We The People

Was the Qasem Soleimani Strike Constitutional?

January 09, 2020

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In this episode, two war powers experts explain and grapple with the legal and constitutional ramifications of the U.S. airstrike that killed Iranian military leader General Qassem Soleimani in Baghdad last week.

Did the president have the authority under the Constitution – as Commander-in-Chief of the armed forces – and under domestic and international law to unilaterally carry out the airstrike? Can it be justified as an act of self-defense, a response to an “imminent threat”, or anything less than an act of war? Or, does the law require Congress, not the president, to authorize such strikes? John Bellinger, former State Department Legal Adviser under Secretary of State Condoleeza Rice, and Oona Hathaway, an international law professor at Yale Law and Adviser to the State Department, answer those questions and more in conversation with host Jeffrey Rosen.

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PARTICIPANTS

John B. Bellinger is Partner at Arnold and Porter where he heads the firm’s Global Law and Public Policy practice. He previously held several senior Presidential appointments in the US government, including as The Legal Adviser to the Department of State under Secretary of State Condoleezza Rice and as Legal Adviser to the National Security Council.

Oona Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of International Law and Counselor to the Dean at the Yale Law School. She is also a Professor of International Law at the Yale MacMillan Center and the Jackson Institute for International Affairs, and a Professor of Political Science. She is a member of the Advisory Committee on International Law for the Legal Adviser at the U.S. State Department, and she previously served as Special Counsel to the General Counsel for National Security Law at the U.S. Department of Defense.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources


This episode was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Lana Ulrich, Robert Black, and Nicholas Mosvick.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan, non-profit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. Last week, a US airstrike killed Iranian military leader, Qasem Soleimani, in Baghdad. The airstrike has raised a series of questions about war powers, the law, and the Constitution, and what constitutes an imminent threat, and self defense and more.

Joining us to explore the legal and constitutional and ramifications of the airstrike are two of America's leading experts on war powers and the Constitution. Oona Hathaway is the Gerard C. and Bernice Latrobe Smith professor of international law and counselor to the dean at Yale Law School. She's also a professor of international law at the Yale McMillan Center and the Jackson Institute for International Affairs and a professor of political science. She's a member of the advisory committee on international law for the legal advisor at the US State Department. Oona, thank you so much for joining.

Oona Hathaway: [00:01:08] Thanks so much for having me.

Jeffrey Rosen: [00:01:10] And John B. Bellinger is a partner at Arnold and Porter, where he heads the firm's global law and public policy practice. He previously held several senior presidential appointments in the US government, including as legal advisor to the Department of State under Secretary of State Condoleezza Rice and as legal advisor to the National Security Council. John, it's great to have you with us.

John Bellinger: [00:01:29] Great to be here.

Jeffrey Rosen: [00:01:32] Oona let's begin with the question of the domestic legal authority for the strike. Tell us about, under what conditions domestic law allows for strikes not authorized by Congress when they are taken in self defense and when an attack is imminent.

Oona Hathaway: [00:01:54] So there's a fairly narrow exception. Um, the Constitution makes the president the commander in chief, but it gives Congress the power to declare war. Um, and there's long been understood an exception though, um, to that power to declare war, which is, if the country's under attack, the president clearly can defend the nation. He doesn't have to wait for Congress to convene, to debate, to give him authority. Um, the president can respond as necessary to address the threat.

Um, but that means that there has to actually be a real threat, and uh, the response has to in fact, be necessary to address it. Um, and so, that, those are the conditions that we look for here. Did he really have to act without going to Congress? Did he really not have, uh, the opportunity to consult with Congress, to seek Congress', uh, input and to seek Congress' assent to a strike.

Jeffrey Rosen: [00:02:50] John, what can you add to the legal standards, and can you tell us about the sources, either in case law or in statute for these exceptions for defense against imminent attacks?

John Bellinger: [00:03:03] Sure, and I think, Oona and I have known each other for a long time, and she, we serve on the Secretary of State's Advisory Committee together, so I think we are largely on the same page, but just sort of look at things sort of slightly differently. Um, so uh, the president has very broad constitutional power under Article Two of the Constitution, as both commander in chief and chief executive to direct the armed forces, uh, to use force and deploy force.

Uh, and the standard really is simply a national interest standard. Uh, the, uh, president of, of both parties, uh, democratic and republican have, uh, ordered the use of force, deployed, uh, forces, uh, as long as they determined that it is in the national interest. So, uh, he's got wide latitude to use force. Uh, he couldn't use force to, uh, defend a Trump golf course. I don't think anybody would think that would be in the national interest.

Uh, and at the upper level as, uh, Oona said, if he were to use force to actually start a war or something that was clearly gonna be a war, a prolonged, sustained conflict, uh, or a conflict that was clearly going to, uh, uh, uh, cause, uh, harm to many Americans or to others, something that would clearly be a war, then uh, that might require president- or uh, congressional approval. But everything in between, um, my view is that the president has got broad authority, uh, to use force in the national interest. Uh, and it's up to him to decide what is in the national interest as, uh, chief executive and commander in chief.

So, let me quickly say here I am speaking here as a legal matter. Um, uh, not, you know, whether this is a wide use of force. Uh, personally I have, uh, uh, uh, uh, great, uh, apprehensions about whether this was in fact, uh, wise and was in fact in the national interest. But as a legal matter, uh, I think, uh, the president has wide authority here and he could have reasonably concluded that using force against Soleimani who, uh, both had blood on his hands in the past and was likely plotting generally in the future, uh, that the president, uh, decided that that was in the national interest. I, I think that's really pretty clear under the Constitution.

Jeffrey Rosen: [00:05:27] Oona, in your article, The Soleimani Strike Defied the US Constitution, published on the NNC Atlantic Battle for the Constitution website, which I urge We The People listeners to check out, because it's publishing great pieces like Oona's, uh, you know, two statements. The Department of Defense issued a short statement saying the attack was justified as an act of self-defense aimed at deterring future Iranian attack plans and Secretary of State Pompeo later claimed the strike was disrupting an imminent attack. Uh, you express skepticism about both of those claims based on new reporting from the New York Times concluding that the evidence suggesting there was an imminent attack against American targets is razor thin.

Tell us more about whether or not you think that this can be justified as self-defense against an imminent attack.

Oona Hathaway: [00:06:12] So I don't think that it can. Um, and I have to add the usual caveat here that I haven't seen the intelligence. But what I have, uh, read and heard, um, is, uh, the statements from those who have. And um, members, the Congress, uh, the Senate, um, have been coming out of classified hearings, um, and saying that they received the, the intelligence. They received a briefing from the administration and they are not persuaded that in fact there was any imminent attack.

Um, and that the intelligence just simply doesn't support it. And the truth is, the administration has been all over the place here. Um, early on it didn't say anything about imminence. It sort of vaguely alluded to the idea that there might be some future attacks. Then, um, the next morning, uh, Pompeo used the word imminence for the first time probably because his lawyers counseled him that that's what they needed to be saying.

Uh, then when he was pressed later on it he really couldn't give any details, um, and sort of seemed to back off of the idea that it was imminent. Um, and Trump's speech, um, uh, explaining the strike and the plans, uh, for moving forward didn't seem to suggest that there was in fact any kind of concrete imminent threat, um, that was necessary to respond to.

So, all the information that we're seeing, um, and that's coming out in public really seems to support the idea that, that there was no imminent attack, that there was sort of a generalized concern, um, about Iran, but that's been true for decades. Um, it's hard to see what's new here. And the administration really bears the burden of explaining that to the American people because, um, as a matter of both domestic and international law the president really doesn't have the authority to go forward unless he can show that it was necessary to defends the nation. Um, and he just simply hasn't, hasn't yet done that.

Jeffrey Rosen: [00:08:12] John, in the NPR piece was it legal for the US to kill a top Iranian military leader? You were quoted as saying, "It's clearly lawful. It's clearly an exercise of the president's constitutional authority as commander in chief and chief executive to use force in the national interest." Uh, in applying that standard, that national interest standard, uh, uh, is that different from the imminent attack, uh, self-defense, uh, standard and, and do you think this can be justified as self-defense against an imminent attack or, uh, do you think more broadly that it was in the national interest?

John Bellinger: [00:08:43] So, uh, I agree with about 95% of all of the words that Oona just said, except that, um, uh, all of that, uh, in my mind is only relevant to the international law analysis, whether this was rel- whether this strike was lawful under international. I agree completely that the, uh, administration has been all over the map, uh, that they first said that it was imminent and then they backed off, and they have not showed, uh, that it was imminent. And that raises real concerns about whether the strike was lawful, uh, under international law. And we can talk about that in a moment.

Uh, but uh, the imminence standard, uh, and self-defense standard, uh, is not relevant to a domestic, uh, constitutional analysis. Uh, the president has brought authority, uh, to use force including striking in another country if he determines that it is in the national interest. Uh, and so the issue of whether there was a, uh, imminent attack or an imminent threat, uh, is, is not relevant to the, uh, domestic analysis.

Uh, you'll recall President Obama, as a candidate said what Oona just said, which is that the president doesn't have authority, uh, to use force without congressional approval, uh, except in the face of an attack or an imminent attack. Uh, but as president he acted completely differently, and he acted as all previous presidents have, and what Congress has acquiesced in, which is that the president has broad authority to order the use of force without congressional authority if he determines that it's in the national interest.

Again, you know, there are gonna be some things that are so, uh, small, I, I use you know, defending a Trump golf course as not being in the national internest, but you know, uh, taking a shot at an Iranian leader who has been responsible for the deaths of many Americans and who may be threatening more, even if it's not imminent, you know, the president could reasonably determine that that's in the national interest. Uh, again, I will say I disagree. I personally think that that was a, not the right thing to do as a policy matter.

Uh, but uh, it, it, th-the Constitution does not require, uh, and I don't think presidents of either party have historically thought, and the Office of Legal Counsel under presidents of both parties has not though that the president may only use force without congressional authorization in the face of an imminent threat. The imminence requirement, uh, relates to using force under international law.

Jeffrey Rosen: [00:11:20] Oona, we now have a, a disagreement and I'll, I'll, uh, ask for your response. John says that national law, unlike international law, only requires that the presidents act in the national interest. Not that there be a response to an imminent threat in self-defense. Uh, do you, on what basis do you disagree and, and, and again, what are the legal sources from which you derive the, the self-defense and imminence standard from domestic law?

Oona Hathaway: [00:11:46] Yeah. Thank you for, um, pointing that out. You're absolutely right that this is the one point on which I think we have the sharpest disagreement. And what I will say is that, um, John is right that the Office of Legal Counsel memos say that the president can effectively act in the national interest, um, as long as the nature, scope and duration of the intervention is not, um, leading it to be war in the constitutional sense. What exactly that means it really doesn't explain.

But that, those OLC opinions and the most recent version of this, um, that many point to is Caroline Krass' 2011 memo, um, in the early days of the Libya intervention where the question was put to OLC, can a president, president, uh, intervene in Libya or join the coalition fight, uh, agai- in Libya, um, without first seeking congressional authorization. And she wrote a memo saying yes, because there was a Security Council resolution and US has a national interest in enforcing National Security Council resolutions, and there was a humanitarian interest, and it's in the national interest to, to protect against humanitarian, uh, catastrophes and the like.

So there's no doubt the Office of Legal Counsel memos say that. But I think we have to put these OLC memos into context. These are memos written by the president's lawyers. Um, no one, um, other than the president's lawyers has any say on what goes into an L- OLC memo. Um, they're great lawyers and they're, they're some of my good friends. I'm including Caroline Krass who I think is really a brilliant lawyer. But they're playing a role, which is to put forward a position of the executive branch and what the executive branch authorities are.

And these, um, positions have not been tested in court hardly at all. No court has signed off on this national interest idea. Um, and meanwhile if you actually read the Constitution, the Constitution gives Congress, not the president, the power to declare war. It gives Congress the power to raise and support armies. Um, it doesn't give the president those powers. Yes, the president is commander in chief of the military, but that doesn't give him the right to launch wars. And the founding generation was extremely clear that that was not what they intended. They did not want to have a president who was a king, who could wage war without congressional authorization. They intentionally gave that power to Congress.

So, while I agree 100% that there are Office of Legal Counsel memos in the Department of Justice who say what John says, I just think that that's not a fair read of the law, all things considered.

Jeffrey Rosen: [00:14:29] Wonderful. Uh, wonderful in the sense that we have a, a, a vigorous, uh, disagreement and now We The People listeners have a chance to make up their own minds about whether or not these OLC memos are persuasive. So, John, can you tell us anything more about the cases on which the OLC memos rely in asserting that the president can use force when he determines that it's in the national interest?

John Bellinger: [00:14:53] I can, and let me, I'll point your listeners to a couple of things to look at themselves. I'll, I'll point them to three things. One, I did a short piece on the Council on Foreign Relations website, which uh, is currently the lead piece on the Council on Foreign Relations' website on whether the Soleimani strike was lawful.

Um, I testified last year, uh, [inaudible 00:15:14] uh, uh, uh, at the Senate Foreign Relations Committee on whether use of force without congressional approval against North Korea, uh, would be lawful. And I was the joint witness by both republicans and democrats for laying out the law, and that's available on the Senate Foreign Relations Committee website.

Um, and but what I said there was that in fact, uh, uh, presidents of both parties going back, uh, uh, really decades, and decades, and decades, maybe you know, more than 100 years, uh, have used force without congressional authorization in other countries, uh, uh, based only on a national interest determination. There's a good congressional research service piece, uh, that, uh, lists all of the examples of presidents of both parties, uh, deploying troops using force in other countries based only on the president's constitutional authority.

Um, and again, I'm not really trying to lay out an expansive view of the president's authority. I, I think, and when I was both the legal advisor for the National Security Council and legal advisor for the State Department I was always the first to say, you know, it's better to get congressional authority, uh, but the president does have broad authority under Article Two, uh, and that's really been exercised by presidents of both parties. Uh, the memos by the Office of Legal Council, by assisting attorney generals of both parties have laid out. You know, these, these long examples of presidents, uh, using force. Because the president is commander in chief and he is chief executive. And really he, he alone is the one who determines what is going to be in the national interest when he is, uh, deploying forces.

Um, you know, not everything counts as a war. There's a lot of things that below that level the president can use force, uh, that doesn't result, uh, in a war. And again, may not be a good idea, but that's what the, the president is chief executive and commander in chief for.

Jeffrey Rosen: [00:17:18] Thanks so much for that. And Oona, if you were to argue against the reasoning of the Office of Legal Counsel memos, such as the Obama memo saying the president didn't need congressional approval for military operations in Libya in 2011, uh, what would you say? And, and of course with that maybe say a little more about why you wrote in The Atlantic that even within the scope of previous unilateral presidential actions this action by President, President trump is arguably unprecedented.

Oona Hathaway: [00:17:44] Yeah, so first thing I would point to is the Constitution itself, um, which is extremely clear about where the allocation of authority lies. It lies with Congress first and foremost. Um, not with the president.

Um, second I would point to the fact that when things got out of whack in, uh, Vietnam and with the secret bombings in Cambodia, um, Congress came back with passing a law, the War Powers Resolution in 1973 after the revelations about the secrete bombing campaign, reasserting its constitutional authority and requiring presidents to report when they introduce, uh, US armed forces into hostilities. Uh, requiring, uh, that presidents consult, uh, with Congress before introducing US armed forces, requiring them to get the assent of Congress before continuing any significant hostilities.

And that is a reaffirmation of the, of the constitutional roles, which is that the president should not take us into war without, uh, getting congressional authorization. And while presidents have, many of them, not all of them, but many of them have refused to accept that as a constitutional provision starting with President Nixon, who vetoed it and it was enacted over his, over his veto, um, still have reported "consistent with the War Powers Resolution". And they have consistently acted, um, as if they don't think they have unlimited authority.

Um, so if you look at since 2001, um, and the authorization of use of military force in the days after the 9/11 attacks, um, all of our counter-terrorism operations, nearly all of them, have been justified under that 2001 law. Now some of those have been legal back flips, I'll be honest, um, to sort of shove things within the 2001 authorization for use of military force that perhaps don't belong there. But president after president has argued that all these counter-terrorism operations are, fall within the authority granted by Congress to the president in 2001. Why do they do that?

Because they know that they don't have the constitutional authority to act entirely on their own. When President Bush wanted to intervene against Iraq in 2002 he went to Congress and got an authorization for use of military force, uh, before doing so.

And when, uh, President Obama wanted to intervene against Syria after the chemical weapons attacks he said, "I can't do it without congressional authority." And Congress said no. Uh, and he didn't. Um, now he was criticized by that, uh, about that because he had said this was a red line. Uh, but Congress said, "No, we don't want to go and start another war in the Middle East." And he respected that.

So president after president has, um, not acted as if they saw themselves as having unlimited authority to wage war in the national interest. And that's a good thing, because uh, we'd have engaged in a lot more wars if that was the case.

Jeffrey Rosen: [00:20:46] John, what do you think is the relevance of the two authorizations to use military force that Congress passed in the wake of 9/11? Is the administration invoking them and do they strengthen its legal hand or not?

John Bellinger: [00:21:03] So let me, um, I may, um, respond to a couple of things Oona just said, and then uh, and then uh, address that. Um, so one, with respect to the War Powers Resolution I think if anything War Powers Resolution proves the reverse of what Oona was saying because it says that the president has to withdraw forces after 60 days if there's not a congressional authorization. So the implication there is that in fact the president can use force, uh, under his Article Two authorities, uh, provided that he reports it within 48 hours and then needs to stop after, uh, 60 days unless the Congress has authorized it.

So, that seems to be an implicit recognition that the president has broad authority to use force but has to stop if the Congress hasn't authorized it.

I was, uh, involved in the drafting of both the 2001 AUMF and the 2002 AUMF when I was in the White House, and agree completely that when, you know, a president is going to seek, uh, something that clearly is gonna be a war or a major conflict, uh, both of the invasion of Afghanistan and the invasion of Iraq were certainly major conflicts, and, and, and wars that the presidents, uh, should and indeed is, is required to seek congressional approval. So it was both a right and, and constitutionally required, I think for the president to, to seek those authorizations.

Um, but the Soleimani strike is not an invasion of a country. Again, it's a very serious thing and it provoked Iran and may get us kicked out of Iraq, and I'm not sure that it was wise. And it could provoke a war. Uh, but you know, it's not the same as the in-in-invasion of Afghanistan or the invasion of Iraq that required, you know, uh, authorizations to use military force.

Um, but pivoting and moving forward, uh, because this is a big issue here is, you know, will, will the administration here try to argue that in addition to the president's constitutional authority that he was also relying on one or both of those two AUMFs. We don't know that yet because very strangely the war powers report that the Trump Administration sent up, uh, on, over the weekend was classified in its entirety and did not therefore, uh, state in a public way what the author- or what the legal basis was for the use of force, which a war powers report normally states.

So we don't know what authority the president was relying on. He was certainly relying, at least in part if not wholly on his constitutional authority. But we've seen a couple of officials, including the National Security Advisor, Robert O'Brien, uh, suggest that he was also relying on the 2002 AUMF to use force in Iraq.

Um, if, if the administration were to try to do that I personally think that would be a big mistake, uh, and would be a bridge too far. I don't, you know, again I was involved in the drafting of that authorization. It's 18 years old. It was intended to, uh, uh, allow the authorization to use force against Saddam and the threat posed by Iraq, although administrations of both parties have relied on it for some continuing operations in Iraq against ISIS. Uh, I think it would be a bridge way too far to suggest that that 2002 authorization to use force against the threat posed from Iraq authorized the use of force against a visiting Iranian, uh, uh, military official in Iraq.

Uh, so I, I really just don't think that authority is there. And I think it would be very provocative for the Trump Administration to claim that in fact this strike really was authorized. So I, I hope they don't do it. Uh, I think it's better just to rely on the president's constitutional authority.

Jeffrey Rosen: [00:24:58] So at this point in this excellent conversation I hear you both agreeing that the two authorizations of military force don't provide plausible justification for the action, but disagreeing about the legal standard with John embracing the national interest, uh, standard that the Office of Legal Counsel has embraced, and Oona arguing for a more restrictive self-defense and imminent attack standard.

I'm now going to ask Oona whether there are any other legal, uh, authorities that might be invoked to c- against the strike. And one is the ban on assassination. President Gerald Ford first adopted the assassination ban in 1976 and the current version of the ban is codified in, in executive order. What constitutes assassination and could the Soleimani strike, uh, qualify?

Oona Hathaway: [00:25:48] Well I think that, um, the question there is whether it was an unlawful ... in a sense it sort of, it brings us back to the, the question of whether the strike itself was lawful or not. Um, and that [inaudible 00:26:03] the question of domestic law and on the question of, uh, international law.

And while we've talked about the domestic law, and I think we have somewhat differing views about, um, whether this could be justified as a matter of self-defense, um, under domestic law, um, or whether the president simply could act in the national self-interest, uh, national interest of the, of the United States and doesn't even have to offer a self-defense justification under domestic law, um, under international law I think John and I might be in closer agreement, um, that in fact there is an obligation, um, under International law to demonstrate that there was an imminent threat.

And that really I think is what's more important here than the executive order on assassination, because the executive order, frankly it's an order that was, has been issued by presidents. It's been trimmed back and trimmed back to the point where it's, to my mind, kind of ineffectual. Um, and really turns ... the bigger questions are under the Constitution and the statutory framework for war powers and under international law, the UN Charter, and other rules of international law governing use of force, you know, is this legal or not?

Um, my view is that under both it's illegal, um, and you know, that's, that's what really matters.

Jeffrey Rosen: [00:27:23] John, do you agree that the assassination ban doesn't impose restrictions more broad than those imposed by international law? And then do you agree with Oona that international law requires imminence and self-defense? And do you think the international law standard is met here?

John Bellinger: [00:27:39] So let me take them in reverse order. I, I agree with Oona. I think you and I are probably, um, uh, either 100% or 99% on the same page with respect to international law, so uh, for your listeners to remind, uh, uh, the UN Charter and international law prohibit the use of force in or against another country, uh, unless the country has consented, uh, the Security Council authorizes it, or it is an action in self-defense in response to an armed attack or, uh, a th-threat of an, an imminent attack.

So since there was no Security Council authorization, no Iraq consent, the only possible legal basis for the US under international law to have used force in Iraq would be self-defense. And it seems to be what they're saying. Uh, but that would require since, uh, uh, there had not actually been an attack at that point, although there had been these, uh, these, uh, attacks in Iraq that had killed, uh, Americans and American contractors, that this would be an action in self-defense against an imminent attack.

Uh, and as Oona said earlier, the administration has been all over the map on whether this was, uh, was imminent or not. The secretary of state first said that it was a, uh, to prevent an imminent attack, and if that were true that would act unlawful under international law. That was, is the basis for the Obama Administration's nearly 600 drone strikes against terrorists, that those were to prevent imminent attacks by certain terrorists.

Uh, so if Soleimani was in fact planning an imminent attack against Americans in Iraq or elsewhere it would be, at least under the US analysis, lawful under international law. But as Oona said, uh, administration officials have started backing off of that and saying, "Well, you know, he's done things in the past and he might do things in the future. And it's, uh, not necessarily any time soon." But then the secretary of defense recently said, "Well, within days, and well maybe within weeks," so um, people do differ, international lawyers do differ on how imminent imminent has to be. The Obama Administration, in defending its drone strikes, uh, was at pains to say, you know, "We don't think that the strike has to be, you know, tomorrow. That imminence is a, a broader standard when it comes to terrorism."

But it can't be just that Soleimani was generally a bad guy. So, uh, the ... under international law it could be lawful if Soleimani was in fact, uh, planning imminent attacks. But like Oona I haven't seen that yet. The administration has not laid that out. They are required under the UN Charter, under Article 51, which authorized the use of self-defense, uh, they have to, uh, notify the Security Council if they use force and self-defense. Normally through a letter to the Security Council. So we should all look for that some time soon. I hope the administration will send up that letter and, and explain why they felt that this was a justified a-action under international law.

Just very quickly, um, uh, I, I, I agree with Oona, the assassination ban I think is not triggered here. Uh, the last four presidents, President Clinton, President Bush, President Obama, and I assume now, uh, although without knowing, uh, that President Trump, uh, have concluded that a use of force against a, in-individual, like targeted killing of an individual in another country in self-defense is not an assassination.

The Clinton Administration concluded that, uh, in launching TLAMs against particular uh, uh, uh, al-Qaeda targets, the Bush Administration concluded that when it first, first started using drone strikes, and the Obama Administration continued that, uh, and that, that a targeted killing of an individual, uh, is not an assassination. Uh, if the determination is that the, uh, uh, that the government is acting in self-defense.

So although the word assassination has been used a lot with respect to Soleimani, uh, I can, uh, certainly assure you that, uh, US government lawyers would, would say that the, um, assassination ban, uh, in US law and in particular, uh, executive order 12333 would not be triggered for an action in self-defense.

Jeffrey Rosen: [00:32:02] Oona, we'll turn in a moment to possible congressional responses, but before we do I want to ask, if citizens or governments agreed with you that the Soleimani strike is illegal under international and domestic law, are there potential judicial remedies? Are there any US court decisions that have enjoined, uh, similar strikes? And are there international bodies where a redress could be sought?

Oona Hathaway: [00:32:27] Well this is actually one of the real challenges in the area of war powers is, uh, we may agree about what the law does and doesn't require, or we might disagree. Um, but the question is, uh, where is the recourse if there's an illegal action?

Um, and the answer is there isn't much. Um, so when it comes to domestic law what happens if, as in my view, um, that, uh, has happened here, the president unconstitutionally uses military force without seeking congressional authorization? What could happen?

Well one thing that can happen is that Congress can press back, and we'll talk about it a moment sort of how Congress is trying to press back through enacting a resolution. But that is limited in its effect by the fact that the Congress then also refused to pay for it, but the problem is that these days appropriations acts are so huge, um, and cover so many different things that it put Congress in a very difficult position, because often it's in the position of having to basically hold out the entire national defense budget to address a problem that it, um, has with one small part of it. Or even an important part of it.

But, uh, it, it is very difficult for it to limit, uh, a piece of the, of the appropriations without holding out the entire package. Um, although that nonetheless is still one tool that it has.

When it comes to going to court, um, that is really difficult for Congress. So, in the past, um, members of Congress have tried to sue for what they thought were violations of their constitutional war powers, uh, by usurpation of the authority to go to war by presidents. And they've either sued individually or a small group of them have sued. And the courts have in-invariably kicked it out, uh, on two gourds.

One is standing grounds. They say, "Look, individual members of Congress, you just don't have standing. You have another way of dealing with these problems, which is, uh, through your legislative capacity. Uh, you shouldn't be coming to the courts. We don't want to, we don't want to interfere here." So that's one, uh, one way in which these cases have been pushed out.

The second is political question doctrine. That's basically where the courts say, "Look, this really is a political matter. You're the political branches. You fight this out politically. This is not something that's really a legal matter so much as it is political and we just don't want to get in the middle of this fight."

So these are two different ways in which courts can kind of a- get out of even having to ever reach the merits. Um, so chances are good that if a member of Congress or a group of member, uh, of Congress were to try to challenge this in court, both it would take a while, but also you know, the smart money would be that the court would never reach the merits. Um, there are some possible ways in which institutionally Congress might be able to overcome the standing, uh, impediments, but that would take some time. And you know, chances are good the courts are not gonna weigh in.

So, it does leave Congress in a bit of a pickle. Um, it has limited tools to press back against a president. And it's one reason I think that, that this episode ought to get us thinking about more serious war powers reform.

Jeffrey Rosen: [00:35:54] Thanks so much for that. And thanks for reminding us of these two judicial doctrines, standing and the political question doctrine that, uh, you argue would make it unlikely for courts to hear disputes between the branches involving war powers. And you mentioned standing, and that's the requirement that there be a, a live case or controversy, a dispute for courts to hear. And then the political question doctrine, and We The People listeners can check out Baker versus Carr, the voting rights case, which sets out the standards for a political question, which include a lack of judicially discoverable and manageable standards and the impossibility of courts resolving the question without expressing a lack of respect for Congress and the president.

Uh, John, do you agree that courts are unlikely to hear these disputes? And if you do, what tools does Congress have for restricting the president?

John Bellinger: [00:36:43] So I thought, uh, Oona had, said it exactly right. The courts do not get involved in these fights over war powers. Uh, they've kicked them all out. And those really have been in, in, with respect to longer conflicts, where, you know, there really is actually something more to complain about, a, a, uh, a conflict that's going on for a long period of time.

You know, for the Soleimani strike that we're talking about right now, you know, I don't think Congress would even, uh, you know, try to challenge that for just a one off, uh, use of force. And the courts would definitely kick that out. Uh, here, uh, I don't think that the Congress is really gonna be able to do anything even really going backwards here. Um, uh, I think what they can do though, Congress does have an important role and I think they can do what they've already started, which is to demand more information, uh, from the executive branch about, uh, the, uh, reasons for this strike, wh-why did the president think it was in the national interest, uh, and the legal basis for it.

Uh, the, uh, White House may have explained s- both of those things in the war powers report that it sent up over the weekend. Uh, but they have not said those things publicly. Again, I find it really rather baffling that they did not send up an unclassified war powers report that at least reported the strike and gave the legal basis, even if it had a classified annex that might have explained precisely what they thought Soleimani was doing.

So uh, I do think it's, uh, incumbent on the White House and the administration to give the legal basis for this strike, and Congress should, uh, hold a hearing and demand, uh, uh, information about why and the legal basis.

Uh, going forward, uh, they can't really ... I mean, you know, if they wanted to censure the president for the strike, you know, Congress could certainly do that if they had the votes. But, you know, they're, they're, they're not I think, uh, uh, I don't think even the democrats would do that in the House, and it's certainly not gonna happen, uh, in the Senate.

But going forward, and this is I think where the action is, and, and Oona's been following this more closely than I, uh, the, uh, the, the, the Congress and I think both republicans and democrats are concerned that the president might be lurching into an armed conflict with Iran by, by starting this. And Congress can say there that, uh, the president may not use further force, uh, against Iran, uh, or start a conflict with Iran without, uh, congressional authorization.

The House had, uh, passed a provision that essentially said that in the, uh, National Defense Authorization Act last year, said the president could not use funds to use force against Iran except in response to an attack or an imminent threat. But then that was stripped out in the conference. And I think there's gonna be an effort now, since we could possibly be lurching towards some sort of a conflict with Iran, I certainly hope not, that Congress could say uh, uh, look it was bad enough to take a, a hit at, at, at Soleimani, but no more. No, no, uh, you may not start a conflict with Iran, uh, without congressional authorization.

So, you know, what can Congress do? Uh, uh, I don't think suing is, is, uh, I don't think they're even gonna do that. I don't think it would work. They should ask for more information about the reasons for the past strike. And then if they've got the votes they can see if they can try to, uh, tie the president's hands a bit on, on terms of starting a, a, a more major conflict, uh, uh, with Iran.

Jeffrey Rosen: [00:40:19] Oona, you have indeed been closely following, uh, the congressional actions moving forward. Tell us more about the resolutions that Speaker Pelosi is considering bringing forward that might restrict the president's ability to spend money and to deploy troops, uh, in the Middle East.

Oona Hathaway: [00:40:36] So Nancy Pelosi, uh, has announced that she intends to bring forward, um, at a minimum one and maybe more resolutions on this. So one is a resolution that's going to be led by Congresswoman Elissa Slotkin, um, that should go to the floor on Thursday, January 9th. Um, and that resolution we haven't seen the text yet, um, as of our recording here, but apparently is patterned on an earlier resolution that was, uh, put forward by, uh, Cain. Um, and that resolution spent a lot of its time sort of, uh, reiterating the constitutional role of Congress in its findings. So its findings section is very long.

And it, it lays out in great details, uh, the constitutional provisions and starts off by saying it's Congress, it has the right to declare war, uh, not the president. And then it goes on to say that, um, any action against Iran would to be, uh, consistent with the 2001, or 2002 authorizations for use of military force that we were just mentioning.

Um, and then uh, reiterates in greater detail the, the, both the statutory and constitutional provision. And then has a very short operative provision that basically says, uh, that if the president, um, that within 30 days after the enactment of this joint resolution, um, the president has to withdraw any troops within 30 days from hostilities with Iran.

Now, I, I think that that, that obviously has this idea that in fact there already are troops involved in hostilities with Iran. Um, and so in that sense it's, it's not particularly effectual in sort of heading off, um, uh, any future conflict. Um, other than if one hasn't yet happened, I suppose. Um, the fact that it says within 30 days they have to be taken out if, if he hasn't put troops in, uh, that, that 30 day limit still applies.

Um, I think the second resolution that's been put forward more recently by, uh, Congress-Congressman Khanna, um, more explicitly kind of goes to the core of it by saying, basically the president can't spend any money on a war with Iran without first going to Congress. Um, so uses the appropriations power and is, is much more, uh, clear that no, uh, operations against Iran are permitted without an express authorization.

Um, so that, um, uh, it sounds like both of those may eventually go to the floor, although the Slotkin resolution is supposed to go first. And again, we haven't seen the exact text of it, so it's possible the two will be combined in some way, or some of the language from the Khanna resolution will be brought over. Um, and then apparently they're also considering, um, going forward with a resolution that Congresswoman Barbara Lee has put forward many times, um, to repeal the 2002 Iraq authorization for use of military force. Which again we mentioned earlier, which I agree with John, um, would be, uh, not a proper authority for the current operation, but was mentioned by, um, O'Brien. And so that might be an effort to kind of head off that possible argument.

So what exactly is going to happen with these? We don't know how far they're going to get. Again, we are not sure. Um, they will get through the House almost certainly, whatever Pelosi supports will, I think, get through the House. But then it will, uh, land in a republican Senate. Um, and, uh, it's not clear whether it'll even get a vote in the Senate. And then even if it gets through the Senate it lands on the desk of the president who almost certainly veto it.

So, hard to see, um, these actually making it into law, unless something significant changes. Though it's, I suppose, you know, never say never. But seems unlikely at the moment.

Jeffrey Rosen: [00:44:22] John, last question and then we'll have closing arguments. Can you imagine a scenario where a republican Senate passed, uh, House restriction on presidential authority? As we're speaking Senator Mike Lee has just tweeted, "It's not acceptable for officials within the executive branch of government to come in and tell us that we can't debate and discuss the appropriateness of military intervention against Iran. It's un-American. It's unconstitutional, and it's wrong." Strong words from a strong constitutionalist. Is there enough of a constitutionalist constituency among Senate republicans that you can imagine restrictions actually passing?

John Bellinger: [00:44:57] Well y-you, you, uh, pit your finger on, uh, you know, people like Mike Lee and Rand Paul, others. I mean there are s- uh, a number of, uh, non-interventionist republicans in the Senate who are concerned, uh, about the president's unilateral use of force, uh, for a variety of reasons. And uh, you know, bottom line I think the votes are probably not there in the Senate, but uh, I don't think that, uh, either those non-interventionist republicans like Rand Paul or even, uh, republicans in the middle want to get into a conflict with Iran in, in an election year or at any other time.

I think, uh, with, with few exceptions, I think most of the republicans realize that a, a, a, a war with Iran, uh, would be, uh, devastating for both countries. And I don't think that the, uh, Senate republicans would actually vote to prohibit the use of force, but I, I personally would like to see them, uh, put the president on a bit more notice that the, that the Senate, uh, would not support the use of force against Iran to get into a, a, a, a larger conflict.

And uh, the president himself seems to be backing down a bit, uh, and if the Congress were to actually put him on notice, maybe if it were not actually a prohibition on use of force, but a requirement for, uh, consultation, uh, before, uh, any broader use of force, uh, that, uh, that might serve notice upon the president.

Jeffrey Rosen: [00:46:36] Well and it's time for closing statements in this really wonderful conversation. And the question is the obvious one. Do you believe that the president's strike against Soleimani violated, uh, domestic and international law? And the first statement is to Oona.

Oona Hathaway: [00:46:54] Well I don't believe that, um, it was law-lawful. I believe that it was a violation of both domestic and international law. Um, first under domestic law the Constitution first and foremost gives the power to Congress, uh, not to the president to make the decision about whether to wage war.

Um, it did so for a good reason. Um, the founders didn't want to embroil the United States in endless wars. They wanted to be cautious about getting us involved in foreign interventions, or wars at home. And they intentionally decided to create a constitutional structure that required consensus across the political branches before getting us involved in any significant military conflict.

That was a good idea. [Laughs]. That was, that was the right structure. Not only is it what the Constitution mandates, but it's also politically wise. Um, when we get into wars where there's not a national consensus behind it, uh, we're much less likely to be willing to do what's necessary to succeed at that war. And it, and if a president can take us to war on his own whenever he thinks it's a good idea, um, that puts us in a very dangerous position. We're much more likely to be, uh, adventuring on wars that are not well though through, that are not in the best interest of the country.

Um, and that's particularly true at a moment where the president who's making the decision about whether to wage war is facing impeachment, um, and an impeachment trial. Uh, and a president in that position may have an interest in waging a war that's really not in the best national interest.

So under domestic law I think it's pretty clear a president can't launch a war without co-consulting and forming, uh, and in fact getting the consent of Congress, um, unless there really is an imminent attack that requires action without first consulting Congress.

And then second under international law, again, there's no authority to act. Um, the president, uh, can only act, uh, under international law if he has a Security Council resolution, which he doesn't or if he has the consent of the host state, which he doesn't. Or last, if it's a self-defense action that is necessary to prevent an imminent attack.

Um, they have kind of given up on the whole idea of saying anything about imminence, so it seems to me that even the Trump Administration is not arguing that there was an imminent attack, nor that killing Soleimani was necessary to preventing whatever attack might have been coming. Um, rather they seem to be pointing to generalized concerns about Iran, concerns that have been around for decades. Um, it's to clear there's anything particularly new here. Um, and that means that the president could have and should have gone to Congress, gone to our allies and tried to build a consensus if he thought that a war was the right way to deal with the problem.

I think what he would have been told is a war is a really bad idea. Um, and that is not in the national interest. It's not in the interest of the international community, and let's figure out a different way of doing this. Um, unfortunately he didn't, uh, seek that. Now hopefully he's backing off. And hopefully the pushback that he's received has delivered a message, um, that he shouldn't be, uh, beginning another Mid East war. Um, and that in fact what we should be doing is turning to diplomacy.

And I'm hopeful that his speech today, um, indicates that he is making that turn, and that would be great. Um, and uh, would at least head off any future unlawful actions towards Iran.

Jeffrey Rosen: [00:50:31] And John, the last word is to you. Please tell our We The People listeners, do you believe that the president's actions against Soleimani were legal under domestic or international law or not?

John Bellinger: [00:50:44] So as a matter of domestic law I think that it was clearly constitutional. Uh, al-although, uh, likely unwise. Uh, the president has broad authority under the Constitution to use force when he determines that it's in the national interest. Uh, President Obama did that in, uh, using force, uh, in Libya without congressional authorization and did that for a number of months. Uh, uh, presidents of both parties have done that, uh, and the attorneys general of, uh, of both democratic and republican would tell you that a president has a broad authority to use force in the national interest based on his authority as commander in chief and chief executive. Um, congressional authorization, uh, not required.

Now this is not a war. It could lead to a war, but it's not a war, and so where I agree with Oona is I do agree that if the president is going to start a war, uh, uh, and start a conflict that he thinks is very likely to be a war, and I said this in my testimony about, uh, a year and a half ago when it looked like the president might be staring a war with North Korea, if he had started bombing North Korea and reigning fire and fury down on North Korea, that would very likely have started a war, or started the North Koreans launching missiles at the South Koreans and killed, you know, hundreds of thousands if not millions of people.

You know, uh, for the president to start a war, then that does bump up against Congress', uh, Article One powers to declare war. But for the president to, uh, launch a strike against Soleimani because he determines it's in the national interest, I think that was clearly constitutional, uh, although perhaps unwise.

As a matter of international law, um, I think it's dubious, at least so far. The president, uh, and the White House have not shown that there was a imminent threat from Soleimani. They've used those words that it was imminent, but they've not, uh, shown anything to suggest that an attack really was imminent. And uh, if, uh, they're, the president did not use force, uh, to prevent an imminent threat, then it would be, uh, unlawful under international law.

I hope that the administration will be able to put out some intelligence that will show as, as at least Secretary of Defense Esper suggested that maybe Soleimani was in fact planning or directing something, but I haven't seen it yet. Uh, and therefore the strike could be law- unlawful under international law, and I can say as a former legal advisor for the State Department, that's a bad thing when the United States uses force in violation of international law. It sets a bad example, uh, for, uh, other countries.

Um, I gave a, a, a long speech at the Supreme Court a year ago, two years ago. Uh, the Lloyd Cutler lecture on rule of law, uh, in which I, uh, said that the president and, uh, Vice President Pence need to learn the law of war, uh, and uh, and war powers. And they need to learn the rules, and they need to abide by them.

Uh, I would like to hope that the president's advisors, uh, the secretary of state, the secretary of defense, the attorney general, uh, uh, the White House counsel are all counseling him on what the law requires both under the Constitution, the War Powers Resolution, and international law, and that the president will follow these rules.

So just to echo something that, uh, uh, that, that Oona said, uh, the president did seem to be a little bit more conciliatory today. Uh, let's hope that after the Iranian's responded, uh, by launching, uh, missiles at our bases, that the president realizes that if he then counterattacks we really could get ourselves into a war, uh, and maybe at this point both sides will, uh, being to back down.

Jeffrey Rosen: [00:54:29] Thank you so much John Bellinger and Oona Hathaway for a civil, illuminating, and really educational discussion about the legal and constitutional dimensions of the recent strike against General Soleimani. John, Oona, thank you so much for joining.

John Bellinger: [00:54:47] Thanks for inviting me.

Oona Hathaway: [00:54:48] Thank you.

Jeffrey Rosen: [00:54:55] Today's show was engineered by Greg Sheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich, and Robert Black. Please rate, review, and subscribe to We The People on Apple Podcasts and recommend this show to friends, colleagues, or anyone who is hungry for a weekly dose of constitutional debate. And who of us is not?

And always remember, dear We The People friends, as the new year begins that the National Constitution Center is a private nonprofit. We rely on the generosity, the passion, and the engagement of people like you across the country who are inspired by our nonpartisan mission of constitutional education and debate. Why not send a new year's message to let me know what you think of We The People and which side you are more persuaded by in today's debate about the Iran strike and the Constitution.

That's [email protected]. You can also support our mission by becoming a member at ConstitutionCenter.org/Membership, or give a donation of any amount to support the work, including this podcast, at ConstitutionCenter.org/Donate.

On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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