Unpacking the State Dept Acknowledgment that 2001 and 2002 AUMFs Don’t Authorize War Against Iran

The State Department has acknowledged that the administration has not interpreted the 2001 or 2002 Authorizations for Use of Military Force (AUMFs) to authorize military action against Iran, except for defensive purposes to protect forces engaged in operations covered by the AUMFs. That one caveat is something even the Obama administration might have claimed, and certainly is not new to the Trump Administration. The acknowledgment is contained in a State Department letter dated June 28, 2019, written in response to a request sent just two days earlier by Rep. Eliot Engel, Chair of the House Foreign Affairs Committee and Rep. Ted Deutch, Chair of the Foreign Affairs Subcommittee on the Middle East, North Africa, and International Terrorism. So how exactly should the Department’s letter be interpreted?

The letter is a remarkable development that shows the value of diligent congressional oversight and engagement from the Executive Branch. It is even more remarkable given recent statements by Secretary Mike Pompeo in closed briefings and public remarks that  suggested the Trump Administration was considering interpreting the 2001 AUMF as authorizing force against Iran due to an alleged connection with al-Qa’ida. Pompeo’s remarks were then followed by a refusal on the part of Special Representative for Iran, Brian Hook to answer whether the Administration believes either the 2001 or 2002 AUMF authorizes force against Iran.

While the State Department’s letter was caveated, leaving some questions unanswered and room for further oversight by Congress, the document provides the clearest and most constructive response to date on this crucially important issue. It also follows on the heels of a statement by Mick Mulroy, Deputy Assistant Secretary of Defense who said that no senior defense officials have “mentioned al-Qa’ida or the 2001 Authorization to Use Military Force” in any of their congressional briefings on Iran. 

In the following analysis, we unpack the operative language in the State Department’s letter, the import of the exception it describes, and next steps Congress might consider as it continues to engage the Administration on how the Executive Branch is interpreting the force authorizations currently on the books. 

How should we interpret the letter?

The State Department letter is short, and contains one especially important sentence at the end of the first paragraph:

The Department of State has great respect for Congress’ role in authorizing the use of military force. As Secretary Pompeo has noted, the Administration’s goal is to find a diplomatic solution to Iran’s activities, not to engage in conflict with Iran. Moreover, the Administration has not, to date, interpreted either AUMF as authorizing military force against Iran, except as may be necessary to defend U.S. or partner forces engaged in counterterrorism operations or operations to establish a stable, democratic Iraq. 

What does this mean? It’s important that the Administration acknowledged “Congress’ role in authorizing the use of military force,” even though the scope of authority held by each branch in initiating force remains deeply contested. But the letter’s real import is found in its substantive reply to the primary question the Committee members raised, which was, “whether the 2001 or 2002 AUMFs are applicable to any actions that could be undertaken by the Executive Branch in or against the Islamic Republic of Iran.”  

First, the letter appears to take off the table an interpretation of the 2001 AUMF, passed by Congress in response to the 9/11 attacks, that would allow use of force against Iran by virtue of some sort of alleged relationship with al-Qa’ida. This is a welcome development given the drum beat of Administration officials — most notably Secretary Pompeo — attempting to draw such a linkage. 

This is the only defensible response as a legal matter. As one of us (Tess Bridgeman) and former State Department Legal Adviser Brian Egan recently wrote, “The 2001 AUMF does not authorize the use of force against Iran. Iran was not implicated in the 9/11 attacks, Iranian forces are not al Qaeda or the Taliban, or their associated forces, nor are they a ‘successor’ to any of those forces.” Nor is the potential theory that Iran may be considered to be swept under the AUMF as a nation that “harbored” al-Qa’ida any more convincing.  And finally, as Tess and Brian also explained, the 2002 AUMF is inapplicable too: 

[T]here is no viable argument that another AUMF still on the books — the “Authorization for Use of Military Force Against Iraq Resolution of 2002” (2002 AUMF) — authorizes force against Iran. It allows the president to use force that is “necessary and appropriate” to “defend the national security of the United States against the continuing threat posed by Iraq;” and “enforce all relevant United Nations Security Council resolutions against Iraq.” Those are plainly not relevant to the situation with Iran today.

Second, despite these helpful acknowledgments, the letter contains an important caveat in the operative sentence: “except as may be necessary to defend U.S. or partner forces engaged in counterterrorism operations or operations to establish a stable, democratic Iraq.”  While no further explanation of that exception was provided, it really isn’t new.

This caveat appears to describe the argument that both the 2001 and 2002 AUMFs, in authorizing “necessary and appropriate force,” provide authority to defend U.S. and partner forces engaged in the campaigns that those AUMFs authorize (e.g., against al-Qa’ida) when those forces come under immediate threat from a third party. The Administration invoked this interpretation in describing the legal basis for isolated instances of firing upon Syrian and pro-Syrian government forces that the United States deemed a direct threat to its counter-ISIS operations in Syria. In a required report to Congress, the administration described the strikes against those Syrian forces — clearly not themselves a target of the 2001 or 2002 AUMFs — as “limited and lawful measures to counter immediate threats to U.S. and partner forces while engaged in” the campaign against ISIS. In other words, if a third party (like those Syrian forces) directly targets US forces or partner forces that are engaged in operations against al-Qa’ida, those US forces are authorized to defend themselves or the partner forces from such attacks. (Ryan Goodman and Monica Hakimi explained this interpretation here and here in 2017). 

What does this mean in practice for potential uses of force against Iran? It means the Administration believes it could use force against any party — Iran, Syria, Russia, Hizbollah, other militias or armed groups — that threaten ongoing U.S. operations authorized by the 2001 or 2002 AUMFs, so long as those third parties present an imminent threat to U.S. or partner forces engaged in those operations. This could include, for example, U.S. military action against Iranian or proxy forces in Iraq or Syria, if the Iranian-aligned forces engaged in a direct attack on U.S. or partner forces in those theaters. And in theory, while the Administration has not made specific claims to this effect to date, such authority could extend to using force to defend U.S. or partner forces in other theaters where Iranian or proxy forces are present — such as potentially defending those US forces engaged against AQAP in Yemen if attacked (although this seems unlikely). 

This interpretation of the “necessary and appropriate” force authorized by existing AUMFs is a potential slippery slope. Shooting down a Syrian government jet, in Syrian territory, to defend non-state actors engaged in a civil war in Syria from attack so that they may continue to fight an armed group that did not exist at the time of the 9/11 attacks (ISIS), and which is a sworn enemy of the group that did carry out the 9/11 attacks, is surely not something Congress imagined it could be authorizing when it passed the 2001 AUMF or the 2002 AUMF. 

Indeed, whether the “necessary and appropriate” force Congress authorized in those statutes can fairly be understood to extend that far is a serious question that Congress should press. 

But it’s also important to recognize that this interpretation of the “necessary and appropriate” force authorized by the 2001 and 2002 AUMFs is not without any limit. It would not encompass a use of force against Iran in response to attacks on commercial shipping, for example, or other potential armed confrontations outside of the ongoing conflicts against ISIS and al-Qa’ida. Nor would it provide a legal basis for proactively shifting the mission of U.S. troops in Syria or Iraq (or elsewhere) to a counter-Iran mission whether inside or outside those countries (as Tess wrote here). 

Finally, perhaps it goes without saying, but this authority for defensive force would not extend to the protection of Saudi-coalition members engaged in the fight against Houthis in Yemen, even if they came under fire by Iran’s military itself. That’s because the conflict with the Houthis is separate and apart from the conflicts that come under the 2001 and 2002 AUMFs.  

Where should further congressional oversight focus?

First, Congress should follow up by asking the State Department’s Office of the Legal Adviser to explain the legal basis for the “exception” it invoked for defense of U.S. and partner forces engaged in counterterrorism or Iraq stabilization missions and understand its limits. 

1. Would this interpretation of the “necessary and appropriate” force authorized in the 2001 and 2002 AUMFs include operations only in Iraq and Syria? 

2. What exactly is meant by “counterterrorism operations” in the phrase “U.S. or partner forces engaged in counterterrorism operations”

3. What is the legal basis for reading “necessary and appropriate” force to extend to protection of “partner forces”? Is there any historical precedent for reading an AUMF in this manner? 

4. If those “partner forces” are or have recently been engaged in hostilities against other actors in an armed conflict to which the United States is not a party (as has been the case in Syria), where will the administration draw the line between intervening in (i) a conflict Congress has not authorized the United States to engage and (ii) protecting partner forces for the purposes of defending a counter-ISIL or counter-AQ mission? 

5. In terms of geography, where are forces of another nation state currently threatening U.S. or partner forces engaged in counterterrorism  operations authorized by the 2001 or 2002 AUMFs? Which nation states and which partner forces specifically? Where have such forces threatened US or partner forces in the past two or more years and where does the administration anticipate such forces threatening US or partners forces in the foreseeable future?

6. Has any U.S. department or agency accepted an interpretation that either AUMF authorizes military force against Iran outside of what may be necessary to defend U.S. or partner forces engaged in counterterrorism operations or operations to establish a stable, democratic Iraq?

Second, the letter uses the phrase “to date” — that’s important. Congress should ask whether the administration has to date rejected such an interpretation of the AUMFs. And Congress should ensure that it is promptly informed of any change in interpretation. Reps. Engel and Deutch already keyed in on this in their response to the State Department letter. They wrote, “Should the Administration’s view of these issues change, they must notify Congress immediately.” While securing a commitment to do so shouldn’t be necessary, as the Administration is already required in an existing NDAA provision to report to Congress on its legal and policy positions on the use of military force abroad, it’s not clear that the Administration has been reporting changes in its interpretation of existing AUMFs to Congress. Thus, securing such a commitment would be valuable. Now that the Administration has informed Congress of its existing legal position on the AUMFs and Iran, the responsibility rests with the Administration to inform Congress promptly of any change to that understanding if any change occurs.    

Photo Image: Andrew Caballero-Reynolds/AFP/Getty Images

 

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About the Author(s)

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).

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). You can follow him on Twitter @rgoodlaw.