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 2002 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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September 20, 2019

News Roundup: Trump, Giuliani, and Ukraine

Administration for Children and Families, Agency for International Development, Consumer Financial Protection Bureau, Customs and Border Protection, Department of Health and Human Services, Department of Homeland Security, Department of Housing and Urban Development, Department of Justice, Department of State, Department of the Treasury, Department of Transportation, Equal Employment Opportunity Commission, Federal Bureau of Investigation, Federal Reserve, Immigration and Customs Enforcement, National Institutes of Health, Starr County - Texas, Substance Abuse and Mental Health Services Administration, Texas Attorney General, Texas Secretary of State, U.S. Army Corps of Engineers
September 12, 2019

New Lawsuit Seeks State Department Records of Jared Kushner’s Middle East Trips

Department of State
June 7, 2019

News Roundup: Investigating Outside Influence and Political Appointments at the State Department

Consumer Financial Protection Bureau, Department of Homeland Security, Department of Justice, Department of State, Department of Transportation, Federal Emergency Management Agency, Small Business Administration
March 12, 2019

Investigating the Trump Administration’s Efforts to Sell Nuclear Technology to Saudi Arabia

Department of Commerce, Department of Defense, Department of Energy, Department of State, Department of the Treasury, International Trade Administration, Office of the U.S. Trade Representative
January 9, 2019

Investigating the Acting Defense Secretary’s Ties to Boeing

Department of Defense
December 12, 2018

Audit the Wall: No Plans, Funding or Timeline — And No Wall

Customs and Border Protection, Department of Homeland Security, Department of State
February 9, 2018

New Lawsuit Seeks DHS Border Wall Emails with White House, Fox News, Border States

Customs and Border Protection, Department of Homeland Security
December 17, 2017

Trump Transition GSA Emails and Memorandum of Understanding

General Services Administration
October 31, 2017

American Oversight Sues State Department for Records Showing Efforts to Compel Mexico to Pay for Border Wall

Department of State
October 17, 2017

5 Questions for Attorney General Sessions

Department of Justice
September 2, 2017

DOJ Confirms Trump Lied in “Wiretap” Tweets

Department of Justice, Federal Bureau of Investigation
August 1, 2017

American Oversight Obtains Attorney General Sessions SF-86 Signature Page

Department of Justice
August 1, 2017

Statement on Waiver of Environmental Regulations for Border Wall

July 21, 2017

American Oversight Calls for Resignation of Attorney General Jeff Sessions

Department of Justice, Federal Bureau of Investigation
July 13, 2017

DOJ Releases Redacted Page of Sessions’s SF-86 to American Oversight

Department of Justice, Federal Bureau of Investigation
June 16, 2017

Watchdog Group Files Lawsuit on Trump Border Wall

Customs and Border Protection, Department of Homeland Security, Department of the Interior, Office of Management and Budget
May 24, 2017

After American Oversight Lawsuit, DOJ Confirms that Sessions Lied about Russian Contacts

Department of Justice, Federal Bureau of Investigation
May 16, 2017

American Oversight Demands Release of Comey-Trump Memos

Department of Justice, Federal Bureau of Investigation
May 12, 2017

Letter to Burr and Warner: Senate Should Request Trump-Comey Tapes

Department of Justice, Federal Bureau of Investigation
May 10, 2017

Statement on the Firing of FBI Director Comey

Federal Bureau of Investigation
May 10, 2017

Ethics Watchdog Calls for IG Investigation of Sessions for Violating Recusal

Department of Justice, Federal Bureau of Investigation
April 19, 2017

American Oversight Sues DOJ for Release of Trump Tower Wiretap Records, Russia Investigation Documents

Department of Justice, Federal Bureau of Investigation, White House
March 28, 2017

Statement on Trump Administration Proposal to Build Border Wall South of Rio Grande

Department of the Interior
March 24, 2017

American Oversight Launches Investigation of President Trump’s Border Wall

Department of Homeland Security
March 22, 2017

Statement on Intelligence Committee Chairman Nunes’ Actions

March 17, 2017

American Oversight Calls on Congress to Investigate Trump Aide’s Reported Ties to Nazi Group

Office of Government Ethics, White House