Trump’s War on Iran Is Illegal

Neither a future threat nor regime change can be legal justification for war without congressional authorization.

By John Danforth, Norman Eisen, Eugene Fidell, Richard Gephardt, J. Michael Luttig, and Richard W. Painter

President Donald Trump has embroiled the United States in another illegal war. Less than two months after an unconstitutional and unauthorized U.S. military operation in Venezuela, Trump has launched a full-scale bombing campaign against Iran. He did so with open intent to effect regime change (among other ostensible purposes).

Iran has been ruled for decades by cruel dictators who oppress their own people and pose a long-term security threat to the United States and our allies. We shed no tears for Ayatollah Khamenei — but that does not mean there was a legal justification for taking our country to war.

(Tomas Ragina/iStock)

The attack on Iran is clearly illegal under U.S. law. Article I, Section 8 of the U.S. Constitution grants Congress the exclusive power to declare war. As the Second Circuit said in Berk v. Laird, “the congressional power ‘to declare War’ conferred by Article I, section 8, of the Constitution was intended as an explicit restriction upon the power of the Executive to initiate war on his own prerogative.”

Though the president has inherent authority under Article II to repel sudden attacks or imminent attacks without prior consent of Congress, this exception is limited to true emergency circumstances, which were not present here.

Unlike the Iran hostilities, prior instances in which presidents have used military force include several that were clearly — or at least arguably — authorized by Congress. For example, Congress’s 1964 Gulf of Tonkin Resolution authorized the tragic involvement of the United States in the Vietnam War, although President Richard Nixon’s expansion of that war into Laos and Cambodia had no congressional authorization. A 1991 resolution by Congress authorized the first Gulf War against Iraq after the invasion of Kuwait. A 2001 Authorization for the Use of Military Force (AUMF) cleared the way for the war against al Qaeda, the Taliban, and allied terrorist organizations worldwide. This AUMF has been interpreted expansively, perhaps too much so, by four presidents (George W. Bush, Barack Obama, Trump and Joe Biden) to authorize strikes against other terrorist organizations and their supporters.

A 2002 AUMF authorized the 2003 invasion of Iraq, an authorization that, while premised on faulty intelligence about weapons of mass destruction, was at least obtained from Congress before Bush proceeded. The 2002 AUMF also has been invoked by subsequent presidents for military operations involving the security situation in Iraq.

Even that low bar has at times not been met by presidents of both parties. For example, President Bill Clinton’s NATO-led bombing of Yugoslavia was conducted without consent of Congress or authorization by the United Nations Security Council. The 2001 and 2002 AUMFs have been invoked by several presidents to justify strikes that are only tangentially connected to the Sept. 11, 2001, terrorist attacks or the security situation in Iraq, which was Congress’s intended purpose for the AUMFs.

Obama’s bombing in Libya in 2011 rested on thin legal reasoning, including with reference to a Security Council resolution that authorized but did not require military intervention to prevent slaughter of civilians by Libyan dictator Muammar Gaddafi. That operation should have been conducted pursuant to an authorization from Congress, which Obama did not obtain. Part of the legal rationale was that there was no war because U.S. troops were not put in harm’s way. Trump’s bombing of Iran has already resulted in four reported deaths of U.S. service members and about a dozen reported injuries as of this writing, with the president saying he expects more.

In multiple dimensions, the Iran war goes far beyond these prior instances of the use of military force and even Trump’s June bombing of Iran. Those who look to prior presidential violations of law as valid precedents are at any rate missing the point. A grab-bag of past legal violations cannot be stitched together to create a new rule at variance with the text of the Constitution. The “other presidents did it” argument is no justification to depart from constitutional limits. Indeed, this argument is one of the reasons abuses of presidential power have now reached crisis proportions.

To comply with the Constitution, Trump should have, at a minimum, sought an AUMF from Congress. Through the AUMF process, Congress could have determined whether an appropriate predicate to war existed and spelled out what the president could do to address it. We simply do not know what an AUMF from Congress on Iran would have provided because Trump never bothered to get one. But, under our Constitution, Congress has a crucial role in the decision about when the United States goes to war.

The attack not only fails to comply with the Constitution but also raises profound questions under the War Powers Resolution of 1973. That law reflects in Section 2 that the president can constitutionally enter into hostilities only when Congress has so authorized or there is a “national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” No congressional declaration of war or other specific statutory authorization to attack Iran existed, and there was no attack on the United States, its territories, or the U.S. armed forces. The fact that presidents have long elided this law and Congress has let them should not detract from its plain language and intent.

The resolution also requires the president to consult with Congress “in every possible instance” before introducing forces into any form of potential or actual hostilities. Although there was apparently some conversation earlier in the week with seven of the eight members of the congressional Gang of Eight, that may not by itself rise to the level of the statutory requirement.

The attack on Iran also runs afoul of United Nations Charter Article 2(4), which prohibits the threat or use of force against the territorial integrity of any member state. The UN Charter was ratified by the United States Senate in 1945 (by a vote of 89-2) and is the “law of the land” on exactly the same level as legislation passed by Congress. Under the Constitution, the president is required to “take Care that the Laws,” including Senate-ratified treaties, “be faithfully executed” — not ignored.

The UN Charter places significant restrictions on the resort to military force, which includes war. Absent approval by the UN Security Council, the use of military force is permitted only if in self-defense under Article 51. The self-defense exception permits nations to use force in individual or collective self-defense only if an armed attack occurs or is imminent. A “preventive war” against a speculative future threat is not an act of anticipatory self-defense from an imminent attack and would be a clear violation of international law.

Trump’s openly expressed objective of initiating regime change does not fall within the narrow exception for self-defense outlined in Article 51 and is thus an illegal use of force. In addition, deliberately targeting a head of state, even a dictator such as Iran’s Supreme Leader, is an illegal act of aggression under international law. And launching strikes during active diplomatic negotiations, which were ongoing during February, arguably violates the principle of “good faith” enshrined in Article 2(2) of the UN Charter.

Trump’s decision to go it alone in violation of this vast corpus of constitutional, statutory, treaty, and other obligations has not only resulted in the death of at least four American servicemembers but also has caused widespread civilian death and injury across the Middle East. The bombing of a girls’ elementary school in Iran, with about 150 casualties, is an ominous sign of what could come if this war continues.

Dictators and aspiring dictators all too often start foreign wars to distract from or build support for their subversion of democracy at home. The United States remains a democracy. Our president should not be allowed to use war to subvert the rule of law at home or abroad.

John Danforth, A Republican, served as a U.S. senator from Missouri from 1976 to 1995 and was U.S. Ambassador to the United Nations from 2004 to 2005. Norman Eisen, the publisher of The Contrarian, was the ethics czar for the Obama White House. Eugene Fidell is a visiting lecturer in Law at Yale Law School. Richard Gephardt, a Democrat, represented Missouri’s 3^rd District in the U.S. House from 1977 to 2005. J. Michael Luttig was a judge on the U.S Court of Appeals for the Fourth Circuit from 1991 to 2006. Richard W. Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School and former associate counsel to the president and chief White House ethics lawyer for President George W. Bush. He is the co-author with E. Thomas Sullivan of “The U.S. Presidency: Power, Responsibility, and Accountability.”

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