The Law That Makes It Easy to Go to War with Iran


By Ben Taub June 27, 2019 The New Yorker

The Authorization for Use of Military Force was passed by Congress with near-total unanimity, yet it has come to reflect the legislative branch’s abdication of its role in the separation of war powers.Photograph by Tom Brenner / NYT / Redux

It is difficult to fathom why the United States nearly went to war with Iran last week, beyond that hard-liners in both countries see political advantage in it. For decades, Iran has been expanding its regional influence by funding, training, and arming proxy forces in unstable countries, and then helping them develop into political movements that are opposed to U.S. interests. For just as long, U.S. officials have called this strategy “sponsoring terrorism.” But, in the past year, the Trump Administration and the mullahs in Tehran have goaded each other into a series of pointless escalations, treating war as a game of chicken that is now hurtling out of control.

Thirteen months ago, the United States pulled out of its own nuclear deal with Iran, not because the Iranians had violated it—there is no evidence to suggest that they had—but seemingly because it had been negotiated by President Trump’s predecessor. In April, the U.S. designated Iran’s Revolutionary Guard, a powerful military and intelligence faction that has roughly a hundred and twenty-five thousand troops, a “terrorist organization”; in response, Iran passed a law that designates every American soldier in the Middle East as a “terrorist.” On June 7th, Trump’s special envoy to Iran mocked the Iranian Air Force, saying that it has “Photoshopped antiquated aircraft and tried to pass them off as new stealth fighter jets.” Days later, the Revolutionary Guard shot down a hundred-and-thirty-million-dollar U.S. surveillance drone, “in large part to prove they could do it,” the Times reported. Both governments practically celebrated the incident as a reason to ratchet up tensions.

On June 20th, Trump ordered a military strike, only to withdraw the order with ten minutes to spare, partly owing to a crisis of conscience—apparently the bombardment would have killed around a hundred and fifty people—and partly, according to the Times, because the Fox News host Tucker Carlson had told Trump that another casualty of the strike would be his hope of being reëlected.

Now the Iranians have abandoned the nuclear deal, following a year of compliance with the remaining five partners; the Revolutionary Guard is gaining power and recklessly lashing out, giving the United States more reasons to respond with a deadly strike. On June 25th, in response to Iran’s President, Hassan Rouhani, saying that the White House was “afflicted by mental retardation,” Trump threatened the “obliteration” of Iran. After which, who knows?

Beneath the bluster, senior officials in the Trump Administration have been pushing forward a legal pretext to go to war with Iran: that the government is harboring members of Al Qaeda. This argument relies on a one-sentence law, the Authorization for Use of Military Force, passed three days after 9/11, which empowers the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” in the commission of 9/11. It was passed by Congress with near-total unanimity, and yet, since then, it has come to reflect the legislative branch’s abdication of its role in the separation of war powers.

In public, Trump Administration officials have deflected questions about whether the President intends to invoke this authorization for Iran. Mike Pompeo, the Secretary of State, has said that he’d “prefer to just leave that to lawyers.” But the law has already been used as cover for at least thirty-seven military operations in fourteen countries. “There is no doubt there is a connection” between Al Qaeda and Iran, Pompeo continued. “Period. Full stop.”

The day after 9/11, the White House sent a draft proposal of the law to the leaders of the Senate and the House, requesting that they authorize the President “to deter and pre-empt any future acts of terrorism or aggression against the United States.” Congress rejected that language, limiting the authorization specifically to those who were responsible for the attack. Lamar Smith, a conservative Texas representative, insisted on registering an objection before voting in favor of the bill. “It does not go far enough,” Smith complained. He lamented that the A.U.M.F. “ties the President’s hands and allows only the pursuit of one individual and his followers and supporters.” Smith needn’t have worried. In the years that followed, the war on terror took on an absurd, escalatory logic: as terrorist groups proliferated, Presidential lawyers simply decided, with no meaningful oversight, that the A.U.M.F. permitted the executive branch to send troops to places that had no relevance to Osama bin Laden and other 9/11 plotters. (The lone dissenting vote against the A.U.M.F. was cast by Representative Barbara Lee, a Democrat from California, who warned her colleagues in Congress “not to embark on an open-ended war with neither an exit strategy nor a focused target.” In response, she was called a “traitor,” a “coward,” and a “communist,” and received thousands of angry calls and e-mails, including death threats.)

Eighteen years later, it’s hard to conceive of a metric by which the United States’ response to 9/11 has been a success. The military has become much better at killing insurgents, but only because the war on terror, with all of its excesses and mistakes, has created so many of them. The Taliban currently controls more of Afghanistan than it has since the earliest months of the invasion. Al Qaeda has expanded from a group that had a few hundred adherents, mostly based in southern Afghanistan, into a global terror franchise, with branches in West Africa, East Africa, the Arabian Peninsula, Central Asia, the Sinai Peninsula, South Asia, and the Levant. The A.U.M.F. is also the basis for the U.S.’s prolonged campaign against the Islamic State, a group that didn’t exist when bin Laden attacked the United States, and which has been battling Al Qaeda for more than five years. Now American soldiers whose parents deployed after 9/11 are being sent to countries thousands of miles from Afghanistan, to kill jihadis unaffiliated with Al Qaeda and who were born after the attacks. “The biggest casualty in the struggle against the Islamic State so far has been the American Constitution,” Bruce Ackerman, a professor at Yale Law School, wrote, in 2015.

On September 12, 2017, an American citizen walked out of isis territory and into the hands of the Syrian Democratic Forces, America’s proxy force in northeastern Syria. The S.D.F. turned him over to the Americans, who brought him to a detention facility in Iraq and began questioning him, without giving him access to a lawyer. After his detention leaked to the press, the American Civil Liberties Union filed a writ of habeas corpus on his behalf, and later argued that the government could not indefinitely detain him as an enemy combatant, because the war against isis had not been authorized by Congress. The American was eventually deported to Bahrain, but not before government lawyers were forced to enter into evidence their argument that the A.U.M.F. applies to isis.

They wrote, correctly, that isis “began as a terrorist group founded and led by Abu Mu’sab al-Zarqawi,” a Jordanian street thug. Then came the misleading part: “Al-Zarqawi was an associate of Osama bin Laden, the leader of the al-Qaida terrorist group, dating back to al-Zarqawi’s time in Afghanistan and Pakistan before al-Qaida attacked the United States on September 11, 2001.” This characterization echoed a speech that Colin Powell, then the Secretary of State, gave on February 5, 2003, to the United Nations Security Council, in the run-up to the Iraq War. “Iraq today harbors a deadly terrorist network headed by Abu Mu’sab al-Zarqawi, an associate and collaborator of Osama bin Laden and his Al Qaeda lieutenants,” Powell said. Behind him, a PowerPoint slidedepicted Zarqawi as the head of an international terror cell, spanning Europe, Asia, and the Middle East. A few days later, George W. Bush described Zarqawi as “a senior Al Qaeda terrorist planner.” Then Condoleezza Rice, Bush’s national-security adviser, went on television and announced that “a poisons master named Zarqawi” was “the strongest link of Saddam Hussein to Al Qaeda.” Ten days later, the U.S. began bombing Baghdad.