Was It Legal For The U.S. To Kill A Top Iranian Military Leader?

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Was It Legal For The U.S. To Kill A Top Iranian Military Leader?
By: Merrit Kennedy & Jackie Northam - NPR News - 1-04-20
Re: https://www.npr.org/2020/01/04/79341...ilitary-leader

Photo link: https://media.npr.org/assets/img/202...5-s800-c85.jpg
A vehicle hit by a missile burns outside the Baghdad International Airport, where U.S. airstrikes killed Qassem Soleimani, the head of Iran's elite Quds Force, at the direction of President Trump. By: AP

The U.S. killing of a top Iranian military leader, Qassem Soleimani, in an airstrike in Baghdad this week has raised thorny legal questions. Experts disagree over whether the U.S. had the legal authority to launch the deadly strike.

President Trump stated that Soleimani was plotting "imminent and sinister attacks on American diplomats and American personnel, but we caught him in the act and terminated him."

The powerful Iranian commander led a shadowy elite military organization called the Quds Force. In recent months, the U.S. says the group has backed an Iraqi militia that has launched numerous attacks on U.S. personnel, including Tuesday's attempt to storm the U.S. Embassy in Baghdad.

Experts disagree on how to characterize this killing. "I think the best definition would be either one of assassination or murder," Gary Solis, a retired Marine who taught on the laws of war at West Point, tells NPR. He says what happened is comparable to Iran killing a high-ranking U.S. military official with a bomb on U.S. soil.

Assassination is prohibited by a U.S. executive order, says Ashley Deeks, a University of Virginia law professor who focuses on the laws of war.

She thinks it is unlikely this meets the definition of an assassination: "A lawful killing during an armed conflict does not constitute an assassination," Deeks says. "As a legal matter, if he were intimately involved in planning and blessing these attacks, then that doesn't seem to render it as assassination."

A State Department official agrees. He was asked by NPR's Michele Kelemen whether this constituted an assassination.

"Assassinations are not allowed in the law," the official said, and offered two criteria that authorities weighed. "Do you have overwhelming evidence that somebody is going to launch a military or terrorist attack against you?" the State Department official said. "Check that box."

The official added that the administration also explored whether there was another way to stop Soleimani, such as having him arrested, and determined there was "no way."

Was killing Soleimani legal under U.S. domestic law? "It's clearly lawful," says John Bellinger, a fellow at the Council on Foreign Relations and former legal adviser to the Department of State under the George W. Bush administration. "It's clearly an exercise of the president's constitutional authority as commander in chief and chief executive to use force in the national interest."

The answer is less straightforward for Scott Anderson, a fellow at the Brookings Institution who served as the legal adviser for the U.S. Embassy in Baghdad during the Obama administration. He notes that in the U.S., "the legal views as to what is permitted by the law in terms of the use of military force really is pretty well-defined by the executive branch itself."

That's because Congress has not imposed substantive limits on the executive's use of force and federal courts have appeared reluctant to intervene, he says.

In recent years, some members of Congress have occasionally criticized the fact that complicated wars grinding on in the Middle East have been justified by legislation passed nearly two decades ago.

U.S. officials did not state a specific legal basis for the strike until Friday evening, when Trump's national security adviser, Robert O'Brien, cited the 2002 Authorization for Use of Military Force, which ushered in the war against Saddam Hussein's regime in Iraq. O'Brien also said that the authorization was consistent with the president's constitutional authorities as commander in chief to defend the nation and forces against attacks.

O'Brien did not elaborate on the nature of the threat. The strike against Soleimani was carried out without officially notifying Congress ahead of time.

Anderson says that the Trump administration's legal justifications are "adopting a stance that pushes a little beyond what it and prior presidential administrations have been have done in the past."

He says it's hard to argue that the action against Soleimani is completely unlawful under U.S. law – but said that justifications may rely on interpretations of law that are controversial or antiquated.

ack Goldsmith, a professor at Harvard Law School, notes that presidential war powers have been steadily expanding for years – and that Congress has largely gone along with it. "Our country has, quite self-consciously, given one person, the President, an enormous sprawling military and enormous discretion to use it in ways that can easily lead to a massive war," he said on Twitter. "That is our system: one person decides."

The legality of this killing under international law, rather than domestic, appears harder to assess. Bellinger says that hinges on the nature of the threat that Soleimani posed. "The administration needs to put out more facts as to why they believe that Soleimani presented an imminent threat to the United States and U.S. forces," he says.

Deeks says the U.S. appears to be arguing that the strike was an act of anticipatory self-defense.

"The idea there is that you have a right of self-defense against armed attacks," Deeks says. "And many people think you have a right to act before the armed attack has actually hit you, if you have very good reason to think the attack is imminent."

Agnes Callamard, the U.N. special rapporteur on extrajudicial executions, questions whether this strike would meet the standard needed to justify its legality on those grounds. "The test for so-called anticipatory self-defense is very narrow: It must be a necessity that is 'instant, overwhelming, and leaving no choice of means, and no moment of deliberation'. This test is unlikely to be met in these particular cases," she tweeted.

"I hope the U.S. has rock-solid, written evidence of a continuing or an ongoing or a planned attack on the United States or its interests," says Solis. "You've got to have more than an assertion that plans were underway."

Another complicated legal aspect of this attack is the fact that it occurred within Iraq.

"Generally speaking, international law says that states are not supposed to use military force on each other's territories without the consent of the host state," Anderson notes, though he says that the U.S. has argued previously that when a host government is unable or unwilling to address a threat, the state affected by the threat can take action without the host's consent. That's a controversial argument, he says.

Iraqi leaders are responding angrily at the attack, which also killed an Iraqi official. "The assassination of an Iraqi military commander who holds an official position is considered aggression on Iraq ... and the liquidation of leading Iraqi figures or those from a brotherly country on Iraqi soil is a massive breach of sovereignty," Iraqi Prime Minister Adel Abdul-Mahdi said, as NPR reported.

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How far can Trump push Iran without Congress’ OK? Depends who you ask
By: Leo Shane - Military Times - 01-04-19
Re: https://www.militarytimes.com/news/p...s-who-you-ask/

A day after President Donald Trump ordered an airstrike to kill a key Iranian military leader on Iraqi soil, lawmakers on Capitol Hill were left with questions over whether the attack was legal and how much further the commander-in-chief can push the confrontation with Iran without congressional approval.

“The administration did not consult (with Congress) in this case, and I fear that very serious questions have not been answered and may not be fully considered,” Senate Minority Leader Chuck Schumer, D-N.Y., said on Friday. “Among those questions, what was the legal basis for conducting this operation? And how far does that legal basis extend?

“It is my view that the president does not have the authority for a war with Iran. If he plans a large increase in troops and potential hostility over a longer time, the administration will require congressional approval and the approval of the American people.”

Earlier, the Pentagon confirmed that Iranian Gen. Qassem Soleimani, the head of an elite arm of Iran’s Islamic Revolutionary Guard Corps, was killed along with several others in an U.S. operation near the Baghdad International Airport in Iraq.

The move drew immediate condemnation from Iranian leaders, who vowed to leave “the dead bodies of Americans all over the Middle East" in retaliation.

Pentagon officials said the move was in response to an imminent threat posed by Soleimani, and that U.S. personnel in the region were saved by the killing. Trump in a Friday morning tweet said that the general “should have been taken out many years ago.”

But numerous Democrats in Congress said they still have not seen enough information about the threat posed by Soleimani or the legal justification for such a military strike. They warned the action could further destabilize the Middle East, especially if Trump decides to act impulsively and without permission from Congress.

Under the War Powers Resolution in 1973, the president is required to notify Congress within 48 hours of any military action and prohibits the president from continuing that action for more than 60 days without an authorization for use of force from Congress.

Different presidents have interpreted those requirements in different ways, especially since Congress approved a pair of broad military force authorizations in the wake of the Sept. 11, 2001 attacks.

House Speaker Nancy Pelosi, D-Calif., said in a statement Friday that the this week’s attack occurred “without an Authorization for Use of Military Force against Iran” and “without the consultation of the Congress,” both of which are needed to ensure national security.

“The full Congress must be immediately briefed on this serious situation, and on the next steps under consideration by the administration, including the significant escalation of the deployment of additional troops to the region,” she said.

Senate Majority Leader Mitch McConnell, R-Ky., said Pentagon officials are working on an all-member briefing on Capitol Hill next week, after most lawmakers return from the holiday break.

He also said he has spoken to Defense Secretary Mark Esper about the operation and expressed no reservations about the decision to kill Soleimani.

“Although I anticipate and welcome a debate about America's interest in foreign policy in the Middle East, I recommend that all senators wait to review the facts and hear from the administration before passing much public judgment on this operation and its potential consequences,” he said in a floor speech on Friday.

Many members appear to have already made up their minds. Rep. Michael Waltz, R-Fla. and an Army veteran who served in Afghanistan, criticized Democratic colleagues for questioning the legal basis for the strike.

“Congressional authorization isn’t required for an act of self defense to prevent further attacks against our military,” he said on social media. “To sit and wait while Soleimani puts more Americans in body bags would be completely irresponsible of (the president).”

But Rep. Elissa Slotkin, D-Mich., who previously worked as a Middle East analyst for the CIA and Defense Department, said the move may have made U.S. personnel in the region less safe because White House officials have not developed a strategy with lawmakers to handle the potentially violent aftermath of such an operation.

“This administration, like all others, has the right to act in self-defense,” she said on social media. “But the administration must come to Congress immediately and consult. If military engagement is going to be protracted — which any informed assessment would consider — the administration must request an (authority for use of military force).”

Congress has been unable to find a compromise on a new military force authorization framework for years, despite fears from many lawmakers that authorities put in place in the aftermath of the 2001 attacks have been interpreted too broadly by multiple administrations.

The most recent legislation effort to pull back some of those presidential war powers failed last month, when congressional negotiators dropped new authorization language from the annual defense budget policy bill.

Scott Anderson, who works as the David M. Rubenstein fellow in governance studies at the Brookings Institution, said it is unclear whether the administration’s interpretation of those existing authorities will run afoul of Congress or outside legal arguments.

“It definitely seems this was an action which pushes the envelope in a number of regards, both under domestic and international law,” he told reporters in a conference call Friday. “I’m not sure that describing it as ‘illegal’ or ‘unlawful’ is necessarily correct because the legal questions tends to be viewed through a highly differential view of [executive power].”

But those questions are likely to take on extra focus in coming days as tensions in the region increase. Pentagon officials confirmed Friday that a force of nearly 4,000 soldiers would head to Kuwait and neighboring countries to act as a response force to regional threats. Earlier in the week, about 750 troops were sent to Iraq to help secure the U.S. embassy there.

House Armed Services Committee Chairman Adam Smith, D-Wash., said that move demands more and better communication between the White House and Congress.

“I do not want an open war with Iran, and neither do the American people,” he said.

“The administration must clearly articulate how this action, and potential future actions, will protect U.S. global interests while ensuring the safety and security of our personnel in the region and worldwide. The American people deserve to know why President Trump has brought us to the brink of another war and under what authorization.”

Note: Reporter Aaron Mehta contributed to this story.

About this writer: Leo covers Congress, Veterans Affairs and the White House for Military Times. He has covered Washington, D.C. since 2004, focusing on military personnel and veterans policies. His work has earned numerous honors, including a 2009 Polk award, a 2010 National Headliner Award, the IAVA Leadership in Journalism award and the VFW News Media award.