Tess Bridgeman is Senior Editor at Just Security blog, with a lengthy resumé in national security. Ms. Bridgeman breaks down the Trump administration’s recent escalation of hostilities with Iran which puts the U.S. on a war footing with Iran. The Soleimani Strike and War Powers:
With the targeted killing [i.e., assassination] of Iranian Maj. Gen. Qassem Soleimani on Thursday, President Donald Trump has dramatically escalated hostilities with a militarily sophisticated foreign government, engaged in a highly controversial use of force in the territory of Iraq without its consent, and changed the U.S. security posture in the region and beyond, all without first consulting Congress let alone obtaining congressional approval.
The Trump administration sent Congress a classified letter Saturday under the War Powers Resolution, which requires that Congress be notified within 48 hours of presidential action introducing U.S. forces into hostilities. House Speaker Nancy Pelosi has characterized the notification as prompting “serious and urgent questions about the timing, manner and justification of the Administration’s decision to engage in hostilities against Iran.” While these reports are often brief, the law requires the president to explain the legal justification for the action along with other key information. For an action this momentous, the Trump Administration owes the American public and the Congress an unclassified explanation.
Did President Trump have the authority to take such a significant military action without going to Congress first? And what is the role of the War Powers Resolution, which some have erroneously cited as authorization for the strike, after the fact?
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Did Congress Authorize the Soleimani Strike?
A threshold question for the War Powers Resolution is whether Congress has already authorized the military action. If there is such congressional authorization, the executive branch has long claimed it does not need to submit a 48-hour report. So is there any prior congressional authorization for the strike against Iranian General Soleimani?
The administration has informally provided competing legal justifications for the Soleimani strike, making clear the need for an unclassified formal accounting on this score. National Security Adviser Robert O’Brien has claimed the strike was “authorized” in part by the 2002 Authorization for Use of Military Force (2002 AUMF). That claim has no merit. As Brian Egan, a former State Department Legal Adviser and former Legal Adviser to the NSC, and I have explained at Just Security, there is “no viable argument” that the 2002 AUMF authorizes force against Iran. As we wrote, that statute:
allows the President to “defend the national security of the United States against the continuing threat posed by Iraq;” and “enforce all relevant United Nations Security Council resolutions against Iraq.” Those are plainly not relevant to the situation with Iran today. (emphasis added)
The State Department acknowledged as much in a June 2019 letter to Congress in which it said the administration had not concluded that the 2001 or 2002 AUMFs would authorize force against Iran. But the department left one big caveat. The State Department’s letter claimed either AUMF could potentially be used if “necessary to defend U.S. or partner forces engaged in counterterrorism operations or operations to establish a stable, democratic Iraq.” Ryan Goodman and I explained what this means in practice for a potential use of force against Iran:
It means the Administration believes it could use force against any party — Iran, Syria, Russia, Hizbollah, other militias or armed groups — that threaten ongoing U.S. operations authorized by the 2001 or 2002 AUMFs, so long as those third parties present an imminent threat to U.S. or partner forces engaged in those operations. This could include, for example, U.S. military action against Iranian or proxy forces in Iraq or Syria, if the Iranian-aligned forces engaged in a direct attack on U.S. or partner forces in those theaters.
This argument, as Ryan and I noted, is at best a slippery slope. But as articulated by the Trump Administration last summer, it should have at least been limited to the potential use of force in the context of operations against ISIS or al-Qaida. That does not appear to be the case with the U.S. strike on Soleimani last week. And indeed, justifications that senior U.S. officials such as the Secretary of State have given — such as Soleimani’s threat to U.S. diplomats and citizens in other parts of the region — have no connection to the U.S. counter ISIS operations. Moreover, the strike is likely to make it more difficult to keep a strong U.S. presence in Iraq for future counter-ISIS operations – Iraq’s parliament has already voted to expel U.S. troops from the country in response to the strike (which also killed Iraqi military personnel).
Note: Trump threatens Iraq with sanctions if US troops are expelled: Speaking from the presidential plane, Mr Trump said that if Iraq asked US forces to depart on an unfriendly basis, “we will charge them sanctions like they’ve never seen before, ever. It’ll make Iranian sanctions look somewhat tame.” Pompeo dismisses Iraqi leader’s call for all foreign troops to leave. Trump and Pompeo are dismissing the sovereignty of Iraq, and the status of forces agreement (SOFA) under which U.S. Troops are in Iraq at the invitation of the Iraq government.
The Constitutional Question
CNN has reported that the administration “concluded it didn’t need congressional sign off from a legal standpoint” for the Soleimani strike, because it believes the president’s commander-in-chief authority under Article II of the Constitution was sufficient to take this action unilaterally.
A key question in the executive branch’s legal test for when the president can undertake a unilateral use of force without congressional authorization is whether the action would constitute “war”– the Constitution clearly gives the power to declare war to Congress, as even the executive branch acknowledges. But what constitutes “war” in the “constitutional sense?” According to a 2018 Office of Legal Counsel (OLC) opinion on the Trump Administration’s strikes in Syria, if the expected “nature, scope, and duration” of a military engagement falls below a certain threshold — generally characterized by “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” — the “war” threshold is not reached and the president has unilateral authority to act without congressional authorization.
It has long been clear that this test “imposes very little constraint on modern presidential uses of force” (as Curt Bradley and Jack Goldsmith wrote in 2018). In theory, however, it has some remaining limits. As Brian Egan and I noted in this Just Security backgrounder:
The threshold for “war” in the constitutional sense is more easily met when the use of force at issue is against another nation state (rather than in its territory but with its consent) where there is a high likelihood of escalation. Although Iran is not a nuclear power, which would necessarily affect that calculus, its capacity as a nation-state with a strong military, including its cyber and ballistic missile capabilities, are relevant factors in this analysis, as is the extent of U.S. exposure given its significant footprint in the region where Iranian military forces (and their proxies) are present and active.
Those limits are clearly relevant in the Soleimani strike. The use of force was against Iran — not a proxy force whose actions are attributable to Iran — and specifically against a most senior official of that sovereign country.
This fact is critical. Karen J. Greenberg, a national security expert and the director of the Center on National Security at Fordham University School of Law, explains at the New York Times, Killing Qassim Suleimani Was Illegal:
In 1975, the Church Committee, a select Senate committee, launched an investigation into the activities of the United States’ intelligence agencies, spurred on by reports of covert assassination attempts on foreign leaders, among them failed attempts against Patrice Lumumba of Congo and Fidel Castro of Cuba. The committee found that assassination was “incompatible with American principle, international order, and morality.” Its final report recommended a ban on assassination in the absence of war and except in cases of imminent danger. Though no such law was passed by Congress, President Gerald Ford issued Executive Order 11905 in 1976 banning political assassination.
(Note: Subsequent orders by Presidents Carter and Reagan reaffirmed the ban, albeit with modifications. The current version of the ban, in Executive Order 12333, states: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”)
The killing of General Suleimani has taken the United States into new territory. For starters, General Suleimani, who led the Quds Force of the Islamic Revolutionary Guards Corps, wasn’t a nonstate actor — a basic premise of the targeted killing policy that was designed for members of terrorist organizations. He was a senior figure in a sovereign government’s military. The distinction is an important one. The policy of a war designed for nonstate actors has now slipped into a conflict between nation-states. In this regard, it resembles the assassinations that the presidential bans have sought to steer clear of.
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The United States and Iran are now in a state of war by another name.
Returning to Just Security:
There clearly was and remains a high likelihood of escalation, with both countries already threatening further action against the other. President Trump has already threatened via Twitter to strike 52 targets in Iran – notably in a manner that would constitute a war crime – which have their own way of spiralling into further tit-for-tat reprisals.
Note: Jason Farago writes at the New York Times, President Trump’s repeated threats to destroy Iran’s treasures of art and architecture make the United States seem as debased as ISIS or the Taliban. Targeting Cultural Sites in War Is Illegal:
The targeted destruction of such antiquities is, unambiguously, a war crime. The most relevant legal instrument is the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted to prevent the type of plundering of art the Nazis undertook during World War II.
The convention states, among other principles, that countries “shall refrain from any act directed by way of reprisals against cultural property.” (The United States Senate, with the support of the Bush administration, ratified the convention in 2008.) Such acts of war would also obviously violate the UNESCO World Heritage Convention, which establishes that national treasures also form part of a protected global patrimony.
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In 2017, the United Nations Security Council affirmed that “directing unlawful attacks against sites and buildings dedicated to religion, education, art, science or charitable purposes, or historic monuments, may constitute, under certain circumstances and pursuant to international law, a war crime.” The resolution was adopted unanimously; the ambassador representing the Trump administration noted that such “wanton devastation” was often the work of ISIS, Al Qaeda and the Taliban.
Despite the president’s threats, “Defense Secretary Mark T. Esper on Monday explicitly ruled out targeting cultural sites in Iran in response to any Iranian attacks.” Pentagon Rules Out Striking Iranian Cultural Sites, Contradicting Trump. Also, Pentagon official refutes Trump over list of ‘52 targets’ in Iran: ‘No list adds up to that number’.
So, if Trump gives the order to destroy Iran’s cultural sites, with the Pentagon refuse to comply with his illegal order? If Trump orders war crimes, the military will face an impossible choice. We need clarity on this.
Returning to Just Security:
The Pentagon also has said it will send 3,500 additional troops to the Middle East “after Iran vowed to exact ‘severe revenge.’” And in anticipation of future violence, the United States has warned its citizens to leave Iraq in an extraordinary “do not travel” advisory. From the opposing side, rockets already have been fired at bases in Iraq housing U.S. forces. And Adil Haque notes Iran’s letter to the United Nations treats the killing of Suleimani as a “terrorist attack,” an “assassination,” and “a criminal act” (the letter argues the strike was “aimed at escalating tensions to an uncontrollable level in a region already facing numerous challenges.”)
Congress need not acquiesce in the executive branch’s interpretation of the president’s unilateral Article II authority. As Brian Egan and I noted in our overview of the debate over the contours of the president’s constitutional authority to initiate force without Congress, the executive branch over several administrations of both political parties has taken a broad view of the President’s unilateral authority, while “Congress does not necessarily view its own authority so narrowly or the president’s so expansively.” In my view, Congress can and should assert its own interpretation and articulate far more concrete constraints than those offered by successive Office of Legal Counsel lawyers.
But even accepting the executive’s own test, this case should meet the threshold for a use of force [AUMF] that required congressional authorization. If it does not, it’s hard to imagine what type of scenario — barring a major land invasion of a foreign country — would make the executive branch acknowledge it needs congressional authorization.
How Does the War Powers Resolution Fit In?
President Trump has claimed he “took action… to stop a war. We did not take action to start a war.” Most experts appear to disagree. While all of the consequences may not be felt right away, Trump’s action is likely to set off an escalatory cycle of violence. The War Powers Resolution is intended to ensure Congress has a say in exactly this question: when should the nation go to war, or get itself into a situation where war is likely?
One of the War Powers Resolution’s key provisions is intended to create transparency when presidents use our armed forces abroad without statutory authorization, or at least to ensure congressional knowledge. Specifically, it requires presidents to notify Congress within 48 hours of undertaking certain military actions abroad, and to articulate the legal basis for the action, the circumstances “necessitating” the action, and its “estimated scope and duration.” If the use of armed forces involves an introduction into “hostilities” or imminent hostilities (a debated term undefined in the statute), the president is required to stop the activity after 60 days (extendable to 90 in limited circumstances) unless Congress has authorized it. And, as noted above, the War Powers Resolution explicitly states that it does not provide the president with independent authority to use force. It is a constraint, not a source of power.
What should we make of the Trump administration’s highly unusual decision to classify its 48-hour notification to Congress? The law doesn’t explicitly require that these notifications be submitted in unclassified form. But doing so forces the transparency that the 48-hour reporting intended to provide. Fully classifying the justification makes it much harder for the public to engage their elected representatives from an informed position, and indeed, makes it much harder for members of Congress to engage on the issues in public. Especially given the administration’s inability thus far to articulate a coherent legal rationale for the Soleimani strike — while officials are nonetheless willing to make statements on the record — the administration should put forward an unclassified version of its report as soon as possible. (The administration also should heed reporting requirements under other statutes that I won’t delve into here).
Whether classified or not, the combination of the required 48-hour reporting and the 60-day countdown to termination of hostilities could create a meaningful lever for Congress going forward. To be sure, the administration is likely to argue that “hostilities,” as that term is understood for War Powers Resolution purposes, concluded when the strike was completed (as presidents have argued with targeted strikes in past instances), and thus that the 60-day clock is no longer ticking. (For more on that type of justification, see Todd Buchwald’s analysis at Just Security.) But that argument here would ignore the facts already unfolding in the direction of more violence and new troop deployments, as well as any future hostilities that are quite likely to occur over what may be an extended period of time.
Even more insane, Flouting the War Powers Act, Trump claims his tweets are sufficient notice to Congress that U.S. may strike Iran. Goddamnit, Twitter, shut down this madman’s account!
The Trump administration has yet to provide any details or coherent description of the “imminent” threat from Iran that the assassination of the number two man in the Iranian government could have prevented.
CNN reports, Growing doubts on legality of US strike that killed Iranian general (excerpt):
The crux of the Trump administration’s argument is that the threat posed by Soleimani’s plans was “imminent” and that the US response was “defensive.” A key requirement in order for a strike to be lawful under Article II of the US Constitution is that a threat must be imminent.
But targeted killings are permitted under international law in only very narrow circumstances, and some legal experts are skeptical that the White House’s justification for the strike — offered without evidence at the time of writing — meets those standards.
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Self-defense is described in the United Nations charter as the right to respond to an actual and significant armed attack.
Agnes Callamard, UN Special Rapporteur on Extra-Judicial Executions, says targeted killings are permitted under international law but only under very strict conditions. The self-defense argument is only valid if there is evidence of an imminent armed attack, she told CNN, and it has to be proportionate to the threat.
Callamard told CNN that were an armed conflict between the US and Iran already underway, the laws of war would apply — and Soleimani might therefore be a legitimate target. There would not need to be a formal declaration of war. But to most experts the evidence for an existing armed conflict between the two states is scant. On the contrary, they have been fighting a common enemy in the form of ISIS in places like Iraq.
And there has been no formal congressional authorization for a war with Iran.
Hina Shamsi, director of the National Security Project at the American Civil Liberties Union, says the Trump administration’s justifications for killing Soleimani are, so far, unconvincing.
“The very limited circumstances in which use of force might be permitted under either domestic or international law quite simply haven’t been met here,” Shamsi told CNN. At least not yet.
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Oona Hathaway, editor at Just Security and a former special counsel at the US Defense Department, tweeted that “If there is more information, the President bears the responsibility of providing it. We should not have to guess.”
Trump muddied the waters on Tuesday. CNN reports, The evolving US justification for killing Iran’s top general:
When the US government killing of the Iranian general Qasem Soleimani was first announced, officials from the Pentagon up to President Donald Trump were careful to make clear the strike was meant to head off an imminent attack on Americans.
That the strike, which took place last week without congressional approval or debate, should be conducted with the urgency of heading off an imminent threat is actually key to making it legal under US law. But Trump has subsequently made clear — notably in comments Tuesday from the Oval Office — that he was also motivated by retribution after the death of an American contractor at an Iraqi military base, possibly caused by Iranian-backed militias, or violent protests at the US Embassy in Baghdad.
Trump’s Oval Office comments left out the idea of an imminent threat and echoed his arguments on a conservative radio show that the attack on Soleimani should have been carried out years ago, by either President Barack Obama or President George W. Bush, two men whose foreign policy Trump has repeatedly tried to undo.
But Soleimani’s killing could lead to war, even if it was an attempt to disrupt a terror threat. Killing a terrorist as a security matter is one thing. Killing another country’s general as part of a policy agenda is something else entirely. According to CNN’s reporting, top officials who briefed Trump were surprised that he decided to strike Soleimani, who was visiting Iraq, because it was the most severe option presented to him.
Since those first public announcements about the strike, officials have refused to provide evidence of an imminent attack and instead have argued that Soleimani’s previous actions meant he would continue to act the same way and that eliminating him was part of a larger strategy.
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Speaking to reporters in Oval Office alongside his meeting with the Greek Prime Minister, Trump was asked what he knew before the attack.
“I knew the past; his past was horrible. He was a terrorist,” the President said. “He was so designated by President Obama, as you know. And he wasn’t even supposed to be outside of his own country. He was. So right there.”
Trump also said Soleimani was traveling with “the head of Hezbollah.” The President appears to have been referring to Abu Mahdi al-Muhandis, an anti-US Iraqi militia leader who founded Kataib Hezbollah in Iraq and orchestrated attacks against US forces in the region.
“They weren’t there to discuss a vacation,” Trump said. “They weren’t there to go to a nice resort someplace in Baghdad. They were there to discuss bad business, and we saved a lot of lives by terminating his life. A lot of lives saved.”
Later in the same appearance, the President specifically said the strike was an act of retaliation.
“Don’t forget, in our case it was retaliation because they were there first,” Trump said. “They killed — look, I don’t have to talk about him for 18 to 20 years. He was a monster.”
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There may have been plenty of justification to target Soleimani. But that could require authorization by Congress, if the threat he posed was not imminent. Assassination has been illegal under US law since 1981. And while US officials have determined that Soleimani is a terrorist, he was also a ranking general in a sovereign government, so targeting him tempts war in a new way.
Donald Trump campaigned on a no more “stupid wars” mantra, but his reckless unilateral decision to assassinate Iran’s top military leader, quite likely illegally, will almost certainly lead to war and the loss of numerous lives because of his hubris.