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Speaker A: This is Amicus, Slate’s podcast about the courts, the law and the Supreme Court. I’m Mark Joseph Stern with an extra amicus outside of our regular schedule. This past weekend, Donald Trump, who ran for re election on a promise of no new wars, started a new war with Iran, bombing the Islamic Republic in a joint campaign with Israel dubbed Operation Epic Fury. Among President Trump’s many stated goals was regime change. And Israel got the ball rolling by quickly taking out the Republic’s 86 year old supreme leader, Ayatollah Khamenei, in a strike. What comes next is, to put it mildly, not so clear. Iran has launched retaliatory strikes across the Middle East. As of this taping from four American service members have been killed and Trump has said there will be, quote, likely more American deaths to come. The Iranian red Crescent says 555 people have been killed in Iran and in Israel, at least 11 people have been killed. One question hanging over all this, of course, is whether any of it is legal. And that’s why we are bringing you this extra edition of Amicus. There may be a temptation to say that the is it even legal? Question doesn’t matter, which is what Harvard law professor Jack Goldsmith declared in an article titled law is irrelevant to the US Attack on Iran. Maybe so, but my guest today does not agree that a shruggy emoji is the correct legal response to this war of aggression. So we’re going to explore how the president is breaking the law, why it matters, and further, does it matter if ordinary Americans believe this war is legal or not? Eugene Fidel, a visiting lecturer and senior research scholar at Yale Law School and expert on the law of armed conflict, joins me now to discuss whether international law or the Constitution still matter when America goes to war. Gene, welcome back to Amicus.

Speaker B: It’s great to be here.

Speaker A: The attack on Iran has been prosecuted in a way that clearly shows a president who feels unconstrained in his power to wage war. I think few would deny it that Trump has called it a war. He has said casualties so far are, well, just too bad, and has said that it’ll go on for four weeks, maybe more, maybe less. But the president, any president, is, at least in terms of black letter law and the US Constitution, restricted in this realm. Or so I had thought. I guess I’d just like to start with you setting the table for us in terms of those legal constraints. Whenever we’re talking about the law of war, there seem to be three layers of restrictions on the president, federal statutes, the Constitution, international Law. Can we maybe start with the constitutional layer of the sandwich? Because under the Constitution, does the President have the power to declare war?

Speaker B: The answer, of course, is no. The Article 1, Section 8 of the Constitution has always provided that the power to declare war is vested in Congress. You either have a declaration of war, we haven’t had one since the day after Pearl harbor, or you have the equivalent, which is an authorization for the use of military force. We’ve had a few of those. We’ve also had a lot of attacks that the government, the administration of both parties, by the way, from both parties, have claimed were not war in the constitutional sense because they were extremely short lived, extremely limited, low horsepower, low firepower operations. You could debate some, if not all of those, but the basic concept in the Constitution is that it is for the Congress to declare war. And by the way, not the Gang of Eight, not the leadership, the Congress as a whole.

Speaker A: So in that case, what authority is the President drawing on when he claims the unilateral ability to commence these strikes?

Speaker B: Well, he’s had a variety of rationales. He and the Defense Department have put forward a variety of rationales, one of which is to change the government in Iran. Another is to prevent further depredations by the Iranian government. In other words, the killing of protesters and so forth. Another is to deal with a period of nearly 50 years of what the administration views as provocations, attacks or anticipated attacks over many years over a wide part of the world. There’s a constant flow of rationales. And when one is knocked down, something else comes in to take its place.

Speaker A: And so Trump is saying, I’m Commander in Chief. You know, the Constitution puts me at the head of the military, and so I get to make these judgments and launch these attacks if I think that’s the right thing to do for the country.

Speaker B: That seems to be his position, although you know quite what his position is. Depends on which side of the bed he gets up on. It’s very hard to pin him down. He is intentionally vague, which I guess is part of his M.O. but this is not a situation where you can be intentionally vague. We’re talking about life and death matters. We’re talking about whether the United States is going to be a pariah for the rest of history, whether people are going to get killed here, there and everywhere as a result of his reckless activities.

Speaker A: Let’s turn to statutes. You mentioned just a minute ago that sometimes Congress enacts authorizations for use of military force. I know it did after 9 11, to allow for some of Bush’s actions in the Middle East. To be super clear on this, Congress has not authorized the use of military force against Iran.

Speaker B: That is correct. The Congress has passed a variety of authorizations for the use of military force, or AUMFs, some of which have burned off or been repealed. The administrations, again, of both parties, have tended to read those AUMFs broadly. But the AUMFs, in my opinion, like the government’s claim to be able to anticipate threats and react to threats that it perceives that may or may not be accurate, I think is a pattern that really has to be brought to a halt. And what has happened is this country has drifted too far from the constitutional shore. In my opinion. The Constitution is very clear as to who makes the decision. It’s Congress. And the only circumstances in which, in my understanding, the President can act without a congressional authorization in advance is if there is an actual or imminent threat of an attack on the United States. Unless you’re there, the President has to go to Congress and get Congress’s approval.

Speaker A: Not chatting with half a dozen, if that congressional leaders, but an honest to goodness act of Congress passed a resolution that has passed by the the majority in both houses that rule that the President can use military force when there’s an imminent threat. Does that come from the War Powers Act?

Speaker B: No, it antedates that. It arises from a case called the Caroline, where there was a real threat in the early 19th century. It’s an acknowledged exception. You don’t have to sit back if you see somebody who’s sent the fleet off your coast and you can see the people on their ships are loading ammunition, they’re yelling nasty things at you and they’re ready to go. You’re entitled to protect yourself, but we’re not anywhere near that. The other thing is that, you know, the administration has trotted out a variety of what it considers threats. And some of them, you know, are threatening in the sense of, you know, the talking about the United States as the Great Satan and stuff like that. But we’re talking about a pattern of activity for over 40 years. What is it that made this last weekend different from the 40 years that preceded it, that suddenly a light went on for this administration, which already had assembled an armada, by the way, off Iran and with more on the way, and had sent scores and scores of warplanes to the Middle East? So what was it that crystallized and suddenly it was necessary to go to war?

Speaker A: So in that case, what exactly does the War Powers act have to say here? Because it’s something that members of Congress over the weekend were bandying about. A lot of Democratic members of Congress were saying, we need to fulfill our obligations under the War Powers act. But they’ve been doing this whenever Trump launches these strikes. It did it after the Venezuela incursion, and it just feels like a kind of toothless response. So is this something that could actually empower them to rein in Trump?

Speaker B: Not really. The thing about the War Powers act is it has notification requirements and so forth after given periods of time. But that’s all after the fact.

Speaker A: Right.

Speaker B: What my concern is is that the Constitution is very clear that it has to happen before the United States goes to war, not afterwards. There’s another serious problem. A declaration of war requires an affirmative vote, whereas the War Powers act, the burden is on the people who would stop a war rather than begin a war. It reverses the polarity in a way that I think is contrary to the Constitution. Maybe I’m being too pure on this, but there are a few things in the U.S. constitution where textualism really means something. And I’m told that we’re all textualists now. Somebody on the Supreme Court, it seems to me, has said this recently. So what does the text say? I mean, why are we even having this conversation? I have to add that, in my personal opinion, I think there’s a constitutional problem with the War Powers act because it reverses the polarity, because it permits the administration, in situations that don’t really merit it, to engage in what is called war in the constitutional sense. In other words, something more than a police, you know, law enforcement activity without approval. We’ll let you know. And if you want to overturn it, you can have a vote. Good luck with that.

Speaker A: So let’s turn to the next layer here, which is international law. After the Venezuelan extraction, I guess we’re calling it in January.

Speaker B: I’d call it an extraordinary rendition.

Speaker A: After the Venezuelan extraordinary rendition. I had a great conversation with Brian Finucan on this show about the Trump administration’s fundamental belief that international law is just fake. Brian said that even if Trump thinks that. That international law is not, in fact, fake. And I tend to agree. So if we’re working off the premise that international law is real, do Trump’s strikes against Iran comply with it?

Speaker B: No, they don’t. They don’t. A country cannot commit aggression. This. I mean, this. This is territory that was plowed extensively after World War II, and there were trials about this. The UN charter speaks about this. You need a vote of the Security Council to go to war bas against a country that is misbehaving. By the way, of course, the Security Council would never interfere in the current war, what I’ll call Trump’s war, because the US Has a veto power in the Security Council. But the principle of the thing is perfectly clear.

Speaker A: I don’t know anyone who thinks this is in compliance with international law, either written or customary, and yet it’s happening anyway. Does the Trump administration just feel no obligation to follow the UN Charter, even though it is a treaty that we have ratified and incorporated into our own law?

Speaker B: In a word, yes.

Speaker A: Is there any significance to the fact that the Trump administration was actively engaged in diplomatic negotiations with Iran when we commence these strikes? It just seems like quite the sin under international law to engage a foreign country on a matter like this and to be in the middle of those talks when one party, the United States here, says, oh, never mind, we’re just going to start bombing you.

Speaker B: Are you ready for this?

Speaker A: I am.

Speaker B: In 1941, the United States was in discussions with the Japanese government before Pearl Harbor. There was a delegation in Washington. The Secretary of State was meeting with them. And one Sunday morning, Japan attacked Pearl harbor. And the Secretary of State referred to those Japanese diplomats as scoundrels and pissants because we were in discussions with them. Now, maybe the Japanese were kidding us or we were kidding the Japanese. In this particular case, I think the US Was kidding Iran.

Speaker A: So you think that the United States was duping Iran through these talks while actively preparing to go to war against Iran?

Speaker B: Yes.

Speaker A: And under international law, I think we can safely say that’s not allowed.

Speaker B: Well, you’re not supposed to be threatening aggression any more than you’re supposed to be committing aggression. And to send an armada, to, quote President Trump’s term, to send a fleet to the immediate area of Iran. They weren’t there for vacation. Two aircraft carriers, lots of people and aircraft, some of them parked in Israel. No, this is not proper.

Speaker A: Going down the list of things that aren’t proper, on Monday morning, Secretary of Defense Pete Hegseth said that the United States and Israel would follow, quote, no stupid rules of engagement, just common sense, maximum lethality and authority for war, war fighters, even before we get to the law. Just first, on a practical level, what are rules of engagement? And then what does it mean for the military to ignore them?

Speaker B: Well, the rules of engagement are a sort of subsidiary set of rules that are more what I’ll call retail rules about how you conduct military operations. Down at the ground level. The rules of engagement have to do who you can target and things like that, and what kind of threats can provoke what kind of response.

Speaker A: I mean, that seems pretty important, who you could target. Like, not school children, right?

Speaker B: Yes, of course. And I, too, heard Mr. Hegseth’s comment, and I almost fell out of my chair. To refer to the rules of engagement as stupid tells more about him than anything else. And if I were in uniform now, it’s been a long time since I had my uniform on. But if I were in uniform now and I was being sent in harm’s way, I wouldn’t particularly want the Secretary of Defense to be telling the world that the United States considers rules of engagement to be stupid, because the next thing that happened is the person on the other side of the battlefield is going to say, well, if Hegseth thinks that the rules of engagement are stupid, we don’t have to follow them either. I would find it extremely disturbing if I were in the armed forces now to think that the gloves were off. The gloves were off. It was no more Marquis of Queensbury rules. As if we ever followed the Marquess of Queensbury rules on the battlefield. The US has been quite effective and also quite observant of the rules of armed conflict. The law of armed conflict. We’re alert to war crimes we know since World War II. And if you think about the Cali case, the My Lai massacre, we know that there are things that are wrong. And the message that Mr. Hegseth has been telegraphing loud and clear, including at his what I call the Quantico follies that he invited all the admirals and generals to a few months ago, is that we don’t really care about that kind of thing anymore. They’re a nuisance. They’re an impediment. Lethality is the watchword. Well, lethality is fine. If you’re in a proper war. You still have to observe the rules of armed conflict, the law of armed conflict. You have to have meaningful rules of engagement that match your value system. But what we’re learning, as if we didn’t know it from earlier things that this administration has said and done, is that we really don’t care about that. And that’s a horrendously asinine position to be in. You know, some wit once said that the purpose of the military to kill people and break things, and conversely, to be in danger, that comes with the territory. But what he’s done is said, and we don’t care how you go about it, and we’ll just do what we need to in order to take the Hill.

Speaker A: Was Iran following any rules of engagement before?

Speaker B: You know, do I think they were a paragon of military virtue? Not particularly. I mean, they targeted civilian targets in various places around the Middle East. So, no, they’re no model.

Speaker A: But the minute you say we’re out of here in terms of the law of war, the law of armed conflict, you’re back in the Middle Ages, if that Realistically, could there be any consequences for people in charge right now who are directing the American armed forces to disregard all those rules, or do you think they’ll all just get off scot free and never pay any price?

Speaker B: I think there’s a grave danger that no one will pay any price. I think if anybody winds up committing some offense. I’m thinking here also of the boat strikes in the Caribbean and the eastern Pacific, which many people view as involving the murder of 151 people at last count and counting. Right, right. I would expect that President Trump would make sure that they were all pardoned before he leaves office. In terms of other sanctions, I mean, one sanction that is on my mind is impeachment and removal. Now, we’ve been there and done that with him, at least impeachment, he has survived a couple of impeachments. But, you know, in a perfect or even less than perfect universe, there have to be some sanctions. When a commander in chief takes it upon himself to exercise a power that the founders put in, our founding document belongs solely to the Congress. There are several remedies, one of which is cut off funding. But that of course would require his signature on an act of Congress or a super majority to get it passed. That’s going to happen.

Speaker A: I want to get to all of that, but I kind of want to stay where we were for just a second. So there probably won’t be consequences. For Pete Hegseth, the president has the pardon power. What about in terms of America’s traditional allies, whom Secretary Hegseth has sort of slandered as pearl clutchers who hem and ha about the use of force? I mean, it seems that some of them still believe they have obligations under the Geneva Conventions. Is all of this going to affect how these allies can work with the United States?

Speaker B: I would think so. Look, President Trump has been a bull in a china shop for a long time in dealing with other countries. Remember Greenland, his raid on Venezuela, you know, and we, by the way, nobody seems to know quite who’s running Venezuela right now. So make a mental note of that for who’s going to be running Iran if And when whatever remains of the Iranian government sort of restructures itself. So I think that it’s going to be probably country by country. And by the way, our allies have their own politics, and their politics vary from country to country. You can’t say all the allies are going to say, rah, rah, rah. And you can’t say all the allies are going to say, oh, that’s a terrible thing. There are gonna be some in one camp and some in another camp. Some will say nothing. Some will be sitting by like senators and congresspersons as well, and seeing how things turn out, and then we’ll hear from them.

Speaker A: You mentioned what happens next, I guess, in both Venezuela and in Iran. And it occurs to me that that’s one of the reasons why the Constitution perhaps vests the power of declaring war in Congress. Because those are the kind of questions we might want the people’s representatives to be debating and thinking, beginning a new war in a foreign country. Uh, as of now, with the system that we’ve put into place, where President Trump gets to do whatever he wants, it’s all up to him to decide what comes next. Uh, he. He holds all of that in his hands. Congress seemingly has no say. Uh, we’ll get to what Congress could do in a minute. But it just strikes me that this is yet another example of power accruing to the executive branch, um, in. In a way that is not good for the United States, not good for the world. That just leaves the president with an immense am. Amount of discretion to interfere here with global affairs in a way that can be really reckless and poorly thought out with. With no consultation with Congress before the fact.

Speaker B: It is disturbing. And let me say, this is not in defense of President Trump, but maybe it’s kind of in mitigation. But he’s not alone in this. One president after another, let’s say, since the Kennedy administration has engaged in kinetic activities, military activities that were at least highly questionable. And depending on your politics, you may think those were wonderful presidents, you may think they were terrible presidents, but there is a pattern. And the Department of Justice Office of Legal Counsel will tend to find ways to justify whatever the boss has in mind. So, in that sense, what President Trump is doing here is in keeping with a terrible but real tradition of the allocation of power as between the branches. And note, of course, we haven’t even talked about the courts. The courts are highly unlikely to interfere with any of this.

Speaker A: Right? I mean, and maybe just to beat longer on that, it’s because the Supreme Court has generally instructed that our judiciary don’t get involved with armed conflict. There’s just a kind of norm against our courts interfering with this kind of operation.

Speaker B: Right. This is high policy, probably lacking in judicially manageable standards, the whole political question doctrine. So that’s not a surprise. But anybody who thinks the Supreme Court is going to save our cookies on this is kidding themselves.

Speaker A: Going back to where I started, what is your reaction to those who say that law is just irrelevant to this conflict? It isn’t only trolls and MAGA radicals who are saying this. You know, Jack Goldsmith thinks so, too, but of course, he made that observation with sorrow, not glee. What you’ve said so far makes it pretty clear that you don’t agree with that. But can you understand where the sentiment is coming from and what is your answer to it?

Speaker B: My answer on one level is yeah. In the Renaissance, Niccolo Machiavelli was a realist and knew how princes worked. We’re dealing with an administration that’s headed by somebody who thinks of himself as a monarch, basically, despite the no kings demonstrations. That’s where he is. He’s got a palace in Florida and so forth. I’m not there. I’ve only been a lawyer since 1968. But I did learn something in law school that there was something of value in a commitment to the rule of law. It’s a commitment that grew up in our society in the Middle Ages and the Renaissance and thereafter. In England, the growth of Parliament, the growth of courts, courageous judges. There were fights with the monarchs. Parliament would withhold money. Parliament would not appropriate money for the military for more than a quite modest period of time. And the whole notion was that everybody was invested in rules rather than arbitrary and capricious actions by single individuals. The President of the United States is not the political descendant of Nicholas II of Russia. He’s living in a different world. And it’s a world that I don’t like. That goes against my grain. Based on all of my professional education and what I’ve been committed to, along with so many other members of the American bar, people are, in my profession, as well as the teaching profession, are appalled and looking for ways to push back. The legal profession has done a terrific job of pushing back. I was one of the people that helped form something called Lawyers Defending American Democracy, which is an excellent organization that has been helping lead the charge. Other NGOs around the country have grown up. It’s really an interesting story. The country has a great deal to thank President Trump for. Primary among those is a resurgence of civil society. The number and power, really, of private organizations that have come forward, citizens donating their time, effort, and energy to things like ensuring the rule of law, is extremely impressive. I’d just as soon not have President Trump running things as if he was the czar of all the Russias. But if we have that, I take pride in the fact that my profession is resisting that, and I’ll continue to resist it.

Speaker A: I want to stay on this fight for a minute and give you a moment to sort of expand your thoughts on the is this war legal question as a democracy question. You know, we’ve been talking a lot about executive power and international law and military codes, but here you’re saying it actually goes even deeper than that. And I wonder if you could sort of continue placing it in the context of the authoritarian creep we’re experiencing. You talked about, you know, Russian czars. We’ve talked about dictators and kings. I mean, this does feel like something that goes beyond just exploiting a kind of constitutional ambiguity. This feels authoritarian, right?

Speaker B: Yes, it does. And it’s unfortunately part of a larger pattern. And the thing that really terrifies me and the other people that, or in my part of the forest, is that we can fully expect, based on events so far under this administration, that the kind of disregard for the rule of law that we’re now seeing in an unconstitutional war against Iran resonates with and sadly may be a predictor of, or a lead up to a similar disregard of the rule of law domestically.

Speaker A: You wrote an op ed in the Boston Globe arguing that Congress bears some blame here, too, for failing to assert its own constitutional authority, failing to sort of take back these powers that are given to it by the Constitution. Can you talk about what it would look like for Congress to stand up to this authoritarian president and try to impose real restraints on his new war and to reclaim some of that power?

Speaker B: There are a variety of things that Congress could do or could have done, one of which was not to confirm Mr. Hegseth to be Secretary of Defense who’s utterly unqualified. The fact that he’s demonstrated time and time and time again during his time in office. They can defund either withhold or withdraw funding for various activities. They can control that. They can simply issue a declaration disapproving of his conduct, the resolution, in other words, disapproving of his conduct. So there are things that Congress could have done and could still do. Now, I don’t want to cry about spilled milk, okay? Congress’s failure to be proactive during the run up to this war, because you didn’t have to be Sherlock Holmes to discern that the fleet wasn’t there for a vacation. Okay. That this is a president who’s perfectly capable of doing arbitrary things, regardless of approval, disapproval, consequences, and the like. So was Congress asleep at the switch? Yes, they certainly were. Here we are. So what can they do now? I’m going to look really forward, which is there’s an election. Many members of Congress are going to be seeking reelection. Some are leaving, some are going to get defeated in primaries. Who knows? There are newcomers who are surfacing now who would like to run for election. We all get fundraising requests ad nauseam from people qualified and otherwise who would like to hold federal office. Every single person who is seeking to be elected to the House of Representatives or the Senate should lay their cards on the table as to what they think about this war and what they would have done had they been in office before we went to war. We have a right to know that.

Speaker A: Let’s talk about what happens between now and those elections. You wrote Congress should introduce and aggressively pursue articles of impeachment against Trump. I think, frankly, there are a lot of critics of this war who think that that goes too far and would be very surprised by that recommendation. Can you lay out why you think that Trump’s actions here constitute high crimes and misdemeanors that qualify him for impeachment and removal from office?

Speaker B: Wow. I can’t think of anything aside, perhaps from trying to overturn an election. I can’t think of anything that comes closer to being a high crime and misdemeanor and therefore impeachment bait, than what President Trump has done here, which is pursue a war not authorized in advance by the Congress. It doesn’t get more fundamental than that. So that’s an easy one. Now, let me say this. There are people whose opinions for which I have the greatest respect who believe that. That no political purpose, no wise purpose, is served by what is almost certain to be a failed effort to impeach, much less remove, President Trump from office based on this unconstitutional war. I get that, and I respect deeply people who hold that view. There are people who believe that the main event is the elections and danger lurks there in terms of the potential that this same administration might well interfere with the elections or thwart the desires of the voters. And I deeply respect that. On the other hand, there is something about the performative dimension of constitutional law. Just as President Trump is often said to be doing things for performative reasons, he’s not the only one that gets to do things in American democracy for performative reasons. And I think there is a valid performative reason for people to be furious with him to the point of trying to get him removed from office. Even if it fails, I think it’s important for people to take a stand on this and over history, as the column that you mentioned in the Boston Globe indicated. There have been members of Congress and senators who have taken on popular stance and history has been kind to them. I’m thinking of Representative Lee of California who voted against the aumf. There were two senators who voted against the Tonkin Gulf Resolution. A congressman from Illinois named Lincoln was very hostile to the Polk administration for bringing about what he thought was an unwise and illegal war with Mexico. I think those kinds of events are profiles in courage, and I’d like to see some profiles in courage here. And sometimes you have to show courage, even if you know that at the end of the day you’re not going to get what you think you should get, which is removal of this president. Condemnation and removal.

Speaker A: It sounds like you’re saying that introducing articles of impeachment would be a way of making the illegality here visible and legible to the public and using the constitutional structures that we do still have in place to call attention to how far outside of the Constitution Trump is going here. Is that right?

Speaker B: That is correct. Drawing a line under it and saying, we here addressing ourselves to history, if not to tomorrow morning’s newspapers, addressing ourselves to history, we condemn this unconstitutional action on the part of the president. That has a value.

Speaker A: And I think if our country is going to continue to treat the US Constitution as a document with legal force, that has to be done, especially if the courts won’t enforce it in a situation like this.

Speaker B: True.

Speaker A: Eugene Fidel is a visiting lecturer and senior research scholar at Yale Law School and expert on the law of armed conflict. Gene, thank you so much for hopping on to talk to me about something that at first appears futile but is actually truly urgent. Thanks.

Speaker B: Thanks, Mark. It’s really been a privilege to talk with you.

Speaker A: That’s a wrap for this exclusive Slate plus extra episode plus members. Thank you so much not just for listening, but also for supporting our work. We love your letters and questions. Please keep them coming. Email us@amicuslate.com or you can find us@facebook.com AMICUSpodcast Sara Burningham is Amicus’s supervising producer. Sophie Summergrad is our producer. Mia Lobel is executive producer of Slate podcasts. Hilary Fry is Slate’s editor in chief, and Susan Matthews is executive editor. We’ll be back with your regularly scheduled Amicus episode on Saturday morning. Until then, take good care.