On June 20th, an Iranian surface-to-air missile shot down a United States RQ-4A Global Hawk drone, a high-altitude robot typically used for surveillance over ocean and coastal areas. Both the Iranian Revolutionary Guard Corps and the United States Central Command have confirmed that it was, in fact, an American surveillance drone that Iran shot down and that the wreckage landed in the Strait of Hormuz. While the U.S. maintains that Iran shot down the drone in international waters, Iranian officials maintain that the drone had breached Iranian airspace. This dispute led to escalating tensions over the weekend, with reports emerging that the President had approved multiple military strikes against Iran only to hesitate at the last minute. The President confirmed this in a series of tweets on June 21. With the possibility of U.S. retaliation still lingering, it is important to ask: What legal basis does the United States have for striking Iran?
According to Stanford legal scholar, Allen Weiner, “a limited use of force against Iran for downing a U.S. drone would be consistent with the exercises of force that Presidents have authorized many times in the past.” In international law, this type of action would be justified as a “necessary and proportionate force in self-defense in response to an attack against a U.S. drone…if the U.S. drone was operating, as it is allowed to do, in international airspace.” If the drone were shot down in Iranian airspace, as Iran claims, then America would not have a self-defense justification for a counterstrike. The initial uncertainty surrounding the exact location of the crash site will make it difficult in the short-term to know whether the Iranian decision to shoot down the U.S. drone was legally justified.
In this context, it is confusing and worrying that the U.S. would look to retaliate so immediately for an attack which resulted in no U.S. casualties. The fact that estimates indicated that as many as 150 people could die in such a strike makes it even more concerning that the U.S. seemed poised to undertake such a strike. In recent months, and despite recent pushback from the President, the U.S. government has seemed primarily concerned with developing legal justifications for a more encompassing kinetic response to Iran.
Central to this effort has been the development of a rigorous legal justification for a US war effort which has focused primarily on the 2001 Authorization for the Use of Military Force (AUMF), which allowed the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” This piece of legislation was mentioned in the previous blog post within the context of indefinite detention.
Multiple officials, including Secretary of State, Mike Pompeo, have explicitly mentioned the AUMF as the legal basis for a war with Iran. Additionally, private conversations between the President and his confidants suggest that, although the President himself opposes a war with Iran, there is extensive institutional support for war at the highest levels of government. Given this support, the question must be asked: Does the AUMF justify a war with Iran?
To begin, the connection between Iran and the 9/11 attackers is dubious at best, but it does merit some attention, given the Administration’s seemingly strong belief that there is a connection. According to the 9/11 Commission Report, in the fall of 1993, Al Qaeda operatives were trained in the Bekaa Valley in Lebanon by Hezbollah operatives. In 2011, the U.S. Department of the Treasury said that it had uncovered a network that “serves as the core pipeline through which Al-Qaeda moves money, facilitators, and operatives from across the Middle East to South Asia” and that Iran is a “critical transit point for funding to support Al-Qaeda’s activities in Afghanistan and Pakistan.” The State Department Country Report on Terrorism has consistently reported evidence of Iranian facilitation of Al Qaeda operations and networks.
Despite what appears to be strong evidence of Iran/Al Qaeda collaboration, internal documents from Al Qaeda indicate that the connection is much weaker than it may appear. A 2018 study by the New America think tank, based on roughly 470,000 declassified files obtained from Osama bin Laden’s compound in 2011, showed no links between Iran and Al-Qaeda regarding the commission of terrorist acts. Rather, it seemed to show that Al Qaeda distrusted Iran and that Iran was deeply uncomfortable about any Al Qaeda presence in Iran. What this suggests is that it is very unlikely that Iran could be connected beyond reasonable doubt to the September 11 attackers, and even less likely that the Iranian government actively or knowingly assisted any of them.
In fact, following the attacks of September 11, 2001, the Iranian government handed over photocopies of three hundred passports associated with suspected Al Qaeda members to the United Nations. Of these three hundred, many would be forcibly deported back to Saudi Arabia and other Arab countries. In an additional gesture of good will, the Iranian regime offered to provide search and rescue support, humanitarian relief, and targeting assistance in the fight against the Taliban and Al Qaeda.
To push forward this justification in the face of significant doubt would have significant political ripple effects. Internationally, using the AUMF to justify a war against Iran would likely be seen as a violation of the dictate that actions taken in self-defense be both “necessary and proportionate.” This would be even more likely if the U.S. were to start a war in response to a specific catalyzing event, like the downing of a drone in international waters. Certainly, a war would not be remotely proportionate to the downing of a single U.S. drone. Further, it is likely that the AUMF would be seen as a convenient excuse for invasion, rather than a legitimate justification, which would likely harm U.S. alliances and create problems for the U.S. similar to those it experienced in Iraq after it became clear that Saddam Hussein had no Weapons of Mass Destruction (WMDs). This would also cause significant domestic political turmoil, as multiple 2020 Democratic candidates have already come out against the move, according to an article in The Intercept. Additionally, five prominent Democratic senators filed a bipartisan amendment on Thursday to the National Defense Authorization Act, or NDAA, for the 2020 fiscal year to prohibit funds from being used for military operations against Iran without congressional approval.
It will be increasingly important in the coming months that legal scholars keep a close eye on U.S. legal arguments surrounding responses to Iranian actions, as these arguments may indicate changing strategies and escalations.