The Dangerous Soleimani Legal Opinions
Recently, on January 2nd it was the second anniversary of the United States’ killing of Iranian General Qassem Soleimani as well as Abu Mahdi al-Muhandis, the deputy chairman of Iraq’s Popular Mobilization Committee, by an airstrike outside the Baghdad airport. The UN rapporteur for extrajudicial killing concluded in a report that Soleimani’s assassination was “unlawful” and “arbitrary” and violated the UN charter.
In this article we cite a summary of a report about long-term consequences of Qasem Soleimani’s terror. One of the most dangerous is a set of extreme legal opinions drafted during the Trump administration to justify the president’s actions that now lie ready to be used by future presidents.
In terms of the use of force, the deeply flawed, yet precedential legal opinions concocted by the Trump administration to justify the reckless operation are a particularly hazardous legacy. The Trump administration opinions and interpretations remain on the books, to be relied upon by the executive branch to justify other unilateral uses of force by the president. These opinions erode the limited internal executive branch constraints on the use of force both under domestic and international law. To mitigate these risks, the Biden administration should disavow and withdraw them.
Under the executive branch view, the president’s unilateral authority to direct U.S. military forces arises from Article II of the Constitution, which makes the president the “Commander in Chief of the Army and Navy of the United States” and vests in the president the Executive Power. Relying upon its own prior opinions as precedents, the Justice Department’s Office of Legal Counsel (OLC) has concluded that whether a potential use of military force is within the scope of the president’s unilateral authority under Article II of the Constitution (i.e., his or her power to act without congressional authorization) turns on two questions:
(1) Whether the U.S. military operations would serve sufficiently important national interests; and
(2) Whether the military operations that the president anticipates ordering would be sufficiently extensive in “nature, scope, and duration” to constitute a “war” within the meaning of Article I, § 8, cl. 11, which gives the Congress the power “[t]o declare War.” OLC began to cite this factor as “war in the constitutional sense.”
The Soleimani Legal Opinions
The Trump administration’s legal justifications for the attack on Soleimani are particularly good candidates for rescission.In the immediate aftermath of the attack on Soleimani, Trump administration officials gave a variety of shifting justifications for the strike. The administration’s inability to get its story straight and failure to provide substantiating facts led Senator Chris Van Hollen (D-MD) to observe, “It just goes to show how they’re making this up as they go.”
Several officials invoked self-defense as a justification for using force without congressional or Security Council approval by claiming that Soleimani was killed to prevent an “imminent attack on U.S. forces.” The evidence to support this claim was simply not there. The U.S. government’s “official” justification for the strike then abandoned the notion that the strike was conducted as anticipatory self-defense against an imminent future threat and recast the U.S. attack as reactive self-defense in response to “an escalating series of armed attacks in recent months by the Islamic Republic of Iran and Iran-supported militias on U.S. forces and interests in the Middle East region” beginning in the summer of 2019.
The Trump administration cited “deter[ing] Iran from conducting or supporting further attacks against United States forces” and “degrad[ing] the Iran’s and Qods-Force-backed militias’ ability to conduct attacks” as elements of the self-defense justification.
The Dangers of the Soleimani Opinions
The dangers of the Soleimani legal opinions arise not from novel legal theories, but by how those opinions apply longstanding constitutional and international legal frameworks to reach unwarranted conclusions.
Why the Strikes Should Have Failed the “War in the Constitutional Sense” Test
OLC concludes that the “strike against Soleimani would not rise to the level of a war for constitutional purposes.” While the specific reasoning is not publicly available for analysis, it is not too far a stretch to say that OLC must have erred in reaching this conclusion, given that both the predictable and predicted risk of escalation from the strike would be inconsistent with previous applications of the “nature, scope, and duration” framework.
The risk of escalation from the killing of Soleimani was predictable because unlike a clandestine jihadi group such as al Qaeda, Iran is a state with significant military capabilities, notably including ballistic missiles. Moreover, the executive branch itself had previously predicted escalation as a result of an attack on Soleimani. Indeed, both the Bush and Obama administrations had refrained from attacking Soleimani because they recognized the likelihood of escalation.
In fact, Soleimani’s killing, an overt attack on a senior military leader of state, led to the very sort of escalation, most notably the ballistic missile attacks on U.S. troops on the ground, which deprives Congress of its authority under the “declare war clause” according to the OLC’s own framework. As the serious injuries suffered by over 100 U.S. troops attest, it was by luck, not careful calculation by the Trump administration that there were no U.S. fatalities from Iran’s predictable counterattack.
Future administrations may now rely upon the Soleimani precedent to engage in escalatory military adventures in conflict with well-armed nation-state opponents all while bypassing Congress and the necessary deliberation contemplated by the Declare War Clause. If OLC’s “nature, scope, and duration” framework does not bar an operation as patently risky as the attack on Soleimani, it is unlikely to stop very much at all and may become another functionally meaningless constraint like the national interest test.
Why the Strikes Should Have Failed the Self Defense Test
The Trump administration invocation of self-defense under international law distorts the concept beyond recognition. As a matter of customary international law, actions taken in self-defense must be both necessary and proportionate.
The strike against Soleimani fails the test for self-defense because it was not necessary, in the sense that it did not address the threat giving rise to the right to use force in the first place. The killing of Soleimani did not mitigate the threats to U.S. forces purportedly motivating the operation.
Perhaps the reason that the self-defense rationale for killing Soleimani is so strained is that this rationale was a pretext. According to extraordinary reporting by Jack Murphy and Zach Dorfman, “plans to kill the Iranian general date back to the early days of the Trump administration.” The New York Times also reported, in a deeply investigated piece, that the Trump administration discussed targeting Soleimani for 18 months prior to the eventual strike.
In sum, there is great reason to conclude that the facts understood at the time did not come close to satisfying the necessity test.
To effectively mitigate the likelihood that future presidents will abuse their authority as Commander in Chief, including through reckless “one-off strikes” that drag the country into war, requires the executive branch to self-police properly. If the requirements for self-defense under domestic and international law and the “nature, scope, and duration” framework are to impose meaningful constraints on the use of force, then the executive branch must apply them rigorously.
In keeping with that imperative, the Department of Justice should rescind the Soleimani legal opinions and correct the record with the United Nations Security Council regarding the Trump administration’s letter. As a matter of legal threat reduction, the Soleimani opinions should be disavowed before another administration invokes them to justify another pretextual use of force.