On Wednesday, Jan. 15, the State Department’s Acting Legal Adviser Marik String is scheduled to join a delegation of U.S. officials to provide another classified briefing to the Senate on Iran. Mr. String appeared before the Senate Foreign Relations Committee to discuss the administration’s legal and policy framework for the use of force back in July 24 last year, when tensions with Iran were heating up. That public hearing did not receive as much attention as it should have. It was held the same day that Robert Mueller was publicly testifying before Congress on the Russia investigation.
Three items deserve highlighting from Mr. String’s July 2019 testimony in relation to the current situation with Iran, and what the administration has recently told Congress.
1. The Acting Legal Adviser’s promise to submit a 30-day report if the administration’s position on Iran changed
In his written prepared remarks last year, the Acting Legal Adviser told the Senate he would submit a public report if the administration changed its views on its legal or policy framework for the use of force against Iran. He acknowledged this report was required under a recent congressional statute.
“The Administration has not, to date, interpreted either the 2001 or 2002 AUMF as authorizing military force against Iran, except as may be necessary to defend U.S. or partner forces as they pursue missions authorized under either AUMF.
As you know, Section 1264(b) of the FY2018 National Defense Authorization Act states that, not later than 30 days after the date on which a change is made to the legal and policy frameworks for the United States’ use of military force and related national security operations, the President is to notify the appropriate congressional committees of the change, including its legal, factual, and policy justifications. As such, there is a mechanism to report to Congress if any changes to our legal assessments may occur in the future…”
On Monday, Just Security published an article by Rita Siemion and Benjamin Haas who wrote that the administration’s targeting the leaders of Iran’s Islamic Revolutionary Guard Corps—Qassem Soleimani and Abdul Reza Shahlai–surely should have trigged this 30-day reporting requirement (Read their article: “The 30-Day Clock: Recent Law Requires Trump Admin. to Make Full Public Report on Soleimani and Shahlai Strikes”). They note that the law calls for a public, unclassified report that, according to the terms of the statute, must spell out once and for all, “the legal, factual, and policy justification for such change.”
There’s an open question when the 30-day clock started running. As Siemion and Haas point out, it might be the sad case that this administration decided the 2002 AUMF applied to the Soleimani strike only after the operation took place. It might also be the case that the report is long past due. On Monday, NBC News reported, “President Donald Trump authorized the killing of Iranian Gen. Qassem Soleimani seven months ago if Iran’s increased aggression resulted in the death of an American, according to five current and former senior administration officials.”
2. The Acting Legal Adviser’s statement on the administration’s very narrow reading of the 2002 AUMF and Iran
In his July 2019 testimony, the Acting Legal Adviser elaborated on the one exception to the administration’s position that it had not determined the 2002 AUMF applied to Iran. His extended legal analysis of the exception made no room for the strike against Soleimani. That’s important because the administration recently informed Congress that the 2002 AUMF authorized the military operation against Soleimani.
By way of background, in June 2019, the State Department sent a letter to the House stating, “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” (emphasis added). The question was how wide was the exception? As Tess Bridgeman and I wrote in a Just Security article on July 3, the exception properly understood is very narrow—it concerns immediate protection of U.S. military and partner forces who come under fire (see “Unpacking the State Dept Acknowledgment that 2001 and 2002 AUMFs Don’t Authorize War Against Iran”).
In his prepared written remarks, Mr. String explained the exceedingly narrow scope of the unit-self-defense exception. He began by using the same words as the State Department’s June letter, but then elaborated in a meaningful way:
[T]he Administration has not, to date, interpreted either the 2001 or 2002 AUMF as authorizing military force against Iran, except as may be necessary to defend U.S. or partner forces as they pursue missions authorized under either AUMF. The latter nuance is simply a re-assertion of a long-standing right of self-defense for our military forces and those allies and partners deployed alongside them. Simply put, where U.S. forces are engaged in operations with partner forces anywhere in the world pursuant to either the 2001 or 2002 AUMF, if those forces either come under attack or are faced with an imminent armed attack, U.S. forces are authorized to use appropriate force to respond where it is necessary and appropriate to defend themselves or our partners. This principle is not new, and it is not specific to Iran or to any other particular country or non-State group.
What then is left of the prospect that the 2002 AUMF could apply to use of force against Iran? For more on that topic, there’s yet another Just Security article: Steve Vladeck and my recent piece, “Why the 2002 AUMF Does Not Apply to Iran.”
3. The Acting Legal Adviser’s statement that international law constrains the President’s Article II authority
One of the most underappreciated legal aspects of the administration’s military strikes against Soleimani (in Iraq) and Shahlai (in Yemen) is the relationship between international law and the President’s constitutional authority under Article II. The latter concerns the power of the president as commander-in-chief to engage in military actions without specific congressional authorization. The most authoritative legal analysis of this topic is Brian Finucane’s article in the Cornell Law Review, which argues that the President must abide by the UN Charter in his use of force—including for military actions that fall below the threshold for war. Marty Lederman has taken the same position in an essay about the U.S. strikes on Syria (see also Finucane’s analysis in Just Security).
In the Senate hearing back in July, the Acting Legal Adviser engaged in an important exchange with Senator Jeff Merkley (D-OR):
SENATOR MERKLEY: So, how is, how is Article I, the commitment that, in our nation, decisions to use military force are vested, the war powers are vested in Congress. How is that relevant if you argue that the president can act without that authorization based on something as vague as regional stability?
STRING: So Senator, we have great respect for the constitutional prerogatives of-of Congress and the right to declare war under Article I of the Constitution. Article II of the Constitution has been long recognized by, again administrations of both parties, to authorize the President to take limited types of action –[cross talk]
SENATOR MERKLEY: [cross talk] Ok, so let’s explore the limited-[cross talk ends]-Are you saying, in that responding to regional stability as an argument is only an argument for very limited military action?
STRING: It’s always a facts and circumstances analysis, and it’s an analysis that is conducted very carefully in the Executive [cross talk]
SENATOR MERKLEY: You’re not willing to constrain it to limited or proportional response in your interpretation?
STRING: That’s an important limit in general under international law, it has to be necessary and proportionate. That’s a limitation as well.
SENATOR MERKLEY: Under international law, but we’re talking the Constitution right now and the power the president sees within that framework.
String: Yes, and these limits that I’ve just described are also adopted as part of U.S law.
How is this topic relevant to the recent U.S. military actions against Iran? It means the President not only lacked congressional authority under the 2002 AUMF, but also likely lacked the constitutional authority to engage in the military operations. That’s because those operations appear to have run afoul of the conditions for the lawful exercise of the use of force when a state acts in self-defense under the UN Charter. As Mr. String correctly stated, “an important limit in general under international law, it has to be necessary and proportionate.” On the topic of whether the U.S. strikes met those conditions, consider the views of leading legal scholars including Geoffrey Corn and Rachel VanLandingham, Adil Haque, Oona Hathaway (here and here), Marty Lederman, Marko Milanovic, and others.