In Unanimous Vote, House Says No Legal Right to Attack Iran

By Prof. Marjorie Cohn
June 07, 2018

In a little noticed but potentially monumental development, the House of Representatives voted unanimously for an amendment to the National Defense Authorization Act of 2019 (H.R. 5515) that says no statute authorizes the use of military force against Iran.

The amendment, introduced by Rep. Keith Ellison (D-Minnesota), states,

“It is the sense of Congress that the use of the Armed Forces against Iran is not authorized by this Act or any other Act.”

A bipartisan majority of the House adopted the National Defense Authorization Act on May 24, with a vote of 351-66. The bill now moves to the Senate.

If the Senate version ultimately includes the Ellison amendment as well, Congress would send a clear message to Donald Trump that he has no statutory authority to militarily attack Iran.

This becomes particularly significant in light of Trump’s May 8 withdrawal from the Iran nuclear deal. That withdrawal was followed by a long list of demands by Secretary of State Mike Pompeo, which could set the stage for a US attack on Iran.

Co-sponsors of the Ellison amendment include Reps. Barbara Lee (D-California), Ro Khanna (D-California), Jan Schakowsky (D-Illinois), Jim McGovern (D-Massachusetts) and Walter Jones (R-North Carolina).

“The unanimous passage of this bipartisan amendment is a strong and timely counter to the Trump administration’s withdrawal from the Iran deal and its increasingly hostile rhetoric,” Ellison said in a press release. “This amendment sends a powerful message that the American people and Members of Congress do not want a war with Iran. Today, Congress acted to reclaim its authority over the use of military force.”

Likewise, Khanna stated,

“The War Powers Act and Constitution is clear that our country’s military action must first always be authorized by Congress. A war with Iran would be unconstitutional and costly.”

McGovern concurred, stating,

“Congress is sending a clear message that President Trump does not have the authority to go to war with Iran. With President Trump’s reckless violation of the Iran Deal and failure to get Congressional approval for military strikes on Syria, there’s never been a more important time for Congress to reassert its authority. It’s long past time to end the White House’s blank check and the passage of this amendment is a strong start.”

Moreover, the Constitution only grants Congress the power to declare war. And the War Powers Resolution allows the president to introduce US Armed Forces into hostilities or imminent hostilities only after Congress has declared war, or in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” or when there is “specific statutory authorization.”

But even if the Ellison amendment survives the Senate and becomes part of the National Defense Authorization Act, Trump would likely violate it. He could target Iranian individuals as “suspected terrorists” on his global battlefield and/or attack them in Iran with military force under his new targeted killing rules.

Unilateral Sanctions Against Iran Are Illegal

Although the Ellison amendment states that no statute authorizes the use of US armed forces in Iran, it does not prohibit the expenditure of money to attack Iran. Nor does it proscribe the use of sanctions against Iran.

In fact, other amendments the House adopted mandate the imposition of sanctions against Iran.

An amendment introduced by Rep. Peter Roskam (R-Illinois) reflects the sense of Congress that

“the ballistic missile program of Iran represents a serious threat to allies of the United States in the Middle East and Europe, members of the Armed Forces deployed in those regions, and ultimately the United States.”

The Roskam amendment then states the US government “should impose tough primary and secondary sanctions against any sector of the economy of Iran or any Iranian person that directly or indirectly supports the ballistic missile program of Iran as well as any foreign person or financial institution that engages in transactions or trade that support that program.”

And the House mandated the imposition of sanctions against people connected to named groups in Iran that “commit, threaten to commit, or support terrorism,” in an amendment introduced by Rep. Ted Poe (R-Texas).

When Trump announced his withdrawal from the Iran nuclear deal, he also reinstated US nuclear sanctions and “the highest level” of economic restrictions on Iran. Those sanctions could remove over one million barrels of Iran’s oil from the global market.

The unilateral imposition of sanctions by the United States, without United Nations Security Council approval, violates the UN Charter. Article 41 empowers the Council, and only the Council, to impose and approve the use of sanctions.

The other parties to the Joint Comprehensive Plan of Action, the formal name for the Iran deal, oppose ending it. Known as P5+1, they include the permanent members of the Security Council — the US, the United Kingdom, Russia, France and China — plus Germany, as well as the European Union.

At a minimum, France, Italy, Germany and the United Kingdom are not likely to cooperate with the US’s re-imposition of sanctions.

Trump Administration Gunning for War on Iran and Regime Change

Before Trump withdrew from the Iran nuclear agreement, Iran was complying with its obligations under the pact.

Once Trump named John Bolton,notorious for advocating regime changein Iran, as national security adviser, it was a foregone conclusion the United States would pull out of the pact.

Pompeo also supported renunciation of the deal. His over-the-top demands on Iran include the cessation of all enrichment of uranium, even for peaceful purposes (which is permitted by the Nuclear Nonproliferation Treaty).

“Taken together, the demands would constitute a wholesale transformation by Iran’s government, and they hardened the perception that what Trump’s administration really seeks is a change in the Iranian regime,” the Associated Press reported.

Jake Sullivan, who served in the Obama administration and was Hillary Clinton’s lead foreign policy advisor during the presidential campaign, said of the Pompeo demands,

“They set the bar at a place they know the Iranians can never accept.”

Ellie Geranmayeh, a fellow at the European Council on Foreign Relations, called the demands “conditions of surrender.”

Meanwhile, it is unclear how long it will take to reconcile the House and Senate versions of the National Defense Authorization Act. Constituents who become aware of the risk of a US attack on Iran will invariably lobby their senators to include an admonition comparable to the House’s Ellison amendment.

• Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and an advisory board member of Veterans for Peace. An updated edition of her book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, was recently published. Visit her website: http://marjoriecohn.com.