SHAFAQNA| By Leila yazdani: The US assassinated Senior Commander of the IRGC’s Quds Forces Major General Qasem Soleimani by drone strike at Baghdad Airport last Friday which was ordered by Donald Trump. The Qasem Soleimani assassination raises many legal issues, but one of the most significant is that Donald Trump ordered the strike without informing Democratic leadership in Congress, disregarding Congress’s essential role in initiating war.
Since that time, the US has provided few details about those specific threats posed by General Soleimani and failed to clearly outline the legal underpinnings. In fact, Trump broke precedent by failing to inform congressional leaders before the attack on Soleimani, and by making classified his formal notification to Congress of the attack on Saturday. Any significant US military action requires legal authority under both domestic and international law.
Normally, domestic law would require the president to seek the approval of Congress, usually through a law authorizing the use of military force. International law would also require him to seek the approval of the United Nations Security Council before resorting to force, unless the host state consents (which it did not) or the action qualifies for the express, but narrow, self-defense exception. Trump did not seek approval in either forum.
The Soleimani assassination defied the US Constitution
Under the US War Powers Act, the president must inform Congress within 48 hours of introducing military forces into armed conflict abroad. Those notifications normally detail the justification for the intervention. The act also bars a president from committing US armed forces from any foreign action lasting more than 60 days without Congress’ approval.
Legal experts say the war powers law requires a formal report to Congress, and does not allow such a blanket clearance ahead of time, especially not via social media. Under this law, there are only three circumstances under which the president can order military forces into ongoing or imminent hostilities. When:
- Congress has declared war;
- Congress has provided “specific statutory authorization” to do so;
- There is a national emergency “created by attack upon the United States, its territories or possessions, or its armed forces.”
The US president is also required “in every possible instance” to consult with Congress before engaging the armed forces in hostilities or situations in which hostilities are imminent.
US central justification is the president’s right to engage in self-defense
Though US administration has yet to provide any clear explanation for the legality of the strikes, it has offered various clues that the central justification is the president’s right to engage in self-defense on behalf of the United States. The Department of Defense issued a short statement suggesting that the attack was justified as an act of defense “aimed at deterring future Iranian attack plans.”
Without any more solid legal authority to cite, the Trump administration seems to have turned to the claim that it was acting in self-defense. National Security Adviser Robert O’Brien told reporters that the killing was justified under the 2002 law Authorization for Use of Military Force Against Iraq, which was passed to permit the president to act to address threats posed by Iraq. Relying on the law would require a conclusion that the threat from Soleimani, an Iranian government official, was posed by Iraq. Those claims have been widely discredited, and several members of the Senate earlier expressed skepticism that this law authorized action against Iran.
An arguably unprecedented action by US presidents
Though US presidents have pushed the boundaries of their unilateral authority before, this action by Trump is arguably unprecedented. Legal experts notes that recent US presidents from both parties have taken an expansive view of their unilateral ability to preemptively engage in force, including through targeted killings.
The Obama administration issued opinions that offer questionable claims of presidential authority—asserting that the president did not need prior congressional approval for military operations against Libya in 2011, for example, because “he could reasonably determine that such use of force was in the national interest.”
When President Barack Obama participated in the NATO strikes in Libya, at least the operation was undertaken with allies and approved by the United Nations Security Council. When President George W. Bush invaded Iraq in 2003, his international support was tenuous, but he had clear congressional authorization, Theatlantic reported.
In 1973, after discovering President Richard Nixon’s secret bombing campaign in Cambodia, Congress took steps to reclaim its power by passing the War Powers Resolution, which requires the president to report to Congress whenever armed forces are introduced. In fact, the closest recent precedent for the current operation is Trump’s own earlier decisions to strike Syrian-government targets in April 2017 and again in April 2018—without either congressional or international support.
Congress called on Trump to consult with Congress
Congress demands answers from Trump about Soleimani assassination and, called on Trump to consult with Congress going forward, Reuters told. House Speaker Nancy Pelosi is promising swift action this week to reassert Congress’ war powers and rein in President Trump, according to npr. Pelosi said the notification “raises more questions than it answers. This document prompts serious and urgent questions about the timing, manner and justification of the Administration’s decision to engage in hostilities against Iran.”
In a letter to House Democrats, Nancy Pelosi called the airstrike “provocative and disproportionate”, according to AP News. Moreover, Robert Menendez of New Jersey said the White House’s classified notification sent to Congress late Saturday under the War Powers Act was insufficient and inappropriate. In an interview with CNN Friday, Democratic Sen. Tom Udall of New Mexico said more than once that he does not believe an attack on the United States was imminent as President Donald Trump and other top administration officials have said. “So what if Trump wants war, knows this leads to war and needs the distraction? Real question is, will those with congressional authority step in and stop him?” Rep. Ilhan Omar, D-Minn., posted to Twitter on Friday, USA Today told.
US lawmakers have few options for tamping down any escalation by Donald Trump
US Congress’ main power over the president is its control of federal spending, and the Democratic-controlled House could pass legislation that would bar Trump from spending any taxpayer dollars on a conflict with Iran. Congress can also put pressure on a president by refusing to pass bills he supports, and the Senate could block his nominees. But Senate Republicans have shown little appetite for opposing Trump. The Democratic-led House impeachment of Trump has led his party to rally more closely around him, further complicating efforts to rein him in on Iran.
“The Republicans control the Senate, and they’re not asking questions,” said Daryl Kimball, executive director of the Arms Control Association, Nytimes reported. US lawmakers have few options for tamping down any escalation by Donald Trump of tensions with Iran, despite Democrats’ outrage over his failure to inform Congress in advance about a strike against a top Iranian military commander. The conclusion to be drawn from this fact is that, there is scant expectation any legislation could win enough support to become law.
Republicans lobbed the same accusation against Clinton in 1998
It won’t be the first time Congress has tried this. Forty-seven years ago, lawmakers fed up with an unending losing war in Vietnam decided they had had enough of presidents dragging the nation into undeclared wars. With large Democratic majorities in both the House and Senate, Congress overrode a veto by President Richard Nixon and enacted the 1973 War Powers Resolution.
“We live in an age of undeclared war, which has meant Presidential war,” the Senate Foreign Relations Committee wrote at the time in its report on the joint resolution. “Prolonged engagement in undeclared, Presidential war has created a most dangerous imbalance in our Constitutional system of checks and balances.”
It is noteworthy that, in December 1998, Republicans lobbed the same accusation against President Bill Clinton, who authorized air strikes against Saddam Hussein’s government in Iraq right before the House of Representatives was scheduled to vote on articles of impeachment against him. But , Clinton and aides rejected the charge, saying the strikes were justified by Iraq’s refusal to deal with international weapons inspectors.
US Congress must now act again, not only to reject the illegal use of force represented by the decision to assassination, but also to reassert its constitutional role in the decision-making process that takes the US to war.
If Congress fails to effectively press back against this unconstitutional assertion of unilateral authority, it will set a precedent that will put the greatest destructive power the world has ever known in the hands of a single man and US president will be left with the unmitigated power to take the US to war on his own—anywhere, anytime, for any reason.