Let’s start this piece with two provocative claims. The first, which is hotly contested by legal experts, is that President Donald Trump broke the law when he ordered an airstrike that killed Maj. Gen. Qassem Soleimani, a powerful Iranian paramilitary leader.
The second claim is that it doesn’t matter.
Part of the reason why the legal question is academic is that, even if we assume the strike on Soleimani was illegal, it’s hardly clear whether the courts can do anything to remedy an illegal assassination. It’s not like a judge could issue a writ of resurrection that restores life to the people killed in this American airstrike. And federal courts can’t hold a criminal trial of anyone involved in the Soleimani attack unless an increasingly partisan Justice Department agrees to prosecute. Nor is a judicial order likely to calm tensions between the United States and Iran.
The killing of Soleimani is the latest in a series of escalations and retaliations that began with Trump’s decision to pull out of the nuclear deal former President Barack Obama struck with Iran and includes Iranian attacks on American assets within the Middle East. Not long after the attack, Ayatollah Seyed Ali Khamenei, Iran’s supreme leader, threatened revenge.
His efforts & path won’t be stopped by his martyrdom, by God’s Power, rather a #SevereRevenge awaits the criminals who have stained their hands with his & the other martyrs’ blood last night. Martyr Soleimani is an Intl figure of Resistance & all such people will seek revenge. /3
— Khamenei.ir (@khamenei_ir) January 3, 2020
Trump, meanwhile, threatened massive retaliation “if Iran strikes any Americans, or American assets.” He claimed the US would target “52 Iranian sites … some at a very high level & important to Iran & the Iranian culture” (intentionally targeting “historic monuments, works of art, or places of worship which constitute the cultural or spiritual heritage of peoples” is a war crime).
Although there are some theoretical actions the courts could take to deescalate this conflict — it’s at least possible, for example, for the courts to order the military not to conduct future attacks on Iranian leaders without seeking congressional authorization — such judicial intervention is unlikely.
The federal judiciary frequently defers to the president’s decisions on national security, even when those decisions shock the conscience far more than the attack on Soleimani. Just think about the Supreme Court’s decision to uphold detention centers for Japanese Americans in Korematsu v. United States (1944), or its more recent ruling upholding Trump’s travel ban despite the president’s own statements indicating that the real purpose of the ban was to target Muslims.
If the courts can’t serve as a check on the executive branch, Congress could certainly step in. The Supreme Court established very early in American history, in Little v. Barreme (1804), that Congress may impose statutory limits on the president’s war powers. Congress could also take the more drastic step of removing Trump via impeachment if it determines he acted illegally.
But any congressional intervention would require the Republican-controlled Senate to play ball, and GOP lawmakers appear to be lining up behind Trump. As Scott Anderson, former legal adviser to the State Department and a current fellow in governance studies at the Brookings Institution, told me, “The only meaningful check is a political one, meaning elections — or maybe impeachment.”
With impeachment unlikely to succeed, that leaves the 2020 election as the last remaining check on Trump. As a practical matter, the US has few enforceable checks against a reckless commander-in-chief. Unlike many of our peer nations, the US doesn’t even have the ability to call an early election or replace our chief executive if they lose majority support in the legislature.
What does the law say about the Soleimani strike?
There’s a great deal of disagreement among legal experts regarding when a president may lawfully target another nation. Some believe that, with rare exceptions, Congress must vote to permit such a strike. Others take a more permissive approach, arguing the president should be able to act to prevent sudden attacks on US personnel.
Part of the reason why this area of the law is unclear is that the courts are often reluctant to intervene in matters of national security. “Neither the members of this court nor most federal judges begin the day with briefings that may describe new and serious threats to our nation and its people,” the Supreme Court explained in 2008. Judges are often hyperaware of the fact that they know very little about matters of national security, so they typically defer to the elected branches in cases involving “sensitive and weighty interests of national security and foreign affairs.”
The stakes in national security cases are high, and no judge wants to hand down an order that prevents the government from stopping a terrorist attack. As Rachel VanLandingham, a professor at Southwestern Law School and former legal adviser to senior US military commanders, told me, “Courts have been deferential because they don’t want to screw it up and not have a country anymore.”
One consequence of judicial deference is that there is fairly little case law explaining when the executive branch can and cannot take military action. Instead, most of the legal opinions in this space were drafted by executive branch officials. According to Jack Goldsmith, a professor at Harvard Law School who led the Justice Department’s Office of Legal Counsel during the second Bush administration, “Practically all of the law in this area has been developed by executive branch lawyers justifying unilateral presidential uses of force.”
These lawyers, Goldsmith warned, “view unilateral presidential power very broadly.”
I heard similar concerns from Eugene Fidell, an expert on national security law who teaches at Yale Law School. “We have drifted too far from the shore in terms of the limits that the Constitution imposes,” he told me. The Constitution, Fidell argued, “requires a declaration of war unless you have an attack or an imminent attack on the United States.
“Congress,” he added, “has not declared war on Iran.” And “we don’t know of any imminent threat to the United States.”
VanLandingham, meanwhile, was more sympathetic to the view that the Soleimani strike is legal. She was also more sanguine about the idea that executive branch officials have taken the lead in interpreting much of our national security law. Many of these officials, she pointed out, are service members. VanLandingham further argued that the military tends to be risk averse “because it is their people who are going to die.”
She agreed with Fidell that the president may respond to an imminent attack — or, as she put it, “The president has inherent authority to repel sudden attack.” But she also emphasized that the executive branch has consistently understood this authority to extend to attacks on American service members or diplomats overseas, and that Congress has not stepped in to prevent the executive from exercising such authority.
“We don’t know the intel. We don’t know how imminent this attack would be,” VanLandingham was careful to point out. But if the US had intelligence showing that Soleimani was about to execute an attack on American personnel, that would be sufficient to justify the airstrike. (The question of whether the US had such intelligence is disputed, even within the administration.)
Alternatively, the Trump administration might look to nearly 20-year-old laws authorizing military force during the Bush administration. In a letter to House Foreign Affairs Committee chair Eliot Engel last June, a State Department official suggested that 2001 and 2002 statutes authorizing military force against al-Qaeda and in Iraq might permit military force to be used against Iran when “necessary to defend US or partner forces engaged in counterterrorism operations or operations to establish a stable, democratic Iraq.”
But any claim that these old statutes permit an attack on Iran, according to Anderson, “stretches the law to its furthest limits.” The Iranian regime, he noted, is “seen as apostates by al-Qaeda.” He was also dubious that the US could open hostilities against a new nation based on an authorization of military force that dealt with different circumstances nearly two decades ago.
Nevertheless, Anderson agreed that the courts were unlikely to step in, and he warned that the statutes themselves are broad enough that it is “hard to say” whether the Soleimani attack is “expressly prohibited” by either the 2001 or the 2002 law.
America’s legal system is not built for a president like Trump
One of the striking things about much of American national security law is that it vests extraordinary trust in the president. The 2001 authorization of military force, for example, provides that “the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”
Does this mean Trump could announce that he has determined Canada planned 9/11, and claim legal authorization to invade our northern neighbor? When I put this question to some of the experts I spoke with, they recoiled from the suggestion that Congress accidentally authorized a future war with Canada. But it’s hard to find language in the statute itself that prohibits such a war.
A similar issue arose in Trump v. Hawaii (2018), the travel ban case. One of the legal issues at question was whether Trump had the power to cut off travel from various nations under a statute which provides that:
Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
As Chief Justice John Roberts wrote in the Hawaii ruling, this statute “exudes deference to the president in every clause.” He wasn’t wrong.
So much of America’s national security law was drafted on the assumption that the president will be a person of honor and integrity — or, for that matter, a person of basic competence and judgment — who will act to protect national security, even when many of us might disagree with their decisions.
Though VanLandingham takes a relatively broad view of the president’s ability to use military force, she insisted that something “can be lawful but awful.” Congress delegated vast powers to the president on the assumption that the White House will set up a process ensuring that the “right information flowed to the appropriate decision-makers” and that the president “will make the best decision on hand.”
But how can you trust a president who was just impeached for using America’s national security architecture to try to undermine a political rival? What is our system supposed to do with a president who, in the words of one recently retired Republican congressman, is “psychologically, morally, intellectually, and emotionally unfit for office?”
This president, in VanLandingham’s words, “doesn’t have the best track record for putting the best interests” of national security first. And yet Trump still enjoys the same broad powers and massive deference enjoyed by presidents who did act in good faith.
“Our country has, quite self-consciously, given one person, the president, an enormous sprawling military and enormous discretion to use it in ways that can easily lead to a massive war,” Goldsmith, the Harvard professor, wrote on Twitter. “That is our system: one person decides.”
In such a system, we cannot rely on the courts to save us from the president, nor can we expect this congress to do so. There is only one remedy remaining, and that remedy cannot be used until November.