Armed Conflict Congress Foreign Relations & International Law

The Corker-Kaine Bill Does Not Open the Door to Attacking Iran: A Reply to Liza Goitein.

Robert Chesney
Monday, May 7, 2018, 2:16 PM

I very much appreciate Liza Goitein’s response on Lawfare this morning to an earlier post

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I very much appreciate Liza Goitein’s response on Lawfare this morning to an earlier post in which I criticized the New York Times for suggesting that the Corker-Kaine authorization for use of military force would open the door to attack Iran or North Korea. Below I offer a very brief response.

The crux of our debate is whether Corker-Kaine makes it more likely that the U.S. government could claim AUMF justification for an attack on Iran, as compared to the status quo under the 2001 and the 2002 AUMFs. Goitein thinks the answer is yes, while I think the answer plainly is no. Here’s a quick reminder why I take that view.

1. Corker-Kaine Is Less Likely to Be Used This Way Than the 2002 AUMF

The Corker-Kaine bill outright repeals the 2002 AUMF, which has been broadly interpreted both by Presidents Obama and Trump to justify uses of force in general relation to security in and around Iraq. If an administration is hellbent on attacking the Iranian government—whether in a “bloody nose” strike intended to be an intimidating one-off or as an all-out effort at regime change—and feels obliged to invoke an AUMF in doing so, it seems to me that the 2002 AUMF is the most likely candidate. Indeed, I suspect that this is precisely why the Corker-Kaine bill fully repeals the 2002 AUMF while treating the 2001 AUMF as continuing in force as a functional matter. It also may contribute to the Trump administration’s lack of interest in supporting this bill. At any rate, the bottom line is that those who do not want the administration to be able to point to statutory justification for using force against Iran should prefer Corker-Kaine to the status quo, at least as to this line of argument.

2. The Pretext Scenario Is No More Likely Under Corker-Kaine Than Under the Status Quo

Goitein argues that the administration might carry out an attack against Iran (for example, striking a weapons-production facility) while claiming, falsely, to be attacking an AUMF-covered group inside of Iran. Pretextual uses of force would not be justified under any of the statutes/bills at issue, of course, so this argument at first blush seems misplaced. Goitein raises the possibility, however, that with Corker-Kaine it would become somewhat easier for an ill-intentioned administration to hide the pretext, as compared to what would be true under the status quo.

If so, then that would certainly be cause for concern. But I don’t think it is so.

The point of contention here boils down to this: Does the Corker-Kaine approach to adding new groups to the category “associated forces” make possible designation of a wider array of such groups, as compared to the 2001 AUMF?

Goitein says the answer is yes, for two reasons.

First, she notes that Corker-Kaine would expressly encompass the Islamic State and its associated forces, and she argues that this daisy-chain approach (covering associated forces of associated forces) would be a break with the status quo under the 2001 AUMF. We just disagree about that. I think it is quite clear that the U.S. government already has been using force against Islamic State affiliates—that is, as associated forces of ISIS—that have emerged in places like Afghanistan (and possibly also in Libya and other parts of Africa). Corker-Kaine wasn’t needed for this, for better or worse.

Second, Goitein argues that Corker-Kaine more generally opens the door to a broader definition of “associated forces” as compared to the status quo. How so? It’s hard to see how. As she notes, the main thrust of the bill is to “ratify the executive branch’s sprawling interpretation.” That sprawling interpretation might be wrong or bad in its own right, but the fact remains that this is how presidents have been interpreting the existing AUMFs for more than a decade—and there’s no reason to think that would change in the absence of Corker-Kaine.

In response, Goitein points out that I myself have noted that codification might well embolden the administration to be bolder in deciding which groups qualify under the status quo definition. But does it really follow that this would bring within the law’s reach some group located in Iran, and that this in turn would open the door to an attack on Iranian government forces or facilities, with the White House and Pentagon lying about this (in the form of claiming that this was merely an attack on some AUMF-covered terrorist group)? I just don’t find that persuasive. I know of no terrorist group that currently is beyond the scope of the 2001 AUMF but that might be reached through a bold interpretation of Corker-Kaine, where such group is located or might be located in Iran, and where the location or circumstances of such group would create enough fog to enable a strike against the Iranian government or its facility papered over by knowingly-false claims that we struck or meant to strike just the terrorist group. If the government and the military are prepared to be that mendacious (which I doubt very much), they won’t need (or benefit from) Corker-Kaine to act. Indeed, it seems vastly more likely in such a case that the government would simply invoke Article II authorities, for better or worse—precisely as was done recently in justifying attacks against Syrian forces.

3. The IRGC Cannot Be Designated an Associated Force Under Corker-Kaine

Goitein flags the possibility that Corker-Kaine would enable the administration to attack Iran by virtue of designating the Islamic Revolutionary Guard Corps as an AUMF-covered “associated force.” But this is not possible under that bill. The bill expressly forbids designation of a foreign state as an associated force, and it is not plausible to suggest that designating IRGC is anything other than designating Iran itself. The fact that the White House has subjected IRGC to economic sanctions certainly does not prove otherwise. First, it is routine to limit sanctions to specific parts of foreign governments rather than sanctioning the government as a whole; that’s part of the targeted/smart sanctions model, and it no more implies something relevant for AUMF purposes than does a State Department report that singles out a particular foreign government agency for criticism on human rights grounds. Second, and critically, let’s not forget that the only lawful objects for the force an AUMF authorizes are military targets. Bearing that in mind, it would make no sense in the AUMF context to construe a ban on identifying a foreign state as an associated force as still allowing for the designation of that state’s military; the state’s military units are the state for this purpose.

As a final note, while I do not think it necessary, I have no objection to a friendly amendment to Corker-Kaine, confirming that the prohibition on designating a state as an associated force extends to prohibiting the designation of military or other security forces belonging to a state.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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