About that Trial Balloon on Using 9/11 AUMF to Authorize Strikes on Iran

Monday’s Washington Times included a breathless “Exclusive” report titled “Iran-al Qaeda Alliance May Provide Legal Rationale for U.S. Military Strikes.” In the piece, the Times strings together a series of paraphrased comments from unidentified “Trump administration officials” and “congressional and legal sources” to suggest that the 2001 Authorization for the Use of Military Force—the AUMF—“may now provide a legal rationale for striking Iranian territory or proxies.” Pause on that for a moment; the Times piece basically suggests that, if President Trump wanted to, he could invoke the AUMF to start a war with Iran—and he could do it tomorrow.

The main claim behind the Times story, it seems, is that Iran is increasingly “harboring” al Qaeda by providing sanctuary to certain al Qaeda officials in Iran and through indirect financial support. As the Times writes, “Behind the scenes in Washington, there is increasing speculation that the White House could make a case for military strikes [against Iran] using the existing AUMF, which authorizes the president to use all ‘appropriate force’ to target those who ‘planned, authorized, committed or aided’ the 9/11 attacks on America.” (The AUMF also authorized force against those who “harbored” the “organizations or persons” that committed the 9/11 attacks, long understood to refer to the Taliban government in Afghanistan before 9/11.)

We’ve both previously written, to various degrees, about the textual limits on the scope of the AUMF. Most significantly, as Tess explained last June responding to public comments by President Trump and Secretary of State Pompeo attempting to link al Qaeda and Iran,

it’s questionable whether the 2001 AUMF would apply to a country harboring AQ today, as opposed to a country that “harbored” (past tense) those groups on or before 9/11, the clear intent of the statutory authorization. . . . [And even] if harboring AQ after 9/11 would suffice, the “harboring” that the Taliban in Afghanistan did before 9/11 (including allowing military-style training camps and a vast network of operatives) is a far cry from what the Executive is claiming with respect to Iran now. Pompeo and Trump’s allegations are made at a high level of generality, but could refer to the same three AQ members living in Iran, possibly detained there, who were sanctioned by the Treasury Department (under then-President Obama). At least without more information, it’s hard to see how this adds up to a legitimate claim that the 2001 AUMF would authorize the use of force against Iran for having “harbored” those who committed the 9/11 attacks.

Although the Times piece asserts that “legal analysts say the administration likely would have a strong argument,” it only quotes one such individual (retired Air Force Maj. Gen. Charlie Dunlap), who said only that the AUMF might apply “if the facts show Iran or any other nation is harboring al Qaeda” (emphasis added). As Tess’s piece points out, it’s not remotely clear as a matter of facts or as a matter of law that such a claim holds water. Insofar as the Dunlap quote was answering a hypothetical, it seems deeply irresponsible for the Times to assert that the “administration likely would have a strong argument.”

To be sure, as Steve discussed with Bobby Chesney on this week’s episode of the National Security Law Podcast, if the Times story tied together compelling factual evidence of Iran harboring al-Qaeda on anywhere close to the scale of the Taliban pre-9/11, it might at least raise a question of law as to whether such harboring after 9/11—as opposed to before—could ever be encompassed by the AUMF (a highly dubious proposition). But it doesn’t.

While claiming that unnamed “U.S. officials” “insist” a “mountain of hard evidence” links Iran with al-Qaeda, it provides no identifiable source or underlying information to back up this hyperbolic claim. Instead, it seems to rely on the same scant information Trump and Pompeo have referred to in public speeches from last spring—arguably not even a molehill let alone a mountain—while dismissing clashes between al Qaeda and Iran, like the “deadly suicide bomb attack [in Iran] last week blamed on al Qaeda.”

Indeed, with one exception, all of the new material in the piece is attributed, in order, to “Trump administration officials,” “congressional and legal sources,” “some lawmakers and other sources,” and “sources.” Not one of these unnamed individuals is even quoted directly, nor are they identified even indirectly, nor is any reason given for why they (or their comments) couldn’t be identified. The only official who’s on the record—Ambassador Nathan Sales, the State Department’s Coordinator for Counterterrorism—doesn’t say a word about the legal claim at the heart of the article, but instead reinforces why Iran remains atop the State Department’s list of state sponsors of terrorism.

All of this leads us to two takeaways about the Times piece.

First, it seems crystal clear that the story is nothing more than a trial balloon—something that someone in the Trump administration is publicly planting to see what reaction, if any, it provokes. Of course, there’s nothing inherently wrong with government officials floating trial balloons. But it seems to us that the media has an obligation, when presented with such an obvious plant, to do more than simply repackage it as an exclusive news story—and in particular to be clearer about the nature of the factual and legal claims that are offered to it without attribution or sourcing. If the Times story is intended to plant a seed that there could potentially be a set of facts under which the 2001 AUMF could arguably be extended to encompass Iran on a “harboring” theory, nothing in the piece comes within a country mile of convincing us that those facts exist—or might soon. Nor does it come close to grappling with the obvious legal questions raised by its hugely consequential premise.

Second, and at a more basic level, the fact that we’re even having this conversation is yet further proof, alongside years of previous examples, of the desperate need for Congress to revisit the 2001 AUMF—a statute that is now older than some of the soldiers we’re sending into harm’s way under its open-ended but not limitless terms. We don’t think there are convincing arguments for extending that statute to encompass Iran, but we also think it’s deeply disturbing that that conclusion isn’t so self-evident as to be a non-starter for reasonable minds of any political stripe. We may all continue to disagree about the legality of how the AUMF has been used to authorize force against new armed groups in theaters beyond Afghanistan. But it is simply beyond dispute that the Congress that passed the AUMF in 2001 was not remotely thinking about authorizing the President to engage in a war with Iran two decades later.

Thus, although the Times story reads to us like a trial balloon from Iran hawks in the Trump administration to see if anyone is going to object, it should really be understood as an ominous warning sign to Congress—to finally reassert its constitutional prerogative over the war powers before it’s too late.

Image:  U.S. Treasury Secretary Steven Mnuchin, White House National Security Advisor John Bolton, and Vice President Mike Pence listen to President Donald Trump announce his decision to withdraw the United States from the 2015 Iran nuclear deal in the Diplomatic Room at the White House May 8, 2018 in Washington, DC. (Photo by Chip Somodevilla/Getty Images).

 

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About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).

Tess Bridgeman

Senior Editor at Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@bridgewriter).