What legal justifications did the Biden administration use for targeted strikes abroad?
Executive summary
The Biden administration has primarily justified targeted strikes abroad by invoking the constitutional authority of the president as Commander‑in‑Chief and the international law right of self‑defense (including variants such as the “unwilling or unable” theory); it has also reported actions to Congress under the War Powers Resolution in some cases [1] [2] [3]. Critics dispute whether those self‑defense claims satisfy international law’s imminence and proportionality requirements and say some strikes look like reprisals rather than lawful preemptive or defensive uses of force [4] [5].
1. Constitutional command: the president’s domestic authority
The administration repeatedly frames strikes as exercises of the president’s constitutional powers to conduct foreign relations and to serve as Commander‑in‑Chief, telling Congress these operations were undertaken “pursuant to my constitutional authority” to protect U.S. interests and citizens [1] [3]. Legal papers and notifications to Congress have echoed that domestic legal posture rather than relying on the 2001 or 2002 AUMFs in many instances [1].
2. Self‑defense under international law: Article 51 and variants
Internationally, the Biden team cites the UN Charter’s right of self‑defense. Officials have argued strikes targeted groups or facilities that posed an imminent or ongoing threat to U.S. forces, ships, or citizens—an approach used in strikes against Iranian‑backed militias and in actions described as protecting merchant vessels from Houthi attacks [2] [3] [4]. Academic and policy analyses note the administration sometimes relies on the “unwilling or unable” formulation to justify action against non‑state actors operating from third states [1].
3. War Powers Resolution notifications: partial congressional briefings
For several operations—particularly in the Middle East—the administration submitted reports “consistent with” the War Powers Resolution, setting out the legal authorities it relied on and informing Congress within the 48‑hour window in some cases [3] [6]. But reporting has not been uniform: at least one joint strike with the U.K. cited in notifications lacked a 48‑hour legal notice, prompting questions from lawmakers [3].
4. Law of armed conflict and targeting rules: official claims vs. skepticism
The administration maintains it has complied with the law of armed conflict and targeting obligations, asserting that facilities used for trans‑shipping weapons or that housed militia fighters qualify as legitimate military objectives [2]. Independent commentators and legal critics counter that public explanations often lack sufficient evidence to show distinction and proportionality, and that some strikes may have followed attacks rather than met the strict test for anticipatory self‑defense [4] [5].
5. Contested legal theories and political pushback
Scholars and policy analysts are split. Some defend the administration’s reliance on self‑defense and constitutional authority as defensible in practice [2] [1]. Others argue the same justifications have been stretched — especially when strikes occur after attacks (which some see as reprisals) or against non‑state actors like drug traffickers, where traditional international law categories do not clearly apply [4] [7]. Members of Congress and legal experts have pressed for clearer legal reasoning and, in some cases, new statutory authorization [6] [4].
6. Transparency, immunities and unresolved questions
Critics also point to limited public evidence and to internal legal instruments: the administration’s Presidential Policy Memorandum (PPM) on lethal operations has been partially released only after litigation, and some reporting shows the Justice Department drafting memos asserting immunity for troops in contentious strikes [8] [9]. These developments raise questions about public accountability and about how the administration balances operational secrecy, legal cover for personnel, and congressional oversight [9] [8].
7. What reporting does not say
Available sources do not mention any single, uniform statutory citation (e.g., a current AUMF) that the Biden administration has relied on across all targeted strikes; instead, justifications vary by incident and lean on constitutional authority, self‑defense, and interagency legal assessments communicated to Congress [1] [3]. Sources also do not provide full public evidence used to classify some non‑state groups (such as drug cartels) as lawful military targets under international law, which fuels disputes over legality [7] [10].
Bottom line: the Biden administration grounds many targeted strikes in presidential constitutional authority and international self‑defense doctrines, sometimes augmented by the “unwilling or unable” concept and War Powers notifications; those rationales satisfy some legal analysts but remain contested by others on imminence, evidence and oversight grounds [1] [2] [4].