strike in reaction to an Iranian provocation could easily deteriorate into a much wider entanglement. Sen. Murphy warned last month that Trump “has put us on the precipice of serious conflict,” and that the president, not any of his advisers, “will shoulder the blame if events spiral out of control.”