Preview: This War is Obscenely Illegal

Summary

Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: Preview: This War is Obscenely Illegal
Date: March 2, 2026
Host: Mark Joseph Stern (Slate)
Guest: Eugene (Gene) Fidell, Visiting Lecturer and Senior Research Scholar at Yale Law School

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Overview

This emergency episode of Amicus addresses the legality—under U.S. and international law—of the new war initiated by President Donald Trump against Iran, in conjunction with Israel. Host Mark Joseph Stern consults with expert Gene Fidell to analyze the constitutional, statutory, and international law constraints that (should) bind presidential war-making powers. The conversation explores how and why these constraints are being stretched or ignored, and whether Americans’ belief in the lawfulness of war matters for democracy.

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Key Discussion Points & Insights

1. Context: The Outbreak of War

• [00:09–02:12]
  • President Trump, contrary to his previous “no new wars” position, has initiated a military campaign against Iran with Israel (“Operation Epic Fury”).
  • Goals include regime change, exemplified by Israel’s killing of Iran’s supreme leader.
  • Significant casualties:
    • 4 American service members killed (as of recording), with Trump stating, “there will be, quote, likely more American deaths to come.”
    • 555 killed in Iran (Iranian Red Crescent), 11 in Israel.
  • The legality of this military action is in serious question.

Notable Quote:

• “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 ... ‘law is irrelevant to the US Attack on Iran.’ Maybe so, but my guest today does not agree...”
  —Mark Joseph Stern [01:30]

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2. Constitutional Constraints on War Powers

• [02:13–04:03]
  • Mark Joseph Stern opens by asking about the legal structures—the “sandwich” of restrictions: Constitution, federal statutes, international law.
  • Fidell: Only Congress has the constitutional authority to declare war (Article I, Section 8).
    • Last formal declaration: after Pearl Harbor (WWII).
    • Recent history: Congress has sometimes issued Authorizations for Use of Military Force (AUMFs), but most post-WWII conflicts were not formally “declared.”
    • Administration (both parties) has often rebranded military actions as “not war” to evade constitutional hurdles.

Notable Quotes:

• “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.”
  —Gene Fidell [03:06]
• “We’ve also had a lot of attacks that the government... 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...”
  —Gene Fidell [03:31]
• “And, by the way, not the Gang of Eight, not the leadership, the Congress as a whole.”
  —Gene Fidell [03:55]

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3. Presidential Rationales for Unilateral Action

• [04:03–05:40]
  • Trump’s administration has justified attacks on various grounds:
    • Regime change
    • Protecting human rights (e.g., “prevent further depredations” by Iran)
    • Retaliation for past or expected provocations or “anticipated attacks”
  • Fidell: These rationales shift frequently and are used to justify bypassing Congressional authorization.

Notable Quotes:

• “There’s a constant flow of rationales. And when one is knocked down, something else comes in to take its place.”
  —Gene Fidell [04:50]
• “You know, quite what his [Trump’s] position is depends on which side of the bed he gets up on. It’s very hard to pin him down. He’s 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.”
  —Gene Fidell [05:08]

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4. Statutory Constraints and the Congressional Role

• [05:40–07:17]
  • Congress has passed several AUMFs previously (notably after 9/11), broadly interpreted over time.
  • Critical Point: No Congressional authorization for military action against Iran exists.
  • Fidell: Only imminent or actual attacks on the U.S. justify unilateral presidential military action without Congressional approval.
  • Decision-making must rest with “an honest to goodness act of Congress ... passed by the majority in both houses,” not informal consultations with a handful of congressional leaders.

Notable Quotes:

• “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.”
  —Gene Fidell [06:38]
• “What has happened is this country has drifted too far from the constitutional shore, in my opinion.”
  —Gene Fidell [06:17]

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Notable Quotes & Memorable Moments

• On Vague Presidential Justifications:
  “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...”
  —Gene Fidell [05:08]

• On Constitutional Drift:
  “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.”
  —Gene Fidell [06:17]

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Important Timestamps

• 00:09–02:12 — Introduction and the factual context of the new war with Iran
• 03:06–04:03 — Constitutional authority to declare war
• 04:12–04:55 — Rationales for presidential unilateral military action
• 05:40–07:17 — Statutory limits and the lack of Congressional authorization

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Tone & Language

• The conversation is sobering, urgent, and steeped in legal precision, underscored by a sense of constitutional alarm.
• Both host and guest speak bluntly about executive overreach and the erosion of legal norms: the tone is critical, fact-oriented, and slightly incredulous at the current state of war powers.

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Summary

This special episode cuts through the political fog to interrogate the legality of President Trump’s war with Iran. Through expert commentary, the show exposes the disconnect between constitutional mandates and actual presidential action, stressing that despite decades of precedent-bending, the law—including the requirement for Congressional authorization—still fundamentally matters. Fidell’s analysis offers a clarion call for a return to constitutional order in the gravest of national decisions: the choice to go to war.

Transcript

[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, 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.

[B]

It's great to be here.

[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 that, 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 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?

[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.

[A]

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

[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.

[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.

[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.

[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 911 to allow for some of Bush's actions in the Middle East. Just to be super clear on this, Congress has not authorized the use of military force against Iran.

[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 imminent 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. 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 majority in both houses.

[A]

Slate plus members can access this conversation in full right now. Visit slate.com amicusplus to get access wherever you listen. You can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. We'll be back with your regularly scheduled Amicus episode on Saturday morning. Until then, take good care. Sam.