In the Documents: Investigating the Trump Administration’s Legal Analyses for Potential Use of Force Against Iran

Brian Hook, the U.S. special representative for Iran and adviser to Secretary of State Mike Pompeo, pictured in November 2018

The past week of escalating tension with Iran has provoked grave concerns not just about the prospect of military conflict, but about President Donald Trump’s ability to take the country to war without the approval of the legislative branch. Questions about the legality of the strike that killed Iranian Gen. Qassem Soleimani have swirled along with anger about the administration’s unwillingness to say whether it would seek congressional approval for further military action, and on Thursday, the House approved a measure restricting the president’s ability to strike Iran without first getting the consent of Congress. 

Of course, questions about the White House’s view of presidential war powers, especially with regard to Iran, have been a cause for concern for months. And documents recently obtained by American Oversight shed light on congressional attempts last summer to get clear answers from the administration on its perceived legal authority to use military force — even as questionably heavy redactions obscure those answers.

Back in the spring of 2019, alarm grew about whether the administration was laying the legal groundwork for military action against Iran when the State Department announced that it would designate Iran’s Islamic Revolutionary Guard Corps as a foreign terrorist organization, saying that “Iran continues to allow al Qaeda operatives to reside in Iran.” The 2001 Authorization for the Use of Military Force (AUMF) gave the executive branch broad authority to use military force against states or entities should it determine that they harbored those who aided or planned the September 11 attacks, and another AUMF was adopted in 2002 to authorize the Iraq war. In May 2019, the administration revised its military plans for potential conflict with Iran, elevating concerns even further and prompting American Oversight to file a number of Freedom of Information Act requests for related legal analyses.

In June, the House Foreign Affairs Committee (HFAC) held a hearing on the administration’s Iran policy, with Brian Hook, the special representative to Iran, testifying. A month later, the Senate Foreign Relations Committee held a “Reviewing Authorities for the Use of Military Force” hearing, featuring as witnesses Under Secretary for Political Affairs David Hale and State Department Acting Legal Adviser Marik String.

Both hearings seem to have left members of Congress dissatisfied. On June 26, HFAC Chair Eliot Engel and Rep. Ted Deutch, the chair of the Middle East subcommittee, sent a letter to String requesting an answer that Hook had declined to give during the hearing the week before. A letter in response two days later contained a caveat wrapped in the language of assurance: “[T]he Administration has not, to date, interpreted either AUMF as authorizing military force against Iran, except as may be necessary to defend U.S. or partner forces engaged in counterterrorism operations.”

In July, Deutch submitted a number of questions for the record (QFRs) to Hook, including the question “Does the Administration believe the 2001 AUMF authorizes use of force against Iran, yes or no?” The State Department documents released to American Oversight in response to our FOIA request show a number of internal emails about the department’s answers to those QFRs, but the text of any official responses, even after having been finalized, are fully redacted.

Answers to QFRs from Sens. Tim Kaine and Bob Menendez following the July 24 hearing — one question being whether String would “commit to seeking Congressional authorization for any other military action against Iran — are also fully redacted.

Also included in the records are two other documents regarding the administration’s stance on the AUMF. One is a draft of notes for a presentation to congressional staffers, and the other is an outline from an Aug. 14 “brown bag” presentation (both are fully redacted). At one point, a State Department attorney in the Office of the Legal Adviser circulates a “comparison of positions” on using the 2001 and 2001 AUMFs along with past statements on the issue from both Hook and Secretary of State Mike Pompeo.

In addition to its active requests for records of AUMF legal analyses, American Oversight filed new FOIA requests this week relating to the strike that killed Soleimani, including external communications as well as any legal analyses and congressional notifications. We’re also seeking Hook’s communications with White House Senior Adviser Jared Kushner, whose several trips to the Middle East have reportedly sidelined embassy staff and have had minimal State Department involvement besides Hook’s participation. You can read more about our lawsuit in that investigation here.

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