Mark Esper vs. Mark Esper on the 2002 AUMF and Iran

On Wednesday, Secretary of Defense Mark Esper was part of the delegation of cabinet officials who briefed Congress in closed door hearings on the U.S. military operation against Iranian General Qassem Soleimani. The cabinet officials told Congress that the 2002 Authorization for the Use of Military Force (AUMF) authorized the use for force against Iran’s most senior military official. (As retired general David H. Petraeus wrote this week, “Suleimani was, in US terms, a combination of CIA Director, JSCO Commander, and Special Presidential Envoy for the Mideast. He was the second most important person in Iran.”)

But that’s not what Mr. Esper told the Senate Armed Services Committee during his confirmation hearing for Secretary of Defense on July 16, 2019. In answer to a clear and specific series of questions from Senator Tammy Duckworth, then-Secretary of the Army Esper stated that the 2002 AUMF could not authorize U.S. forces to take direct military action, or engage in acts of war, against Iran. Esper’s responses indicated he had previously discussed the matter with Sen. Duckworth and came prepared.

Below is the video of the exchange (starts at time stamp 1:45) and full transcript.

Coming soon: Steve Vladeck and I dissect the administration’s position that the 2002 AUMF authorizes force against Iran, in an article that will be published at Just Security.

The transcript follows:

Senator Duckworth: I want to address, since I get the last word here I guess, about the ongoing use of the 2001 and 2002 AUMFs. The U.S. Constitution vests with Congress the sole and solemn responsibility to declare war. However, over the past several years, administrations from both parties have used the existing AUMF in a way that outstrips the intent of Congress and has at best dubious legal justifications. In a real world example of current concern, do you believe that the 2001 AUMF or the 2002 AUMF provides the necessary legal authorization for us to use military force against Iran?

Esper: Not to conduct a war, Senator, as you and I discussed, but obviously, the President has under Article II the right to self to respond if attacked. But, no, not in terms of how you described it, as we discussed, to conduct a war.

Senator Duckworth: But Article II is aside from the AUMF.

Esper: Right. As I said, if Iran were to attack us, our soldiers, we always have the right to self-defense and to execute those types of —

Senator Duckworth: But that’s under Article II. I’m addressing-speaking specifically of the 2001 and 2002 AUMFs. Would either one of those authorize you to —

Esper: No, because they-2001 applies to terrorist groups and organizations, and that would not be the case here with regard to the country of Iran.

Senator Duckworth: Thank you.

 

Update: On January 10, Senator Duckworth sent Secretary Esper a letter asking for him to explain the legal justification for the Soleimani strike. “I ask that no later than Monday, January 13, 2020, DoD post on its public website the specific legal memorandums or simply the list of authorities under which it acted,” the letter states.

Image: US Secretary of the Army Mark Esper, nominee to be Secretary of Defense, testifies during Senate Armed Services Committee confirmation hearing on July 16, 2019 (Saul Loeb/AFP via Getty Images)

 

About the Author(s)

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).