Saturday, 29 Jun 2024

Could Trump Use the Sept. 11 War Law to Attack Iran Without Going to Congress?

In public remarks and classified briefings, Trump administration officials keep emphasizing purported ties between Iran and Al Qaeda. Some lawmakers suspect that the executive branch is toying with claiming that it already has congressional authorization to attack Iran based on the nearly 18-year-old law approving a war over the Sept. 11, 2001, attacks.

Pressed to say on Wednesday at a House Foreign Affairs Committee hearing whether the administration thinks the Sept. 11 war law could be used for military action against Iran, Brian Hook, the senior State Department official on Iran issues, was coy, saying that “we will comply with the law” without saying what the administration interprets “the law” to be. Secretary of State Mike Pompeo has been similarly evasive on the topic.

Against that backdrop, some lawmakers who think the Sept. 11 war law cannot be legitimately stretched to include Iran have proposed amending the annual defense authorization act to bar the administration from making any such claim.

What is the Sept. 11 war law?

After the Sept. 11 attacks, Congress enacted a law that authorized a military response against whatever nations, organizations or persons the president “determines” planned, authorized, committed or aided the attacks, or who harbored such organizations or persons. At the time, that seemed to mean Al Qaeda and its Taliban hosts in Afghanistan.

But as years passed, the law — which is commonly called the Authorization for Use of Military Force, or A.U.M.F. — has been stretched by presidents of both parties to justify attacks against other groups that it deemed to be effectively part of or associated forces of Al Qaeda, like a Qaeda affiliate in Yemen, the Shabab in Somalia and the Islamic State.

Is there an argument that the war law also covers Iran?

One such argument might focus on whether Iran’s actions before the Sept. 11 attacks amount to aiding or harboring Al Qaeda. Although Qaeda members largely got in and out of Afghanistan via Pakistan, the report by the 9/11 Commission said there was “strong evidence” that Iran also facilitated such travel across its territory, including by several of the hijackers. In 2011, a group of Sept. 11 victims persuaded a federal judge in New York to rule that such assistance made Iran culpable in the attacks.

Another might focus on recent Iranian actions. There have been murky reports for years of Qaeda members living in Iran — often in detention or effectively under house arrest, but sometimes with greater freedom of travel. In 2016, under the Obama administration, the Treasury Department placed sanctions on three men it described as Qaeda members it said were in Iran.

“If Iran has, in fact, been harboring Al Qaeda operatives, especially recently, then the A.U.M.F. by its terms plausibly authorizes the president to use force against Iran,” said Jack Goldsmith, a Harvard law professor who ran the Justice Department’s Office of Legal Counsel for a year under President George W. Bush.

He cautioned that even if the Sept. 11 war law could be invoked, it would satisfy only the domestic law requirements for an attack and leave open a separate international law problem: The United States would also seem to need permission from the United Nations Security Council or a self-defense rationale to attack Iran.

But once the two countries were engaged in an armed conflict, Mr. Goldsmith said, the United States could lawfully strike nuclear installations with a military dimension. Still, he said, if that is the only sort of attack the Trump administration has in mind, that would mean any invocation of purported Qaeda links to justify the conflict would seem “pretextual.”

Why else would interpreting the war law to cover Iran be disputed?

Nobody can plausibly contend that when Congress enacted the law in 2001, lawmakers understood themselves to be authorizing a war against Iran in 2019. The 9/11 Commission report also said it found no evidence that Iran was aware of Al Qaeda’s planning for those attacks. And Iran lost that 2011 lawsuit by default because it did not bother to send lawyers to court to contest the plaintiffs’ claims.

Moreover, Iran’s government is run by Shiite Muslims, while Al Qaeda and its affiliates are Sunni Muslims who consider Shiites to be apostates. There is no public evidence that Iranian forces and Al Qaeda carried out joint operations, and Qaeda-linked terrorists have attacked Shiite shrines and other targets, including inside Iran.

Ali Soufan, a former F.B.I. agent who investigated and has written extensively about Al Qaeda, said that Iran was a menacing actor whose activities do pose a threat to American national security interests and to regional stability in various ways, but a relationship with Al Qaeda is not one of them.

Citing letters that showed hostility toward Iran that were seized in the raid on Osama bin Laden’s compound, Mr. Soufan compared recent discussion of Iran-Qaeda links to misleading hype about Iraq-Qaeda links before the 2003 invasion. One example: stressing that Bin Laden’s son Hamza lived for years in Iran without mentioning the context: He was a prisoner.

“I think what is happening now is we are witnessing cherry-picked intelligence in order to manipulate a particular narrative,” Mr. Soufan said.

Brian Egan, who was the top National Security Council and State Department lawyer during President Barack Obama’s second term, said that he was aware of no intelligence through January 2017, when he left government, that would justify interpreting the Sept. 11 war law to cover acts of war against the Iranian government.

“I don’t see any basis for using the A.U.M.F. to instigate a military conflict against Iran based on the things I know,” Mr. Egan said.

What standards must be met for Trump to say he can use the Sept. 11 war law against Iran?

There are no clear ones. Congress did not write into the law any specific criteria that must be met before the president may “determine” that a foe is sufficiently linked to the Sept. 11 attacks. And it is doubtful that a court would hear a lawsuit challenging any such claim. In 2016, a judge dismissed a similar case challenging Mr. Obama’s decision to stretch the Sept. 11 war law to cover the Islamic State.

Shalev Roisman, a Harvard law lecturer and former Office of Legal Counsel lawyer who recently wrote a law review article denouncing the lack of any internal executive branch procedures for how and when a president may “determine” that facts exist, said he doubted the Trump appointees running the Office of Legal Counsel would second-guess the president if he said he saw sufficient Iran-Qaeda ties.

Does Trump need to claim he has congressional authority to attack Iran?

That may depend on which lawyers the president chooses to ask.

Although the Constitution says Congress decides whether to declare war, executive branch lawyers have asserted that the president, as commander in chief, can unilaterally order attacks under a claim of anticipatory self-defense or if doing so would serve American interests — at least where the anticipated nature, scope and duration of hostilities are limited.

And Attorney General William P. Barr harbors unusually broad views of a president’s power to unilaterally start even major wars on his own. In 1991, he told President George Bush that he could launch the Persian Gulf War without congressional authorization.



Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” @charlie_savage Facebook

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