Lawfare Daily: U.S. Strikes on Iranian Nuclear Facilities

[Intro]

Suzanne Maloney: My presumption is that there is still a pathway that there has been tremendous and, and lasting damage done to the program, but they don't need the industrial size program in order to have at least some deterrent capability in the form of a, of a, of a pathway to a, an actionable device.

Benjamin Wittes: It's the Lawfare Podcast, I'm Benjamin Wittes, editor in chief of Lawfare with Lawfare Senior Editor Scott R. Anderson, Lawfare Foreign Policy Editor Dan Byman of CSIS and Georgetown, and Vice President and Director of Foreign Policy at the Brookings Institution Suzanne Maloney.

Daniel Byman: I have a particular concern about it because I'm not sure, you know, who the people are in the Trump administration who are shaping this for the president. And I worry that U.S. goals are just gonna give more and more maximal and will be tied a bit too much to Israel, which does have more maximal goals that I think are often unrealistic.

Benjamin Wittes: Today we discussed the American strikes against Iranian nuclear facilities this weekend, how Iran has reacted, the effects on the region, and whether the American action can be defended as a matter of law.

[Main Podcast]

Suzanne, get us started. We had U.S. intervention in the form of bombings of several, it seems like three, Iranian nuclear targets over the weekend. And we have belligerent verbal response from the Iranian leadership, but so far no action. You are the one of us who really knows about Iran, which is impossible to, for me to figure out what anything there means. So how do you interpret it? What does it mean?

Suzanne Maloney: Well, obviously I think we're all watching and waiting to see how the Iranians will respond. That is one of, I think, the key questions in the aftermath of this unprecedented strike by the United States, which follows on an incredible, and spectacularly successful series of strikes by the Israelis over the eight or nine days that had preceded the U.S. intervention. I don't think it's entirely shocking that we haven't seen an immediate response from the Iranians. First of all, they've you know, their capabilities have been significantly degraded by the Israelis over the course of their strikes. The Iranians also don't have terrific options at the moment.

Beyond just, you know, the question of what they can actually launch in terms of missiles and drones, their proxy network has been decapitated. The arsenal that Hezbollah had amassed on Israeli, Israel's borders, which had been the primary deterrent that the Iranians have relied upon for at least the past decade has been eroded.

And you know, the options that they have available are things like small scale terrorist attacks in third countries which I think the world is now heavily on alert for; cyber attacks against the U.S. or the Israelis to take out infrastructure, I think the concern there is the possibility that they would then find themselves on the receiving end of something very similar.

The go-to move for the Iranians has always been to threaten oil exports from the Strait, via the Strait of Hormuz or by targeting infrastructure of some of the neighboring states as they did in 2019 after the United States had ramped up economic pressure on Iran by leaving the deal under the first Trump administration.

But I think that has some potential blowback for them as well in terms of just jeopardizing their own economy and, and potentially fracturing the, the rapprochement that they've managed to achieve with Saudi Arabia and some of the other states in the Persian Gulf.

So there are some things that they can do. I think the most likely outcome is what they're, and what they're probably focused on now is whether they can preserve and/or reconstitute the nuclear program in some covert fashion. I think that's, to me, the most important unanswered question about the success or the efficacy of the military operation in Iran to date. If the entire idea is to ensure that Iran can't have a nuclear weapons capability we may have achieved an enormous amount in that respect.

But the fact that we don't know where their stockpiles of HEU may have gone, that we don't know exactly how much damage has been inflicted on some of these key facilities because we're not able to do the battle damage assessment on the ground. And we don't know what we don't know about covert facilities, about what has happened to a large stockpile of centrifuges that the IAEA knows Iran has produced, but doesn't know where they sit.

I think that, you know, my guess is that the Iranians are, are you know, sitting back waiting for the right moment to retaliate in a way that is most effective, but also in a way that preserves their ability to try to race to some kind of nuclear weapons capability.

Benjamin Wittes: And imagine for a moment that they have a reconstituted program that is covert and they are, as Israelis have been warning, and as the U.S. administration has sometimes agreed, they are weeks from pro-, being able to produce a weapon or maybe six months or whatever.

So they, you know, you have a production capability that they suddenly are incentivized to do right now. What does that really get them, given that the Israelis are nuclear capable themselves, and presumably you can't just blithely lob a nuclear weapon over at Tel Aviv?

Suzanne Maloney: I think from the Iranian perspective, it, it gets them to the difference between this campaign and the way that the world is engaged with North Korea.

And that's been pointed out widely by observers that, you know, Trump wanted a photo op with North Korean leaders. He wants to bomb Iran and he may at this point want regime change. So I think it's, you know, for them it's, it's the, the existential defense against some future attack. It gives them leverage in terms of future negotiations.

Otherwise the alternatives available to them are pretty, pretty lousy. At the moment they don't have much in the way of immediate and overwhelming retaliatory capacity. They can't defend their own territory. The Israelis are, are flying freely, and the United States as well, over Iranian territory and can continue to bomb. And there's really no one who's going to come to their defense, including the countries with which they thought they had strategic partnerships like Russia.

So, you know, if, if you're looking for a port in a storm, if you're looking for some way to ensure regime survival, nuclear weapons capability looks a lot more attractive today, even more attractive than it did before this campaign began.

Benjamin Wittes: How do you assess, I mean, the president said the other day that the operation was an overwhelming success and that it was, you know, Fordow was completely obliterated, I think was the phrase he used. The Pentagon has been somewhat more measured. I have not heard an Israeli damage assessment.

What is your instinct about like what degree of setback this has caused, or do you assume that enough has been spirited away to covert locations that you can, that it doesn't actually matter how destroyed Fordow is?

Suzanne Maloney: I think we just don't know at this point, and I assume we'll have more and better intelligence as the days go on. But we're going to be limited in terms of what we're able to determine conclusively because we won't have boots on the ground and there's very little likelihood that there will be a return of any kind of IAEA presence or other types of inspectors unless we get to some kind of a diplomatic agreement, which the Iranians have heretofore been unwilling to accept.

So, you know, my presumption is that there is still a pathway that there has been tremendous and, and lasting damage done to the program, but they don't need the industrial size program in order to have at least some deterrent capability in the form of a, of a, of a pathway to a, a, an actionable device. And I, I think that that is going to be their ace in the hole at this stage.

Benjamin Wittes: Yeah so one of the things that the Israelis, who are pretty disciplined about never talking about things like regime change, have sounded very undisciplined about is this seemingly fantastical idea that these combination of strikes is going to finally disrupt the Islamic Republic at its core.

I've never heard the Israelis talk this way before, and frankly I find it a little bit unsettling. They're, they're usually, you know, annoyedly realist at the dreams of Americans, not the other way around. Do they know something that is not obvious here about the impact of these strikes on the Iranians or, or is this just Israel dreaming?

Suzanne Maloney: As you say, the Israelis don't tend to dream when it comes to Iran in particular. They're, you know, sort of hardened by the long experience of this regime coming back from, against very difficult odds. And, and obviously, you know, the degree to which they penetrated the country in advance of this of their strikes is historic and suggests a, a a level of you know, sort of operational free flexibility and freedom that I don't think we've seen in any prior attack or any prior Israeli military operation across the region.

So, you know, there is I, I leave open the possibility that they have in addition to building essentially a base in Iran where they stockpile drones, which they were then able to use at the start of this attack, the, the, the level of intelligence that they had on some of the, the senior members of the security leadership all of this could mean that they have been doing other work that is helping to create the prospect of some kind of an alternative movement that could push for some different political pathway within Iran.

But I genuinely don't find that totally credible. You know, I leave open the possibility that there's more there that they've been doing. But realistically, you know, as much as Iranians hate the regime, the difficulty of creating a, mobilizing some kind of a movement that could actually confront the regime is one that the, you know, the system has been girding against since 1979.

They have created all of the mechanisms that allow people to be unhappy, but not actually to mobilize and move in a way that is politically salient. So the Israelis can, can blow up the, the Voice and Vision, the state broadcasting company, but I'm not sure that they're capable of creating a, a, a system or a movement that's going to genuinely be able to confront the regime in a serious way.

Benjamin Wittes: So is your instinct that when Netanyahu talks that way–and makes a, frankly, direct appeal to the Iranian people that you know, sounds like George W. Bush talking to the Iraqis–that this is likely to be fruitless or that he is sort of giddy with the, the excitement of the strikes and the moment, or that they are thinking about how to stoke the kind of unrest that you think is very difficult to stoke? Like, wh what, what, game it from the Israeli side for a second.

Suzanne Maloney: I think, you know, one of the characteristics features of Bibi Netanyahu is that he's been reasonably good at planning wars. He's been particularly bad at planning the aftermath of wars and what comes next. And you know, others on this call can speak to that in greater detail than I can.

I, I, I also think, you know, this is not a rally around the flag moment for most Iranians. They will blame the regime as much as they blame the Israelis. But still, I think the terror and, and sense of instability that these strikes have provoked for Iranians is going to make them particularly resilient to someone like Netanyahu's appeals for change.

I, I don't know what the, the, the count is at this stage, but as of last week, there were at least two thirds of Iranian provinces had been struck. And these are spectacular strikes that even for those who aren't living in the immediate vicinity, who aren't directly impacted, they're seeing it, they're feeling it.

And you know, the one thing that Iranians you know, have experienced in their own political history is this sense of disorder that came in the aftermath of the ‘79 revolution, and then in the war with Iraq. And it is the, you know, the, the, the strong suit of the regime is suggest that they, they claim to be able to keep control in the country. They're, they claim to be able to protect the country's borders.

They're obviously not doing a very good job of it, but I think the fear of what comes next has always been one of the aspects that has held Iranians back at moments of potential political opportunity whether it was the 2009 uprising, whether it was more recent protests that have broke out over both economic issues and social and cultural issues during the Mahsa Amini, Women, Life, Freedom movement.

The sense of no real clear, clear pathway to political leadership, to a transition to a more durable and fair and just order is one that, that I think is just the, kind of, has prevented Iran from reaching that tipping point, time and time again. And I think these conditions are even less fortuitous when it comes to, you know, the sort of general sense of Iranians. If I go to the street, will it lead to a better outcome? I'm, I'm not sure that anyone watching things blow up around the country is going to feel that sense of, of possibility and optimism.

Benjamin Wittes: So, I'm gonna go back to a question that the, the four of us plus my wife debated at the time of the Soleimani strike, which was whether, if you were in charge, would you have taken the shot. And I, I was kind of on the, the, the fence about it. Dan and Scott and Tamara, as I recall, were all leaning against it and you were the most forward-leaning. You had said it was a hard question, but you would do it. I hope I'm remembering the conversation correctly.

I'm curious whether like how do, if you are whispering in Trump's ear under these weird collection of circumstances, which is Iran's proxies have been effectively destroyed. Israel controls the airspace. Iran doesn't have a lot of capacity to respond in the short term anyway. And the Israelis are asking for bunker busters on, on a few discreet sites. Is this a shot that you would've taken?

Suzanne Maloney: This one I think was also a tough one. I think this time I would've come out against, because I don't think we have a plan for the day after, as we see today, and I don't know that there is a, a trajectory that lands the plane, so to speak, in a way that produces a, a better outcome within Iran.

We, we think we have set back the program. We may have, I, I, I don't think we have confidence that we have ended the program. The fact that we don't know where the HEU, the centrifuges are, says to me that we have now invested ourselves in a war which may end with Iran racing toward a nuclear weapon in a way that wasn't the case before. And I think that that ultimately will be a much worse outcome than what we had before June 13th.

Benjamin Wittes: So, finally, and I know you have to jump off, I wanna just ask you about the impacts of this in Iranian society. The, you alluded to the terror that this is creating. There are 650 or so people killed, not clear to me how many of them are civilians, how many of them are appropriate targets. But it is, you know, causing people to flee Tehran. It's a non-trivial impact on the society, which has not been the subject of, you know, major military action, at least inhabited areas since the Iraq war. So, you know what, what is this doing to Iranian society?

Suzanne Maloney: I think the Iranians, the Iranian people are the real losers from this exchange. The government may live to fight another day. It will be severely weakened. Iran's military and nuclear infrastructure will be heavily degraded. But the, you know, the prospects for a better day for Iranians, I think are further today than they ever were.

Because what the government will do in the aftermath, whenever this begins to wind down and, and we've already seen the evidence of it, is to put more pressure; to be less tolerant of dissent; to ensure that there is, you know, forced nationalism rally around the flag, sort of, impact; to terrorize dissidents and critics even more; to rely on, on coercion to manage its home front. Because they will understand how much less support there is for the regime today as a result of these strikes.

They will feel, the regime will feel already feels encircled and in danger, and they will take that out on Iranians. And I don't unfortunately see that this is going to end in a way that creates more, a, a, a better pathway to a more liberal and representative Iranian government, just the opposite.

Benjamin Wittes: Well, on that cheerful note, Suzanne this is super helpful. Thank you so much for joining us today.

Suzanne Maloney: Thanks so much, Ben and all of you.

Benjamin Wittes: Alright, let's go, let's do this in an organized fashion. We've talked about Iran. Let's talk about the region, and then Scott and I are gonna talk about the law.

Dan, what should we reasonably expect to happen in the reason over the next two to three weeks? I'm not gonna ask you to think further ahead than that.

Daniel Byman: Yeah, I'm not sure I, I can think farther ahead than that. So, you know, it, it's gonna vary of course by country, but most of the states in the region are trying to keep their heads relatively low.

The United States based its attacks either from the U.S. homeland with the B-2 strikes or used naval assets. So so far at least it's been a way of the regional allies being able to say, you know, look, we had nothing to do with this. And I think they have a mix of a desire to see Iran both humbled and its nuclear program military taken out.

Yet they also are stability seekers and they've worked hard in the last few years to build a rapprochement with Iran and overall to try to recognize the reality of Iran in ways they can live with. And if we compare it to say 10 years ago, then they saw Iran as rising. They saw the Arab Spring as enabling Iranian influence. They saw Iran as having pushback revolution in Syria.

But Iran looks a lot weaker to them today. So the threat has diminished from their point of view. So they're trying to walk the line a bit more. We've seen some noises that are critical of Israel. And I think they're, you know, happy with a neutral position, but they're quite worried as there's a danger of terrorism.

As Suzanne mentioned, there's also the possibility that the only way for Iran to strike back effectively at the United States might be to attack U.S. forces or US personnel on the territory of Gulf States, which implicates them even if they themselves are not the target. So that's a tremendous concern.

A number have provided assistance with air defense against Iranian missiles target at Israel. So they're, I would say the stakes are extremely high for them and they're hoping they can kinda keep their heads down and this storm will pass.

Having said I can't think more than two or three weeks out, let me actually put a long term thought out there that others may wanna comment on. The cooperation between Israel and the Gulf States and the hope of a, for Israeli Saudi Arabia talks was that there would be this kind of grander anti-Iran alliance, and that was one of the drivers of this cooperation, especially with the UAE and other states.

With Iran weakened, the Gulf States actually don't need Israel as much, and it enables them to, you know, be a champion of the Palestinians or however they wanna position themselves politically. Because the strategic necessity of an Israel relationship is diminished. So it's possible to me that one of the products of all this operation will be a bit more distance with the Gulf States. I don't think it's gonna be dramatic change. I don't think it's gonna be abandoning the Abraham Accords, but I could see the kind of close cooperation, the close and visible I should say, cooperation being less necessary from a Gulf State point of view.

Benjamin Wittes: How do you understand the, at last, I checked anyway, silence from Syria? I thought it was striking that, you know, all the Arab states except the one run Jabhat al-Nusra have condemned the Israeli attacks on Iran. Seems to me there, there is an interesting message coming from that.

Daniel Byman: So I, I, I think there are two big messages coming from it.

One is, there's a, a real hatred of Iran. So there were two main backers, two and a half main backers of the Syrian regime, and one was Russia. And the Syrian, the new Syrian government has decided that, look, you know, Russia backed the old regime, but it's a, it's a major player in the world, we have to deal with it.

And then there were the Iranians, which were tremendously important and brought in tens of thousands of foreign fighters Shia foreign fighters whom they worked with. And there, there's no need for forgiveness on the part of the Syrian regime. I, you know, the Iran is not a major player even before all this. And so I think they're delighted in a, in a kind of visceral sense, the way Ukrainians might be delighted if, you know, Russians were hurt in a future conflict somewhere else around the world, in just watching Iran suffer.

Add to that the Syrian regime has been, in my view, very strategic, very effective in trying to message the United States and European states that it is on the side of good things and civilization. And it's been, you know, reaching out to religious minorities in Syria, making noises about toleration in general and critiquing the Islamic state. And so here's another opportunity to say, look, we are not on Iran side.

And by, our silence is extremely loud. And it's, it's actually vindicating for I think the Trump administration that made a decision to work with the Syrian government before all this began and fits the argument that, that I would make, and I think many others have made which is that this regime is very pragmatic, right?

I don't wanna say good or bad, I wanna say they'll respond to incentives put before them, and they'll be authoritarian. I think they're willing to work with the West. I think they're willing to work with Israel as long as the right incentives are put in front of 'em. So I think it's a message of both where they were in terms of their anti-Iran fighting for bitter fighting for years, but also where they wanna be with regard to the United States in particular.

Benjamin Wittes: And what do you make of the apparent Israeli lack of reciprocity? I, I, I mean, I've, I'm, I've never seen before an Arab national regime court Israel, the way this one has, admittedly, over a short period of time, with less receptivity or excitement from the Israelis.

Usually the Israelis get very, very excited at any, any sign that, that a belligerent regime is, is willing to, to talk. The Israelis seem to think this is nothing more than a, a con and that these are unreconstructed Al-Qaeda people. What again, what do they know that we don't know?

Daniel Byman: I think these Israelis are wrong on this, but let me kind of give what I feel is their perspective. And this, this shows up in lots of different ways. Post-October 7th, Israel has view on risk is, Israel should, you know, never be trusting the intentions of a potential adversary and should be focused on shadowing their capabilities.

So, you know, how do you imagine the Hezbollah threat? In the past it was deterrence. And and then last year it became, we hit them repeatedly so it doesn't matter what they wanna do, they simply can't hit us. Right. How do you manage the risk of an Iranian bomb? It's not deterrence, it's you take it out. How do you manage Hamas? You destroy Hamas.

And with Syria, this question of, you know, is this regime, you know, unreconstructed jihadists, are they potential future jihadists? Are they, you know, sweetness and light and turning towards Western democracy? Who knows? But from an Israeli point of view, they're not gonna take a chance.

And, and I would say as, as someone, you know, outside this I don't know what, where the Syrian regime is gonna go, I think there's a lot of uncertainty. And so. I'm much more willing to try to work with that uncertainty and try to say, let's take chances, especially given the incredible military disparity between Israel and, you know, what little is left of the Syrian military was, you know, a shell before the Civil War began, and now it's, you know, really a fraction of that.

So I think Israel doesn't really have to worry about a Syrian threat in a, a serious way. And I think they're missing an opportunity that this is a regime that, again, I'll stress the word pragmatic, might be willing to do a deal. And, and in the past, Israel has worked with, you know, the Assad regime, not in a, successful peace negotiations, but in a successful suppression of cross-border assaults from Syrian soil. And I could at the very least see those sorts of deals being done and per and perhaps much more. So to me, this is a a post-October 7 mistake on Israel's part.

Benjamin Wittes: Alright, so let's talk about the Trump administration. Let me start with the question with which I ended with Suzanne, which is, given all of these weird circumstances, if you are whispering in the president's ear and the subject of, hey, Bibi just wants us to hit Fordow and a couple other sites with a few bunker busters. They don't have a lot of retaliatory capability right now. Do you think the Trump administration did the right thing or the wrong thing by, by giving Bibi what it wants here and, and dropping these bombs?

Daniel Byman: So my biggest concern on this question echoes Suzanne's, which is I'm not sure the United States knows what it wants at the end of all this, right? I mean, we have negative goals, right? Which is we don't want around avenue nuclear weapon. But what are we trying to drive this to? And you know, Suzanne correctly, I think was, you know, highly skeptical of a regime change goal.

So it gets to, are we using the strikes as a way of setting up some sort of deal or negotiated settlement where Iran, you know, ends its nuclear program, reduces support for militants, and its missile program, right? I could see a long list of U.S. goals and I don't think we have that right. I haven't heard anything articulate by the president.

We've seen him make statements that were then immediately walked back by White House officials. We've seen him undercut several other, you know, secretary of state and vice president has been staking out different positions. So I don't think it's necessarily a foolish move to try to put the finishing touches on Israel's strikes. I think Israel, you know, has done an incredibly effective job from what I can tell so far. And the U.S. destruction of Fordow may be a tremendous accomplishment beyond that.

In addition, I think this is a moment of historical Iran weakness, so this is a good time to kind of go for that. But to me, to succeed, you have to know what you want in the long term military force has to be driving in that direction, and I worry that we're just kind of waiting for good stuff to happen, but we are not actively trying to shape that.

And I have a particular concern about it because I'm not sure you know who the people are in the Trump administration who are shaping this for the president. And I worry that U.S. goals are just gonna get more and more maximal and will be tied a bit too much to Israel, which does have more maximal goals that I think are often unrealistic.

Benjamin Wittes: Do you have any doubt that the US was dragged into this, that Trump initially did not want to do this and was kind of roped into it by the fact that the U.S. was likely to get a fair bit of the retaliation anyway, and the Israelis kind of went to war and then didn't have, didn't have a piece of the puzzle that we had? And so Trump kind of switched positions.

Daniel Byman: Maybe, so I would certainly say we switched positions. Right. As far as I could tell, several weeks ago, our position was we can make negotiations work. And yes, we're keeping force on the table, but we're, you know, there's progress on negotiations.

I actually thought they had, you know, I, I never bet on them succeeding, but I would've taken odds. Right. I thought they had at least some chance of succeeding.  And so I think our, our position clearly was negotiations and we were pushing the Israelis not to attack.

I think and here I'm going off in a, I believe in a, a New York Times story this morning. I think part of the logic of Trump's switch wasn't just Israel, but was Israel's pushing on this and a threat of retaliation, but really a sense that this was working and that this was awesome. Right that you know here Israel is doing this amazing operation and what the Times report was that he's watching Fox News constantly, which is giving entirely positive coverage of this, and as a result, he wants to be part of it, right? He wants to claim credit for some of the operation and believes that this is something that would make him look good.

And so I think part of it is his own personal desire to kind of emerge as one of the leaders in all this. And so I, I am not sure how much of the thinking that went into was a very careful balancing of strategic costs and strategic risk, and especially not a, what's our end goal and how does military force move it along that way?

Benjamin Wittes: You think it was government by FOMO?

Daniel Byman: I'm not sure I'd go a hundred percent that far, but I would certainly say that that was one of the factors that was shaping decision making far more at least than, than I believe it should have been.

Benjamin Wittes: Alright, let's talk about the law. I. Scott, you wrote an excellent piece over the weekend.

Scott Anderson: Before the weekend, on Friday.

Benjamin Wittes: Ah, before the weekend. Sorry, I just, you know, I read it on Sunday 'cause I was coming back from vacation. Let's talk about whether this can be justified under both international law and U.S. domestic constitutional law. Is there a case that this is lawful or should we just understand this as there was a set of targets of opportunities, sometimes the United States is, as the biggest dog in, in the region, is just gonna do what it feels it has to do? And you know, the law can put it where the moon don't shine.

Scott Anderson: So I think there is an argument that the executive branch is going to make that this is lawful under the domestic and international law. And I don't think that argument is going to be that hard for the executive branch to make, because the executive branch over multiple administrations for decades now has embraced very permissive interpretations of both of those.

I don't personally agree those interpretations are correct. I think there's very valid critiques of them, but there isn't an institutional arrangement kind of in place to push back on those executive branch views. So they're the ones that inform executive branch military action. And that's the legal views that we see guiding what's happening here.

You would have to see pushback from other institutions, most notably Congress, also potentially the courts if you wanted to see a correction of either of those. So I can go into either one. Do you wanna start with international law or domestic law? Maybe start international?

Benjamin Wittes: Yeah, let's start with international because it's, this is after all a conflict between states.

Scott Anderson: Sure. So international law, you know, is generally understood to prohibit the use of force between states, but there's an exception. There's an Article 51 of the UN Charter for the exercise of the inherent right of self-defense in collective or individual self-defense. So that's clearly the angle that the United States and Israel are going to play off of here.

And I will note we very well might get a, a more clear explanation on this in the form of an Article 51 letter, a report the United States is supposed to deliver to the UN Security Council in the next few days. Even though it's skeptical of the UN in a variety of regards, the Trump administration did do this during its first term so at least in a handful instances, so we may yet get an explanation along these lines.

Individual self-defense is, means defense of your own self-defense as a country. Collective self-defense is in defense of another country, in this case, it would be Israel. Traditionally, most people, including the International Court of Justice understand this to be a really high bar, to be able to exercise self-defense.

You're only supposed to do it in response to attacks whose scale and effects are above a certain threshold, a fairly high threshold. And when you use military force, it's supposed to be an absolute last resort, and it's supposed to be very tightly necessary and proportional to stopping imminent threats of future armed attacks against you. So much very narrow sort of scope that you are justified in pursuing by this right of self-defense.

The United States and Israel have both been objectors of this perspective for a long time. The United States says no. Any sort of use of force against us of any scale can warrant an armed response in self-defense. That that armed response can be pursued only where there aren't reasonably available alternatives where you've exhausted reasonably available alternatives.

And what's reasonably available is up, you know, a little bit in the eye of the beholder. And that the military response has to be necessary proportional to end all the threats that actor is supposed to be leveling against you, so it has to be evaluated against their pattern of behavior, their rhetoric, their capabilities, what they intend to do.

All this amounts to a much more permissive vision of what international law allows and that permissive vision overlaps conveniently here. If you are seeing this as an act of collective self-defense in defense of Israel, Israel can point to a long pattern of very hostile rhetoric and behavior by Iran.

It can also point to the fact that arguably, it's been an armed conflict with Iran since 2018 because they have been intermittently hitting each other with a variety of attacks, Iran primarily through proxies. But there's an argument at least those conduct can be attributed back to Iran itself.

And that in this sort of context hitting nuclear strikes is a reasonable part of these sorts of hostilities, or hitting nuclear sites, because that is building a capability that will be devastating to Israel, potentially. The United States, at least in how it conceives of imminence as relates to international law, states very expressly says you have to take into effect the potential consequences, you know, a weapon of mass destruction. That, and that can counterbalance how actual imminent that is.

Now, does that mean. If something is weeks or months away, it still counts as imminent. I don't really know, I don't think I personally buy that argument. I think that's the weakest part of the argument here, but I don't have trouble seeing Israel or the United States buying into that argument given their prior position in other cases.

Benjamin Wittes: Okay. Let, let me, let me pause you there, because it seems to me that the, it seems to me the, the argument that the Israeli resort to force is lawful, is actually a little bit easier than the argument that the American resort to force is lawful. But if, if Israel, you know, Hezbollah launches a bunch of stuff at Israel, Israel warns it a hundred times to stop hits.

And then goes after Hezbollah's leadership when those, when those fail destroys Hezbollah, and then imagine that it turns around at that point and attacks the Iranian nuclear, it seems to me nobody would really argue Hezbollah being an Iranian proxy, that there isn't a state of armed conflict between Iran and Israel. And so really what we've done here is we've extended that analysis for by a few months, right?

Scott Anderson: I mean, essentially, yeah. It is this question of is there ever a point where Iran and Israel are not threatening each other actively? Are they basically in an armed conflict at this point, as opposed to Israel being responding directly to, you know, a direct threat of imminent armed attack?

Although again, I think even on that latter standard, the very broad standards, both the United States and Israel have advanced maybe could accommodate that. Although I agree, its super weak.

Benjamin Wittes: Right, it just, it just seems to me that in Israel's case, it's not particularly necessary to reach the imminence question because they can say, I think with, with some justice, hey, the Iranians have been lobbying over a hundred ballistic missiles at a time and did so, you know, quite recently. We had to, you know, scramble, you know, air defenses in a way that nobody's ever had to do before. The U.S. had to get involved. And so why isn't the best argument for the lawfulness of, of the American involvement, simply derivative of the Israeli argument?

That is Iran launches a whole bunch of missiles over, twice over the last year I think. The United States has to actively participate in Israel's air defense at that point, as did a bunch of other. And this armed attack is merely a, a, a part of the same argument, a part of the same exchange. It's just delayed by a few months.

Scott Anderson: That is the argument that's collective self-defense. And that's exactly the argument I fully expect the Trump administration to roll out. And that as I laid out on Friday is its easy to lean into. Remember, you have had, not just Israel in the United States, say this is a lawful action by Israel in self-defense.

We saw the entire G7 make a statement to that effect last week before the U.S. strikes. When you have that kind of buy-in and look, it stretches the limits of how most people think about international law. And I don't buy that. And I think there's problems with this argument potentially. But once you have that sort of buy-in and you've got this framework and you've got these longstanding permissive views that Israel and the United States have, have avowed, it's not harder for the United States to get on board.

There are aspects of what the United, of Israel's doing, the United States probably would have trouble getting on board with. I think particularly targeting nuclear scientists, people who aren't conventionally thought of as like direct participants in hostilities, I think raises the biggest legal question that's most in friction with U.S. kind of stated views.

Although maybe there's elements, you know, depending on exactly their activities and how close you are to like conflict, you could pull them in 'cause obviously the United States has targeted bomb makers and things like that in conflicts, but it, there's a tension there. There's a tension with certain parts of Israel activity.

But Israel was hitting Iranian nuclear sites as part of the self-defense action that G7 signed off on the United States signed off on. You've got buy-in from a number of states. It's within this broader view of the United States of articulate international law. So I'm not surprised the United States executive branch was able to get there.

Again, there's a very valid criticism with this. I don't wanna have any illusions about that. And a lot of countries, probably most countries in the world aren't gonna buy it or at least may not buy it. But that's doesn't stop the United States from relying on that theory.

Benjamin Wittes: So you've alluded several times to there being very valid criticism. What is it? What's the more restrictive view here that would say, okay, you can't just bomb a country's nuclear sites because they're lobbying missiles at another country?

Scott Anderson: Yeah. I mean, as I just laid out, the idea that a lot of states buy in, that the ICJ lies, lays out for what is it proper as a right of self-defense, it's a much more correlated to preventing what is actual imminent armed attacks, actual or imminent armed attacks against you.

Here, at least U.S. intelligence, although we've heard Israeli accounts differ, we've heard third party accounts differ. But at least Israeli inte, I mean, pardon me, U.S. intelligence seem to be suggesting Iran wasn't actually that close to getting a bomb let alone one they could actually deliver or threaten Israel with.

So how does that then make what targeting Iran's nuclear program, and stuff that's getting targeted isn't all weapons oriented. Remember, some of this is stuff that can be used for energy purposes for a lot of other purposes. How does that fit into that sort of framework? How can you say this is an act of self defense when it's not even clear it's imminent? It’s not even clear there was a threat to you directly coming from that in this ex, in this immediate moment.

That's a very valid critique. I think that's a, a real concern. You, you label that and plus the fact that like Israel's doing, initiated this round of hostilities. Right. The timing on this, we don't know exactly is driving it, but it appears to be some combination between the failure or at least the major temporary collapse, or now probably permanent collapse of U.S. negotiations with Iran over their nuclear program.

And the fact that Israel had a window of opportunity after having taken out air defense systems in Iran in 2024 in response to a prior Iranian attack in relation to Gaza and the, the conflict there. That they had a window of opportunity where they could execute a lot of these operations with a, a higher rate of success that was closing.

Maybe there are other factors, I'm sure there were that went into the timing of this, but it's not clear that this was because they thought Iran was suddenly going to do something against them. Certainly not of a scale warning. Such an all out, you know, scale campaign that you're seeing against Iran in this case.

Like I said, very, very valid criticism there. And if the United States wanted to, I think they could pick apart. I'm hopefully, I'm confident some lawyers in the U.S. government are looking at this saying, oh, I don't feel great about this. This isn't the strongest argument. But the president doesn't have to pick the strongest argument. He has to pick a colorable argument.

And is this within the scope of what, you know, the executive branch has previously laid out for international legal lines? I think you can squeeze it in there. And I don't think it's at that hard to fit. And the fact that, again, you have major U.S. allies in the form of the G7 already endorsing at the least at the largest scale, the Israeli military operations as self-defense makes it that much easier.

Benjamin Wittes: All right so Dan, I wanna come back to you on this question of the disparity between what the Israelis are saying about the Iranian program and the more measured take that the U.S. intelligence agencies and military have tended to take. How do you understand that?

The Israelis really talk as if the Iranians have crossed a threshold or are crossing a threshold. The Americans tend to talk as though the Iranians are at a threshold, but have been content to stay there, right, and are not breaking away. Do you have a way of assessing what you understand the state of the Iranian program to be pre-strike?

Daniel Byman: I have been relying on the publicly available releases or leaks related to U.S. assessments.

My strong sense was that Iran for many years has been, you know, at the line of nuclearization, but deliberately decided not to cross it. And we've seen Iran after the U.S. withdrawal from the JCPOA, Iran basically poking in different ways, right? So it enriched uranium, it enriched a bit more. It, it, it did what would've been violations of the JCPOA and were clearly unnecessary for any nuclear energy reason, but were short of the going to 90% needed for weapons grade uranium.

And to my knowledge, there's nothing that occurred in the last month or recent months that showed Iran was moving away from that. Having said that, Iran was at a dangerous area, right? It was close to weapons grade, uranium. The IAEA before the Israeli strikes condemned Iran, something it hadn't done in 20 years of a country. So it's clearly doing bad nuclear behavior.

But that big jump to go from a nuclear weapons program, no matter how close to an actual nuclear weapon, I've seen nothing indicating this. And I think Israel would've had a much stronger case internationally for its military campaign if it had good evidence that it could release to support this. And since it's burned a lot of its intelligence capabilities with its, you know, fairly successful, but operations in the last few weeks, to me doing so, would've been a good move in terms of getting broader support for it.

So until I see that I am going to stay with my belief that Iran was close, but had not made a decision to weaponize and was not about to make a decision to weaponize.

Benjamin Wittes: Alright. I wanna leave room for one or two questions before we take them. However, Scott there's also this domestic law side, this pesky constitution thing. The standards are not wholly dissimilar to the standards under international law, but they are shaded differently. First of all, do you agree with me that there is no plausible authorization for the use of force that can cover this situation?

Scott Anderson: Look, I, I tend to agree, but we do have to remember the Trump administration in 2020 said the 2002 AUMF authorized military strikes against Qasem Soleimani because he was involved in destabilizing Iraq and a lot of the conduct they attributed to Soleimani and the Quds force he helped lead could be translated to Iran as well.

So I don't think it's a 0% possibility that they're gonna make this similar argument regarding the 2002 AUMF. I don't find it credible. I think it's hugely problematic for a variety of reasons, a wild departure from what Congress thought it was authorizing in 2002 and enacted that law. But I don't think we can put it beyond the realm of possibilities.

I don't think it would be very persuasive if they do that, though I don't, I don't think they would rely on that exclusively. They're also gonna make an Article Two argument.

Benjamin Wittes: Yeah. So what's the best Article Two argument that you can make here, given that there's no obvious imminence, given everything we've talked about. You know, Iran's not attacking us. So where does the Article Two, self-defense or Article Two imminent threat standard come in?

Scott Anderson: Well, those standards don't exist under Article Two as executive branch understands it. That's the thing to bear in mind. The executive branch says the president can use military force for two conditions are met.

One was in the national interest, not a high bar to meet. President can conclude a lot of things are in the national interest and I don't think he'll have a hard time doing that by an Iranian nuclear program. And two, where the nature, scope and duration of that conflict does not rise to the level of war for constitutional purposes.

A super technical, you know, wonky sounding phrase, but basically means is this gonna lead to the type of war we think Congress is required to authorize under the Constitution. And where that line is, is something that the executive branch has never been super clear on, but the closest parallel they've tied it to is the Korean War, or is you know, maybe Vietnam in May 1970 if you buy Chief Justice William Rehnquist's opinion that he wrote at the time about it.

A couple subsequent administrations suggests it's lower. But it's not clear that you know, what you're doing against Iran in this case is going to lead to a conflict of that scale. Again, it's a super, super permissive standard.

Is this the best way to read the Constitution that expressly gives con Congress not the president, the authority to declare war? No, it's not, not in my view. But the simple truth is the executive branches maintain this interpretation for a good long while now since at least the 2011 Libya operation and really that standard predates that by a couple decades as well even though that was never quite articulated the same way.

And the courts have said, we're not gonna get intervened in this, except in one circumstance where Congress expressly establishes a conflict with the presidency and what it's doing, and then we might get involved. Even though then it's not a hundred percent clear, although I'll say the current Supreme Court has strongly suggested that's where we feel obligated to get involved.

So you need Congress to take that sort of action. I think that's a problematic move on the court's fault, because what does that do? It inverts the burden that the Declare War Clause established in the Constitution. Now, it's no longer up to the president to affirmatively get authorization from Congress. It's up to Congress to affirmatively block the president.

And that's a hard thing for Congress, the larger, slower, deliberative body to do. But nonetheless, Congress has never really done it. They've never really imposed hard limits on the presidential use of force except for a 60 to 90 day cutoff in the War Powers Resolution. That's the only real hard statutory limit. Until they do the executive branch’s very generous reading of the Constitution is gonna be the one it operates under when it makes these decisions.

And in that, in, that's under that very, very generous standard. Again, I, I'm not surprised to see that they concluded or are about to make the argument that what the president did over the weekend was within the president's authority.

Benjamin Wittes: Alright, Charlie the floor is yours.

Audience Member #1: So I don't understand how the end result of any of this isn't that there's actually more danger here, whether it's to Israel or to the United States, right? Because now Iran feels like, what is the purpose of, of cooperating? And also because they do have some material and it, maybe it's not weapons grade, but it's certainly dangerous.

And we know that they have, you know, there's, as we know, state sponsor of terror, like what is the end game here, right? They've destabilized the leadership, they've given them no incentive to cooperate or even talk. I just don't understand that.

Benjamin Wittes: Dan, explain it all for us.

Daniel Byman: Sure. So let's start with, you might be right.

So this is a, what you're saying to me is a perfectly reasonable interpretation of what's going on. Let me spin a possible alternative, which is that by hitting Iran hard and then hitting Iran even harder, its ability to go nuclear is greatly diminished. By hitting its military forces and by overall weakening the regime through strikes on energy infrastructure, you are putting it in a place where it's more likely to seek a deal on U.S. and Israeli terms.

And that deal could include not only a promise for what that's worth, not to go nuclear, but also very, very extensive verification mechanisms. And now some of those were already being negotiated, but they could be even greater and to the point where there's really no nuclear program at all. So it's not in the past, the question was how much of a civilian nuclear program would the United States accept? Now the answer might be zero.

So you could imagine this leading to a much better deal that is more enforceable from a U.S. point of view. And Iran's leadership would be angry, but they would be weaker. So it's reducing capabilities, putting them in a tight spot would be the argument.

Another argument is simply that kicking cans down the road is actually not a bad policy, that the world just changes, right? And if there's a problem you have now and you can deal with it in five years, often that's a good thing. And, and that's often seen as a negative, right? That okay, you're delaying a problem not solving it.

But so many conditions can change over them intervening five years, especially in the Middle East, that it's possible that by pushing things down the road, it might actually never occur because other conditions might change.

Benjamin Wittes: Lyor has an excellent question. The Israeli administration is saying that the reason for the attack now is not only the nuclear threat, but also the expected acceleration of manufacturing thousands of very large and sophisticated ballistic missiles, which are a significant threat to a small condensed country like Israel like we now see from the few that did hit cities and strategic facilities. Does this change any aspect of the legal discussion Scott?

Scott Anderson: You know, I, I'm not really sure it does for the simple reason that both legal standards are fairly deferential to the judgment of the executive branch, right? Like particularly on the strategic implication.

Now we can second guess that we can say, well, does this not create a more dangerous situation for a variety of fronts? We certainly can for both the first question and the second question that there's a lot of reasonable arguments to be made there at least. But from the legal perspective, certainly from the domestic law perspective, and more or less from the international law perspective too, you know, there is a degree of deference to the decision makers that came in here.

There's one other factor that I do think is worth pulling in here, which is that like the United States to some extent is walking on a bit of a knife’s edge between two disastrous outcomes going into the weekend, right? On the one hand, we have the fact, the possibility that Israel pursuing its campaign was going to end up accelerating towards a nuclear weapon or other conventional arms that otherwise cause harm to people. That is gonna become more belligerent and more bellicose as a result of this action. That can be the current regime or some other regime that comes to replace it.

The other flip side that we haven't talked about that is a big concern, but Dan and I talked a lot about it on a podcast last week, is the risk that you are going to trigger complete collapse in Iran. That's gonna be hugely destabilizing for the region and end up with a, you know, Syria type situation or other sort of bad situation in a very vulnerable corner of the world. And the Trump administration was very vocally concerned about–

Benjamin Wittes: With 80 million people.

Scott Anderson: Yeah, with a much bigger population. Lots of complications, weapons of mass destruction, larger amounts of armed movements, conventional arms all over the place, like really, really problematic, terrible situation that the Trump administration was really worried about as of Friday, at least some, some officials in the administration.

In that scenario, you could see how these strikes could thread a needle that seems appealing. In that, in hitting the nuclear strikes in a way Israel can't, you diminish the risk and Iran's ability hopefully, to accelerate towards the nuclear arm, and you take away Israel's justification for continuing the pace of campaign it's pursuing, which maybe means it cuts the campaign off sooner and that the destabilizing, debilitating effects in Iran are minimized to some extent.

Maybe you still get regime change, but it's more of a handover between elites. It's less of a complete collapse of the system. The problem is to some extent that could have made sense and you hear certain people in the Trump administration saying things that sound a lot like that's what they're trying to do with the strike.

The problem is Trump has not stuck to that playbook and neither has Israel. There hasn't really appeared to be any effort to Israel to ramp down its military campaign now that the school’s completely, at least no successful effort, even though it is what they basically said on Saturday when they announced these strikes.

So sadly, I think that window is passed. That's the best strategic logic I could have seen for doing something like this. But I'm not sure it's actually where the administration at least is executing on the tail end of that, as you would have to, to, to have it carry water.

Benjamin Wittes: Alright, Antii Ruokonen, you get the last question today.

Audience Member #2: Thank you. So do you think that the strikes that have hit Iran in a way, degrade their ability to give military aid to Russia? Thank you.

Benjamin Wittes: Yeah, so I'll take this one. My understanding is that the principle Iranian aid to Russia in the Ukraine war has been in the form of drones that, the Shahed drones, that the Russians are now producing themselves. And so I'm not sure that there's that much that there's that much direct assistance happening at this point.

There is a lot of glee in Ukraine, frankly, about what the Israelis and have done and what the Americans joined. But I'm not sure it creates actual functional differences in Russian capability cause I think at this point the Russians are, are mass producing the Shaheds. And I certainly haven't seen evidence that they're dependent I haven't seen evidence yet anyway, that they're dependent on Iranian manufacturing for them.

Folks, we're gonna leave it there. Thank you to Suzanne Maloney, to Dan Byman, to Scott R. Anderson. And thanks to everybody who joined us today.

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