The most telling thing about the Trump administration’s legal argument for going to war with Iran is that, as a practical matter, it does not exist.
When President Donald Trump announced on Saturday morning that we were now at “war,” he claimed that the United States was “eliminating imminent threats from the Iranian regime,” but he did not identify any. The best that Trump could muster was to point to decades-old incidents — the takeover of the U.S. embassy that ended in 1981, the bombing of U.S. Marine barracks in Lebanon in 1983 and the attack on the USS Cole in 2000, which Trump claimed that the Iranian government “knew [about] and were probably involved [in]” — all while maintaining that the U.S. had “obliterated the regime’s nuclear program” last summer. The administration, meanwhile, has provided no evidence for its claim that Iran posed an imminent threat.
It is also notable that Trump now seems intent on explicitly targeting foreign leaders; the killing of Iranian Supreme Leader Ayatollah Ali Khamenei comes less than two months after he sent troops in to seize Nicolás Maduro in Venezuela. This is new territory for Trump.
In fact, the U.S. attack on Iran crosses multiple legal lines, both domestically and internationally. The political and policy implications of the war are another thing — perhaps you love it, or perhaps you remember the last time that the U.S. began a war of choice in order to bring about regime change in the Middle East — but those are nominally distinct questions from the law.
The U.S. Constitution gives Congress the power “to declare War,” not the president. Most observers grant that the president must have some independent authority under Article II of the Constitution to respond to attacks on the nation or U.S. forces abroad without first requiring congressional approval, but as Trump’s own statement on Saturday implicitly concedes, we had not been attacked by Iran.
The Trump administration’s war also cannot be squared with the War Powers Resolution of 1973, which allows the president to initiate hostilities abroad “only” when there has been “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Trump did not even attempt to argue that any of these conditions had been met, probably because he could not seriously do so.
As for international law, the attack on Iran goes much further than the Trump administration’s military campaign to oust and arrest Maduro, which itself ran afoul of multiple domestic and international legal prohibitions.
The U.N. Charter —which was overwhelmingly passed by the U.S. Senate and signed by President Harry Truman in 1945 — prohibits the use of force “against the territorial integrity or political independence of any state.” The U.N. Security Council can authorize the use of force in support of a party’s “right of self-defence,” but that did not happen here. U.N. Secretary-General António Guterres has already condemned the strikes as a violation of the U.N. Charter.
Some lawyers have argued that the president is free to ignore the U.N. Charter under domestic law, but the argument makes little sense. Under the Constitution, properly ratified treaties are part and parcel of “the supreme Law of the Land.” Our courts cannot enforce the U.N. Charter as a practical matter, but it still binds the political branches as a normative matter.
As for the killing of Khamenei, that also appears to have been illegal under international law, which generally prohibits killing heads of state. It also goes far beyond Trump’s first-term strike against Qassem Soleimani, who was a military leader and not the head of the country. Additionally, under U.S. law, there have been successive executive orders banning political “assassinations,” but presidents have easily been able to work around these given the particular ambiguities of the prohibition.
Most of this will seem frustratingly familiar if you have followed legal debates about U.S. military interventions abroad over the last 25 years or so.
Indeed, every U.S. president over the last half-century has run afoul of these laws in some form or another. Within our political system, the legal check is not prosecution but impeachment. But Congress has never impeached a president for this reason, and the result is that each president effectively feels more emboldened to act abroad than his predecessor. Trump’s legal defenders are now arguing that “history and prior precedent are on his side,” if not the letter of the law per se.
This may prove to be the unsatisfying shape of the legal debate in Washington in the days to come. Expect to hear a lot (more) from Trump and his allies about Barack Obama’s air strikes in Libya, for instance.
Of course, that comparison only gets you so far. The facts matter, including differences in both context and scale.
There is a reason we react differently when someone runs a red light if we find out that they are rushing a pregnant woman to the hospital, and there is a reason we think differently about someone who passes a bad check at a shopping mall and someone who engages in a large-scale international financial fraud.
Obama at least had a NATO coalition and a legitimate humanitarian rationale. The country’s leader at the time, Muammar Qadhafi, died in the ensuing chaos rather than being specifically targeted. And while four Americans were later killed in the Benghazi attack — which prompted years of investigations and recriminations by Republicans in Congress — three American service members have already been killed in Iran, and Trump says casualties “could happen again.”
The fear, of course, is that Trump has just enmeshed the United States in something like George W. Bush’s war against Iraq — or perhaps something even more destructive and geopolitically destabilizing. That war was supported under U.S. law by an authorization for the use of force military that overwhelmingly passed Congress. Unlike Khamenei, Saddam Hussein received a trial (perhaps a questionable one, but a trial nonetheless) before he was executed.
The Iraq war violated the U.N. Charter, but that is not the reason that most Americans now believe that it was a bad idea. They object to the costs — in lives, money and international stability — and to the fact that the war was sold to the American public using false claims about links to the 9/11 attacks and weapons of mass destruction.
Trump’s war in Iran, by contrast, was not sold to the public at all.
It also comes at a time when Trump, who once claimed to oppose the Iraq war and promised to usher in an era of global peace upon his reelection, has needlessly ramped up U.S. hostilities across the globe — from Venezuela to Cuba and beyond.
The Trump administration’s decision to further destabilize the global security order is all the more striking given the fact that they just spent the last year destabilizing the global economic order.
Trump and his top officials went around the world antagonizing some of our closest allies and adversaries alike by imposing or otherwise threatening to impose endless “emergency” tariffs, only for the Supreme Court to confirm that Trump lacked this legal authority all along. Foreign countries are now scrambling to deal with the fallout, and the Trump administration has no apparent plan to refund the money that was illegally taken from Americans or to manage further trade talks with their frustrated counterparts.
Meanwhile, Trump is increasingly unpopular with the American public, amid widespread frustration with the cost of living and the toll of the administration’s immigration crackdown.
So, does it matter that Trump’s war with Iran has no legitimate legal rationale? Yes. The law serves political and social purposes too, including by setting the standards by which we expect our leaders to behave — even if, as a practical matter, they do not care. When the president breaks the law, it is also a breach of the public trust, and in the law as in life, we judge these things by their circumstances and by their severity.
Trump has run many red lights since returning to office last year. The question in this case, as in others in his second term already, is how much death and destruction follow.
