The US Presidency: rare bipartisan move to restrain executive power

Michael Goldhaber, IBA US CorrespondentWednesday 19 February 2020

Oona Hathaway, Professor of International Law at Yale, urges Congress to respond to Soleimani’s killing, or ‘the constitutional order will be broken beyond repair, by setting a precedent that puts the greatest destructive power the world has ever known in the hands of a single man.’ Specifically, she argues, this was the first time that a US President used force without ‘either domestic or international authority’ – and Congress mustn’t acquiesce.

Former Department of State Attorney-Adviser Scott Anderson agrees that establishing any legal basis for the killing of General Soleimani would be a stretch. But it wasn’t clearly illegal, he says, because Congress and the courts have let the President become the main interpreter of his own widening war powers.

In the first instance, the President’s domestic war power resides in the Constitution’s Article II as construed by the Department of Justice Office of Legal Counsel (OLC). Under a 2011 Libya memo by the Obama OLC, broad ‘national interests’ may justify the President using non-major military force without Congress. However, notes the OLC memo, the risk that the action will escalate into a ground war arguably indicates ‘a greater need for approval at the outset’ from Congress.

‘The Libya test can accommodate a lot of things,’ says Anderson. ‘But the Soleimani killing stretched the limits of even that highly flexible test, because it was massively escalatory. The Libya opinion says that's the scenario where Congress should weigh in.’

Jack Goldsmith, who served in the Bush administration as Special Counsel to General Counsel of the Department of Defense, fears President Obama made a dangerous mistake by failing to withdraw hard line OLC memos from 2001–2002. This, it could be argued, allowed President Trump to justify even a major conflict without Congress. Anderson notes more hopefully that the Trump administration ‘has given no sign of embracing’ this view.

Alternatively, the President could find domestic legal authority for the Soleimani strike in one of Congress’ two longstanding Authorisations for the Use of Military Force (AUMF). The 2001 AUMF targets those who assisted the 9/11 attacks, and this administration has hinted that Iran falls in that category. The 2002 AUMF covers terror threats emanating from Iraq. To that end, the President might argue that Soleimani was a collateral casualty of a strike upon an Iraqi militia that the US lists as a terror group. Plausibility aside, the President may hesitate to cite such theories lest he provoke Congress into revoking these very old and broad licenses to kill.

Under international law, a nation may unilaterally use force in self-defense when it’s ‘necessary’ to address an ‘imminent’ attack. The President and Secretary of State presumably had this principle in mind when they initially cited an ‘imminent’ threat. The problem with this claim, says Hathaway, is ‘it’s never been borne out by any evidence.’ The administration keeps changing its story – at one point the President insisted that there were specific threats to four embassies, even though no embassies were warned – ‘because they just can’t prove it.’

Anderson argues that a claim of ‘necessity’ is dubious, because General Soleimani was involved in funding and strategising, rather than the tactical execution of any imminent attack. Complying with international law, he says, would require evidence that Soleimani had direct and substantive involvement in serious ongoing threats against the US. ‘Based on current public understanding of the facts,’ he reasons, ‘it fails the necessity test.’

Even so, the executive interpretation of war powers may be sufficient for a creative lawyer to find a way around these problems. There’s a minority view that a state can use preemptive force against threats that are further out on the chain of causation, or needn’t wait for the next attack to be ‘imminent’ where it can establish a pattern of attacks. In another controversial precedent – set by the Obama OLC in Syria in 2014 – a nation acting in self-defence simply doesn’t need the host state’s consent to attack a non-state actor when the host state is ‘unable or unwilling’ to act itself.

In international law as in US law, Anderson concludes that - while the Soleimani killing pushed presidential war powers to their limits – he can’t say the attack was clearly unlawful, because the executive’s own views of its war powers are extremely flexible, and effectively authoritative.

Perhaps the silver lining of the Soleimani strike is that it put a dangerous broken system in the spotlight. ‘We have so few tools to limit a President who is committed to using military force,’ says Hathaway. ‘The brazenness of this action may open the door to more significant reform.’