Trump's War Goes from Bad to Worse!

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Quince.com slash Glenn. It's time for Justice Matters with former federal prosecutor and legal

analyst Glenn Kirschman.

Today Glenn speaks with military law expert Dan Mauer about the war in the Middle East.

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Here's what you've been missing on the Stephanie Miller happy hour podcast.

This makes George W. Bush and Donald Rumsfeld and Dick Cheney seem like they were playing five

layer chess. There's no plan whatsoever because this is how Donald thinks. He doesn't think

two or four or five steps down the road. He's thinking, okay, what's next? I'm going to do that thing

that's on the plate next and then I don't care about anything else that comes after that.

And that's evidenced by the fact that he felt as though a ran was about to attack the United

States. He had a spidey sense which is good enough for me. Exactly. Yeah. And that's why he didn't

evacuate any Americans out of the region. And two, that's why he authorized this attack against his

preemptive attack against a ran. And guess what a ran is doing in response. It's attacking the

United States. That's right. Israel and half a dozen other countries. Who could have seen that

coming? Subscribe to the Stephanie Miller happy hour podcast on Apple Podcasts Stephanie Miller.com

or wherever you get your favorite podcasts.

So friends, thus far, Donald Trump has sent six military members, six of America's sons and

daughters to their death in what is by all rational accounts, an unlawful and unconstitutional war.

And just so there's no mistake about the fact that we are in a war,

Pete Hegseth just said at a press conference quote,

the terms of this war will be set by us. Close quote.

I just sat down with military law expert Dan Mauer. Dan is a law professor. He is a retired

army lieutenant colonel Jagger officer Dan taught constitutional law and criminal law

at West Point. And Dan sets out why we are indisputably, in arguably in an unlawful and

unconstitutional war.

All right, friends. Welcome. We have our military law expert back with us, Professor Dan Mauer,

as you all know by now. Dan not only is a law professor currently. He's a retired army lieutenant

colonel Jagger officer who has taught constitutional law and criminal law at West Point.

He was also an instructor at the Army's Jag school on the campus of the University of Virginia.

And he is our go to matters of military law, international law, law of war. And here we are.

Now we need his expertise more than ever because we have once again by we, I mean Donald Trump

and his administration has once again launched a military attack this time, Donald Trump himself

has used the word war to describe our current circumstance. So Dan, thank you for jumping on with

us. And can you break down for everybody what we know happened? And then if you can take us through

the constitutional and legal authorities, all of which seem to be in the process of being

violated by Trump and company. Sure, thanks Glenn. Hello everybody again. So it's both complicated

and not complicated. It's not complicated in the sense of I can with pretty clear and strong

and fatic authority and confidence say what President Trump did in launching this attack on a

ran was illegal under both domestic law and international law. The reasons why it is under both

those things is a little bit more complicated. It's it's clear, but it's still complicated.

We'll try to take them one at a time. Domestically, domestically, the president can't take us

to war by himself. Any president, it requires Congress. That's in the Constitution.

Article one, section eight, clause 11, the declared war clause. Now we have not declared war

since I believe we declared war on Rome in 1942 during World War II. That was the last time

Congress declared war. Since then, we've been in the number of armed conflicts. Korea, Vietnam,

Grenada, Panama, Gulf War, Iraq, Afghanistan, Global War on Terror. For the latter two,

we had what's called an authorization for the military force. That's essentially a joint

resolution passed by Congress, giving the president the authority to use military force in war.

That was Congress using its constitutional authority to say we, the people, bless off on this.

You go do what you need to do as commander-in-chief. That does not happen here with the attack

in and against Iran. We do not have an authorization for the military force or a declaration of war.

Now, the only way that a president can go to war without one of those things is if we are in

essentially an imminent attack in an invasion by another nation, like another 9-11, for example,

or a Pearl Harbor would be a more accurate analogy, another nation state launching an attack on the US.

That would give the president the ability to use military force to respond, to deter and to attack

without going to Congress for it, because Congress might not be able to get there in time to assemble

and debate and discuss and vote, and we don't want to shackle president's inability to do that

when we're under an attack. But that also didn't happen here. We are not under attack by Iran,

and we weren't facing an imminent attack from Iran, even though the president has used that word

imminent a couple times. So, domestically, there's no authority to do this. This is a little bit

different from what he claimed his authority to do in Venezuela, for example. In Venezuela,

the Department of Defense and the President has said, well, this isn't really war at all.

It's like a weird kind of hybrid law enforcement operation using the military, but it's not war,

because it's a very limited and the executive branch through the DOJ has this test that they use,

called the nature duration and scope test. Basically, it means if we're not going to be fighting for

very long, and we're doing it for a limited reason, and we're not going to use much of our forces,

and especially not put boots on the ground, it's not really war in the constitutional sense. So,

in that case, like a limited air strike, presidents have said we don't need to go to Congress first

for approval or permission. President Obama did that, Biden did that, Bush did that,

Trump won did it, Trump too did it. So, it's cross-party lines.

Can I ask you not to interrupt you, Dan? Has that ever been challenged in the court,

and do we have any Supreme Court precedent on the scope of the president's authority to engage

in these kind of attacks? Great question. That nature scope and duration test has not been

decided by the court. No court has taken on that question because they do it as a political

question that the Congress and the president have to hash out themselves. The courts would say,

we're not qualified to address that. So, they would push back. But what we do have is Supreme

Court precedent from the Civil War, which should give us some, you know, telling about how

relevant this is, from the 1860s in which President Lincoln used an extraordinary amount of

Udallateral power without going to Congress first to use the military. And eventually,

Congress ratified that. But in the interim, the administration was sued by private actors saying

he doesn't have the authority to do this. The court said, well, look, we're in a Civil War,

right? You have another nation essentially splitting off from us and attacking

us. President has the right to use force in response, whether it's called a Civil War or an

insurrection or rebellion. It's an immediate kind of reaction. The president must be able to use

force even if Congress hasn't said it. But that's as far as the courts have gone. So the courts

are going to be very hands-off on this. You're not going to get a satisfactory resolution

of the courts in dealing with whether President Trump is Congress's power. So he hasn't gotten

declaration of war, hasn't gotten authorization for these military force, and none of what's been

happening with regard to Iran meets that immediate attack scenario, like Civil War or Pearl Harbor

or 9-11. This has been foreshadowed for weeks or one. Really, certainly the last several weeks

where we've had two aircraft carrier groups stationed in the sea outside Iran with the President's

threatening war, not just kind of tacitly float in our ships nearby, but saying we will attack you

if we don't get a satisfactory resolution in these negotiations. That's threatening war.

So we have no domestic authority to do this. No law under the U.S. Constitution permits the

president to go to war without Congress in this manner. That's the domestic side. International

side. It's another reason why it's unlawful. The only way you can go to war under modern

international law against another nation is if the U.S. Security Council decides you can

and authorizes it as it did in the Gulf War in 1990-1991, Iraq and Afghanistan, post 9-11,

or self-defense. So self-defense requires an imminent attack, right? You're either being

attacked right now and you need to use force against that other opponent to stop the attack,

or that threat is imminent against you. The problem is imminent is not the fun. It doesn't mean

like in the next five minutes, it doesn't mean in the next hour, but it also doesn't mean in some

indeterminate future period either. It has to mean something in between and imminent does not mean

well, they might get a nuclear missile in a few months, right? They might have the ability to

launch a nuclear missile in a few months, or they might be launching attacks against Israel

in a week. That would not satisfy the imminent standard. Imminent means essentially, look, there

are tanks about to cross a border. There are aircraft with bombs overhead flying into your airspace.

That's what we mean by imminent. That's what international law often does. So here,

we don't have a U.S. Security Council resolution that says the U.S. can go do this,

and we don't have a self-defense argument that we can do this. That's problematic.

The imminent argument is being made by the administration, but again, they're not providing any

public evidence as to why they think it's imminent, and it's a bit blurry in the sense of,

well, we're doing this with Israel. So are we really acting in Israel's self-defense? That doesn't

matter for the purposes of domestic law or international law. We can act in self-defense of another

country, one, if they ask, presumably they asked, and two, if they're actually facing an imminent

threat, if they could use self-defense, if they could use their military and self-defense under

international law, then they can ask other people to help them. It doesn't seem that Israel will have

a right to self-defense in this manner either. At least not now. Iran is launching missiles or

about to launch missiles, threaten to launch missiles against Israel, and it looks like you're about

to do it. That's a different story, but again, those aren't the facts that we have them today,

or on Saturday morning when this attack was launched. What are the obligations now recognizing that

there was no lawful basis for this in the first instance? What are the obligations with respect to

the executive branch, the president going to Congress now, and perhaps seeking some kind of

ratification or authorization? Right. So this is exactly what the War Powers Resolution,

the War Powers Act, you know, called the same thing, was meant to do. It was meant to prevent

presidents from engaging in indeterminate long warfare against another nation brought

without authority, right, to prevent another Vietnam, essentially, right? So the WPR says

three things, really. First thing it says is if a president wants to go to war,

he or she has to consult with Congress first. It doesn't say how that goes about, you know,

whether the Secretary of State or Secretary of Defense can do it for him or the National Security

Advisor, doesn't say who has to do it, doesn't say how much of Congress has to be consulted or what

manner they can be consulted kind of leads that up to Congress and the president to decide.

So that's the first thing, consultation. The second thing requires is notification. Once it's

happened, president must within a certain period of time explain to Congress what the objectives

are, what has been done, what's going to go forward with this, you know, as much detail as they

can go out and out kind of a nonclassified saying. So that's two notification and consultation.

The third thing that the WPR imposes is a time limit. It says basically if Congress hasn't

authorized the use of force to continue after 60 days, the president must stop. It requires

an affirmative act of Congress to keep going, right? That's the way that Congress can reestablish

itself as as usually its war powers that the framers of the Constitution gave it.

So now, theoretically, the president has, because he has notified Congress anyway, and he says he's

consulted with Congress. Now that we enter, we're in the 60-day window where Congress, of course,

Congress enacted any point. It can not act in 60 days and by not acting, the president would have

to withdraw, or Congress could vote next week and say continue doing what you're doing,

and that would all be consistent with the war power resolution. But one problem here is that even if

the president did some Congress, and even if the president didn't notify Congress, and even if

Congress is going to eventually vote on this, he still didn't have an independent reason

in Article 2 to go to war against Iran, which is why? If you're not going to go to Congress first,

which he didn't, you still have to have an Article 2 power to do it. And like I said before,

the only context in which the courts have said you can do this without conflict is if you're being

invaded for lack of a better analogy, being invaded or being attacked right then, then you can do it.

Again, that wasn't happening here. So it appears that the central feature of the Constitution,

what it was, to divide the war powers between the president and Congress so that you didn't have

an autocrat totalitarian tyrant deciding not only how to use the military, but when to use

the military, and wherever he wants to use the military, without the people being involved,

the people being represented by Congress. That's why the framers gave Congress the power.

Even though it would take longer, even though it's a red take, even though it's

deliberation, maybe undercuts the role of secrecy and dispatch and speed and all that kind of

stuff, framers knew that and yet they still gave Congress the power to declare war, still made

them a chief architect of going to war. And the president has gone around that,

full work, by going to war against Iran. Again, this is the third war that the US is now in.

Not third consecutive, but third simultaneous. Global war on terror, that's still ongoing.

In 2001, AUMF, you can still engage in hostilities with terrorists around the world. That's war

number one, war number two, the narco terrorists in the Caribbean and the East from Pacific.

The president himself has said that's an armed conflict governed by the laws of war,

even though he's called it also a police operation in some respects. That's a war,

and now you have Iran. And we could also count going into Venezuela too and resting the president

and First Lady too, but at a minimum, we are in three simultaneous wars right now.

Coming up after the break, Glenn continues his conversation with military expert Dan Mauer.

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So now that you have set out the legal framework for us, let's talk a little bit about what we

have seen in the reporting in the last 48 hours or so. First of all, we did hear that secretary of

state Marco Rubio went to the gang of eight, right? And talk to them. I mean, does it qualify as

consultation? Interestingly, Senator Mark Warner of Virginia, who's the vice chair of the

Senate Intel Committee said, well, the president hadn't even made a decision at that point.

So they weren't really consulting about what the proposed course of action was.

And importantly, Senator Mark Warner, a very thoughtful circumspect guy. I think

respect that on both sides of the aisle said they set out nothing that would constitute

an imminent threat to the United States. And then we saw a lot of Republican mouthpieces

try to sell the American people things like, well, this was because of Iran's nuclear program,

to which I think most people said, well, wait a minute. It was just a matter of months ago

that Donald Trump struck Iran and said he had totally obliterated their nuclear program and

suggested that it couldn't be rebuilt for years if ever. So the obliteration dog doesn't really

hunt to this old prosecutor. Then you have liberation. This is, well, wait, this is all about

liberating the Iranian people. Now, I am the first to agree that ever since the 1979 revolution,

the leadership of Iran has been abusive and oppressive to their own people. And I think

many of us around the world would love to see a, you know, a legitimate government with

full democratic rights of the people. But liberation is not really, doesn't really pose an

imminent threat to the United States as I see it. Then I heard these Republican mouthpieces saying

things like, well, you know, they have drone programs that are dangerous. They have ballistic

missiles, which my understanding is can't even reach the United States. And they have nuclear

aspirations. I'm sorry, nuclear aspirations undefined and sometime in the future doesn't seem

to qualify as an imminent threat to the United States. So I think even all of the Republican

song and dance that we've been seeing falls woefully short of an imminent threat to the United

States. So my little, you know, simplistic way of thinking is obliteration of the nuclear

program doesn't really work. Liberation doesn't really work. What's really going on? Well,

maybe lubrication oil could be oil that how many times have we heard Donald Trump say, take the

oil. In fact, that's some of what he's been doing after invading Venezuela. So, you know,

that's part of it. And it also feels to me like a little bit of the wag the dog, right?

When I saw that a former first lady testified before Congress about the Epstein files,

a former president of the United States testified before Congress about the Epstein files. And then

you even started to hear some Republicans in Congress making noise like maybe Donald Trump should

testify before Congress. And like within 24 hours, we have a war being launched. How, you know,

does that not conjure up notions of wag the dog start a war to distract from your extreme domestic

problems? You know, this, this is the prosecutor and me kind of trying to wind my way through what

the Republicans have been putting out there. Yeah, right. And, and I think it's, I don't want to

speculate about, you know, whether this was a distraction technique. I think they've wanted to

do this for a long time. And I, it happens to benefit them and it does crack Congress from other

things. But I want to make sure that that I bring out this point is that you even have really

a really terrible regime, a really terrible government in another country that is oppressive

and, and, and, and, and, and, and, and, and, and, and, and, and all the negative adjectives that you

can think of to describe it. It's a horrible regime. That doesn't give anybody a lawful, a lawful

right to attack it. There are, it's morally corrupt. It's morally bankrupt. It's evil even. But

that doesn't mean we can attack it at will. There are mechanisms for doing that law, lawful

mechanisms, go to the UN Security Council, seek a resolution, get the international community behind

to do it. That's point number one. Point number two is there can be really, really good reasons to

intervene on humanitarian grounds. Thousands of civilians being abused, killed, civil rights,

trampled upon, ignored by an oppressive regime. Horrible. But even that doesn't give us a legal

jurisdiction for going in to remove the regime and protect the people. A moral reason, yes, a moral

reason to go to the UN Security Council and ask for an authority. A moral reason to go to Congress

and ask for authority to do it. But we didn't do that. Even ethnic cleansing, right? No one is,

no one is accusing the Iranian regime of ethnic cleansing or genocide. Even in those instances,

it is not clear at all that international law would say we could just go in unilaterally

and take out the regime that's doing ethnic cleansing in genocide. You would still need a

UN Security Council resolution to give it a green light. Even under those extreme conditions,

the whole point is to make it harder to go to war. Because even if you have good intentions,

good motives, good reasons to do it, all kinds of second, third and fourth order consequences

are naturally going to erupt, either sooner or later, civilians who have no part in the government,

who have nothing to do other than live their lives are going to be impacted. They're going to,

they're going to be killed. They're going to be displaced. Their lives are upended or ended.

Here, because we have decided to go to war, it should be hard for any country to do that,

no matter how powerful the country is, like the US, no matter how easy it is to do pinpoint

strikes as it is for the US, no matter how good our moral reasons are for saying it's a bad regime

and we should take it out, there were still guardrails for a reason. But otherwise, every country

can make this argument against every other country. And then you have no law in order, no rule

of law governing how states interact. I saw one place where the author basically said,

if we believe international law has no constraint on us, then no one else does either.

And if that's the case, we are back to pre-World War II, back to pre-United Nations,

practice pre-Geneva conventions. We are strongest and fittest, therefore we are the dominant

and it is ruled by the dominant over the week. And that's precisely why international law was

created to prevent that from happening. Yeah, it might makes right. Last question, Dan,

and this is a tough one. And this is the one that I've been getting most frequently over the last

48 hours. Maybe you can guess what it is. If these things are unlawful,

why do we not have any military members refusing to comply with orders to engage in this

lawless military attack? Yeah, that's a tough question. Maybe there are folks who are declining,

who are saying no, and we don't know about it. There's no public requirement to publicize

disobedience of an order. We may not know what is happening for some time. It might be

months or years before that becomes news. But even if it's not, even if it is 100% saluting and

driving on, it's difficult to say that the Airmen, the crew member, the tanker, the pilot have

legal ability to say no to this. They would have clear legal ability to say, I'm not going to

bomb civilians. That would be a law of war violation. But this bigger issue of

breaking the UN charter, deciding to go to war against another nation, in violation of international

law. That has never been a decision that the courts have said individual troops can disobey,

that they have a right to even interpret. So it's not clear that they could get away with it.

Like if they said, I'm not going to follow this order, there's no protection for them.

They could get prosecuted for it. I think I personally think, and I've written about this in a

couple of places, I think that the senior echelon of the military leadership, the four stars who are

the combatant commanders, the members of the Joint Chiefs of Staff, the chairman of the Joint

Chiefs of Staff, they have a duty to dissent, disagree, and if possible, if needed, disobey,

an order that would violate international law. So I think we talked about how if we went to,

if the order was to attack Greenland, that would be such a clear violation of international law

that it would be incumbent upon those senior military leaders to say no. And if they get prosecuted,

they get prosecuted. I think the situation is the same for Iran. I think the issue is so clear that

they, we might have a moral reason to do it, but we don't have a legal reason to do it. And we

need a legal reason to do it. Otherwise, what's the point? Why, why have law at all for just

going to disobey it and ignore it at will? So it's a difficult question for the rank and file

for disobeying an order, but I think it's a clear cut issue if they should have said no to this

at the higher echelon. I don't know to the extent that they push back. Maybe they did.

Yeah, I've been giving a similar answer, not as informed or as eloquent as you, but I mean,

these are very difficult decisions. As you say, especially for the rank and file, even though

we're all sitting here, certainly the legal expert like you on military law, it's pretty clear

I'd about how, you know, this is in violation of the constitution of our law, of international law,

and yet we seem to have an entire military as best we can tell going along with it, which,

you know, to the civilians out there is very frustrating and inexplicable, but I'm glad you

laid it out and explained it. So Dan, can you tell everybody where they can find you in your great work?

Yeah, thank you. I'm at politics by other means on a substack or just look up my name,

at substack, and you can find me there. All right, thank you for continuing to enlighten us,

and I suspect we'll be talking and get soon. Thanks, Dan. You could watch Glenn on his YouTube

channel, also find him on substack, blue sky, Instagram, and patreon. This is Justice Matters.

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