US President Donald Trump did not seek approval from Congress or the UN Security Council, as required by law, before ordering military strikes against Iran. Photo / Anna Rose Layden, The New York Times
US President Donald Trump did not seek approval from Congress or the UN Security Council, as required by law, before ordering military strikes against Iran. Photo / Anna Rose Layden, The New York Times
Opinion by Oona A. Hathaway
Oona A. Hathaway is a professor of law at Yale Law School, a nonresident fellow at the Carnegie Endowment for International Peace and the president-elect of the American Society of International Law.
THE FACTS
Days after the US issued strikes on Iranian nuclear facilities, Iran launched missiles at an American military base in Qatar.
The Iranian strike on Al Udeid Air Base stoked fears that the conflict with Iran might intensify.
US President Donald Trump claims Israel and Iran have agreed to a cease-fire, however Iran’s foreign minister, Abbas Araghchi, said there was no agreement “as of now”.
Trump’s unlawful strikes on Iran have laid bare the absence of any effective legal constraints on a US president to use deadly force in the world.
Acting on President Trump’s orders, the US military conducted a strike early Sunday morning against three Iranian nuclearfacilities. Few knew of the strikes in advance. Trump did not seek advance approval from Congress or the UN Security Council, as required by law. The unlawful strikes have thus laid bare the dangerous absence of any effective legal constraints – whether domestic or international – on the decision of the American president to use deadly force anywhere in the world.
It has become almost quaint to observe that the Constitution gives Congress, not the president, the power to declare war. Yes, the president is commander in chief of the military, but he is obligated to seek authorisation from Congress before he initiates a war. The 1973 War Powers Resolution does not change this. Enacted in response to President Richard Nixon’s secret bombing campaign in Cambodia, that legislation is meant to prevent a president from launching illegal wars by legally requiring the president to seek approval of Congress before introducing US armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances”. The only case in which the president is not required to seek the advance approval of Congress is when the United States has been attacked and the president must act quickly to protect the country.
That was not true when it came to Iran. Quite the opposite. In a speech claiming credit for the attacks, Trump pointed to the fact that Iran had been making threats against the United States for “40 years”. Nothing in what he or Secretary of Defence Pete Hegseth has subsequently said points to an urgent threat to America that prevented the President from seeking Congress’ consent before unleashing deadly force that could provoke retaliation against the United States and US forces in the region. (And indeed, such a retaliation appears to have just taken place, as Iran fired missiles at a US base in Qatar.) Nor can these strikes be shoehorned into the existing congressional authorisations for the use of force – one in 2001 against those responsible for the September 11 attacks and another in 2002 against Iraq under Saddam Hussein. The President has thus claimed for himself power that the Constitution expressly gives to Congress.
Just as the President is legally bound to seek authorisation from Congress before launching a war, so too is he required to seek authorisation from the United Nations Security Council. After World War II, the United States designed and championed a global system where the use of coercive authority by any state against another was subject to collective checks. The United Nations Charter provides that signatory states must “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”.
This prohibition on the unilateral resort to force is the foundational principle of the postwar legal order. Only if the Security Council votes to authorise a war – or where a state is the subject of an “armed attack” – may a state that has ratified the UN Charter resort to force against another state. Yes, the requirement of gaining support from the Security Council is an obstacle, but it is an obstacle to Russia and China as much as it is to the United States. The requirement to seek and obtain Security Council authorisation before using force, moreover, gives the United States extraordinary power: the United States holds one of five permanent seats on the Security Council and, with it, has a veto over any decision to authorise the use of force. While no legal system is perfect – and this one is no exception, as today’s global conflicts show – the UN Charter has nevertheless helped produce the most peaceful and prosperous era the world has ever seen.
Donald Trump has now fully embraced the so-called Bush Doctrine, a foreign policy stance that holds that the United States can use force pre-emptively against a perceived threat – to itself or others. This was the key legal basis for the disastrous 2003 war in Iraq, held up as necessary to prevent the use of weapons of mass destruction – weapons that, it turned out, did not exist. Even then, President George W. Bush at least engaged with the Security Council and sought and won authorisation from Congress before he launched that war.
Most presidents since have distanced themselves from the Bush Doctrine. But presidents of both parties have relied on expansive interpretations of the right of self-defence under the UN Charter to use force in the Middle East against terrorist groups. They have relied, too, on expansive interpretations of Congress’s 2001 authorisation for the use of military force after the September 11 attacks. Trump has now taken a step far beyond even these stretched interpretations, launching a war that lacks any plausible domestic or international legal authority.
Some supporters of the President, such as Senator Lindsey Graham, seem unconcerned about the lawless strike, concluding that “the regime deserves it”. This is a dangerous argument, whatever one thinks of the merit of the strikes. And while Israel has the right to defend itself, that does not give it – or the United States – a blank cheque to attack Iran at will.
Satellite image by Maxar Technologies shows the Natanz nuclear facility in Iran after US strikes. Photo / Maxar Technologies
The lack of any effective legal constraints on the President is not just a problem for the balance of power and national security of the United States. It is now a problem for the world. The seeming rise of authoritarianism at home is precipitating a kind of international authoritarianism, in which the American President can unleash the most powerful military the world has ever known on a whim. In this case, failing to win the easy “deals” he had promised, Trump has now shown that he will abandon diplomacy and negotiation in favour of force. His actions may further embolden authoritarians around the world to do the same, setting an example of lawlessness that has the power to reshape the global legal order, transforming it from one governed by law to one governed by might.
Halting this transformation will require action – by other nations and by Congress. Countries must join together to denounce the United States’ unlawful action and to call for diplomacy, not force, to resolve the ongoing dispute between Iran and Israel. In the longer term, countries must find ways to work together in support of the law, perhaps even coming together as a formal group to adopt collective sanctions against the United States if it proves determined to violate it again.
Several members of Congress have condemned Trump’s unlawful decision to use force. That’s not enough. It is long past time to reform the way the United States makes decisions to go to war. As a start, Congress should immediately prohibit the use of federal funds for any use of force that exceeds the president’s legal authority. For too long, our lawmakers have acquiesced in the gradual draining away of their constitutional authority. They must act now to reclaim that power before it is gone for good and the world pays for our mistakes.
