An illegal little war (that could become an illegal big war)

Well, he did it. After decades of American threats and goading by Bibi Netanyahu, Donald Trump became the first U.S. president to bomb Iran.¹ The New York Times reports that Trump goaded himself into the strikes by mainlining social media and Fox News — ignoring, of course, the Times’ yeoman work in making a blitz case for war. Friend-of-the-Racket and national-security-state-knower Spencer Ackerman argues persuasively that this was probably baked in for weeks.

Whichever is the case, some kind of war is now here. Israel responded to the U.S. airstrikes not by declaring victory but by ratcheting up its bombing campaign, abandoning any pretense of going after a nuclear program by explicitly targeting government sites. Earlier this afternoon, Iran retaliated with missile strikes against the U.S.’s Al Udeid Air Base in Qatar and the Ain al-Assad airbase in western Iraq, which houses U.S. troops. The ball is now back in the court of our mad king, who spent the day crowdsourcing potential nuclear escalation with Russia.

Wars are always about many things, especially for the side that started them — about international posturing, domestic politics, money, and of course their leaders’ egos. Don’t get distracted by kremlinologies of MAGA’s so-called “restrainer” vs. “interventionist” wings. As I noted last week, the reactionary “restrainers” aren’t antiwar but rather opposed to wars that threaten what they see as white- and Christian Nationalist interests (in this case, a fight with a strategic Putin ally on behalf of the Jewish state). The sharper among them know full well that war is one of fascism’s most important tools (“War is beautiful …,” rhapsodized the Italian Fascist Filippo Marinetti, as famously quoted by Walter Benjamin), both as state propaganda and an agent for mobilization against internal enemies.²  

As Asha Rappanga notes: “Just a heads up: if we are in fact at war, the authorities Trump has been using — many/most of which are delegated wartime authorities — will only expand and be given more deference by the courts.” Those authorities include the Alien Enemies Act of 1798, the federalization of the National Guard under Title 10, Section 12406 of the U.S. Code, and more.

If escalation does continue, and those arguments do show up in court — and just on general principle — it is important to understand how legal this war was at its beginning. (You’ll never guess the answer.)

Now, I’m not a legal scholar, just a journalist/historian with intermittent hyperfocus. But I can read the cases being made for the legality of the U.S. (and Israeli) attacks on Iran, and they are, shall we say, wanting.

There are two arenas here: U.S. law and international law. Under the U.S. Constitution, the power to declare war rests solely in Congress, granted under Article I, Section 8. Presidents and proponents of empire have been trying to siphon away that power since the 19th Century. As I note in Gangsters of Capitalism, Trump’s hero William McKinley took the crucial step in 1900, ordering U.S. troops to participate in a multinational invasion of China to suppress the Boxer Uprising (and counter European rivals’ designs on carving up China) without congressional authorization. Congress (both houses of which were controlled by McKinley’s Republican party), didn’t make a peep, creating a precedent that would snowball into the U.S. occupations of much of Latin America and, eventually, the Vietnam War.

After Vietnam — and, in particular, in the wake of Richard Nixon’s secret bombing of Cambodia — Congress tried to wrest back a bit of its power with the War Powers Resolution of 1973. That act, made law despite Nixon’s petulant veto, declares that its primary purpose is to “insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” If Congress has not declared a war (and it hasn’t since it added Bulgaria, Romania, and Hungary to the list of countries we were fighting in 1942), the president is required to report to Congress within 48 hours, among other things, the “constitutional and legislative authority under which such introduction took place.”

Defense Secretary Hegseth claims that the administration complied with the act by notifying some members of Congress after the strike, but none of the reporting I’ve read says what legal authority they claimed the strikes were under. A meme defense circulating online claims that the WPR itself is some kind of authorization because it only requires Congress to vote on whether to continue hostilities sixty days after the initial report, but that ignores the part where it says that Congress also has to be consulted on the introduction of troops and/or war machines. Notably, administration toadies like Jonathan Turley are trying to get around this problem by claiming that no one really cares about that dumb federal law anyway.

John B. Bellinger III, who served as one of George W. Bush’s senior lawyers throughout the Iraq and Afghanistan wars and later went on to defend the Israeli government on multiple occasions in U.S. federal court, said this week that presidents can claim an Article II power to use the military for actions that don’t rise to the level of “war.” That distinction is obviously in the eye of the beholder (and/or the manufacturers of consent). But even the more anti-interventionist framers of the War Powers Resolution were indeed trying to carve out a loophole that would allow the president to respond to an invasion or prevent an imminent attack.

The problem there is there was no invasion, nor was there an imminent attack to prevent. Trump’s own Office of the Director of National Intelligence, repeating the assessments of every ODNI since he scrapped the Iran Deal in his first administration, again declared this year that Iran was not building a nuclear weapon. In fact, as nuclear experts like Jeffrey Lewis are saying and I’ve been banging on about for days now, blowing up parts of the reactors hasn’t just prevented Iran from making a nuclear weapon — it, like Trump’s original sin of blowing up the 2015 Iran Deal, makes Iran trying to push ahead with a nuclear weapon more likely, absent the kind of regime change war that Trump’s base insists he won’t prosecute, but he now appears to be considering.

And that kind of war — the regime-change war the Israelis are clearly trying to drag us into — is definitely the kind of protracted war that would need congressional authorization. Even Bellinger noted in congressional testimony in 2017 that, “If a President wished to order the U.S. military to launch a prolonged or substantial military engagement that is not in response to an attack or clearly imminent attack and that would expose the U.S. military, U.S. civilians, or U.S. allies to significant risk of harm over a substantial period, there is a strong argument that the President may be required to seek congressional approval. It would certainly be prudent for him to do so.”

This kind of thinking is probably why Bush, despite his reckless warmongering, bothered to get an Authorization of Military Force — basically a congressional permission slip falling short of a declaration of war — for both his post-9/11 war on Al-Qaeda and the invasion of Iraq. (That’s the vote that, fourteen years after the fact, doomed Hillary Clinton into running as a supporter of the Iraq War, leaving the lane open for Trump — who also supported the invasion of Iraq — to pretend to be the antiwar candidate.) Trump hasn’t even bothered to try, possibly because he was advised how unpopular the idea of going to war with Iran was, even among Republicans; possibly because of a muscle memory of the political costs it had for Clinton; or possibly because he was being erratic and improvisational as always.

Some Trump supporters are predictably trying to twist the 2001 AUMF into an authorization given 24 years in advance. (See, back in the 1990s someone in Iran had something to do with someone who something something 9/11). But, protip: When you’re trying to do a war move that was too illegal for George W. Bush and Dick Cheney (remember, they went ahead and got a separate authorization to invade Iraq, who they were also falsely trying to conflate with Bin Laden’s gang, you are really standing on shaky ground.

Of course, when the Supreme Court has already declared you immune from crimes before your post-failed-coup return to office, you may not fear much from the legal system. Which would, as a handful of lawmakers have already noted, make impeachment and removal the only legal remedy.

1  He would, crucially, not be the first U.S. president to embark on regime change in Iran. In 1953, under Dwight Eisenhower, the C.I.A. helped overthrow Iran’s democratically elected government because it had the temerity to try to nationalize British Petroleum, better known today as BP. We replaced it with the dictatorship of Reza Shah Pahlavi. The Islamic Republic, which overthrew the Shah, was founded largely as an act of revenge for that act of blatant imperialism — a constantly ignored context for this whole mess.

2  Watch for a tide of rhetoric about domestic Iranian “sleeper cells” if things progress. It’s already begun.