WASHINGTON — Did President Donald Trump have the legal authority to order the killing of a top Iranian general in Iraq?
The short answer: Probably.
But it depends on facts that aren’t publicly known yet. And legal experts are quick to point out that even if it was legal that doesn’t make it the right decision, or one that will be politically smart in the long run. Iran and its allies are vowing revenge.
In its limited explanation so far, the Pentagon said Gen. Qassem Soleimani was “actively developing” plans to kill American diplomats and service members when he was killed in a U.S. drone strike Friday near the Baghdad airport shortly after arriving in the country.
That would appear to place the action within the legal authority of the president, as commander in chief, to use force in defense of the nation under Article II of the Constitution, said Bobby Chesney, a professor at the University of Texas School of Law who specializes in national security issues.
“If the facts are as the Defense Department said, then the president relatively clearly has Article II authority to act in self-defense of American lives,” Chesney said.
That justification would apply even if Soleimani hadn't already launched an attack under the established doctrine of “anticipatory” self-defense, according to Jeff Addicot, a retired Army officer and expert in national security law at St. Mary's University School of Law in San Antonio.
“Legally there’s no issue,” Addicot said. “Politically, however, it’s going to be debated, whether it’s the correct response. In my opinion it’s the appropriate response, but it’s certainly legal.”
Self-defense would be a legal justification under both U.S. law and the laws of international armed conflict, though the experts consulted by The Associated Press repeatedly stressed that this would depend on what intelligence prompted the killing, and American authorities may never release that information.
“Under international law, self-defense, to be lawful, will need to be invoked in situations where there is an imminent attack against the interest of the territory, in this case of the United States,” said Agnès Callamard, United Nations special rapporteur on extrajudicial executions. “At this point in time, the United States has not thus far provided any information suggesting that there was an imminent attack against the American interest.”
Secretary of State Mike Pompeo said the general posed an “imminent” threat. “He was actively plotting in the region to take actions — a big action, as he described it – that would have put dozens if not hundreds of American lives at risk,” he told CNN.
The U.S. has used such justification in the past. In April 1986, President Ronald Reagan launched strikes against Libya based on what he said was “solid evidence” of attacks planned by longtime dictator Moammar Gadhafi against U.S. installations, diplomats and American tourists. The attack, which the president said was “carefully targeted to minimize casualties” among civilians, killed about 40 people but not the Libyan leader.
One problem with relying on the self-defense rationale is that international law would require the action be necessary to prevent harm to the country, an argument that is undermined by the risk of retaliation that would create more of a threat to Americans, said David Glazier of Loyola Law School in Los Angeles.
There are separate but related legal questions about other aspects of the attack that Iran state TV said killed a total of 10 people, including a deputy commander, five Revolutionary Guard members and Soleimani’s son-in-law. Among them: Was this a legitimate military target? Yes, since the general was a military and not a civilian figure, according to experts.
Callamard said the deaths of civilians makes this potentially an “arbitrary killing” under international human rights law. But U.S. experts said so-called collateral deaths have long been an unfortunate fact of war and whether this would amount to a war crime would depend on factors such as how many of the people killed could be considered legitimate targets in a conflict.
Democratic leaders of Congress have complained that they weren't notified of the strike in advance. Chesney said the administration could likely argue that it has legal authority to protect the troops in the Middle East who were dispatched there under congressional authorizations passed in 2001 and 2002 in the wake of the Sept. 11, 2001, terrorist attacks.
That argument, however, starts to get shakier if the killing of Soleimani escalates into a wider conflict, said Stephen Vladeck, a professor at the University of Texas School of Law who specializes in national security law and the prosecution of war crimes.
“Even though the Executive Branch has pursued ever-broader theories of the President’s unilateral power to use force in self-defense, one of the critical considerations in each case has been whether the force comes with a risk of escalation,” Vladeck said by email. ”Where, as here, there is no question that it does, the argument that the President needed clearer buy-in from the legislature is much, much stronger.”
In a news conference, Connecticut Sens. Chris Murphy and Richard Blumenthal, both Democrats, urged Congress to reconsider the laws that govern congressional authorization of military action. They questioned Trump’s motives, noting that the political conversation would otherwise be focused on impeachment.
Murphy said he did not question whether Soleimani had U.S. blood on his hands, but he asked whether it had been necessary to kill him, when the action seems likely to prompt a higher level of danger for Americans around the world. “I do not believe the administration has gamed out how very badly” this could end, he said.