The question posed in the headline may seem a bit quaint with regard to a president who believes Article II of the U.S. Constitution authorizes him to do whatever he deems best, without accountability other than to a majority of the Electoral College. But his fateful actions in authorizing airstrikes in Iraq against the wishes of the government of that country, an alleged ally, culminating in the assassination of Iran’s top military commander, Qasem Soleimani, require some domestic (as well as international) legal justification, if only because Trump didn’t even bother to notify Congress he was taking a step that might lead to a regional war, as Democratic Senator Chris Murphy observed:
Even as members of Congress praise or question the action (almost entirely according to partisan affiliation), the possibility of illegal war-making is already coming up, as NBC News reports:
“Tonight’s airstrike risks provoking further dangerous escalation of violence. America — and the world — cannot afford to have tensions escalate to the point of no return,” Pelosi said in a statement late Thursday.
The strike was carried out without an “authorization for use of military force” against Iran and without the consultation of Congress, the speaker said.
“The full Congress must be immediately briefed on this serious situation and on the next steps under consideration by the Administration, including the significant escalation of the deployment of additional troops to the region,” Pelosi said.
The Speaker is likely alluding to the requirement of notice to Congress within 48 hours of unauthorized executive military action under the War Powers Act. It is not, however, clear that the administration intends to follow the WPA requirements in this case; it certainly did not notify Congress of the earlier airstrikes it conducted in Iraq and Syria (targeting Iranian-sponsored Hezbollah units) on December 29. It’s more likely that Trump’s lawyers will claim the assassination of Soleimani is justified by an existing congressionally enacted Authorization for Use of Military Force (AUMF), either the 2001 AUMF that launched the global War on Terror, or the 2002 AUMF that authorized the entire war in Iraq. As Scott Anderson explained at Lawfare, either ground for the attack is rather shaky:
The Trump administration has previously refused to rule out the possibility that the 2001 AUMF could authorize direction action against Iran and its allies. That said, such an argument is extremely dubious and is likely to prove extremely controversial. A more plausible candidate might be the 2002 AUMF, which provided the domestic legal basis for various U.S. military activities in Iraq from 2003 through 2011, including earlier operations against Kata’ib Hezbollah. Yet it would be novel, to say the least, to read a statute that has traditionally been interpreted as authorizing activities to support the democratic government of Iraq as permitting military action against an official — if largely autonomous — part of Iraq’s official security forces [e.g., the Hezbollah militias].
It is precisely this sort of scenario that fed the debate over placing language in the latest Defense Authorization Act restricting the president’s power to wage war on Iran. The fact that it was removed before final passage and signature by Trump will be used by the administration to suggest Congress implicitly gave him a free hand:
You can bet the administration will focus on Soleimani’s crimes and the opportunity to “take him out” as all the justification they needed, while brushing aside Iraqi and Iranian horror over the action as disguising popular joy:
Ah yes, the rationale that led to the freedom-spreading war in Iraq that Donald Trump has deplored so often. A formal legal justification will probably await the next developments, based on whether this turns out to be a one-off attack that isn’t worth endlessly litigating or the ignition of another enormous war plunging the region and U.S. troops into the fire.
