The drone strike that killed Major General Qassem Soleimani, leader of the Quds Force of the Islamic Revolutionary Guard Corps,
raises many legal issues, but
one of the most significant—at least to the American constitutional order—is that President Donald Trump ordered the strike without so much as informingDemocratic leadership in Congress, disregarding Congress’s essential role in initiating war. If Congress fails to respond effectively, the constitutional order will be broken beyond repair, and the president will be left with the unmitigated power to take the country to war on his own—anywhere, anytime, for any reason.
As nearly every account of Soleimani’s killing has made clear, he was responsible for the deaths of thousands, including hundreds of Americans. Soleimani was the principal
architect of Iran’s successful regional ascendancy in the Middle East—through both direct action and an array of insurgent proxy forces that have fueled conflicts across the region. Presidents before Trump, however,
held back from taking action against Soleimani, concluding that doing so would spark war with Iran and unleash its proxy forces against the U.S. and its allies.
Their lawyers also almost certainly counseled that such action would be illegal. Any significant 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 (after all, the Constitution gives Congress, not the president, the power to “declare war”). 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.
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. In other words, relying on the law is as good as admitting there is no legal basis. Vice President Mike Pence also
asserted a false connection between Soleimani and the 9/11 attacks, perhaps in an effort to suggest that the strike could fall under the 2001 Authorization for Use of Military Force. Those claims have been widely discredited, and several members of the Senate earlier expressed
skepticismthat the 2001 law authorized action against Iran.
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