The Trump administration is waging an illegal war on Iran, one that defies both the US constitution and international armed conflict laws, according to several legal scholars and bipartisan lawmakers.
The Senate will vote Wednesday on whether to halt Donald Trump’s military offensive, which he launched on 28 February. Hundreds of people, including six US personnel, have been killed in a conflict that has now expanded to Lebanon, Syria, Iraq, Israel and the Persian Gulf.
The Trump administration has offered shifting explanations for its decision to launch attacks on Iran, at times describing a more pre-emptive war of choice designed to degrade Iran’s offensive and nuclear capabilities, while at other times asserting that the Iranians weren’t willing to renounce their nuclear ambitions, or that the US joined the attack to protect American interests after Israel had committed to launching a military offensive of its own.
“An Iranian regime armed with long-range missiles and nuclear weapons would be a dire threat to every American,” the president said in his first public remarks from Washington on Monday. “We cannot allow a nation that raises terrorist armies to possess such weapons.”
Trump has also described broader wartime objectives, including eliminating threats posed by Iran’s regional proxy forces. He has not set out a clear timeline for achieving his various goals.
Marco Rubio, the US secretary of state, offered a slightly different explanation, saying that the White House was compelled to launch strikes on Iran because its close ally Israel was determined to act.
“It was abundantly clear that if Iran came under attack by anyone – the United States or Israel or anyone – they were going to respond, and respond against the United States,” Rubio told reporters gathered at the Capitol.
“There absolutely was an imminent threat,” Rubio said.
Several lawyers have challenged the legal basis for the administration’s wide-ranging explanations for waging war.
“Those are military policy objectives,” said Wells Dixon, a senior attorney at the Center for Constitutional Rights after reviewing Trump’s rationale. “They are not a legal basis to launch an armed attack against another country.”
Marko Milanovic, a professor of International law at the University of Reading, agreed that Iran may pose a threat, but said that there are many ways to respond. “Using force would require a basis in self defense,” he said.
The Trump administration has previously touted its success in “obliterating” Iran’s nuclear facilities. But Trump revived the specter of an Iranian threat in his State of the Union address, saying that Iran was “working to build missiles that will soon reach the United States of America.”
Trump has not provided public evidence of this threat.
Rubio’s statements invoked two legal concepts that could possibly justify waging war abroad – including the concept of an “imminent threat” posed to American lives, and the concept of launching preemptive strikes as an act of self defense.
There are carve outs within international law that permit states to act in their own self defense. And the concept of an “imminent threat” is measured against evidence of a clear, visible and impending risk.
But experts say that neither criteria was present in the case of Iran.
“For something to be lawful self defense, it has to be necessary – in the sense that there’s no alternative,” said Brian Finucane, a former state department lawyer. “That’s not the situation here. There was another option: the US could have restrained Israel from attacking in the first place.”
Finucane said that previous administrations have drawn this line with Israel.
“Saying that, ‘Instead of stopping Netanyahu, we’re going to start it first’ – it’s a completely circular and crazy thing,” Milanovic chimed in.
Several lawmakers shared in the lawyers’ assessment of Iran’s potential threat.
“There was no imminent threat to the United States of America by the Iranians. There was a threat to Israel,” said Mark Warner, the Democratic vice-chair of the Senate intelligence committee. “If we equate a threat to Israel as the equivalent of an imminent threat to the United States, then we are in uncharted territory.”
Senator Tim Kaine said he has supported US efforts to defend Israel during previous Iranian attacks, “but that’s a very different matter than the US engaging in the affirmative initiation of war,” he said.
“We shouldn’t be waging an affirmative war on behalf of any nation in the world, no matter how close we are,” Kaine said.
After the Vietnam war, the US adopted new legal provisions that say the president should try to consult with members of Congress before committing troops to hostilities.
Last week, Rubio only briefed the Gang of Eight, a group of bipartisan lawmakers privy to information on covert actions and classified intelligence, about US plans to attack Iran.
“Their pattern, thus far, seems to be to take action, and then give [us] a briefing afterwards,” Kaine said. “They’re trying to consign Congress to the role of a spectator, but that’s not the role that Article 1 [of the constitution] assigns to us.”
Dixon said there was “a little bit of flexibility” on whether the president may commit troops without first consulting Congress. “But certainly he has to notify them within 48 hours,” Dixon said.
The White House submitted a War Powers report to Congress on Monday night.
Dixon noted that a separate requirement under the War Powers Act says that troops must be withdrawn from hostilities within 60 to 90 days unless Congress votes to authorize the operation.
This week’s war powers vote may shape how Trump proceeds with military action against Iran, even if it ultimately cannot sustain enough support to override a likely veto from Trump.
“I think it can be an important political signal if there’s sufficient bipartisan support,” Finucane said.
Previous congressional votes have seemed to deter further US aggression.
“The president announced after one of our previous votes that he was scrapping a second wave of strikes on Venezuela,” said Kaine, who has introduced similar legislation to govern US engagements in the Caribbean Sea and Venezuela. “The mere fact of the vote, even if it’s unsuccessful, can have an impact.”
