Financial Cost of the Iran War

Many posts have discussed war powers and the US military.  The Iran War has been a disaster.

Edward Wong and Aruni Soni at NYT:

For U.S. taxpayers and consumers, the cost of the war is at least $132 billion, according to Moody’s Analytics. That factors in military spending, rising energy and commodity prices and interest rates, said Mark Zandi, the company’s chief economist.

A top Pentagon official told Congress last month that the cost had risen to around $29 billion for the military. That estimate did not include the price of repairing about a dozen U.S. bases in the region damaged by Iranian attacks.

The costs of repair and maintenance, as well as keeping carrier strike groups at sea, also need to be factored in. “It costs a lot of money to just keep everyone and all this apparatus deployed there,” said Linda Bilmes, a public finance expert and senior lecturer at the Harvard Kennedy School. She added that the replacement costs of the enormous number of munitions that the U.S. military has expended will be much higher than the original purchasing costs.

Iran also severely damaged other U.S. assets in the region, including a valuable military radar jet on a tarmac in Saudi Arabia and the U.S. Embassy compound in Riyadh.

Presidential Power, June 2026

 Article II

The executive Power shall be vested in a President of the United States of America. ...

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...


He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

... 

[He] shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Use of Force

Plenty of precedent: CRS counts 469 foreign interventions between 1798 and 2022.

Dueling Lincoln Quotations

"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, is to and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose– and you allow him to make war at pleasure ...This, our convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us." -- letter to William Herndon, February 15, 1848

"Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation." --letter to Albert G. Hodges, April 4, 1864

Since January 20, 2025: Iran, Venezuela,counterterrorism Strikes in Iraq, Nigeria, and Somalia.

Executive Orders

Executive Clemency

Investigation and Prosecution

• James Comey, Letitia James, Jerome Powell
• John Bolton:  pleading to one count of mishandling classified information.
• Universities and funding
• Law firms representing Trump adversaries: contracts
• Media companies and FCC license threats

Soft Power:  "Power to Persuade"

Overall approval

Constraints on Presidential War Power

Many posts have discussed war powers and the US military.

Matt Glassman:

My view, as discussed last week, is that presidential warmaking is an almost wholly political issue, rather than a legal one. No court is going to stop a war.

That said, I think may people hear "wholly political" and just assume that the president has a free hand to do whatever he/she wants. I completely disagree. In fact, presidents are incredibly constrained by politics when it comes to war.

Take Trump and Iran. What are some of the major political constraints:

1. Military capacity
2. Cooperation of allies
3. Reaction of foreign adversaries
4. Reaction of markets
5. Congressional opinion
6. American public opinion
7. Partisan/base opinion

The first two---military capacity and ally cooperation---are straightforward; they are essentially supply-side constraints. Presidents can only go to war with the military Congress provides. Ditto with allies; absent the ability to use airspace and foreign bases, some operations become impossible. And it's always better to have a coalition of nations fighting the war than going it alone.

The third and fourth items on the list---foreign and market reactions---are constraints because they create immediate negative feedback, political and economic. Trump can't just nuke Tehran because that could easily trigger an escalation to global war, and WW3 with China is a bad outcome. Similarly, now that Iran has closed the strait and oil prices are spiking, the economic costs of the war may soon exceed the benefits, encouraging the president to seek a diplomatic off-ramp.

The final three items---opinions in Congress, the public, and the president's party---are the most purely political. These matter because the president has goals other than the objectives of the war, and negative opinions about the war will inevitably spill over to future political goals, whether they are policy, electoral, or egoist.

Presidential Power

Article II

The executive Power shall be vested in a President of the United States of America. ...

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...


He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

... 

[He] shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Use of Force

CRS counts 469 foreign interventions between 1798 and 2022.

Dueling Lincoln Quotations

"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, is to and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose– and you allow him to make war at pleasure ...This, our convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us." -- letter to William Herndon, February 15, 1848

"Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation." --letter to Albert G. Hodges, April 4, 1864

Since January 20, 2025:

• Iran
• Venezuela: boat bombings and capture of Maduro):
• Yemen: Air strikes against Houthi militants
• Counterterrorism Strikes in Iraq, Nigeria, and Somalia.

The president has a totally unchecked power to start a nuclear war.  The process exists to authenticate the president's commands, not to challenge them.

• The football

Executive Orders

Pardons

Investigation and Prosecution

• James Comey: charges of making false statements to Congress and obstruction related to his 2020 testimony. The indictment was dismissed.
• John Bolton: indictment for alleged unauthorized retention and transmission of classified information.
• Letitia James New York Attorney General indicted in October 2025 on bank fraud and false statements charges. Case dismissed.
• Jerome H. Powell said DOJ as opened a criminal investigation into Powell; prosecutors are looking at cost overruns.Threats: Regulatory Action and Funding
• Universities and funding
• Law firms representing Trump adversaries: contracts
• Media companies and FCC license threats

Soft Power:  "Power to Persuade"

Support from congressional Republicans and One Big Beautiful Bill

The Limits of Power

The Dog That Didn't Wag: War Without Rally

Many posts have discussed war powers and the US military.

Peter Baker at NYT:

President Trump likes to assert that he has accomplished things no other president has. With the opening of his military assault against Iran, he has achieved another distinction: He is the first president in the era of modern polling to take the United States to war without the support of the public.

Traditionally, Americans stand behind their president when he first orders troops into battle, generally sticking with him unless it drags on, casualties mount and victory seems increasingly elusive. With Mr. Trump’s war against Iran, the public has skipped the rally-around-the-president phase this time.

Support for his ferocious bombardment of Iran has ranged from 27 percent in a Reuters/Ipsos poll to 41 percent in a CNN survey, far below the level of public backing that Mr. Trump’s predecessors initially enjoyed when they used force overseas. Given that wars tend to grow less popular over time, the initial negative response portends political challenges for Mr. Trump and his fellow Republicans the longer the fighting continues.

The opposition is revealing about this particular moment in American history. A country already tired of decades of combat in the Middle East has shown little appetite for yet another adventure abroad. And the deep polarization of American politics only makes it harder to build support across lines. Even some Americans sympathetic to the goal of toppling the repressive, terrorist-sponsoring government in Tehran find it difficult to embrace Mr. Trump as commander in chief.

Law and War in Iran

Many posts have discussed war powers and the US military.

Jack Goldsmith at Executive Functions:

We’re already seeing a debate about the legality of President Trump’s use of force in Iran. I’ve grown cynical about these debates. Law is the language we use when criticizing presidential war powers—and it has been since the beginning of the nation. But the truth is that there are only political constraints.

As I’ve been saying for a while, there are no effective legal limitations within the executive branch. And courts have never gotten involved in articulating constraints in this context. That leaves Congress and the American people. They have occasionally risen up to constrain the president’s deployment of troops and uses of force—for example, in Vietnam, and in Lebanon in 1983, and in Somalia in 1993. But those actions are rare and tend only to happen once there is disaster.

Last year, Tom Nichols wrote of an earlier Israeli attack on Iran:

But calling this a “preemptive” strike is questionable. The Israelis, from what we know so far, are engaged in a preventive war: They are removing the source of a threat by surprise, on their own timetable and on terms they find favorable. They may be justified in doing so, but such actions carry great moral and practical risks.

Preemptive attacks, in both international law and the historical traditions of war, are spoiling attacks, meant to thwart an imminent attack. In both tradition and law, this form of self-defense is perfectly defensible, similar to the principle in domestic law that when a person cocks a fist or pulls a gun, the intended victim does not need to stand there and wait to get punched or shot.

Preventive attacks, however, have long been viewed in the international community as both illegal and immoral. History is full of ill-advised preventive actions, including the Spartan invasion of Athens in the fifth century B.C.E., the Japanese attack on Pearl Harbor, and the American war on Iraq in 2003. Sometimes, such wars are the product of hubris, miscalculation, or plain fear, but they all share the common trait that a choice was made to go to war based on a threat that was real, but not imminent.

The Israelis, ironically, are in the case books as the clearest example of a legitimate preemptive attack. In 1967, Israel got the jump on an Arab coalition that had been so obvious in its march to war that it was literally broadcasting its intention to destroy Israel while its troops massed for an offensive. Indeed, international-law experts have noted that the 1967 war is so clear that it is not much use as a precedent, because most enemies are not blockheaded enough to assemble an army and declare their intention to invade. (Of course, the Israelis could argue that they are already at war with Iran, a country that has launched many missiles at them and directed years of proxy attacks on their people and their military, which would be a far stronger case.)

 

The Donroe Doctrine

Many posts have discussed foreign policy, war powers and the US military.  Yesterday, the US snatched Maduro.

Yesterday, Trump said:

Furthermore, under the now deposed dictator Maduro, Venezuela was increasingly hosting foreign adversaries in our region and acquiring menacing offensive weapons that could threaten US interest in lives. And they used those weapons last night. They used those weapons last night, potentially in league with the cartels operating along our border.

All of these actions were in gross violation of the core principles of American foreign policy dating back more than two centuries, and, uh, not anymore. All the way back, it dated to the Monroe Doctrines, and the Mo- -- Monroe Doctrine is a, a big deal, but we've superseded it by a lot. By a real lot. They now call it the "Donroe" Document.

I don't know. It's, uh, Monroe Doctrine. We sort of forgot about it. It was very important, but we forgot about it. We don't forget about it anymore. Under our new national security strategy, American dominance in the Western hemisphere will never be questioned again. Won't happen. So, just in concluding, for decades, other administrations have neglected or even contributed to these growing security threats in the Western hemisphere.

 George F. Will at WP:

Universalism flows from the ninth word of the most important sentence in this creedal nation’s catechism: “all.” All human beings are endowed with unalienable rights, including the right to government legitimated by consent. The perennial American argument concerns what, if anything, this catechism commits the nation to do.

Twenty-one years ago, George W. Bush’s second inaugural address proclaimed “the calling of our time” to be nothing less than “ending tyranny in our world.” This project has not fared well since then.

The 1823 Monroe Doctrine declared the Western Hemisphere closed to further European colonization, and, implicitly, open to U.S. intervention in order to guarantee … Here things become murky. Commercial considerations (long ago, bananas; today, oil) and geopolitics have driven interventions.

The doctrine, although promulgated by President James Monroe, should be called the Adams Doctrine, for his secretary of state, John Quincy Adams. (The Marshall Plan, announced in a brief Harvard commencement speech by Harry Truman’s secretary of state, George Marshall, is not known as the Truman Plan.)

Although European colonization in this hemisphere long ago subsided, perhaps the Monroe Doctrine is still apposite. But two years before the Monroe Doctrine was enunciated, Secretary Adams said of our nation:

“Wherever the standard of freedom and independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own.”

Jack Goldsmith:

In sum, it would not be terribly hard for the Justice Department to write an opinion in support of the Venezuela invasion even if the military action violates the U.N. Charter.

To repeat, that does not mean that the action is in fact lawful—and it pretty clearly isn’t under the U.N. Charter. It only means that the long line of unilateral executive branch actions, supported by promiscuously generous executive branch legal opinions, support it. As I wrote in connection with the Soleimani strike: “our country has—through presidential aggrandizement accompanied by congressional authorization, delegation, and acquiescence—given one person, the president, a sprawling military and enormous discretion to use it in ways that can easily lead to a massive war. That is our system: One person decides.”

This is not the system the framers had in mind, and it is a dangerous system for all the reasons the framers worried about. But that is where we are—and indeed, it is where we have been for a while.

The Separation of Powers at the Start of 2026

Many posts have discussed the separation of powers, which is rapidly eroding.

Zachary S. Price at The Atlantic:

In just the past 11 months, his administration has canceled billions of dollars in foreign aid, frozen billions of dollars in research grants, imposed new conditions on other grants and contracts, slashed agency staffs, and even sought to claw back certain prior grant payments. At the same time, it has employed military resources to assist immigration enforcement, offered civil-service buyouts without statutory authority, and reportedly used a private donation to help pay military salaries during this fall’s government shutdown.

 

"But Wiles conceded that attacking targets on Venezuela’s mainland would force Trump to get congressional approval. 'If he were to authorize some activity on land, then it’s war, then [we’d need] Congress.'"

- White House Chief of Staff Susie Wiles, November 2025 interview pic.twitter.com/xeajLbi3tM

— Ryan Goodman (@rgoodlaw) January 3, 2026

Without congressional authorization, the US military just attacked Venezuela and grabbed Maduro/

A War Crime and an Act of War

A WP report suggests the Secretary of Defense Hegseth committed a war crime.

 

Former US military lawyers speak out

"The Former JAGs Working Group unanimously considers both the giving and the execution of these orders, if true, to constitute war crimes, murder, or both"

Statement on Media Reports of Pentagon “No Quarter” Orders in Caribbean Boat Strikes pic.twitter.com/eXo0bs4zyb

— Ryan Goodman (@rgoodlaw) November 29, 2025

The president of the United States may not order offensive military action in or against Venezuela without congressional approval.

Not the Constitution nor the War Powers Resolution nor past AUMFs authorize such hostilities.

Any such orders are unconstitutional and unlawful. https://t.co/jo6UVS6K1y

— Justin Amash (@justinamash) November 29, 2025

Tyler Pager at NYT:

President Trump and his top aides have said that drug cartels present one of the most pressing dangers to the United States, and have promised to eradicate them from the Western Hemisphere.

As part of that effort, Mr. Trump signaled on Saturday that he was ratcheting up his campaign against drug cartels, saying in a social media post that airspace above and surrounding Venezuela should be considered “CLOSED IN ITS ENTIRETY.”

Less than 24 hours earlier, Mr. Trump had announced on social media that he was granting a full pardon to Juan Orlando Hernández, a former president of Honduras who had been convicted in the United States of drug trafficking charges in what was seen as a major victory for authorities in a case against a former head of state. That pardon has not yet been officially granted.

The two posts displayed a remarkable dissonance in the president’s strategy, as he moved to escalate a military campaign against drug trafficking while ordering the release of a man prosecutors said had taken “cocaine-fueled bribes” from cartels and “protected their drugs with the full power and strength of the state — military, police and justice system.” In fact, prosecutors said that Mr. Hernández, for years, allowed bricks of cocaine from Venezuela to flow through Honduras en route to the United States.

Pete Hegseth and War Crimes

Alex Horton and Ellen Nakashima at WP:

The longer the U.S. surveillance aircraft followed the boat, the more confident intelligence analysts watching from command centers became that the 11 people on board were ferrying drugs.

Defense Secretary Pete Hegseth gave a spoken directive, according to two people with direct knowledge of the operation. “The order was to kill everybody,” one of them said.

A missile screamed off the Trinidad coast, striking the vessel and igniting a blaze from bow to stern. For minutes, commanders watched the boat burning on a live drone feed. As the smoke cleared, they got a jolt: Two survivors were clinging to the smoldering wreck.

The Special Operations commander overseeing the Sept. 2 attack — the opening salvo in the Trump administration’s war on suspected drug traffickers in the Western Hemisphere — ordered a second strike to comply with Hegseth’s instructions, two people familiar with the matter said. The two men were blown apart in the water.

Hegseth’s order, which has not been previously reported, adds another dimension to the campaign against suspected drug traffickers. Some current and former U.S. officials and law-of-war experts have said that the Pentagon’s lethal campaign — which has killed more than 80 people to date — is unlawful and may expose those most directly involved to future prosecution.

The alleged traffickers pose no imminent threat of attack against the United States and are not, as the Trump administration has tried to argue, in an “armed conflict” with the U.S., these officials and experts say. Because there is no legitimate war between the two sides, killing any of the men in the boats “amounts to murder,” said Todd Huntley, a former military lawyer who advised Special Operations forces for seven years at the height of the U.S. counterterrorism campaign.

Even if the U.S. were at war with the traffickers, an order to kill all the boat’s occupants if they were no longer able to fight “would in essence be an order to show no quarter, which would be a war crime,” said Huntley, now director of the national security law program at Georgetown Law.

Customary International Humanitarian Law:

Rule 47.

Attacks against Persons Hors de Combat

Rule 47. Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is:

(a) anyone who is in the power of an adverse party;

(b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or

(c) anyone who clearly expresses an intention to surrender;

provided he or she abstains from any hostile act and does not attempt to escape.

 

A Looming Act of War

 Previous posts have discussed presidential decisions to kill suspected terrorists. (See NYT story on the "kill list.") 

Columbia law professor Matthew C. Waxman at CFR:

Trump reportedly determined and notified Congress that the U.S. government is involved in an “armed conflict”—i.e. a legal state of war— with drug cartels, marking the latest in an escalating series of legal moves by the administration. It previously designated some cartels as FTOs, unlocking certain criminal law, immigration, and sanctions authorities. It has invoked a 1798 law authorizing the swift removal from the United States of “enemy aliens,” and applied it to suspected Tren de Aragua members. It has used lethal force against alleged Tren de Aragua drug vessels in the Caribbean, claiming national self-defense.

One of the most significant implications of this declaration is that it purports to justify using lethal force against some unspecified categories of cartel members, essentially treating them as enemy soldiers. Because the Trump administration has provided so little information about the strikes and their legal justifications, however, it’s unclear how far the White House is stretching this theory.

The closest analogy is the ongoing armed conflict against al-Qaeda and its affiliates, which is a more legally precise term for the “Global War on Terror.” That’s been the legal basis, across five presidential administrations now, for lethal force and detention of al-Qaeda fighters. The Trump administration seems to be applying that same template, but this time against drug cartels instead of a transnational terrorist group.

But that’s a dangerous stretch. Al-Qaeda had declared war on the United States and attacked U.S. warships, embassies, military headquarters, and financial capital, killing thousands of Americans with the equivalent of missiles. If a state had carried out those attacks, no one would dispute that we were in a war.

Major international cartels are brutally violent and drug trafficking is an enormously destructive problem in the United States, so the Trump administration is right to combat them aggressively. The administration may also believe, with reason, that international drug trafficking is a grave threat to the safety of Americans, and perhaps there are important roles for American military forces in dealing with it. But, to date, the administration hasn’t persuasively made the legal case that drug cartels are waging war against us like al-Qaeda was, nor is it clear whether the White House acknowledges any limits to its theory—one that unlocks the most extreme legal powers a state can wield. Part of the problem is that the Trump administration has been so opaque about its legal basis and about the facts surrounding its recent strikes. That’s a mistake that exacerbates the legal problems.

...

So far, the Trump administration has used lethal force against drug vessels at sea, but it has also suggested that it might do so in the territory of other states, like Venezuela or Mexico. That would be a major escalation, and it raises additional legal issues because the UN Charter prohibits the use of force against the territorial integrity of UN member states. Unless those states consent, which is unlikely, the administration would probably claim that it was justified because they were unwilling or unable to neutralize the threat against the United States. That would be a radical extension of past precedents, and I believe a misguided one.

Killing Drug Trafficking Suspects

 Previous posts have discussed presidential decisions to kill suspected terrorists. (See NYT story on the "kill list.") 

Politico Playbook:

The president appears to be pushing regime change in Venezuela, and yesterday confirmed a big NYT scoop that he’s authorised CIA activity in the country. And after deadly strikes on six Venezuelan ships in the Caribbean he says were drug smugglers, Trump is now considering mainland targets. “We are certainly looking at land [strikes] now,” Trump said. “We’ve got the sea very well under control.”

In 2013, Sen. Rand Paul filibustered against drone strikes. 

Rand Paul at Reason:

Jake Romm puts the dilemma of whom to designate as a terrorist into sharp relief: "The hollowness and malleability of the term [terrorism] means that it can be applied to groups regardless of their actual conduct and regardless of their actual ideology. It admits only a circular definition…that a terrorist is someone who carries out terrorist acts, and a terrorist act is violence carried out by a terrorist. Conversely, if someone is killed, it is because they are a terrorist, because to be a terrorist means to be killable."

Few independent legal scholars argue the strikes are legal. Even John Yoo—a former deputy assistant attorney general under President George W. Bush, who infamously authored the Bush administration's legal justification for "enhanced interrogation techniques"—has criticized the Trump administration's justification for the strikes, saying: "There has to be a line between crime and war. We can't just consider anything that harms the country to be a matter for the military. Because that could potentially include every crime."

Jon Duffy, a retired Navy Captain, eloquently summarizes our current moment: "A republic that allows its leaders to kill without law, to wage war without strategy, and to deploy troops without limit is a republic in deep peril. Congress will not stop it. The courts will not stop it. That leaves those sworn not to a man, but to the Constitution."

Congress must not allow the executive branch to become judge, jury, and executioner. President Thomas Jefferson understood the framers' intention that the president defer to Congress on matters of offensive war. That's why Jefferson, when faced with the belligerence of the Barbary pirates in 1801, recognized that he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense."

Jefferson wanted the authority to act offensively against the pirates, but he respected the intentional checks placed on the executive within the Constitution. Only after Congress passed an "Act for the Protection of Commerce and Seamen of the United States, against the Tripolitan Cruisers" in February 1802, did he order offensive naval operations. If the Trump administration wants to use military power, it should seek authorization from Congress. And Congress must have the courage as the people's representatives to reassert its constitutional duty to decide matters of war and peace.

Presidential Power to Use Military Overseas

Many posts have discussed war powers and the US military.

Brian Finucane at Just Security:

On Sept. 2nd, the Trump administration announced what it described as a “lethal strike” against an alleged drug smuggling vessel in the Caribbean. In a post on social media accompanied with a video of the strike, President Donald Trump stated that the attack was “against positively identified Tren de Aragua Narcoterrorists.” Trump also noted that Tren de Aragua had previously been designated as a foreign terrorist organization (FTO). The social media post also asserted that the strike had occurred in international waters and killed “11 terrorists.”

Although the facts are still emerging, the Trump administration’s extraordinary lethal attack on this purported smuggling vessel – and its vow that the strike was a start of a campaign – raise a number of significant potential legal issues. And even apart from these legal concerns, the strike constitutes a deeply troubling gratuitous use of the military that resulted in the unnecessary killing of 11 individuals.

In 2019, Navy SEALs were on a secret, possibly illegal mission to plant a listening device on the dictator of North Korea. Dave Philipps and Matthew Cole at NYT:

The mission had the potential to provide the United States with a stream of valuable intelligence. But it meant putting American commandos on North Korean soil — a move that, if detected, not only could sink negotiations but also could lead to a hostage crisis or an escalating conflict with a nuclear-armed foe.

It was so risky that it required the president’s direct approval.

For the operation, the military chose SEAL Team 6’s Red Squadron — the same unit that killed Osama bin Laden. The SEALs rehearsed for months, aware that every move needed to be perfect. But when they reached what they thought was a deserted shore that night, wearing black wet suits and night-vision goggles, the mission swiftly unraveled.

A North Korean boat appeared out of the dark. Flashlights from the bow swept over the water. Fearing that they had been spotted, the SEALs opened fire. Within seconds, everyone on the North Korean boat was dead.

The SEALs retreated into the sea without planting the listening device.

The 2019 operation has never been publicly acknowledged, or even hinted at, by the United States or North Korea. The details remain classified and are being reported here for the first time. The Trump administration did not notify key members of Congress who oversee intelligence operations, before or after the mission. The lack of notification may have violated the law.

...

In 2019, Mr. Trump was making a personalized overture to Mr. Kim, in search of a breakthrough that had eluded prior presidents. But those talks collapsed, and North Korea’s nuclear program accelerated. The U.S. government estimates that North Korea now has roughly 50 nuclear weapons and missiles that can reach the West Coast. Mr. Kim has pledged to keep expanding his nuclear program “exponentially” to deter what he calls U.S. provocations

Charlie Savage at NYT:

Should the intelligence committees have been told?

That turns in part on whether the operation was undertaken under military legal authorities, found in Title 10 of the United States Code, or under intelligence authorities, found in Title 50.

A major difference is that Title 50 allows so-called covert operations, in which the United States government intends to conceal its role and deny any involvement if something comes to light. Typically those are conducted by the C.I.A., but sometimes military forces are temporarily put under C.I.A. control to carry out covert activities.

If the government is going to carry out a covert activity, Title 50 generally requires presidents to first make a written “finding” and inform the intelligence committees within 48 hours. Another part of the statute requires notice of “any significant undertaking pursuant to a previously approved finding,” but does not specify a deadline.

Other provisions in Title 50 require the executive branch to provide reports to the intelligence committees that keep them “fully and currently informed” about all intelligence activities — whether covert or not, and including any “significant failures” — no matter which agency or department conducts them.

Iran and War Powers

Many posts have discussed war powers and the US military.

Gary Schmitt at AEI:

As a constitutional matter, was President Trump required to have congressional authorization before he militarily struck Iran’s nuclear facilities? The answer is, “no.”

The Congress’s authority “to declare war”—found in Article I, sec. 8 of the Constitution—is not the same as “to make war.” As deliberations in the Constitutional Convention make clear, the change in the draft constitution’s text from “make” to “declare” was intended to give the president the authority to deal with obvious pending threats and situations in which the United States was already under attack. In short, the power to declare war was the authority to move the country formally from a state of peace to that of war, with all the domestic and international legal ramifications that follow from that declaration.

The key point is that Iran’s government and Iranian-directed proxies have been waging unconventional war on the United States for decades. ...

In 2020, after President Trump ordered the killing of Qassem Soleimani, the Iranian general in charge of Iran’s Islamic Revolutionary Guard Corps’ Quds Force, the White House and the Justice Department issued constitutional justifications for the action. As lawyers are wont to do, both had a bit of the kitchen-sink character, with differing legal justifications tossed in. The least credible was suggesting the 2002 Authorization for Use of Military Force Against Iraq was grounds for eliminating Soleimani. The most credible was that he had led the Iranian force and its proxies in planning and executing attacks on American military personnel and showed no signs of stopping. As a matter of self-defense, the president’s order to kill him was constitutionally justified.

But rather than stick with this straightforward justification, both the White House and the Justice Department slip in grounds for the president unilaterally employing the military offensively that are of a more recent (and problematic) vintage. The White House memorandum states the president not only has the authority to protect Americans from imminent attack but also “to protect important national interests.” In turn, the Department of Justice document argues that the president was not required to seek congressional approval because the action taken would not “bring the Nation into the kind of protected conflict that would rise to the level of war”—and hence, fell outside of the Congress’s prerogative of declaring war. Both arguments are found in the April 2011 opinion issued by the Office of Legal Counsel laying out the constitutional grounds for President Obama decision to order the American air campaign over Libya.

The Alien Enemies Act, Explained

Don Wolfensberger at The Hill:

Two things should be understood about the Alien Enemies Act. First, it can only be operable when there is a “declared war between the United States and any foreign nation or government.” The act was not triggered when enacted because the U.S. maintained its neutrality throughout the war between Britain and France.

Second, the legislation authorized the president to “make public proclamation” of his intent to apprehend, restrain, secure and remove foreign male nationals aged 14 and over (since amended in 1918 to include women) as enemy aliens, whether or not they were present in the U.S. legally.

The act has been invoked only three times over the last two- and a quarter centuries: in the War of 1812 against Britain, in World War I and in World War II — the latter being the last war declared by Congress.

The Alien Enemies Act was used to during World War II to arrest and detain in internment camps or military facilities more than 30,000 suspected enemy aliens in the U.S. from Italy and Nazi Germany. The more outrageous occurrence was the internment of over 100,000 ethnic Japanese. But approximately two-thirds of these were U.S. citizens, who therefore had to be detained under different legal authorities than the Alien Enemies Act.

Even if Trump’s threat to utilize the 1798 law to round-up and either detain or deport immigrants, the task would be a hugely costly, litigious and prolonged. Moreover, he would be challenged in the courts that the U.S. is not now engaged in a declared war and the president has no authority under the Constitution to unilaterally declare war on other nations.

 
Several experts have pointed out that the president already has authority to expel undocumented aliens, war or no war, and need not invoke the Alien Enemies Act. So why would he want to jump through all the extra hoops? And even then, it still comes down to the bottom-line question: “Where’s the money?”

Use of Military Force Overseas

Some argue that President Biden should have sought congressional approval before the recent  strikes in Yemen.  Tom Nichols disagrees:

Such objections have been lodged before about various U.S. operations around the world, ordered by presidents of both parties. They are rooted in the inherent tension in the Constitution between Article I, Section 8, which reserves to Congress the power to declare war, and Article II, Section 2, which designates the president as the commander in chief of the armed forces. Congress decides when a state of war exists between the United States and a foreign adversary; the president otherwise directs the actions of the U.S. military.

But does the president need to ask Congress every time he directs the armed forces of the United States to engage in violence? Jayapal seems to think so: Article I, she posted on X yesterday, “requires that military action be authorized by Congress.” Khanna was more specific, saying that this particular action needed to be approved—but that’s a small distinction without much of a difference.

Article I says none of these things, and in any case, America has not actually declared war on anyone since the spring of 1942. (This is a great bar bet, by the way: Most people will guess that the last U.S. declaration of war took place in 1941, after the Japanese attacked Pearl Harbor, but declarations against the minor Axis members Bulgaria, Hungary, and Romania took place six months later.)

Even Korea and Vietnam were not declared wars; rather, American presidents ordered troops into combat while relying on the self-defense provisions of the United Nations charter, as well as enforcing our legal obligations under treaties of alliance. Likewise, presidents have argued that acting in self-defense or to prevent further harm to ourselves or our friends does not require congressional approval.

Since 1798, there have been hundreds of instances in which the United States has used military forces abroad in situations of military conflict or potential conflict to protect U.S. citizens or promote U.S. interests.

Biden on Executive Power

Miles's Law: where you stand depends on where you sit.  

Charlie Savage,   Maggie Haberman and Jonathan Swan at NYT:

If he is elected to a second term, President Biden pledged that he will go to Congress to start any major war but said he believed he was empowered “to direct limited U.S. military operations abroad” without such approval when such strikes served critical American interests.

“As president, I have taken great care to ensure that military actions carried out under my command comply with this constitutional framework and that my administration consults with Congress to the greatest extent possible,” he wrote in response to a New York Times survey of presidential candidates about executive power.

“I will continue to rigorously apply this framework to any potential actions in the future,” he added.

The reply stood in contrast to his answer in 2007, when he was also running for president and, as a senator, adopted a narrower view: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”

Not just war powers. 

In 2019, for example, Mr. Biden said that if elected, he would order the Justice Department to review and potentially replace a legal policy memo that says sitting presidents are temporarily immune from indictment. He strongly criticized the department’s interpretation of the Constitution, which limited the special counsel investigating the Trump campaign’s ties to Russia and Mr. Trump’s attempts to impede that inquiry, Robert S. Mueller III.

But Mr. Biden never followed through on that pledge. He is now protected himself by the Justice Department’s theory since a special counsel, Robert Hur, is investigating how several classified documents were in his possession when he left the vice presidency.

Interpreting Curtiss-Wright

At R Street, Louis Fisher writes about United States v. Curtiss-Wright Corp., 299 U.S. 304 

Justice Sutherland’s major error in CurtissWright was to completely misrepresent and misinterpret a speech that John Marshall delivered in 1800 as a member of the House of Representatives. With Thomas Jefferson in that election year attempting to defeat President John Adams, Jeffersonians in the House urged that Adams be either impeached or censured for turning over to England an individual charged with murder. Jeffersonians thought the individual was an American under the name of Jonathan Robbins, but in fact he was Thomas Nash, a native Irishman. 

In his speech, Marshall rejected the move for impeachment or censure by explaining that President Adams was not acting in some illegal or unconstitutional way. Instead, he was carrying out a provision of the Jay Treaty with England that authorized each country to deliver up to each other any person charged with murder or forgery. Nash, being British, would be turned over to England for trial. President Adams was not acting unilaterally with regard to external affairs or claiming some type of independent executive power. He was fulfilling his Article II, Section 3, authority to take care that the laws, including treaties, be faithfully executed. In the course of delivering his speech, Marshall included this sentence: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” The phrase “sole organ” is susceptible to different interpretations. “Sole” means exclusive but what is “organ?” Is it merely the president’s duty to communicate to other nations U.S. policy established by the elected branches? Reading the entire speech makes clear that Marshall intended that meaning. He was merely defending Adams for carrying out the extradition provision of the Jay Treaty. After he completed his speech, the Jeffersonians considered his argument so well reasoned that they dropped efforts to either impeach or censure Adams