Many thought the United States got beyond this immoral and illegal approach after the disaster of the Iraq War. Apparently not.
By Harold Hongju Koh | January 9, 2020
Was Qassem Suleimani’s killing lawful? And why does it matter?
The episode raises intertwined
questions of law, process, and policy. The Trump administration’s case
for assassinating Iran’s top general last week in Baghdad is being hotly
debated by the U.S. Congress, where the House just passed a war powers resolution aimed at restraining the president’s military action against Iran. While the facts are still emerging, most indications suggest that the strike was illegal. U.S. officials had no business putting this illegal option on President Donald Trump’s desk, even as an “extreme option”
they expected the president would reject. The decision-making process
was abysmal and ensured that the legal issues would not be properly
vetted and that Congress would be denied its statutory and constitutional role.
For Now, U.S. Troops Are Likely in Iraq to Stay
While they’re there, the United States should refocus the partnership toward making the Iraqi Army more…
As a matter of policy, Trump’s unsubstantiated claim that Iran, having responded, is now “standing down”
hardly vindicates his reckless action. Assassinating state leaders,
provoking retaliation, then narrowly averting needless open warfare is
not strategic success. This is especially true when the episode leaves
Iran policy in a far worse place
than it was five years ago, when the previous administration negotiated
a suspension of Iran’s nuclear program. Most important, by using assassination as a tool of preemptive self-defense, the
Suleimani strike raises the haunting question whether Trump has
resurrected the very doctrine that many thought had been wholly
discredited by the disaster in Iraq.
Under current law, Trump had no
business ordering the killing of one of the highest-ranking military
leaders of a foreign state with which the United States was not at war.
Before the strike, the United States had not engaged in armed conflict
with Iran as a matter of international law. Nor can it be plausibly argued that Congress authorized the strike under a 2002 Authorization for Use of Military Force
(AUMF) that was designed to authorize force to defend “against the
continuing threat posed by Iraq” when the long-departed Saddam Hussein
was Iraq’s president.
Suleimani undeniably orchestrated numerous proxy and terrorist strikes over many years. But unlike Osama bin Laden, who headed a nonstate terrorist group, Suleimani was de facto the second-highest-ranking official of a sovereign state. Like Adm. Yamamoto Isoroku,
a Japanese military champion of the Pearl Harbor attack, Suleimani
should only have been targeted as part of an ongoing armed conflict with
Iran. If killing him was an intentional decapitation strike, it was tantamount to declaring war on Iran, which under the U.S. Constitution’s “declare War” clause
required congressional consultation and participation. And if his
premeditated killing was simply to eliminate him, not a necessary and
proportionate response to address the imminent threat of attack by Iran,
it was an assassination without legal basis, forbidden by a 43-year-old Ford administration executive order.
Even if deemed a terrorist, Suleimani was a high-level state actor, against whom other sovereign states normally act with tools of sanction, diplomacy, and warning, not assassination. That he was head of the Quds Force of the Islamic Revolutionary Guard Corps, a U.S.-designated foreign terrorist organization, does not make him a legitimate target. Trump defied precedent in April 2019 when he stretched that statutory designation to include an identified unit of a sovereign army. Suleimani was reportedly in Iraq on a diplomatic mission. How would Americans react if other countries designated SEAL Team 6 or Joint Special Operations Command
as foreign terrorist organizations and then targeted them while
training in foreign countries? And how are Americans made safer if their
country kills the leader of a state military group with an established
chain of command that ensures immediate elevation of a replacement empowered to order precisely the same attacks?
Most dubious is the Trump administration’s effort to defend the strike under the international law doctrine of self-defense, falsely claiming to build on precedents from former President Barack Obama’s time in office. The Suleimani strike was not a lawful targeted killing of the kind regulated by the Obama administration’s well-publicized drone playbook. Obama administration policymakers and lawyers were acutely aware that preemptive assassinations start,
rather than end, wars. And so, the Obama administration never
assassinated a sovereign military leader as part of an offensive assault
to promote regime change. If, like the Obama administration and the British government, the Trump administration claims that it acted in elongated self-defense because
of Suleimani’s past bad acts, it must produce and share with Congress,
U.S. allies, and the public its factual basis for four claims: first, that killing would prevent an imminent attack on U.S. territory or critical American interests; second, that the attack was necessary because no lesser measure would have sufficed and the action would not escalate; third, that the attack was proportionate to the threat posed; and fourth, that in so doing, the United States adequately respected the territorial sovereignty of U.S.-allied Iraq, where the strike occurred.
While its briefings remain
classified, the administration has apparently failed to produce evidence
that Suleimani was about to launch an imminent attack to which the
United States needed to give a proportionate response respectful of
Iraq’s sovereignty. Even Republican loyalist Sens. Mike Lee and Rand Paul found laughable the administration’s classified briefing on the topic. And the New York Times’ Rukmini Callimachi said that officials briefed on the classified evidence found the case for imminence “razor thin” and saw “the reading of the intelligence as an illogical leap.” Secretary of State Mike Pompeo’s amorphous claim
that Suleimani made “continuing efforts … to build out a network of
campaign activities that were going to lead potentially to the death of
many more Americans” gave no assurance that Trump met any of these legal
prerequisites: imminence, necessity, proportionality, or respect for
sovereignty. And Trump’s listing of Iranian cultural sites—protected under international law from targeting by The Hague and the Geneva Conventions—would violate the fifth legal prerequisite of “humanity,” which any government making such targeting decisions must take into account.
Presidential subordinates should
never present illegal options. And government officials sworn to uphold
the Constitution and the rule of law have no authority to request,
accept, or execute them. So why was U.S. and international law so
Simply put, bad process. The decision was taken abruptly at Trump’s private Mar-a-Lago resort, without the careful interagency policy and legal process that accompanies a targeting decision fully vetted
by National Security Council policymakers and agency lawyers. Neither
short- nor long-term strategic consequences were vetted, nor did this
irreversible decision consider any coherent vision of Iran policy. One
former National Security Council staffer, Jonathan Stevenson,
has chillingly reviewed the intra-executive branch process, testifying
to a broader “abject dysfunction and deterioration of the national
security process under Mr. Trump.” And the interbranch process,
particularly prior congressional reporting or consultation, seems to
have been limited to Trump’s casual Florida conversation with Republican
Sen. Lindsey Graham, who is not a member of the so-called Gang of Eight Senate leaders ordinarily consulted about sensitive intelligence matters. Mar-a-Lago country club members reportedly had more warning than the highest congressional leaders.
Nevertheless, Trump’s supporters justify
the strike as good policy because a bad actor has now been neutralized.
But keen observers—such as former senior national security officials Susan Rice and Richard Haass, among others—have
all shown why even if somehow deemed lawful, the decision was still
awful national security policy that made the United States less safe in
the world. Trump’s premature claim that Iran is “standing down” after a largely symbolic retaliatory strike cannot be credited when we don’t know what other retaliatory attacks, cyber or kinetic, still await the United States.
To stop security breaches before they happen, U.S. intelligence agencies are surveilling everything.
Beyond law and process, in an age of
drone strikes and targeted killings, what’s wrong with including
preemptive assassination as a policy option? Assassination
is forbidden by U.S. law because it starts wars and quickly becomes
deeply destabilizing. The same rationale used to kill Suleimani could be
used tomorrow against North Korea’s Kim Jong Un, Syria’s Bashar
al-Assad, or rogue Venezuelan President Nicolás Maduro. Because
reciprocity lies at the heart
of international law, how long would it be before hostile foreign
powers start invoking the same rationale to target America’s own
Law, policy, and process are deeply
interrelated. Law locks in the lessons of policy, to provide
predictability and accountability. Legality and sound process tend to
promote more stable policy, while illegality and bad process foster
policy disaster. Legal compliance and good national security process
enable multilateral cooperation, accountability, and political agreement
about sensitive policies between the executive branch and Congress. But
illegality combined with shoddy process breed cascades of illegality
that strain the relationship between the president, Congress, and U.S.
allies; promote executive and U.S. unilateralism; and enhance secrecy
Witness the George W. Bush administration’s disastrous embrace of illegal torture. The Justice Department’s infamous 2002 torture memo said, in effect, that if the United States could attack in preemptive self-defense, it can torture people in preemptive self-defense. The same administration invoked arguments based on preemptive self-defense to put troops into the Philippines, to gear up for its Iraq campaign, and to assert in its national security strategy paper a customary right of preemptive self-defense.
But the absence of weapons of mass
destruction in Iraq debunked those claims. Two Bush administration
maxims best illustrate the perils of preemptive war. Combine a maxim
then-Defense Secretary Donald Rumsfeld notoriously embraced, “absence of evidence isn’t evidence of absence,” with then-Vice President Dick Cheney’s so-called One Percent Doctrine:
“Even if there’s just a 1 percent chance of the unimaginable coming
due, act as if it is a certainty.” So even if there’s no smoke, assume
there’s a fire, which justifies attacking preemptively. But preemptive
attacks are not meaningfully restrained by notions of necessity or
proportionality. If you think someone will attack with intent to kill,
your best bet is to kill them first, à la Pearl Harbor. When that
mindset prevails, evidence yields to hunches and the twisting of
evidence, which is what helped create the rationale for intervening in
Iraq in 2003 with overwhelming force to stop nonexistent weapons of mass
international legal doctrine of self-defense, an aggressor must take
unambiguously aggressive first steps before the object of their
aggression can legally respond in self-defense. But if we change the law
to authorize a nation to respond not just to perceived threats, but to
mere premonitions thereof, and then to inklings of premonitions that
one’s adversary might misperceive motives, hard evidence is displaced by
conjecture or outright lies. Down this hall of mirrors lies a doctrine
that assumes necessity, then authorizes disproportionate use of force to
“shock and awe” a potential attacker into submission.
We cannot let Trump and his
administration launch a new forever war against Iran and its various
proxies by using vague Twitter claims as weapons of mass distraction.
And Americans should hold Pompeo strictly to his vow,
oft-repeated since the strike, that “every action” the United States
takes “will be consistent with the international rule of law.” By their
very nature, claims of preemptive war turn on “trust me” actionable
intelligence. To prevent a replay of Iraq, Congress, the media, and the
public must continue their intensive detailed scrutiny of Trump’s
factual basis for his claim of imminence. What factual basis did Trump
have for thinking that Suleimani was planning an imminent 9/11-type
operational attack on the U.S. territory or interests? Without such
information, it was illegal to even consider killing Suleimani as a
policy option; but if such information existed, Congress was legally
required to have seen it. Either way, the strike seems to have been
This also means rejecting Trump’s and
Pompeo’s simplistic flattening of the issue into a false bipolar choice
between “attack” or “do nothing.” Even if, as Pompeo claims,
the risk of U.S. nonaction was greater than the risk of action, the
action taken did not demand unilateral military force. It could instead
have called for a third way: disarming Iran without pre-emptive attack through a multilateral strategy of disarmament that would include diplomacy,
transparency, containment, and enhanced sanctions. This third way
should sound familiar, as precisely such a process led the Obama
administration to conclude the 2015 Iran nuclear deal.
By reflexively discarding that deal without a safety net, Trump
predictably triggered a cycle of tit-for-tat retaliation, and to escape
it, he now ironically calls for new multilateral negotiations years later that could at best produce an inferior version of that accord.
Despite its impeachment stalemate, Congress must demand the testimony, under oath, of those officials
who shaped the options and argued for killing Suleimani. At the same
time, legislators should force Trump to clarify America’s near- and
long-term goals in Iran and Iraq.
As debate shifts to the Senate, that body should legislate against
further Iran escalation by enacting Rep. Elissa Slotkin’s resolution, recently adopted by the House under the War Powers Resolution’s expedited procedures. Congress should also enact Rep. Ro Khanna’s bill denying funding to any offensive actions in Iran. As described elsewhere, Congress must repeal the now-obsolete 2002 Iraq AUMF and promptly move to hearings on the war powers bill offered by Sen. Tim Kaine, incorporating sound ideas from a related bill offered in the last Congress by Sen. Jeff Merkley.
The House’s impeachment of Trump over his national security abuse in Ukraine teaches that the current president is a national security threat.
The Suleimani strike confirms that Congress cannot give an impeached
yet impetuous, uninformed yet unchecked president carte blanche to wag the dog of war in Iran.
Source: South Asia Journal
Click to read article at Source Is Preemptive Assassination the New Trump Doctrine?