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The Electronic Communications Privacy act turns 40
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this year and it's showing its age. On Friday, March 6, Lawfare and Georgetown
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Scott R. Anderson
what's broken with the statute and how to fix it. The event is free and open to
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the public in person and online. Visit lawfaremedia.org ecpaevent that's lawfairmedia.org ecpaevent for
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Scott R. Anderson
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Announcer
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Ari Tabatabai
nearest Warby Parker store. Hi.
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Announcer
Head over to warbyparker.com that's warbyparker.com
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Benjamin Wittes
and we're live. It is Sunday, March 1, 2026. It is 9:00am Washington, D.C. time, which is 11:00pm Singapore time, and you are watching Lawfare Live. It is an admittedly unusual time to do a lawfare live, but it has been an admittedly unusual weekend. I'm Benjamin Wittes, editor in chief of lawfare, and I am here with lawfare Public service fellow Ari Tabatabai. Joining from Singapore, lawfare senior editor Scott R. Anderson and public service fellow Travis Troy Edwards. We are talking Iran, we are talking major military operations, and we are talking what the heck is going on. So let us start, Ari, with the now confirmed death of Supreme Leader Ali Khamenei. You know, a lot of people have declared themselves Middle east experts and experts on Iranian politics on social media over the last 24 hours. But we are here to talk to people who may actually concede that they don't know very much about Iran. So who was Ali Khamenei and why is it a big deal that he is no longer among the living?
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Ari Tabatabai
Yeah. Well, good morning Ben and everyone. Yeah, so Ali Khamenei was the Supreme Leader of Iran until, I suppose, yesterday at some point. And we now have confirmed that, you know, the, the Administration and Israel has, have confirmed that he is dead. So he was essentially in power since 1989, which is when the last supreme leader of Iran died. That individual, not to be confused with Khomeini, his name was Khomeini. He was the founder of the Islamic Republic. And so he had been in power since 1979. And he essentially led Iran through the first 10 years of the revolution and the Islamic Republic and the Iran Iraq War. In 1989, when he died, Khamenei was nominated to become the Supreme Leader. He was a lesser scholar than Khomeini was. He was less charismatic, as people saw it. And he was generally considered to be a weaker supreme leader, which meant that to compensate for his lack of abilities, charisma, knowledge and credentials, he had to come up with a way to kind of assert his authority over the country. And the way he did that is by consolidating power. And in a way, that was a bit of a departure from what had happened over the first decade of the Islamic Republic. So he created essentially and matured this ecosystem of institutions in Iran that now comprise the modern day Islamic Republic of Iran. And these centers of power would obviously gravitate around him. And so he really was the person who matured and institutionalized the Islamic Republic over the course of the 1990s and the 2000s. He had a pretty overall bad tenure in terms of the damage that he did not just to Iran, but to the broader region. Just to highlight a few things, during his supreme leadership, Iran decided to weaponize first its nuclear program. It then paused the nuclear. The weaponization of the nuclear program at least ended the sort of consolidated weapon part of it. But that led to all of the international sanctions that were imposed on the country throughout the 2000s and ultimately led to the Joint Comprehensive Plan of action in 2015, from which President Trump in his first term withdrew the United States. So, you know, the sanctions that were imposed on Iran, really, the bulk of them, were imposed during Khamenei, and generally as a result of the actions and the policies that he was personally responsible for in terms of Iran's regional and proxy activities, which are the two next things that the United States has been concerned with over the past 30 some years. You know, he really saw, he oversaw the growth of the proxy network. When, when Khomeini died in 1989, Iran had a couple of proxy groups, Lebanese Hezbollah being the chief among them, and, you know, was working with, with some of those proxy groups. But, you know, it didn't have that sort of network that came to really characterize Iranian power projection in the region throughout the 2000 and tens. And really until Israel started to kind of go after the proxy network following the October 7 attacks. So, and then in terms of the broader regional policies, he was also the supreme leader and really personally responsible for Iran supporting the Assad regime in Syria and the massacre that Assad and his regime committed in the 2000 and tens. And finally, to kind of bring it back to the domestic side of things, the final act that he did before his death was to greenlight the massacre of thousands and thousands of people in the most recent protests. So we drove the.
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Benjamin Wittes
Have no idea what the scale of that was.
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Ari Tabatabai
Right.
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Benjamin Wittes
And we saw somewhere between thousands and thousands, several tens of thousands.
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Ari Tabatabai
That's right. And President Trump has said that the number is 32,000. The estimates are still fairly, you know, they range between 10,000 and the kind of lower. 7 to 10,000 on the lower side and 30 plus thousand on the higher end.
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Benjamin Wittes
So, you know, for reference, this is somewhere between twice as big and 10 times as big as Tiananmen Square.
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Ari Tabatabai
Exactly. Yeah. And you know, the. So he's, he drove the economy into the ground. He drained Iran's natural resources. You know, the water situation in Iran has been really bad and largely a product of the mismanagement and corruption in the country. And all of those grievances are what are part of what has had led to the pro. The most recent protests anyway. So again, even though he was a weaker supreme leader, he obviously ended up being there for the majority of the Islamic Republic time, you know, it's for essentially 37 years of it. And, you know, again, his legacy, I think he's, he's going to go down as one of the worst figures in the history of the 20th and 21st centuries.
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Benjamin Wittes
And how does he compare to Khomeini himself? I mean, on the one hand, he strikes me as a. This is a weird analogy, but a kind of Tim Cook like figure within Apple. You're right. You have the, the founder, who's dynamic and kind of an electric figure and who kind of defines the state for good or ill. And then you have this figure who kind of calcifies it over a really protracted period of time, but who doesn't have. He's not as important a scholar as Khomeini. The idea of the guardianship of the jurist, which is the, the sort of foundational idea of the Islamic State is the Islamic Republic is really not his idea. Right. It's really one that he kind of inherits he's kind of a, a calcifying figure in some ways. How do you understand the relationship between Khomeini and Khomeini?
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Ari Tabatabai
Yeah, I think that's right. Yeah. Khomeini was perceived broadly, although I don't personally understand it, as being very charismatic. He was seen as a much greater scholar.
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Benjamin Wittes
He had that amazing beard.
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Ari Tabatabai
He did. They both did actually. But yeah, no, he was at least among the base of the Islamic Republic. His credentials were viewed as those that underpin somebody who, the charisma of somebody who would preside over who was deemed to be a good supreme leader. I guess from their perspective, he had a decades long following that he had cultivated both in Iran and then later on when he was in exile. And so he was the guy with the vision. Right. For, and I don't mean that in a positive way. He was just the guy who came up with this notion of an Islamic republic, who really laid down the foundations for it and cultivated that sort of following through the course of several decades. And then along comes Khamenei after Khomeini's death. This is obviously a bit of a crisis moment for the Islamic Republic. It's the end of the Iran Iraq war. It is the moment where the regime, which is still in its infancy, right, a decade in, is seeing this first transition of power and it needs to get it right. And so the idea was to go with somebody who was going to kind of be able to lead that transition and not necessarily be a transformative figure. And so he comes along and he is able to kind of engage in institutionalizing the regime in a more bureaucratic way as opposed to a more kind of like charismatic and visionary way. And so that's what he did for the decades that followed. At least the first kind of like two, three decades of his. Well, two decades of his supreme leadership.
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Benjamin Wittes
All right, so based on everything you've said, and I note that you have said exactly nothing good about the man, which given that he killed some number of tens of thousands of people in the last few weeks, I'm sympathetic to it seems like offing him with a missile strike is pretty good idea. Is there any reason to be skeptical of the Israeli American actions yesterday and continuing into today, given that they seem to have resulted in this unalloyed good of this 86 year old monster being removed from the face of the earth?
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Ari Tabatabai
Well, I think that goes back to what you said at the beginning of this, which is that, you know, we have more questions than we have answers right now. The situation is moving pretty quickly. We don't really know where this is going to end yet. So I think part of the answer will come in when we know more about what actually happens and where the dust settles. So, for example, if we have a transition of power that is fairly smooth and you have a more open leader in whatever form, you know, and whatever kind of capacity that person may serve, well, that might be. That that would be a good thing. If we end up in a much more chaotic environment with maybe a more radical or equally radical individual or individuals taking the reins of power, if we see the. If we continue to see the escalation that we're seeing right now in the region and beyond, I think that'll be obviously a lesser, a less good outcome. So, you know, I think it's too soon to say exactly whether we're better off or not. It depends on what happens next. But, yeah, I mean, in terms of just the issue on its own. Right. Like the fact that Khamenei is. That, I think is no doubt a good thing for the Iranian people, for people in the region.
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Benjamin Wittes
What do we know about. So all, you know, I woke up yesterday and we were bombing Iran, and there was already talk that we'd killed the supreme leader. What do we know about the US Israeli operation that began yesterday? What's its purpose? What are we trying to do? And what do we know about what we're targeting, other than Khamenei?
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Ari Tabatabai
Yeah. So, you know, the messaging coming out of the administration has been kind of changing quite a bit over the past few days and certainly weeks. What has, I think, become a bit clear over the past at least 48 hours is that the administration is actually going for, you know, it's obviously gone for a major campaign that is aimed at either overthrowing the regime or creating the conditions for the regime to be overthrown. And here I should pause and say that could mean kind of getting rid of the Islamic Republic altogether or doing something like Venezuela, where we're maybe getting rid of it would actually not be a change in regime, but a change in the leadership and a change in the nature, at least, of the regime, making it a bit more friendly toward the United States. And I'm not sure what I want
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Benjamin Wittes
to come to that question of what counts as regime change here in a moment.
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Ari Tabatabai
Yeah, I don't know that we have the answer to that yet. The president certainly has said, you know, on the record, look, we started the job. You, the Iranian people, go ahead and finish it. So, you know, tbd, whether, you know, how Far Israel and the United States are willing to go, but of course, again, like Venezuela, the regime is not one person. I just talked for a few minutes about how Khamenei actually went out of his way to try to institutionalize and create new institutions in the Islamic Republic. So those all continue to exist and you can take out a few people. The structure is going to be there. So unless we're willing to go and take out the structure, which would require a lot more than what we were seeing right now, then we might still have some of the fundamental challenges that we have with the regime currently. So, okay, but let's get to your question about what are we actually hitting? It seems like we're going after a pretty vast target set and we're certainly going after military targets. So you're looking, you're seeing, and. LT can talk more about that at some of the missile sites and sites that are associated with other military activities throughout the country. We've also been hitting, this is noteworthy facilities and sites that are associated with the Iranian political decision making bodies within Tehran. And then today there's been some reporting that Israel at least is trying to hit past leaders of the Islamic Republic, some of whom have actually been kind of isolated from the regime more generally, which is an interesting choice and we can talk about that later on as well. What I should also note though, is that what we're seeing is that some of the bodies that I mentioned that are associated with the political decision making bodies are actually within very densely populated parts of Tehran. This is a city of, I think it's like 15 to 20 million people. Very, very densely populated. We are already seeing civilian casualties. There were reports that, and I don't think this was the US military at least at some point. Seems like it might have been the Israelis hit a school, killing several dozen children. Probably not on purpose. I would hope not. But, you know, again, these are the kinds of things that I think we can expect if the combat operations continue, the airstrikes continue over the next few days. Just given how densely populated the city is. I mean, just think of it as like Tehran again, like, you know, think of it as New York, right? Just a lot of different buildings, official buildings, residences, schools, hospitals, in a fairly small. Well, I mean, it's very vast and very large, but like in sort of close proximity.
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Benjamin Wittes
It's a special kind of New York that collects in the developing world where you have these rapid urbanizations very quickly and you get these massive mega cities, Istanbul, Tehran, you know, that are where everything is pushed together very hard
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Ari Tabatabai
and very vertical.
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Benjamin Wittes
I want to come to you on this. Lt. Because you have, for a prosecutor an unusual window on the Iranian target set. So for those who do not know. Lt. LT was, until recently a prosecutor in the Eastern District of Virginia, which we don't think of as a place that you get to learn a lot about targeting in Iran. But tell us a little bit about your last case and how, how it caused you to think about Iranian target sets in a military operation like this.
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Announcer
Yes, thank you. I was hoping to grow edva, and I think it will continue to do so, into a place where you would fully expect that, that U.S. attorney's office would take this kind of case because of the extraterritorial nature and terrorism nature. So I'll talk about the case and then I'd like to tie it to your question of what we're seeing in these US Strikes because there are specific sites that appear to have been struck that seem to me to be a counter proliferation effort.
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Scott R. Anderson
Perfect.
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Announcer
And so the case that I handled for the last two years started in January of 2024 when United States coalition forces interdicted a maritime vessel traveling from Iran and into through the Arabian Sea down to the coast of Somalia. And there's an island there off the coast called Socotra. The reason all this is relevant is because it is known by the UN Panel of experts and a number of other think tanks that have assessed a lot of this Iranian movement is that this, these are pathways for maritime weapon smuggling for Iran to arm its proxies in the region, including the Houthis in Yemen. And last year, as we all saw, there was a constant campaign of violence from the Houthis in the Yemen area, in US and other vessels traveling through the Red Sea in the aftermath of the October 7 attacks and Israel's response. And the Houthis appear to have been using cruise ship missiles, anti ship cruise missiles coming from Iran. And So historically, since 2015, at least, when the Houthis began in Yemen, their efforts to take over the country, the Iranians and the irgc, the Islamic Revolutionary Guard Corps, which is its military wing, both army, navy and air force developed anti ship cruise missiles and ballistic missiles and started smuggling them out, both through maritime and land smuggling efforts to these proxies. And so in January 2024, these forces interdict a vessel of 14 individuals with a significant load. And I think CENTCOM reported it was one of the largest loads the U.S. had interdicted since 2015 or 2019. And two Navy SEALs tragically died in the interdiction efforts, and the boat appeared to be sinking. And so with a lengthy personnel recovery effort for these two Navy SEALs, the military, during that, the military ended up engaging in a search and seizure of the vessel and found anti ship cruise missile warheads and ballistic missile components and engines smuggled down and hidden in the hull of the ship, which is this they call a D. So anyways, at that, while at the Eastern District of Virginia, we worked with CENTCOM and we worked with other agencies and there is this motor process, which is a Maritime Operational Threat Response Team, which is this significant, significantly useful interagency process to work to discover how to investigate and potentially criminally charge this group of folks who had been smuggling these weapons for Iran to the Houthis in Yemen. I highlight this case to illustrate a more surgical approach that the US And DOJ had engaged in to attack these ballistic and cruise ship missile smuggling efforts from Iran to their proxies, which is a starkly different approach than we're seeing now. Right. This was an effort to stop these smugglers, increase the cost in Iran and stop the flow of this weaponry in the area to this axis of resistance. And that case then lasted two years, went to trial and a jury in Richmond ended up finding the captain of that vessel guilty of all of his charges, including never before tried charges, 18 USC 832, which is a criminal charge that focuses on prohibiting folks from providing material support to the weapons of mass destruction programs of foreign state sponsors of terror, which Iran constitutes a foreign state sponsor of terror, and then the irgc, which constitutes a foreign, a designated foreign terrorist organization. And so that's.
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Benjamin Wittes
How does all of this relate to targeting yesterday?
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Announcer
Yeah. So those that as that alleged and kind of all the public filing, the smugglers traveled out of a particular bay, Chabahar Bay, which is on the southeast coast of Iran, next to the border of Pakistan. And as was reported in a number of think tanks and UN panel of expert reports and the DIA reports that have been publicized, these smuggling efforts often originate from Iran, in that bay and out. And so in looking at the strikes and the maps that have been publicly available now and where we're striking, I was struck by a Kunarik and Chabahar being some of the sites in that southeast area of Iran, which appears to me to indicate that not only, as Ari was saying, is the US and Israeli coalition attacks focused on this nervous center in Tehran, but it's also focused on the arms of Iran, which seems to be a natural progression from the midnight hammer operation last year in June when we're focused more on the nuclear efforts of Iran, the next logical step to me as a non expert just
- [25:25]
Benjamin Wittes
from doj would be the expert missile technologies.
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Announcer
That's exactly right. That Iran and the IRGC are very good at developing these anti ship cruise missiles and these ballistic missiles as they take historically models from China, the model known as the C802 and then they develop it into their own which they call a nor missiles, which is an anti ship cruise missile component and Goddard and Gadir anti ship cruise missiles. And when I say cruise missiles I'll take a step back. These are these kind of lower flying missiles that hover along the surface. The ballistic missiles think larger and think up and then down and there are short range, medium range and long range ballistic missiles. The reason all this is important is because that development of that technology and those missiles extends the reach Iran has and their proxy forces has into the Gulf and to other countries. As we're seeing now as Iran prepares to respond with those ballistic missiles and those anti ship cruise missiles. When I see these strikes on the coast and other areas, it strikes me as an effort to stop Iran's counter proliferation proliferation of that weaponry and their ability to now respond after these strikes.
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Benjamin Wittes
All right, I want to bring in Scott on the law of all of this, but before we do, let's just touch briefly on what LT just referred to which is the Iranian response which has been pretty broad and pretty fierce, although probably not fierce compared to what one would expect when you do a decapitation strike on the leadership of a country. But they have attacked a number of Gulf states, they've attacked Israel, they've attacked US bases around the area. Ari, what can we say about the Iranian response relative to, to what one would have expected it to be?
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Ari Tabatabai
Yeah, so I think it's important to know that Iran generally does these things in phases and I would expect to continue to see more phases of this unfold over the next few days and weeks, possibly even months. So it is not, it is pretty much aligned with what I would expect from, you know, in response to what we did. We've had this conventional phase I just described pretty well, very comprehensively that's been underway, hit essentially every Gulf state at this point. Israel, obviously they're going after US bases, they're going after energy infrastructure. There's reporting at least that they're going, they're looking into blocking the Strait of Hormuz, which is something that they've threatened for years and years but have not really done. And the next phase I would expect would be kind of more along the lines of things we're, you know, familiar with when it comes to the Iranian playbook, which is the kind of hybrid side of things. So I would expect assassinations and assassinations.
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Benjamin Wittes
Jewish targets around the world, precisely.
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Ari Tabatabai
Among other things, though, and we should. Actually, the important piece here is that that is not going to be contained to the region. That is going to play out all over the world because we know that they've done that all over the world and that would include the homeland. So, yes, assassinations of individuals that they perceive to be involved or aligned with the administration with Israel, kidnapping of Americans and Israelis, Jewish citizens who are not even Israelis. Again, people who are just perceived to be aligned with the interests of the United States and Israel. Cyber attacks, I would think of critical infrastructure on individuals and terrorist activities. So, you know, these are, and these are not necessarily going to be things that play out just immediately after this particular round of events. It could play out for a while. I mean, just think of, you know, the killing of Qasem Soleimani, the IRGC Quds Force commander. That was in 2020 under President Trump during his first first term. And Iran is still kind of going after the officials who were involved with that decision. So, you know, it's. It's five, six years later and they're still going. They're still going at it. So I would expect this to play out for a while. And then the last thing I should really highlight before turning it over to Scott is the nuclear piece. So, you know, one of the things is that Iran still has 440 kilograms of highly enriched uranium. That is, you know, roughly six to 10 nuclear weapons worth of highly enriched uranium. I sure hope that in the intelligence community we have eyes on that. But, you know, the decision to weaponize had not been made, at least according to Tulsi Gabbard, the Director of National Intelligence, in her last annual threat assessment, which granted, was from last spring, and the president did not seem to like that answer. But, you know, the IC's assessment was that Iran had not made the decision to weaponize. Given everything that has happened and especially given the latest events, I would anticipate that to change if the regime survives. And so, again, I do hope that we have eyes on the material that Iran has, but something else to watch out for is that there is going to be sort of second and third order effects that are going to play out that are not going to be contained to this weekend or the weeks ahead.
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Benjamin Wittes
All right, we're going to come back to that, how many ways can this go wrong? Question shortly. But Scott, we are lawfare. It would be malpractice of us not to talk about the law of this. I had thought that there was a pretty solid international law that says you can't just make war on a country because you don't like their missile technologies, and that we had some domestic war powers restrictions on the president launching major combat operations without any congressional involvement. But apparently I'm wrong about that. So what is the legal basis for. For this action? To the extent that we know, you
- [32:06]
Scott R. Anderson
know, we're still waiting for a clear statement from the administration laying out the legal basis, but we can make some very educated guesses at this point. You know, on international law side, State of Israel has pretty clearly laid out a self defense case, one that I think the United States is likely to piggyback on both by making a collective self defense argument alongside with Israel, while also probably making an individual self defense argument. We've heard President Trump say in his initial announcement of the military operation, as reiterated in the CENTCOM statements describing the operation, the strategic objective is not regime change, something that President Trump brought in with rhetoric later, which we can address in a minute, but was instead focused on military personnel and capacities and particularly technology that poses an imminent threat to Americans and other relevant US Targets in the region. None of this would rise to the level of what most people think international law usually requires. International law usually requires an imminent armed attack. At least that's how it's generally understood by international legal scholars and by the International Court of Justice and by many countries around the world, although not all, notably United States and Israel, have long embraced a very broad conception of what constitutes an armed attack and what constitutes imminent. And they've articulated this for 30 years, dating all the way back to, or almost 30 years at least, dating all the way back to the oil platforms debate around before the ICJ, which related to another US Iran conflict during the 1980s. Can you fit this sort of threat conception, which is that Iran says hostile things about the United States, has undoubtedly been engaged in nefarious activity that has targeted Americans, often through proxies, but nonetheless with some direct involvement, sometimes directly with maritime conflict, but a relatively low scale, obviously has developed a military capability with an intent to potentially use it in certain contingencies against Americans or other allies in the region? Does that all add up to a case where you could see the threads under this broad American and Israeli conception of what self defense allows, where it would knit together? I think you can But I think it stretches the limits of that even by the way it's usually been put forward by the Israelis and the Americans. You think back to last summer with the Israeli led operation that the United States eventually joined in on, on the nuclear strikes before kind of pushing them to wind it down. They're the justification was much more imminent hostilities between Israel and Iran, much more like active back and forth that they had had. And there's an argument that people put out that Iran and Israel have effectively been in armed conflict for many years. Just a quiet one, one primarily conducted through proxies in Syria and Gaza and Lebanon and other places as well. You can take all these different threads, I think you can tie them into an international legal argument. I always think we're going to see Israel and the United States trying to do that. Israel more vocally, this administration probably less vocally, although I wouldn't be sur I think we will eventually see something in this regard because Israelis are already doing the legwork and it's going to persuade some people. Canada and Australia said they support this military operation. So they're somewhat persuaded of the legitimacy of this, at least alongside the political factors that may be pushing them to support this. Again, we shouldn't pretend law is the single thing that consideration enters into states, how states weigh this. But it was not persuasive to a number of other states, including states that actually have backed the United States on military action in questionable context before here, UK being the prime case. United Kingdom has intervened. Now they've said publicly we have jets in the region actively shooting down Iranian missiles, Iranian things trying to hit different targets in the region in response to the US and Israeli military operation. But they declined to let their facilities be used because reportedly they thought it was going to be international law violation. And the UK has notably a variety of domestic laws requirements that reinforce findings of international law and compliance with international law before they're allowed to authorize different types of military support. So there is a domestic law kind of bulwark in there. All that is to say there is a case that some people will find persuasive under national law here. But I think it really pushes to the far extreme of the more permissive vision of what an armed attack is and what self defense is under national law, even by the US and is really framing it's pushing it pretty aggressively. And that's even if you really buy this as the self defense context, when you start talking about regime change, that's a much harder view. Notably, like I said, regime change has primarily come in in the United States from the perspective of President Trump's rhetoric. But notably he's not saying I'm going to commit regime change. He's saying, hey, Iranians, step up and commit regime change. You should do this. And the Americans haven't actually been involved as far as I can tell. I've been trying to track this relatively closely. They haven't actually been involved with a lot of the leadership strikes. They've hit a lot of IRGC command and control centers. So they've definitely hit IRGC leadership and a couple of these other kind of like paramilitary forces. But they've primarily been hitting, you know, arms depots, manufacturing facilities, port facilities, maritime facilities, naval facilities, hitting military capacity. The Israelis seem to be the ones doing the more surgical leadership strikes with US Intelligence, notably, which so international law. United States would have some capabilities there. But it may help iron over some concerns on domestic law because they don't have that sort of nexus to self defense as clearly regarding some of these officials. Whereas the Israelis feel like they do because these officials are frankly, I think Israelis just take a much broader view of who can be targeted and who's involved in these military operations. We saw in Gaza and other contexts. Like they go for the whole leadership structure. I don't think Americans are as comfortable with that. And here they don't have to reach that hard question because the Israelis can do it and have this sort of partnership. On the domestic law side, there is a question here as to Jack Goldsmith, our friend at law firm on his blog Executive Functions put forward a statement saying he doesn't think law really matters. And that's been Jack's theme for the last few years, as certainly to say, I don't think there's a domestic law that's highly constraining on the president here. It's different from saying it doesn't matter in my view. The Trump administration just issued an OLC opinion in the context of Maduro operation that says quite expressly actually in a way that's clearer than prior presidents have, if this is a war, leads to a war by nature, scope and duration, sort of standards that, you know, would lead to a major conflict. The president doesn't have the authority to do it. That's notable. But here I suspect we're going to see them lean on the idea that this is still a limited military operation, even though it's quite broad. Even though President Trump has described it elsewhere, US Soldiers are not really at risk, just, you know, limited air operations and that Iran's capability to Respond, while meaningful around the region, doesn't rise to a level that's going to implicate the United States in a Korea or Vietnam type war, which is roughly where the line for a war for constitutional purposes has been drawn. And notably, this sort of test, which has become a little more test like than it was really conceived of by the Office of Legal Counsel and the executive branch 30 years ago, originally incorporated a whole realm of factors I.e. nature, scope and duration, including the number of foreign nationals killed, potential consequences for the region here. That's what weighs really, really heavily. But in recent decades, it's increasingly focused just on the threat to U.S. forces. The threat to U.S. forces here in Americans is not nothing, it's not meaningless, but it is limited. I suspect that we're going to see the go see.
- [39:17]
Benjamin Wittes
I mean, yeah, I want to, I want to challenge that. The, the lesson of the recent, or one lesson of the recent Russo Ukrainian war is that offshore ships are vulnerable to small drones that, you know, the Moskva is sitting at the bottom of the Black Sea right now. That's the flagship of the Black Sea Fleet. You know, what, how, how many troops have to be at how far of a standoff position before you really feel comfortable saying that the risk to U.S. forces is? I mean, we haven't had any casualties in the first 24 hours, but, you know, Putin was expecting to be in Kyiv in three days too, right? Like what, what isn't our, do we have that much confidence in our ability to plan what the scope of our involvement in something really is going to be?
- [40:33]
Scott R. Anderson
The standard is, are you going to be compelled to enter into a war for constitutional purposes, meaning a war whose nature, scope and duration rises to a level where the usual line the executive branch has drawn is the Korean War, the Vietnam War. In the Maduro context, in the OLC opinion, they expressly said we could lose every soldier involved in the Maduro operation. Everyone could be killed in action. And that will not be a war for constitutional purposes. So the threshold is substantial. It's not a restraining test like this is not a test that really restrains very much. That's kind of the point. Right. And particularly when you just focus on U.S. risk to U.S. forces, which again, we'll see at some time. The executive branch has brought in other factors that I think are much bigger concern here. But if you really are just going to focus a threat to US Forces, you can look at military operations like this and say, yeah, oh yeah, this is going to really, you know, mess up the Middle East. Pretty bad. It's going to ruin a lot of people's lives. But American airmen, like they're, we got air superiority where there's really no threat to them. You may suffer fatalities in the region from rocket attacks and terrorist attacks, but it's not going to rise to the level of Korea or Vietnam. That's the nature of the test. It's highly, highly permissive. And I think this really, by pushing that to among its further limits, I think this is really going to serve a case study of this because this is, I think, probably the most substantial military action we've seen a president take under this authority since Libya. Probably, I suspect, is going to end up being bigger than Libya. It's more consequential in a way more because of Iran's regional role. I think you think back to Panama intervention where you had tens of thousands of US Troops on the ground somewhere. This is different because it's, you know, air forces, but it's, it's, it's a substantial consequence. It's really pushing one line of logic of what the president can do, I think, further than we've really seen it pushed in a meaningful way in a while. And notably, this is all happening in a period where we know Congress, like, isn't a fan of this. We had bipartisan support, people teeing up to vote on a resolution this week before these strikes started that's now being moved up, I think to Tuesday is the last data I saw for a vote on the Massie Co. Sorry, Con and Massey resolution in the House. And I think there's a Senate companion as well. So, you know, you're doing, really doing this not just without congressional authorization, but in the face of what looks like opposition from Congress potentially, or what could have end up being opposition from Congress. That makes it particularly in tension with the usual factors we would think about the president can take into consideration for when he can do stuff.
- [43:05]
Benjamin Wittes
Stuff.
- [43:05]
Scott R. Anderson
It's pushing those things to the limits in a lot of regards.
- [43:08]
Benjamin Wittes
Let's talk about the international law basis for this for a moment because it seemed to me that that was the area where the administration was on the least tenuous, on the most tenuous footing, the least defensible footing. And yet they don't seem to be getting, I mean, they have Britain now seems to be on board. Canada seems to be on board. No, no.
- [43:45]
Scott R. Anderson
So the Brits and the Europeans generally are posturing a way where they've, they've expressly said we don't, they haven't quite condemned what the United States are doing, but they haven't joined it. They said people need to come back to negotiating table. This is not productive action. It is the sort of thing you would it's as far as Europe is going to go in condemning something done by the Americans or the Israelis, probably in coordination with the Americans. So I think this is, I think they are pretty clearly not supporting this. The Australians and the Canadians are the two that have actually endorsed it. As far as I know of the major powers, the only ones that or major US Allies, the only ones have really fully gotten on board. The UK now is helping defend people in the region in two Iranian responses, which I think the vast international community will say, Iran, you're responding in a horribly unlawful and inappropriate way. You cannot just attack civilian targets around the region because you were attacked by United States and Israel. You know, Manama, Dubai, luxury hotels in those cities are not valid responses. And that's what the UK is responding to. But I don't think they've gotten on board with, with, with the US Original
- [44:47]
Benjamin Wittes
operation Gotcha and all right, so let's talk about, come back to the question, Ari, of what this is really about. There's a tension in what Scott is saying between is this really a self defense measure vis a vis missiles and a nuclear program or is this a regime change operation? The president has sort of said both. You know, he's never a model of clarity about what the objective is here. Do you have any sense of what the objective is here?
- [45:35]
Ari Tabatabai
Yeah, the president has said both. And the president started a few weeks ago talking about potentially striking Iran to support protesters at the time and, you know, said he wouldn't negotiate with Iran. He would potentially go in if Iran didn't stop killing the regime, didn't stop killing its own people. Then he talked about going in and striking the nuclear infrastructure if Iran did not negotiate in a serious manner. We should say that there were negotiations that were ongoing at the time of the attacks. The Omanis who were kind of mediating between the United States and Iran came out and said, you know, it seems like we're making progress. The administration and the president himself came out and said it's not enough, but we'll give it a bit more time. And then strikes started happening. And then as of, I think yesterday, the president was citing Iranian interference in the 2020 and 2024 elections for at least part of the rationale for going in. And then, you know, we've talked about this. He's also said things to the effect of we're, you know, we're doing, we're starting the job. You, the Iranian people, go and finish it. So the messaging has really been all over the place in terms of what the actual objectives are. And, you know, I don't think we have a ton of clarity as to what, you know, is the goal. And I think there is an added piece here which is that, and this is a question, I don't know the answer to this. The Israelis and the United States might have different objectives in mind. It is not clear to me that we have fully aligned expectations, goals and hopes for this. So that's something else to sort of consider. But what we talked about at the beginning, it does seem to me that at least we are trying to create the environment for the Iranian people to overthrow the regime, which of course, is a little complicated because it's not as simple as, okay, we're going to go kill the leader and then the people get to replace him immediately because there is a regime infrastructure in place. There's already a transition process that is underway. And we can talk about that sort of transition of what that looks like. We might have an answer as to who might replace the supreme Leader today or by the end of this weekend or at least in the days ahead. There is also the piece where, you know, there's been, there hasn't really been a strong kind of unifying candidate for leadership within Iran. And that's part of the reason why we haven't seen the various protests sort of lead into a movement to really overthrow the regime entirely. So, you know, there's a lot of kind of different pieces that need to come together in order for this to actually be that sort of transition, if we're trying to bring that about. So, you know, again, I think the best we can do right now is, guess what, the information that we have, we have more questions, and I think we have answers.
- [48:52]
Benjamin Wittes
Scott?
- [48:54]
Scott R. Anderson
Yeah, I was going to say, I think a useful analogy here is Operation Odyssey Dawn. I think it was called the original US military operation in Libya in 2011. We remember that was a military operation, presumably the United States States and a number of European allies, pursuant to a UN Security Council resolution with specific objectives, like humanitarian objectives, a no fly zone and arms embargo. I think that was the scope of what was authorized. And in theory, all the military actions that pursued there were pursuant to those objectives. But coincidentally, that dramatically weakened the Gaddafi regime, particularly the no fly zone.
- [49:25]
Ari Tabatabai
Right.
- [49:25]
Scott R. Anderson
Because all of a sudden they didn't have the ability to actually put down different rebel forces around the country. I think you're seeing something similar here in terms of trying to parse legal arguments and lead to these broader outcomes, particularly because President Trump, frankly, like, as we know, wants to sound like he's doing big, dramatic things and frame it. And he's saying, yeah, we're going to, we're supporting regime change. We encourage you to do it. But I think the legal arguments that actually technically describe what the United States is doing and its objectives are, are going to be narrower than that. And Trump's rhetoric is mudding the picture. Notably, his rhetoric, I think, is really important here. He's putting the impetus on the Iranians. So if it doesn't happen in whatever timeframe he thinks is appropriate, he can walk away and say, all right, Iranians didn't want it badly enough.
- [50:09]
Ari Tabatabai
All right?
- [50:09]
Scott R. Anderson
And I think that's a very plausible outcome of the end of this. Once the political costs and real costs of continuing military operations get too expensive, I do too.
- [50:18]
Benjamin Wittes
But I also want to note that if you come for the king and you don't miss, but you leave the entire infrastructure of a hostile state in place, that's not necessarily right. You set up a situation in which the successor over whom you have no influence becomes their whole basis for legitimacy is revenge for the circumstance in which they take power. And it's not, and I will add that the Gaddafi example is not exactly a good one from the overseas engagement point of view. Right. You decapitate or enable the decapitation of the regime and you leave 10 years of chaos in response. So, Ari, I want to come back to you on this. It seems to me the range of plausible possibility here is really, really vast. In particular, because other than Reza Pahlavi, the. The late Shah's son and claimant to the throne of Iran, there really isn't any. I mean, there's many opposition people. That seems to be the vast majority of the country. But the organized opposition is chaotic and not very organized. So what does it mean? I want to come back to this question of what regime change means. Presumably we're not talking about a Venezuela like situation where you yank out Maduro and then you find the nice Ayatollah underneath who is now, you know, gonna report to Marco Rubio. It's not obvious that there's a foreign opposition based option, whether you think of it as a Reza Pahlavi option or a, you know, Ahmed Chalabi option. Right. Although I do remind everybody that the Islamic Republic itself has its origins in just such a thing, which is Ayatollah Khomeini Showing up from Paris and declaring himself the. The jurist. So what if we talk in the language of regime change? What does that realistically mean and involve in the context of a very complicated country with 70 million people, 90 million.
- [53:22]
Ari Tabatabai
Yeah, it is. It is.
- [53:24]
Benjamin Wittes
Grew overnight.
- [53:27]
Ari Tabatabai
It's a. It is, yeah. It is a large country. It's a very diverse country. There are different ethnic groups. It is a relatively young country. The vast majority of the Iranian population does not remember pre1979, does not know what life was like before the Islamic Republic. Another product of the Islamic Republic. Right. So, yeah, it comes with a number of challenges, one of which is what you discussed, which is that there is, at least so far we haven't seen the emergence of a coherent sort of organized leadership that has. And that could happen, but we have not seen that yet. So there is a range of things that can happen, some better than others, some really bad. Just to kind of, you know, talk through a couple of those scenarios. One is that, yeah, sure, there is a possibility that we will see the emergence of a leader or at least a rallying around a leader who's already kind of there, but maybe has not kind of emerged as the leader yet. And that is democratic leaning, that is friendly toward the United States, that wants to have peace with Israel and its Arab neighbors. Sure, that that can happen. Is it the likeliest scenario in the short term? Not in my mind. There could be individuals who were formerly even within, you know, who were leaders within the regime who may kind of, you know, who've been isolated from it, who may reemerge and kind of become those leaders. Kind of like what we saw in 2009, right, with Mousavi essentially becoming the leader of the Green movements with the youth especially at the time rallying around him. And he was sort of an unlikely candidate because he had gone from being this kind of like, fairly hardline guy in the 1980s to becoming this reformist. And again, I mentioned earlier, there's some reporting that Israel tried to actually hid his house, his residence, and that Israel might be trying to get rid of other former regime officials who may have been isolated from the regime, who may have had a change of heart, if you will, and become more critical of the regime itself. There are other way, less good scenarios, one of which would be sort of an IRGC takeover is one that people talk about pretty often, that would be the more radical elements of the regime. There's a non zero chance there. We're already seeing the promotion of the IRGC Quds Force commander Vahidi to become the IRGC commander. He is a fairly radical guy.
- [56:17]
Benjamin Wittes
And when you say radical, what do you mean by it? Does radical mean radical with respect to compulsory hijab and Islamic observance, or does radical mean radical with respect to projection of force through proxy forces around the region or confrontation with the United States and Israel? What does radical mean in the context of Iran?
- [56:44]
Ari Tabatabai
All of the above in this case. And often those are kind of mutually reinforcing beliefs. Right. When we talk about the more hardline, more radical elements of the regime, we're talking about people generally who believe that the Islamic Republic should not have given up some of the things that it's given to concessions that it's made to the people. That does certainly count toward the loosening of the laws around the hijab. It certainly means kind of, you know, being much more belligerent toward the United States. And Vahidi is certainly of that persuasion. So there is, there is that kind of challenge as well. And some of the individuals who might be potential successors to Khamenei are also kind of of that mindset. Right. Somebody like Sadiq Sadeq Larijani, who was the former head of the judiciary, very hardline cleric. He's been a feature of the system for a long time. He is not by any means somebody who would make concessions to the population domestically. And he's certainly not going to be making concessions to the United States and to Iran's neighbors in the region. And then the old Supreme Leader's son himself, Mushaba Khamenei, who has been kind of floated as a potential supreme leader candidate, he's somebody who's also, you know, number one, extremely corrupt, was very influential, was his father as somebody who I think would not be particularly flexible as well. So, you know, that that is with the kind of mindset of the regime structure staying intact and kind of changes happening within it, I think those are some of the things that could happen. And then finally, you know, Iran's own history shows that transitions of power have been fairly chaotic by and large. If you go back 500 years, they've been fairly chaotic. You've had rebellions brewing and various borders. I said this is a very diverse country ethnically, religion wise, the majority is Shia, but there's other religious minorities that are in the country. So we could also see something like a civil war. I don't think, again, I don't think it's the likeliest scenario, but it is not. It's a non zero chance. So, you know, that that is kind of the range of options that exist. Again, some better than, than others.
- [59:12]
Benjamin Wittes
One last question. How should we interpret the celebrations that there are videos of all over social media of Khamenei's death? Is this a show of enthusiasm for the US Israeli action or is this just a set of spontaneous rejoicing at the death of a tyrant? How do you understand it?
- [59:43]
Ari Tabatabai
Again, it's a vast country, very diverse country. People are going to have all kinds of different opinions. I do think that by and large the regime has irreversibly lost its whatever legitimacy it had left. And Khamenei specifically, given the recent protests and the crackdown and the massacre that happened. So, yeah, a lot of people are really happy that, that he, he, he, he died. I don't know that when it comes to the US Israeli operations, I think it becomes a bit more complicated, right, in that a lot of people might be very happy to see Khamenei dead. They may want the regime gone. They may not want their country to be attacked by foreign powers ultimately. And then I think what happens in the days ahead is going to kind of shape things a bit more, right. If we continue to see civilian casualties going up, I think that is going to shape public opinion with Iran. If there's a transition of power fairly quickly and it goes in a better direction, that is also going to shape public opinion, perhaps more toward the United States and Israel. So what happens in the next few days and weeks is, is going to shape a lot of that and we just don't have all the answers yet.
- [60:55]
Benjamin Wittes
We are going to leave it there for now. We will be back, if need be, over the coming days and we will try to keep on top of events, both with written material and with lawfare Lives and the podcast. This podcast is part of Lawfare's Livestream series. Lawfare the now you can subscribe to Lawfare's YouTube or Substack to receive an alert the next time we go live. Our audio engineer for this episode was Anna Hickey of Lawfare. As always, thanks for listening. That new thing?
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