Washington—Representative Eliot L. Engel, Chairman of the House Committee on Foreign Affairs, and Rep. Ted Deutch, Chairman of the Foreign Affairs Subcommittee on the Middle East, North Africa, and International Terrorism, have called on the State Department to produce any legal analysis dealing with the 2001 and 2002 war authorizations and possible military action against Iran. In a letter to State Department Acting Legal Advisor Marik String, the lawmakers stressed that Congress has not authorized the President to attack Iran and rejected any interpretation of the existing authorizations to justify such an attack.
Chairmen Engel and Deutch wrote, “Given the life-and-death stakes of the current situation between the United States and Iran, we can think of no issue where it is more imperative for the Department to explain its rationale for and interpretation of the legal authorities that have been provided by the Congress, a co-equal branch of government that the Constitution vests with the sole power to declare war.”
Full text of the letter follows and can be found here.
Acting Legal Adviser
U.S. Department of State
2201 C Street NW
Washington, D.C., 20520
Dear Mr. String:
At his appearance on Wednesday, June 20 before the House Foreign Affairs Committee’s Subcommittee on the Middle East, North Africa, and International Terrorism, U.S. Special Representative for Iran Brian Hook was asked repeatedly about whether the Administration believes that it has the legal authorization, under either the 2001 or 2002 Authorization for Use of Military Force (AUMFs), to attack the Islamic Republic of Iran. Mr. Hook declined to answer. Speaking on behalf of the Secretary, however, he committed that the Department’s Office of the Legal Adviser would provide Congress with that legal rationale, stating:
“This is something which the Office of the Legal Adviser can give you an opinion on, if you’d like to submit [a request for] it.”
We hereby submit that request. We will be abundantly clear: as several members stated during the June 20 hearing, Congress has not authorized the President to attack Iran under any legal theory, including under the 2001 or 2002 AUMF. Two former State Department attorneys, including one who preceded you as Legal Adviser, recently confirmed that “[t]here is no existing congressional authorization for the use of force against Iran.” These experts, who have advised Presidents and Secretaries of State on the scope of Executive powers, went on to note that the Trump Administration’s recent efforts to link Iran and al-Qaeda, as a way of shoehorning itself under the 2001 AUMF, are “thoroughly unconvincing.” We agree.
Given the life-and-death stakes of the current situation between the United States and Iran, we can think of no issue where it is more imperative for the Department to explain its rationale for, interpretation of, and limits upon the legal authorities that have been provided by the Congress, a co-equal branch of government that the Constitution vests with the sole power to declare war. We therefore request that you produce, no later than Friday, June 28 at 9 AM:
Any and all legal analysis, whether contained in electronic documents, emails, or hard copy, concerning, relating, or referring in any way to whether the 2001 or 2002 AUMFs are applicable to any actions that could be undertaken by the Executive Branch in or against the Islamic Republic of Iran.
Please note that this request seeks documents in existence as of the date of this letter. While it is critical for the Department to also provide any legal rationale created on or after this date, that will not satisfy this request. As you know, common law privileges do not apply to Congress, which derives its oversight power directly from the Constitution.
Moreover, history is rich with examples of the Executive Branch providing Congress with such materials, including Justice Department memos, OLC opinions, attorney notes, records of interagency lawyers’ communications, and the testimony of Executive Branch lawyers, including from the State Department.
We trust you will give this request your urgent attention. If we do not receive these documents by 9 AM on Friday, June 28, we will be forced to consider other measures to obtain them.
ELIOT L. ENGEL
House Foreign Affairs Committee
Subcommittee on the Middle East, North Africa, and International Terrorism
# # #