President Donald Trump’s drone strike Thursday night against Iran, killing its top military general Qassem Soleimani, is raising questions — once again — about the extent of executive authority to take military action without congressional approval.
The Pentagon was clear in its statement: the strike was directed by President Trump to “protect” U.S. personnel (i.e., an act of self-defense).
At the direction of the President, the U.S. military has taken decisive defensive action to protect U.S. personnel abroad by killing Qasem Soleimani, the head of the Iranian Revolutionary Guard Corps-Quds Force, a U.S.-designated Foreign Terrorist Organization.
At the heart of public concern is this question: was the drone strike legal? If so, on what basis? Is this really something the president was authorized to do independently, without the consent of (or even notification of) Congress?
10 U.S. Code § 127e
Given that there is no existing congressional authorization for the use of force against Iran, there are a few possibilities for where presidential authority might derive. Newsweek reported Thursday night that Pentagon sources said the strike had been authorized under 10 U.S. Code § 127e.
— James LaPorta (@JimLaPorta) January 3, 2020
Legal experts and those otherwise directly familiar with the law immediately sent up alarms, noting that 10 U.S. Code § 127e is not a statute that authorizes a president to use unilateral force against a foreign nation.
There are Article II arguments one can make, maybe even 2002 AUMF arguments. But 10 USC 127e?
No. just no. It *INDISPUTABLY* is not authorization to use force. Full stop. It is *funding* for support to others engaged in helping US CT ops. https://t.co/yqAvITB5JK
— Bobby Chesney (@BobbyChesney) January 3, 2020
The legal arguments regarding the Soleimani strike, while not new, are dramatically complicated because the administration’s assertions regarding the factual basis cannot be taken at face value. The only way to reinforce credibility is through bipartisan congressional oversight.
— Susan Hennessey (@Susan_Hennessey) January 3, 2020
There’s been a lot of confusion about whether 127(e) was used for the Soleimani strike. As the former manager of that authority in OSD (when it was “1208”) I can tell you definitively it could not have been the legal basis for it. 1/
— Kimberly Jackson (@k_m_jackson) January 3, 2020
Rather, it is an appropriations statute, entitled, “Support of Special Operations to Combat Terrorism.” As law professor Bobby Chesney explains, 10 U.S. Code § 127 authorizes funding for American counterterrorism efforts. Under it, he secretary of defense can spend up to $100 million support “foreign forces, irregular forces, groups, or individuals” combating terrorism.
Here’s what the statute says:
The Secretary of Defense may, with the concurrence of the relevant Chief of Mission, expend up to $100,000,000 during any fiscal year to provide support to foreign forces, irregular forces, groups, or individuals engaged in supporting or facilitating ongoing military operations by United States special operations forces to combat terrorism.
Funds for support under this section in a fiscal year shall be derived from amounts authorized to be appropriated for that fiscal year for the Department of Defense for operation and maintenance.
The authority in this section shall be exercised in accordance with such procedures as the Secretary shall establish for purposes of this section. The Secretary shall notify the congressional defense committees of any material modification of such procedures.
The authority of the Secretary to make funds available under this section for support of a military operation may not be delegated.
That’s followed by some reporting and logistic details about the funding. Given the plain statutory language, it is unlikely that any court would interpret 10 U.S. Code § 127e as a basis for independent presidential power.
The post-9/11 AUMF
Another potential legal basis for President Trump’s authority is the 2001 or 2002 joint congressional resolution authorizing the use of military force. Referred to as the “AUMF” or the “Iraq Resolution,” it authorizes the president to use:
“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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
The 2002 AUMF, however, was passed specifically to deal with the 9/11 terrorist attacks. Iran wasn’t implicated in those attacks. The AUMF was about al-Qaeda, the Taliban, and those in Afghanistan who enabled and harbored terrorists. Accordingly, relying on the AUMF to authorize Thursday’s military strike killing Qasem Soleimani appears quite a stretch from the AUMF’s original purpose and context. As Brian Egan and Tess Bridgeman of Just Security explain:
As a legal matter, the AUMF has never been construed to authorize military attacks against a foreign nation based on the fact that some al Qaeda members may be located in or transit that country, even if that is the case with Iran. In addition, the AUMF’s use of the past tense — “harbored” — suggests that it was intended to refer to those who were responsible for providing safe haven for, and otherwise assisting, those who attacked the United States on Sept. 11, 2001.
In the 20 years since the 9/11 attacks, there has not been any suggestion that the 2001 AUMF could be interpreted to authorize force against a present-day “harborer.” (Again, there is no known evidence to suggest that is what Iran is doing with al-Qaeda.)
President Trump, however, did lay some groundwork for using the 2001 AUMF as authority for military action against Iran. In April 2019, the White House published the following statement, designating the force Soleimani commanded a terrorist organization:
Today, I am formally announcing my Administration’s plan to designate Iran’s Islamic Revolutionary Guard Corps (IRGC), including its Qods Force, as a Foreign Terrorist Organization (FTO) under Section 219 of the Immigration and Nationality Act. This unprecedented step, led by the Department of State, recognizes the reality that Iran is not only a State Sponsor of Terrorism, but that the IRGC actively participates in, finances, and promotes terrorism as a tool of statecraft. The IRGC is the Iranian government’s primary means of directing and implementing its global terrorist campaign.
This designation will be the first time that the United States has ever named a part of another government as a FTO. It underscores the fact that Iran’s actions are fundamentally different from those of other governments. This action will significantly expand the scope and scale of our maximum pressure on the Iranian regime. It makes crystal clear the risks of conducting business with, or providing support to, the IRGC. If you are doing business with the IRGC, you will be bankrolling terrorism.
This action sends a clear message to Tehran that its support for terrorism has serious consequences. We will continue to increase financial pressure and raise the costs on the Iranian regime for its support of terrorist activity until it abandons its malign and outlaw behavior.
Republicans and Democrats, legal issues aside, are currently arguing over the wisdom of the decision to take out the commander of a designated Foreign Terrorist Organization with American blood on his hands.
“Disproportionate”? Seriously? Over 500+ US troops were killed & thousands more were injured, bc of Soleimani, & he was actively planning new attacks against US troops & diplomats. Pelosi is totally blinded with party over country partisan politics. POTUS def made the right call! https://t.co/yIs36RRGNC
— Lee Zeldin (@RepLeeZeldin) January 3, 2020
In April 2018, there was also discussion as to whether the 2001 or 2002 AUMF provided sound legal basis for the strike against Syria. President Trump stated that he “ordered the United States armed forces to launch precision strikes on targets associated with the chemical weapons capabilities of Syrian dictator Bashar al-Assad.” At the time, then-Speaker of the House Paul Ryan said that “the existing AUMF” authorizes Trump to launch strikes against Syria in response to the use of chemical weapons there.
The problem, though, as Lawfare’s Jack Goldsmith pointed out, is that by explaining his reasoning for the Syria strike, President Trump essentially admitted that it had fallen outside the parameters of the AUMF. Godsmith wrote:
But even if one accepts [an argument tying Iran to the 9/11 attacks] (which not everyone does), it is not relevant to yesterday’s strikes in Syria. Trump made clear that the strike was in retaliation against Assad for the use of chemical weapons against his own people in Syria. There was no claim, and there could not be one, that the strike had anything at all to do with Iraq. It is thus inconceivable that the strikes were “necessary and appropriate” to “defend the national security of the United States against the continuing threat posed by Iraq.”
Furthermore, Democratic members of Congress were clearly gearing up to prevent the president from taking independent military action against Iran without Congressional approval. Several Democratic members of Congress proposed amendments that would have cut off funds for specific unilateral presidential uses of force.
There were two amendments stripped from the NDAA that could have prevented tonight’s escalation.
My amendment to prevent funding for war with Iran without Congressional approval.@BLeeForCongress‘s amendment to repeal the 2001 AUMF.
— Ro Khanna (@RoKhanna) January 3, 2020
First Trump left the JCPOA. Then he declared Iran’s IRGC as a terrorist organization and sent bombers to the region.
Soleimani has blood on his hands. So did Saddam Hussein. But we shouldn’t have gone to war in Iraq. And we now must not in Iran. #NoWarWithIran
— Ro Khanna (@RoKhanna) January 3, 2020
Article II of the Constitution
Unless a credible tie can be established between President Trump’s military action against Iran and the AUMF, the only remaining source of executive authority is Article II of the Constitution.
I don’t know what authority they did use, since it sounds like this would have triggered a War Powers notification, but I’m no legal scholar. But I can say with complete confidence that it was not 127(e). End
— Kimberly Jackson (@k_m_jackson) January 3, 2020
2/ .. than in any of the other post-'74 cases not involving congressional authorization. And if such an escalation was foreseeable, then the precedents would appear to prohibit the action w/o congressional authorization.
— Marty Lederman (@marty_lederman) January 3, 2020
As usual, I agree with @marty_lederman.
In the abstract, the argument that this strike is consistent with Article II is plausible. But it's the _implications_ of the strike that makes this a novel resort to such reasoning—and one that raises far graver constitutional concerns. https://t.co/DwrOqZMwNP
— Steve Vladeck (@steve_vladeck) January 3, 2020
While only Congress has Constitutional authority of officially “declare war,” the chief executive does have wide latitude to use military force in the absence of congressional authorization. As with other executive powers, there is considerable disagreement, even among experts, as to precisely where presidential authority on such military matters — as well as to the exact definition of “war” ends.
That brings us to another question.
Even if President Trump were authorized to take action against Iran and Qassem Soleimani, did he have a legal obligation to notify Congress first?
Maybe. Quite a bit depends on how a particular military operation is classified under the law. Under Section 3091 of Title 50, U. S. Code, the president is required to notify Congress of all “covert actions” and “significant clandestine activities of the Intelligence Community.” If the president makes a finding that an action is “necessary to support identifiable foreign policy objectives of the United States, and is important to the national security of the United States,” and authorizes a covert action on that basis, he is obligated to notify Congress, “as soon as possible after the approval of a finding, and before the covert action starts.” If it is impossible for the president to notify Congress before the action commences, he must do so, “not later than 48 hours after the authorizing decision was made.”
Of course, not all military actions are classified as “covert” under Title 50. Military actions authorized under Title 10, for example, might be deemed “clandestine” — which is broader– and trigger different notification obligations. For non-covert, but still clandestine operations, Section 3092 of Title 50, U.S. Code requires that the Director of National Intelligence keep the congressional intelligence committees “fully and currently informed” by making a written notification within 14 days of authorizing action.
Then there are the notification requirements for “sensitive military operations,” or operations conducted by U.S. Armed Forces that “target a specific individual or individuals” or “an operation in “self-defense of foreign partners.” But this doesn’t apply to operations conducted in Iraq, Syria or Afghanistan. The U.S. strike occurred at an airport in Baghdad, Iraq.
These competing and sometimes conflicting obligations lead us to one conclusion: to assess the legality of President Trump’s actions, it is essential to first determine the basis of his purported authority and whether this escalation will lead to a protracted military conflict.
Congress also has a deep interest in the future of our relationship with Iraq, given our investment of blood and treasure there to rid the region of ISIS.
Congress needs to understand the Administration’s plan as soon as possible.
— Rep. Elissa Slotkin (@RepSlotkin) January 3, 2020
Once the basis is clarified, specific requirements for congressional notification will attach. However, the available information does not seem to indicate that President Trump complied with any obligation to notify.
This is cool and normal stuff. For sure. pic.twitter.com/OBc78RxsFu
— German Lopez (@germanrlopez) January 3, 2020
There was also outcry from congressional Democrats about the lack of notification ahead of the successful operation to take out ISIS leader Abu Bakr al-Baghdadi.
[Image via STR/AFP/Getty Images]