The legality of targeting Soleimani depends on these questions

“Decisive action.”
“Decisive action.”
Image: Reuters/Kevin LaMarque
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US president Donald Trump addressed Americans on Wednesday, briefly discussing his decision to kill Iranian major general Qassem Soleimani in Iraq. “Last week we took decisive action to stop a ruthless terrorist from threatening American lives,” the president said.

Yet his decision has been met with mixed reactions. Some call the drone attack on Soleimani an assassination—that is, a murder, and therefore, a crime. Others say the president acted on an imminent threat, making the killing arguably legal, under US law at least.

Many experts hesitate to say either way because there simply isn’t enough information to make a determination, which is problematic in and of itself. Georgetown University Law Center professor Martin Lederman told Quartz that “it is possible to imagine a set of facts that would make this action legal—if not necessarily a good idea.”

But Lederman says the Trump administration hasn’t made that case, at least not publicly, and retroactive justifications are suspect. He worries that there was an insufficient process—legal and policy vetting by experts meant to advise the president, ask difficult questions, and ensure he acts lawfully and responsibly.

Based on the information disclosed, he says, “I’m not sure the legal questions were given the attention they deserved.” However, he is sure of the major questions that would have to be addressed to determine legality.

The two major questions

There are two primary legal questions that have to be answered to decide if the president’s act was lawful in this situation, and the two are connected, Lederman says.

The first is whether the US could target Soleimani under international law, based on the United Nations charter. If so, the next question is whether the president can act without congressional authorization, consistent with constitutional law. “Both questions turn on whether this particular act was necessary and proportional to stopping Iranian attacks on US nationals and facilities,” the professor said.

(Although there has also been much public discussion of the War Powers Act of 1973 constraining the president, Lederman says it’s not relevant at this juncture because the act required Trump to notify Congress within 48 hours after the attack, which he did, and the principal operating provision of the law requires the president to withdraw within 60 days if hostilities continue, which at this point isn’t an issue).

The legal questions, thus, must be answered with an examination of the facts. Ordinarily, Lederman says, a proposal to target an individual like Soleimani would be discussed with law and policy experts in the administration. Lawyers would push back and ask questions about the level of threat, alternative nonlethal options, the intelligence the proposed act is based on, objectives of the killing, the extent of Soleimani’s involvement in ongoing attacks, and the likely responses that might ensue.

Such a process could provide sufficient clarity on the evidence and other considerations to determine that the act is legally justifiable—or not.  Yet if these exchanges among lawyers, intelligence officials, and others didn’t occur, offering a legal justification retrospectively is troublesome, Lederman said.

Indeed, after emerging from a briefing on the action late on Wednesday, Republican senator Mike Lee of Utah said he was “unsatisfied” with “the legal, factual and moral justification for the attack.” He told reporters: “What we were told over and over again is, ‘look this action was necessary, this was a bad guy.'”

War on terror?

Gary Solis, a Marine and retired West Point professor of law, agrees with Lederman that process is extremely important and seems to be insufficiently appreciated in the Trump administration. Process provides predictability. “There has to be a means of coordinating effects and issues that may be related,” he said. “When process is centered on one individual that’s a very dangerous situation in a modern world.”

While Solis isn’t mourning Soleimani, he is concerned that Trump’s action “indicates we are a nation that has to be handled gently and with an awareness that who knows what can happen who knows when.”

Solis can even appreciate the fact that some Americans view Trump’s unpredictability as a plus, though he disagrees. If American leadership seems erratic, and indifferent to its allies’ concerns, that may endanger US citizens and be detrimental in the long run, Solis says. “There are norms of international behavior that allow us to identify, apprehend, and try terrorists,” he said. “We can’t have a civilized world if we don’t follow the law.”

He would support Trump’s decision to target Soleimani if the United States was at war with Iran and the president complied with procedure in that context. The administration has suggested the “war on terror” and the 2002 Authorization of Use of Military Force (AUMF) act passed in light of the Sept. 11, 2001 terrorist attacks allows for the targeting of Soleimani, but Solis calls this a “thin” justification.

He notes that the war on terror is a never-ending fight but not a technical war as defined by law. To justify the killing under the AUMF then there would have had to be a specific “imminent threat” rather than a general sense that Soleimani is a bad guy who doesn’t like Americans. And, most notably, Soleimani was also a general in the Iranian army, which means he can’t necessarily be dealt with like non-state actors.

Generals plan attacks on enemies, whether the general is Iranian or American or any other nationality. That is just what generals do. Thus, saying that Soleimani was planning attacks—without more—doesn’t justify a killing. “To say that someone was making a plan isn’t the same as an imminent threat,” Solis said. “There have to be specific and articulable facts about an imminent threat.”

While imminent threat isn’t strictly defined in US or international law, Solis points out that some international courts have considered “imminent” to be as long as several months. In other words, the president isn’t necessarily constrained by a specific timeline and could well justify the killing, but a general assertion of threat is insufficient, the law professor says.

So far, it seems that all the administration is offering is this generality, though. Republican senator Rand Paul of Kentucky said that he didn’t hear the specific evidence that would have lent credibility to talk of an imminent threat in the administration’s briefing to senators on Wednesday. Paul believes it is “absurd” and an “insult” to rely on the AUMF to justify attacks on Iran in 2020.

Solis distinguishes former US president Barack Obama’s targeting of the al Qaeda leader Osama bin Laden in Pakistan from the Soleimani killing because the United States had secret agreements with Pakistan about what actions it could take in that state, which it does not have in Iraq, and bin Laden wasn’t part of a legitimate state military force while Soleimani was.

“It’s not a bad thing that Soleimani is dead,” Solis said. As the president said yesterday, the man had blood on his hands.

But killing a military leader in a foreign nation, and one the United States is not at war with, sets a bad precedent with possibly dangerous consequences. Solis asked, “How would we feel if Mark Milley, the chairman of the Joint Chiefs of Staff, was killed on a visit to Canada in a Canadian airport?”