By QUENTIN LEVIN
On Friday, January 3, 2020, the U.S. military, on the orders of the President of the United States, conducted an airstrike that killed Iranian general Qasem Soleimani, along with several other people traveling with him in Iraq. The attack was both politically and legally divisive in the U.S. Democrats and Republicans are now sparring over whether President Trump was wise to order the strike—and whether he could. Although there are international law questions related to targeted killing, this blog addresses some of the domestic law issues regarding whether the President could order this strike without further Congressional approval before initiation.
This post first argues that while the strike was likely unsustainable under the 2002 Iraq AUMF, the Prize Cases and the War Powers Resolution currently grant the president discretion to conduct military strikes in self-defense. If the intelligence of an imminent Iranian strike is ultimately found to be true, then this strike can be upheld under the war power. Second, this post explains why legislative—not judicial—methods would be most effective for members of Congress seeking to limit presidential war power. Legal analysis is the sole purpose of this blog post; it does not take a position on the wisdom of the strike.
The Trump Administration has argued that the drone strike was legal under U.S. domestic law because it was a “defensive” action taken to avert an “imminent” attack on U.S. interests.[i] National Security Advisor Robert O’Brien has specifically argued that the 2002 Authorization for the Use of Military Force against Iraq provided the President with statutory authority to order this strike.[ii] However, this argument is legally unconvincing because Section 3(a) of the 2002 AUMF solely authorized the President to enforce UN Security Council Resolutions related to Iraq and to defend against the “threat posed by Iraq.”[iii] On its face, killing an Iranian general pursues neither of these objectives.
Still, the 1973 War Powers Resolution grants the President discretion to use military forces overseas for limited time periods without affirmative congressional approval.[iv] Most importantly, the United States Supreme Court held in the Prize Cases that the President possess implied constitutional authority to repel sudden or imminent attacks.[v] In that case, the Court upheld President Lincoln’s blockade of the South (without prior Congressional approval) because the President has an implied duty to defend the nation when circumstances of war present themselves. Applying this precedent, if—and only if—intelligence indicated an imminent Iranian attack on the U.S. that could be averted by killing its military leadership, then the strike could be justified under this implied Constitutional power. Then, the method of using U.S. forces would also be valid under the War Powers Resolution.
One possible counterargument here is that the Prize Cases precedent should only be applied when another country has already begun to attack the U.S. In the Civil War, the South had clearly created a state of war by seceding. If, by contrast, the Prize Cases were read to justify a pre-emptive strike, this would erode Congress’s Article I power to declare war because a pre-emptive strike could, functionally, eliminate any choice for Congress regarding whether to initiate hostilities by declaring war, as the President could initiate that war himself. For instance, if the U.S. launched a first strike against a nuclear power, Congress would have little choice but to support the action to ensure national survival. And how would one ever know, in the case of a pre-emptive strike, if war was truly inevitable? If it is ultimately proven that Soleimani was not in the midst of executing an actual attack on the U.S., then the decision to target him might not be sustainable under the Prize Cases. This dynamic highlights the inherent issue in presidential war power: Most action can only be proven as illegal after it occurred, and the secret nature of the intelligence makes it difficult for the public to scrutinize.
As further facts surrounding the operation are revealed and new judicial precedent develops, this legal analysis will likely change. However, as things currently stand, it tentatively appears that the President possessed at least colorable authority to order this strike. If members of Congress believe this is too much unilateral authority for any president, they must move to change the law and enforce their Constitutional prerogatives. Judicial avenues, however, will be the most difficult route for Congress to limit presidential war powers. In particular the political question doctrine is a barrier to members of Congress bringing suits against a president in attempt to limit his war power. For example, a federal Circuit Court held in Campbell v. Clinton that members of Congress lacked standing to challenge President Clinton’s military campaign in Kosovo and Yugoslavia because they possessed legislative tools that Congress could use instead.[vi]
Instead, if Congress wishes to limit presidential war power, it should work on a bipartisan basis to reform and strengthen the War Powers Resolution and the 2002 AUMF to reflect the current security conditions that the country faces. Bipartisan reform is most likely to have the political legitimacy needed to succeed. There is no doubt that today’s threats require decisive action from the Commander-in-Chief. But it is for Congress and the President together to decide what scope that action may take since the Constitution divides the war power between the Commander-in-Chief and the Congress.
[i] Adam Taylor, The key word in U.S. justifications for the killing of Iranian general: Imminent, THE WASHINGTON POST (5 Jan. 2020) https://www.washingtonpost.com/world/2020/01/05/key-word-us-justifications-killing-iranian-general-imminent/
[iii] 50 U.S.C. § 1541 (2020)
[iv] 50 U.S.C. § 1541 (2020)
[v] Prize Cases, 97 U.S. 635 (1863)
[vi] Michael John Garcia, War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution, CONGRESSIONAL RESEARCH SERVICES (17 Feb. 2017) https://fas.org/sgp/crs/natsec/RL30352.pdf