Asking the Right Question on Iran, Al-Qaeda and the AUMF

The President and senior members of his administration are trying to skew a critical public debate by framing it inaccurately. The stakes—including a potential new war in the Middle East—couldn’t be higher.

When asked in an April Senate committee hearing whether the United States can rely on the 2001 Authorization for Use of Military Force (AUMF) to wage war against Iran, Secretary of State Mike Pompeo described connections between Iran and al-Qaeda, and then said: “There is no doubt there is a connection. Period. Full stop.” Pompeo soon returned to his chosen word, a “connection.” He elaborated: “The factual question with respect to Iran’s connections to al Qaeda is very real. They have hosted al Qaeda. They have permitted al-Qaeda to transit their country.” Just this week, U.S. Special Representative for Iran Brian Hook, testifying on Capitol Hill, was questioned about Pompeo’s earlier remarks and was asked specifically, “Where is the connection?” Hook replied in the seemingly affirmative, saying, “I’m happy to explain it as best I can.”

The Trump team has, as these comments reveal, tried to set up the relevant question as whether there is a “connection” between Iran and al-Qaeda, leading even Members of Congress to ask Hook for indications of a “connection.” Here’s their trick: a “connection” between Iran and al-Qaeda isn’t even close to the relevant legal test for whether the 2001 AUMF authorizes the use of force against Iran. By asking the wrong question, we’re giving the Trump administration the chance to provide the wrong answer.

The 2001 law authorizes the President to use “all necessary and proper force” against those who “planned, authorized, committed, or aided” the 9/11 terrorist attacks, “or harbored such organizations or persons.” In late 2016, the executive branch released a lengthy and detailed explanation of its legal interpretation of key authorities pertaining to the use of force, including the 2001 AUMF (Report on the Legal and Policy Frameworks Guiding the United States’ Use Of Military Force and Related National Security Operations 2016). That document explained that “[a]ll three branches of the U.S. Government have affirmed the ongoing authority conferred by the 2001 AUMF and its application to al-Qa’ida, to the Taliban, and to forces associated with those two organizations within and outside Afghanistan.” The document further emphasized that the 2001 law “plainly covers . . . the Taliban, which ‘harbored’ al-Qa’ida.”

Note that Pompeo’s chosen term—“connection”—is conspicuously absent from the statutory text itself and from the executive branch’s interpretation of the statute, which has been ratified by federal courts. In early 2018, the Trump administration issued its own explanation of the relevant legal frameworks and, notably, chose not to diverge from the prior administration’s interpretation (Report on the Legal and Policy Frameworks Guiding the United States’ Use Of Military Force and Related National Security Operations 2018).

This matters because Pompeo’s remarks in April, followed by Hook’s answer this week, appear to be an attempt to lower the standard, somehow wound around the amorphous and low bar of a “connection.” More specifically, the Trump administration appears challenged in making the case that, like the Taliban, Iran “harbored” al-Qaeda. As former top State Department counterterrorism official Daniel Benjamin recently commented, “There have been al Qaeda people in Iran since shortly after 9/11, occasionally under house arrest.” But holding al-Qaeda members under house arrest hardly seems like “harboring”—by that understanding, the United States might be “harboring” the many terrorists who populate certain federal prisons, not to mention the likes of John Walker Lindh, who was recently released after serving his prison sentence for his actions in Afghanistan and who remains on U.S. soil as an American citizen. Mere presence of terrorists in a country has never been understood to qualify for purposes of the 2001 AUMF as “harboring.” What’s more, presence in the form of house arrest seems even less like “harboring,” given the constraints imposed on such terrorists. And in some cases, Iran has gone even further, as when they extradited a key al-Qaeda operative to Mauritania in 2012.

So, that reality appears to leave the Trump administration scrambling to move the goalposts for what might justify the use of force against Iran. Enter the notion of a “connection” between Iran and al-Qaeda: it’s a concept entirely foreign to the executive branch’s substantial 2001 AUMF jurisprudence, but—dangerously—it has rhetorical force. After all, a “connection” to a terrorist group sounds bad indeed—even if, on closer scrutiny, it turns out that the “connection” involves keeping members of that group under house arrest.

Of course, the administration might try to add some more meat to the bone of a “connection” as the standard (call it “connection-plus”). But that would make even clearer how this is all artifice. The need for new, albeit invented, language arises because the Trump administration can’t fit its claim within the existing legal framework that Congress, the courts, and both the Obama and Trump administrations had accepted up to this point.

The stakes are incredibly high here, given the possibility of swift and deadly escalation with Iran—indeed, they loom particularly large after reports that, on Thursday, President Trump approved U.S. strikes against Iran before reversing that decision, at least for now. That means the American people deserves a public debate on the right legal framework, and it also means that Congress is entitled to understand how the Trump administration is thinking about whether and when it can use military force against Iran. Thankfully, there’s an opening for gaining just that type of critical understanding. Representative Ted Deutch asked Hook the key question: “Do you believe that the administration could launch an attack against Iran under the 2001 AUMF”? Hook refused to say. Instead, he invited a different avenue for getting the answer:

“This is something which the Office of the Legal Adviser can give you an opinion on, if you’d like to submit it.”

Let’s hope that Congress follows up swiftly on Hook’s concerning testimony and demands that legal opinion. Hook, after all, extended an invitation. And, as Congress and the American people evaluate the legal claims and bellicose policy positions of the Trump administration, let’s be sure that we all are asking the right question, before we find ourselves stuck with the wrong answer.

 

[Editor’s Note: Readers may also be interested in Brian Egan and Tess Bridgeman’s “Top Experts’ Backgrounder: Military Action Against Iran and US Domestic Law,” published on June 21, 2019]

Image: The State Department’s director of policy planning and head of the Iran Action Group, Brian Hook shakes hands with US Secretary of State Mike Pompeo after the announcment of the “Iran Action Group” during a press briefing at the State department in Washington, DC, August 16, 2018 Andrew Caballero-Reynolds/AFP/Getty Images)

 

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About the Author(s)

Joshua Geltzer

Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Member of the editorial board of Just Security. Follow him on Twitter (@jgeltzer).

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

Luke Hartig

Executive Director of National Journal's Network Science Initiative and Fellow, International Security Program at New America. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Director for Counterterrorism Operations in the Office of the Secretary of Defense. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow him on Twitter (@LukeHartig).