Emily Bazelon: Hi, David. I’m glad we were both online Tuesday night when the Miami Heat’s Bam Adebayo made the foul shots that got him to 83 points, the most since Wilt Chamberlain’s 100-point game in 1962. I was also honored to be trusted with your travel updates Wednesday, which included a spectacular trousers snafu that made the case for Brooks Brothers stores at the airport. If you’d rather not share the details with our dear readers, I understand! For me it’s all a welcome distraction from our baffling, violent world.
I have a couple of questions for you about Trump’s war with Iran. One is about how it can be both unconstitutional and utterly unsurprising that the president has ordered an enormous bombing campaign that has jolted the entire region, reportedly killing at least 1,300 Iranian civilians and leading to the death of seven American service members, while costing more than $11 billion in the first week alone and causing all kinds of ripple effects we can’t really foresee.
The founders gave Congress the power to declare war because they thought the executive was the branch “most prone to it,” as James Madison wrote. But it has become far too easy for presidents to deploy force on their own. Their lawyers come up with rationales, Congress doesn’t issue its own legal opinions to push back, as Bob Bauer, a former White House counsel, has pointed out, and the courts try to stay out of it. The War Powers Resolution of 1973 gives presidents a 60-day leash and presidents often go on to say the time limit doesn’t apply when it runs out. (President Obama made that argument to continue his air campaign in Libya, and President Clinton did the same in Kosovo.)
But the war in Iran is next level. Both presidents Bush sought and received congressional authorization for the gulf war, the war in Afghanistan and the Iraq War. The Republicans who control this Congress, along with four Democrats, it must be said, have voted down a resolution that would have required Trump to halt the fighting without congressional authorization.
The framers intended for Congress to assert itself. It has tools — chiefly, withholding funds but also making political trouble.
I’m left thinking that the only remedy is for voters to express their strong majority opposition to the war in the next election. But that means our constitutional framework for war lies in pieces around us. Do you have an idea for putting it back together?
My second question is about the horrifying strike on Feb. 28 that killed at least 175 people, most of them children, at an elementary school in Minab. Trump initially blamed it on Iran but that seems clearly false as more and more evidence comes in. This is a staggering error — it would be the most civilians the U.S. military has killed in one attack in decades.
The military’s preliminary investigation suggests that the mistake was the result of outdated targeting data. The school used to be part of an Iranian Revolutionary Guards navy base. But it was fenced off from the base at least a decade ago — between 2013 and 2016, according to a visual investigation by The Times.
You served in Iraq as a JAG lawyer in Iraq, reviewing and approving bombing raids and missile strikes. What do you make of this terrible mistake? What’s the significance of the Defense Department’s decision to cut the program it had recently created to reduce exactly this kind of harm to civilians? The military had a center with targeting specialists who did more planning and risk analysis, including “real-time mapping of the civilian presence in an area,” according to Pro Publica’s excellent coverage. It has been decimated.
David French: Hi, Emily, it’s great to chat after a challenging travel day! I’ll answer your second question first, since I’ve got considerable experience reviewing strike requests from my deployment. First, it’s quite possible that this mistake would have happened regardless of Pete Hegseth’s disdain for “JAGoffs” and “stupid rules of engagement.” Horrible mistakes happen in war, even when we follow the best procedures.
But when I saw the strike and read the reporting, I could see a lot of red flags, beginning with claims that the Pentagon relied on outdated data. When I reviewed a strike proposal, one of the first questions to ask was how recent is this intelligence? In this case, it appears that the school had been in existence for about a decade, more than enough time for it to be off any carefully prepared target list.
And you cannot simply assume that a building in or around a military base is a legitimate military target. If you go to an American military base, you’ll find homes, schools, restaurants and grocery stores.
So, if the reporting is correct, the strike is grossly negligent, at best. I never once saw a strike request based on years-old intelligence. I can’t imagine approving a strike based on that.
To put this strike in perspective, I can think of only two truly comparable incidents in the last several decades, and in both cases there was greater justification for the strike than we had in Iran, where we should also note that the constitutionality of the entire conflict is questionable, at best.
At the height of the first Iraq War in 1991, we struck the Amiriya bomb shelter in Baghdad, killing hundreds of civilians. According to the U.S. government, the bunker was being used for military purposes, but we did not know that civilians were also sleeping there.
In 2017, we mistakenly killed more than 100 civilians in a single strike in Mosul when we dropped a bomb on a building that contained ISIS snipers. The bomb detonated a cache of explosives hidden inside, which made the entire structure collapse.
Both incidents caused an immense amount of concern inside the military. I have never in my life met a soldier who wants to kill civilians or who does not care about civilian deaths. Obviously, rules of engagement can be too restrictive, but you’re doing our military no favors when you gut the mechanisms designed to prevent civilian casualties. Can you imagine living with the reality that the missile you launched killed dozens of children?
And as we know from virtually every conflict we’ve fought, there are few better ways to turn a population against you than by killing innocent people, especially kids. So we have to fully investigate the strike, and if it turns out that specific policy decisions led to this disaster, we have to change the policies and hold the policymakers accountable.
Turning to war powers, I’m so glad that you highlighted the fact that previous presidents have obtained congressional approval before launching similar attacks. It is simply not true that every modern president has turned his back on Congress (much less the United Nations). As you noted, Presidents George H.W. Bush and George W. Bush both secured congressional approval for their most significant military actions. President Obama should have secured congressional approval for his Libya campaign, but at least he was operating under a U.N. Security Council resolution, and American participation in the U.N. has been ratified by the Senate.
When Congress passed the War Powers Resolution in 1973 (and sustained it over President Richard Nixon’s veto), it certainly thought it was reining in presidential power. By its plain terms, it prevents a president from initiating combat operations on his own, without congressional approval or without “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
To enforce its terms, however, Congress must exert itself, and Congress is always extremely reluctant to cut off funding or take any other decisive action to stop a military operation midcourse. Nobody wants to abandon the troops in the middle of a fight.
So the best solution is to stop unlawful wars before they start, and that can only happen through political accountability. It’s up to the voters to punish presidents who drag us into unconstitutional wars. It’s up to the voters to punish passive members of Congress.
I’m afraid that the only way to guarantee that future presidents won’t take the nation to war on their own is to impeach and convict presidents who violate the Constitution. And that means voting for members of Congress who have the courage to assert their constitutional authority. Impeach and convict a president for an unlawful war, and you’ll see fewer unlawful wars. Until that moment, I’m afraid our constitutional structure depends mainly on the integrity of the president.
Emily: I will note that impeaching Trump didn’t achieve his opponents’ goals during his first term or after Jan. 6.
I also want to get your take on the hundreds of court orders that ICE is violating as a result of the Trump administration’s sweeping immigration raids and arrests. Judges in Minnesota, New Jersey, West Virginia and elsewhere have responded with mounting frustration and even anger. The Trump administration has been minimizing the issue, saying the problem is “judges designing orders in search of a violation to release criminal aliens back onto the street.”
First of all, less than 14 percent of the immigrants ICE arrested in 2025 had charges or convictions for violent crimes. What’s really going on is that one arm of the executive branch — ICE in the Department of Homeland Security — is on a grim march to arrest 3,000 people a day at the direction of Stephen Miller. That’s the front end. Another part of the government — U.S. attorneys’ offices in the Justice Department and the courts — has to deal with the back end. They are getting crushed, according to lawyers I’ve talked to around the country.
It’s not just the volume of cases. It’s also the Trump administration’s novel reading of the 1996 immigration law called the Illegal Immigration Reform and Immigrant Responsibility Act.
Last July, the acting director of ICE announced that almost everyone who crossed the border illegally, no matter how long they’ve been in the country or how clean their record, was subject to mandatory detention at ICE’s request — without a bond hearing where judges could set terms for release. In September, the Board of Immigration Appeals, which sets precedent for immigration courts, agreed with the administration’s interpretation of the statute. Unless a higher court overturns the BIA ruling, immigration judges (who work for the Justice Department, not the judicial branch) have to follow it.
The recourse for many immigrants in detention is to file a habeas petition in federal court, where a district court judge can rule independently. The courts are being flooded with these habeas petitions. In over 1,600 rulings, district court judges have largely rejected the Trump administration’s reading of the statute, which deviated from what the government had been saying in court for 30 years. The judges order immediate release or a bond hearing. They’ve also said that ICE deported people they ordered released — like Emilio P., who lived here for 26 years and had no criminal record.
In case after case, ICE doesn’t do what the judges order it to do. Maybe the agency simply can’t keep up. But ICE controls the front end. The Trump administration can solve the problem by arresting fewer people. Instead, the government is making them pay for its decision to overwhelm the system.
We talk about detention “facilities” or “centers” but some of them are worse than many jails and prisons — even though they house children as well as adults. These are places “where toilets and showers flood eating areas with raw sewage,” according to the A.C.L.U., and 70 men in one cold damp room are allowed “air and exercise fewer than a dozen times in nearly five months,” according to Seamus Culleton, an Irish man who lived in the United States for more than 15 years and was detained even though he had a valid work permit.
You quoted Mr. Culleton in a piece denouncing the U.S. Court of Appeals for the Fifth Circuit for adopting the Trump administration’s claim that the 1996 law lets ICE decide on mandatory detention without a bond hearing in every case it chooses. As you pointed out, these are civil not criminal cases. The government is using indefinite detention to punish people and to coerce them to quote-unquote self-deport.
At some point, maybe next year, the Supreme Court will have to address these cases, which to me seem entirely at odds with the Constitution’s protections of due process. What do you think will happen? I know undocumented people don’t have the same due process rights as U.S. citizens but doesn’t indefinite detention go too far, even for this conservative majority?
David: I am convinced that we will look back at the present moment with the same kind of shame that we feel when we reflect back on, say, Japanese internment in World War II. We are detaining people by the tens of thousands in brutal conditions in the absence of any criminal conviction.
Deportation is a civil process, not a criminal one. Detention before deportation is not supposed to be punitive. It is not supposed to be dangerous.
And yet, as you said, there is a considerable amount of evidence that we’re holding immigrants in dangerous, unsanitary conditions, jammed into overcrowded facilities and sometimes even sleeping in their own filth. To make matters worse, federal courts have found that in thousands of cases people have been held unlawfully. They were never supposed to be detained in the first place.
It’s hard to overstate how gratuitously cruel the administration has become, even to the point of handcuffing refugees — legal immigrants who’ve been extensively vetted — and flying them to Texas for detention and additional review.
The Trump administration is exploiting a web of immunities that make it virtually impossible to sue federal officials if they’ve violated your constitutional rights. Combine these immunities from civil suits with potential Trump pardons, and Trump’s team can avoid any legal accountability at all. To give you some idea of how this is working out in practice, The New York Post reported that Corey Lewandowski, an aide to the deposed homeland security secretary, Kristi Noem, said, “I do whatever the f — k I want. DJT will pardon me.”
I have confidence that the Supreme Court will protect the civil liberties of immigrants, both documented and undocumented. It already stepped in, for example, to require judicial review when the administration tried to use the Alien Enemies Act to deport suspected members of Tren de Aragua to El Salvador without due process.
The problem here isn’t necessarily with the Supreme Court, but with the administration’s systematic defiance of Federal District Court orders. The district courts are the tip of the spear of the federal judiciary, and when the administration defies district courts, it can inflict extraordinary harm even if the administration slowly but reluctantly complies days or weeks later.
When we face a situation this grave, I’m tired of small-ball solutions. Sure we should make ICE officers take their masks off, but that barely even rates as a reform compared to stripping federal immunities and amending the pardon power.
Emily, did you see the extraordinary Wall Street Journal report about how the Trump administration has arrested dozens of Americans for allegedly attacking or interfering with federal agents, publicly declaring them to be criminals, only to often drop the charges or never even charge them in the first place?
Honestly, I’ve never seen lying at this scale from my own government. We’ve reached the point where I put about as much stock in official Trump administration announcements as I do in propaganda from the Putin regime in Russia.
Emily: When I read The Journal report, I confess that I had a reaction I’m having too much lately: Well, this is authoritarian and scary, and also, maybe it will make Americans see that the excesses of immigration enforcement in the interior of the country affect us all.
I’ve been thinking a lot about a cold truth about our immigration law. I think the Trump administration’s interpretation of the 1996 statute is wrong. But it is a harsh statute — harsher, I think, than most Americans support. It goes way beyond securing the border.
Congress has failed at comprehensive immigration reform. Until Trump’s re-election, the country muddled along with very partial enforcement. Last year, however, Congress gave the Department of Homeland Security a huge spending hike of $190 billion over four years for immigration enforcement.
Now we’re finding out what it looks like to rip out of the country lots of people who came or stayed without authorization. Some of this is unlawful and violates due process, yes. But in the end, on paper, if we want to spend vast sums and cause vast suffering, many people could be deportable even if they’ve been here for 10 or 20 years, not days.
Could confronting the ugly side of immigration enforcement make the country also confront how outdated our laws are? The outline for real solutions is evident: pathways to citizenship, and worker visas, and changes to asylum law that would go along with securing the border.
I’d like to think we could get there, but that depends on big political choices that lie in the future. I don’t want to end on that note so let’s return to basketball. March Madness starts next week. A much better version of madness! Do you have a team to root for?
David: Ah yes, I spent most of my childhood in a small town in Kentucky, and that means I bleed University of Kentucky blue. I don’t expect we’ll be in the tournament for long (U.K. is mediocre this year), but I’ll enjoy every second until the inevitable loss!
Emily, are you a college basketball fan? And if so, please tell me how much you hate Duke (I can’t ever forgive it for inflicting the most painful basketball wound in the history of the sport).
Emily: I’m not a during-the-season fan but I always enjoy this tournament. UConn, both the men and the women, are great for my state. Let the games begin.
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