He exceeded his authority and ordered what looks like an illegal assassination. Toothless resolutions won’t be enough.
The United States’ targeted airstrike against Iranian General Qassem Soleimani in Iraq has placed the U.S. on the precipice of an undeclared war with Iran, a hostile and militarily sophisticated foreign government, all without the consent of Congress.
Trump’s decision to strike without notifying congressional leaders is without precedent in history. There’s also no precedent for an American president openly ordering the killing of a senior state official of a country on which the U.S. has not officially declared war.
Iraq also didn’t consent to the drone strike against Soleimani. Notably, despite leaving Congress in the dark, Haaretz reports that Israel was briefed ahead of the attack.
On Saturday, the Trump administration sent Congress a classified letter saying it had met its obligation to notify Congress under the War Powers resolution.
Trump’s letter prompts “serious and urgent questions about the timing, manner, and justification of the administration’s decision to engage in hostilities against Iran,” said House Speaker Nancy Pelosi, who received Trump’s letter.
In order “to limit the president’s military actions regarding Iran,” the House will vote on a war powers resolution this week, Pelosi told House Democrats Sunday.
But is that enough?
“Congress must reassert its constitutional responsibility over war,” wrote Senator Bernie Sanders in a tweet. “The Senate and House must vote to immediately defund unauthorized military action against Iran.”
Several questions have been raised by the Trump administration’s actions and the competing legal justifications cited.
Did President Trump have the authority to unilaterally take military action against a uniformed member of a foreign military service without a declaration of war? Is he required to notify Congress first? Does an extrajudicial assassination, like the airstrike against Soleimani, count as an act of war? Doesn’t the Constitution say the power to declare war rests solely with Congress? And how does the war powers resolution figure into this?
Because the letter provided to Pelosi is classified, we are in the dark as to whether evidence of an “imminent strike” as required by the war powers resolution was provided. Instead we must rely on the justifications provided by officials’ public statements.
National Security Adviser Robert O’Brien claims the strike was “authorized” in part by the 2002 Authorization for Use of Military Force (AUMF), which provided the legal basis for the war in Iraq.
“Unless Trump is using his presidential sharpie, it’s not at all clear how this 17-year-old statute authorizes what seems to be a major escalation that could start a whole new war,” said Gene Healy, vice president of the Cato Institute, in an interview with The American Conservative.
As for the war powers resolution justification provided by the administration, that legislation was not designed to alter the fundamental constitutional balance, but to restore it, Healy says. Critically, it does not give presidents a free pass to carry out military action for 60 days without congressional approval, as some have suggested.
The war powers resolution itself was introduced after Congress discovered Nixon’s secret war in Cambodia in 1973. It was designed to allow Congress to terminate any unauthorized actions taken by the executive branch and to require transparency. If the president responds to any “imminent threat” not covered by an existing statute or law authorizing use of force, then the president must within 48 hours report to Congress what actions have been taken.
In the case of Soleimani, “the Pentagon statement doesn’t mention any imminent attacks,” notes Healy. Secretary of State Mike“Pompeo says Soleimani was planning an attack that could have killed hundreds of lives, but he’s provided no evidence for that. I think it’s hardly cynical to verify, instead of blindly trusting, given the track record of this administration and recent past administrations.”
“With the Soleimani strike, the administration is saying they’re responding to an imminent threat, but they have not publicly stated what that threat is,” said Kate Kizer, policy director at Win Without War, in an interview with TAC. “From reporting, there’s not a lot of evidence of an imminent attack. So they should have come to Congress first and said what they were going to do.”
That’s because there’s simply “no viable argument” that the 2002 AUMF authorizes force against Iran, according to Brian Egan, a former legal adviser to both the State Department and the NSC, and Tess Bridgeman, a senior fellow at NYU School of Law and former associate counsel to the president.
The 2002 AUMF 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” (emphasis added).
“Those are plainly not relevant to the situation” today, Egan and Bridgeman write.
The Trump administration also said it does not ”need congressional sign off from a legal standpoint” for the Soleimani strike because of the president’s authority as commander-in-chief under Article II of the Constitution, CNN reported.
The Constitution clearly gives the power to declare war to Congress. Article II states that the president can act without Congress only when it is necessary to do so against imminent threats to U.S. territories, possessions, or citizens.
That’s why Secretary of State Mike Pompeo, Pentagon chief Mark Esper, and Chairman of the Joint Chiefs of Staff General Mark Milley were so emphatic Monday that the U.S. was responding to an “imminent threat.”
But so far, no evidence of that has been provided.
While a 2018 Office of Legal Council (OLC) opinion offers a very liberal definition of executive authority and provides “very little constraint on modern presidential uses of force,” it appears to classify the Soleimani strike as an act of war, since Iran is a nation state that will likely escalate its military retaliation in response to the killing of their uniformed military member.
Indeed, the U.S. has already said it will send 3,500 additional troops to the Middle East “after Iran vowed to exact ‘severe revenge.’” The U.S. has warned its citizens to leave Iraq, and Iran has already begun firing at housing for American forces in Iraq: all signs that point to escalation.
Moreover, targeted political assassinations, like the kind used against Soleimani, have been banned by executive order since the Ford administration. Ronald Reagan signed Executive Order 12333, which reads: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”
Soleimani was “not a rogue outlaw, but a military official of a sovereign government we were not at war with, making his killing an assassination,” writes Ben Friedman, policy director at Defense Priorities. “His actions, however evil, served Iranian policy.”
“The idea that the president can, without going to Congress, take out a top level official of a country we’re not in an authorized war with, is crossing a Rubicon,” said Healy.
So what happens now?
Congress has several choices to make in the days ahead. It can pass empty, non-binding resolutions, that require the president’s sign-off, like the kind suggested by Kaine and Pelosi. Or it can repeal the decades-old AUMFs that have been used to justify continuing U.S. escalations in the Middle East. Congress could also pass bills like those by Representative Khanna and Senator Sanders to strip funding for offensive military action against Iran from the NDAA.
It remains to be seen if Congress will choose substantive actions, like defunding unauthorized wars, over window dressing.