Israel-Iran war: Is the United States at war with Iran after Donald Trump authorised strikes?

WASHINGTON — Before he ordered strikes against Iran’s nuclear facilities, US President Donald Trump did not seek permission from Congress, to which the US Constitution grants the sole power to declare war. Many Democrats and even some Republicans say that the attack was tantamount to a declaration of war and that Mr Trump acted illegally.

Several Mr Trump aides say they disagree, calling the strike a limited action aimed solely at Iran’s nuclear capabilities that does not meet the definition of war. “This is not a war against Iran,” Secretary of State Marco Rubio told Fox News on Sunday.

Vice President JD Vance argued that Mr Trump had “clear authority to act to prevent the proliferation of weapons of mass destruction.”

However, later Sunday, Mr Trump wrote online that his military aims could be much more expansive: “If the current Iranian Regime is unable to MAKE IRAN GREAT AGAIN, why wouldn’t there be a Regime change??? MIGA!!!”

Criticisms of the attack, which came less than two weeks after Israel began its bombing campaign against Iran, include Mr Trump not giving American policymakers, lawmakers and the public enough time to debate a role in a conflict that experts warn could expand quickly if Iran retaliates.

The furore over the sudden strikes follows years of bipartisan efforts in Congress to try to place greater limits on a president’s ability to order military action, efforts that arose because of disastrous American wars in the Middle East and Central Asia.

So is the United States at war with Iran? And did Mr Trump have the authority to order his attack without consulting Congress?

What does the US Constitution say about war?

Article I, Section 8 of the Constitution assigns Congress dozens of powers like collecting taxes and creating post offices, as well as the power to “declare war” and to “raise and support armies.”

The American framers considered that clause a crucial check on presidential power, according to an essay by the law professors Michael D. Ramsey and Stephen I. Vladeck for the National Constitution Centre. Early in American history, Congress approved even limited conflicts, including frontier clashes with Native American tribes.

But the question is complicated by Article II of the Constitution, which delineates the powers of the president, and which designates the US leader as the “commander in chief” of the US military.

Presidents of both parties, relying heavily on legal opinions written by executive-branch lawyers, have cited that language to justify military action without congressional involvement.

Congress tried asserting itself with the War Powers Resolution of 1973, which says the American president must “consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances.”

But presidents have repeatedly disregarded that language or argued for a narrow definition of the “introduction” of forces. Congress has done little to enforce it.

What are members of Congress saying about the US strikes?

Democrats have almost uniformly criticised Mr Trump for acting without legislative consent, and a few Republicans have as well.

“His actions are a clear violation of our Constitution — ignoring the requirement that only the Congress has the authority to declare war,” Sen. Chris Van Hollen, D-Md., said in a statement echoed by many of his colleagues.

Rep. Thomas Massie, R-Ky., told CBS News that there was no “imminent threat to the United States” from Iran.

Sen. Tim Kaine, D-Va., said on the same CBS program that Congress must act this week to assert a role in any further US military action.

“Would we think it was war if Iran bombed a US nuclear facility? Of course we would,” Mr Kaine said.

“This is the US jumping into a war of choice at Donald Trump’s urging, without any compelling national security interests for the United States to act in this way, particularly without a debate and vote in Congress.”

Some Democrats say Mr Trump has already gone unforgivably far. Rep. Alexandria Ocasio-Cortez of New York called Saturday night for Mr Trump’s impeachment.

Hawkish Republicans rejected such talk. “He had all the authority he needs under the Constitution,” Sen. Lindsey Graham of South Carolina told NBC News on Sunday. Mr Graham cited Mr Trump’s power as commander in chief under Article II of the Constitution.

“Congress can declare war, or cut off funding. We can’t be the commander in chief. You can’t have 535 commander-in-chiefs,” Mr Graham said, referring to the combined number of US representatives and senators.

“If you don’t like what the president does in terms of war, you can cut off the funding.”

Mr Graham noted that Congress has made formal war declarations in only five conflicts, and none since World War II. However, there has been a legal equivalent from Congress that President George W. Bush was the last American leader to successfully seek: an authorisation for the use of military force.

What are legal scholars saying?

Several lawyers and scholars who have studied the international law of armed conflict say the United States is without a doubt at war with Iran for purposes of application of that law, and that Mr Trump acted in violation of international conventions.

“The short answer is that this is, in my view, illegal under both international law and US domestic law,” said Oona Hathaway, a professor of international law at Yale Law School who has worked at the Defence Department.

Brian Finucane, a former lawyer at the State Department, agreed that Mr Trump needed to ask Congress for authorisation beforehand. He also said “there is certainly a US armed conflict with Iran, so the law of war applies.”

On Sunday, Iran’s foreign minister, Abbas Araghchi, called the US attack an “outrageous, grave and unprecedented violation” of international law and of the United Nations charter, which forbids UN members from violating the sovereignty of other members.

Mr Araghchi did not specifically say that his country is now at war with America. Mr Finucane also said the United States violated the UN charter.

Ryan Goodman, a law professor at New York University who has also worked at the Defence Department, said “one important matter for both domestic law and especially international law is the issue of “imminence”.

The Trump Administration is justifying the US attack by saying Iran’s development of a nuclear weapon was imminent, Mr Goodman noted.

But “the law would require that the attack would be imminent,” he said, and “it is very hard to see how the administration can meet that test under even the most charitable legal assessment.”

Even if one were to focus on the question of a nuclear bomb, US intelligence agencies have assessed that Iran had not yet decided to make such a weapon, even though it had developed a large stockpile of the enriched uranium necessary for doing so.

How often have presidents sought congressional approval for war?

In the decades since Congress declared war on Japan and Germany in 1941, US presidents have repeatedly joined or started major conflicts without congressional consent.

President Harry S. Truman sent US forces into Korea. President Ronald Reagan ordered military action in Libya, Grenada and Lebanon; President George H.W. Bush invaded Panama; President Bill Clinton ordered the bombing of mostly Serbian targets in Yugoslavia during the Kosovo War; President Barack Obama joined a 2011 NATO bombing campaign against the government of Moammar Gadhafi in Libya and led a military campaign against the Islamic State group in Syria and Iraq.

Obama broke with this trend in September 2013 when he decided against launching a planned strike against Syria without first seeking congressional authorization. The strike was unpopular in Congress, which never held a vote, and Obama did not act.

President George W. Bush won separate congressional authorizations for the use of military force against Afghanistan and Iraq before ordering invasions of those countries in 2001 and 2003.

In the years since the al-Qaida attacks of September 11, 2001, several presidents have also ordered countless airstrikes and special operations raids on foreign soil to kill accused terrorists. Those have largely relied on broad interpretations of the two authorisations for the use of military force that Congress granted the executive branch for the so-called war on terror.

Emma Ashford, a scholar of US foreign policy at the Stimson Centre, said that in the post-9/11 wars, “some presidents have largely stopped asking permission at all.”

In January 2020, Mr Trump chose not to consult Congress before ordering an airstrike that killed a senior Iranian military commander, Gen. Qassem Soleimani, while he was visiting Iraq. Many members of Congress called that a clear act of war that was likely to begin wider hostilities. Iran responded by firing 27 missiles at US forces in Iraq, inflicting traumatic brain injuries on about 100 US troops. But the conflict did not expand further.

Last year, President Joe Biden ordered US airstrikes against the Houthi militia in Yemen without getting congressional permission, and Mr Trump did the same this year.

Advances in military technology, including drones and precision-guided munitions, have allowed presidents to take action with minimal initial risk to US forces. Military officials say that Saturday’s strike in Iran, carried out by B-2 stealth bombers, encountered no resistance.

But critics say the action invites Iranian retaliation that could escalate into full-scale war.

What happens next?

Republican leaders in the House and Senate have signalled support for the strike, but Democrats and a few Republicans are demanding that Congress approve any further military action.

Mr Kaine, who serves on the committees on armed services and foreign relations, introduced a Senate resolution last week requiring that Mr Trump get explicit congressional approval before taking military action against Iran. Mr Kaine on Sunday said the measure was still relevant and that he hoped it would come to a vote this week.

Mr Massie, the Kentucky Republican, introduced a similar war powers resolution last week in the House with Ro Khanna, D-Calif.

“When two countries are bombing each other daily in a hot war, and a third country joins the bombing, that’s an act of war,” Mr Massie wrote on social media Sunday.

Mr Massie said he was “amazed at the mental gymnastics” Mr Trump’s defenders have employed to argue the United States was not entering a war by attacking Iranian nuclear facilities.

This article originally appeared in The New York Times.

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