On February 14, the House Foreign Affairs Committee released the Trump administration’s legal justification for killing Qassem Soleimani, the commander of Iran’s elite Qods Force. Administration officials had said that Trump approved the drone strike, carried out on January 3 near Baghdad International Airport, in response to an “imminent” threat to U.S. interests in the region.
The two-page legal report referenced the president’s duty to protect U.S. national security as outlined in the constitution. It also cited the 2002 Authorization for Use of Military Force (AUMF), which sanctioned the U.S. invasion of Iraq, as legal rationale for Soleimani’s killing. “Although the threat posed by Saddam Hussein's regime was the initial focus of the statute, the United States has long relied upon the 2002 AUMF to authorize the use of force for the purpose of establishing a stable, democratic Iraq and addressing terrorist threats emanating from Iraq,” the memo said. “Such uses of force need not address threats from the Iraqi Government apparatus only, but may address threats to the United States posed by militias, terrorist groups, or other armed groups in Iraq.”
Senator Eliot Engel (D-NY), chairman of the House Foreign Affairs Committee, blasted the memo. “The administration’s explanation in this report makes no mention of any imminent threat and shows that the justification the President offered to the American people was false, plain and simple,” Engel said in a statement. “The 2002 authorization was passed to deal with Saddam Hussein. This law had nothing to do with Iran or Iranian government officials in Iraq.”
The administration’s legal justification came after a series of congressional bids to limit Trump’s authority to conduct military action against Iran. On January 9, the House passed a nonbinding war powers resolution to limit President Trump’s ability to engage in hostilities as outlined in the 1973 War Powers Resolution. On January 30, the House of Representatives passed two additional measures, including a repeal of the 2002 AUMF and a bill to prohibit future tax dollars from funding military action against Iran without congressional approval. On February 13, the Senate passed its own bipartisan bill to limit Trump’s authority.
The following is a legal memo from the Trump administration and a statement by Representative Eliot Engel.
Notice on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations
This notice is provided consistent with Section 1264 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018, as amended. It provides notice of a change in application of the existing legal and policy frameworks since the last comprehensive update to the December 2016 "Report on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations" that the President submitted to the appropriate congressional committees on March 12, 2018. Consistent with Section 1264, this report contains a classified annex.
United States Military Action Against Qassem Soleimani
At the President's direction, United States Armed Forces conducted an air strike in Iraq on January 2, 2020, killing Qassem Soleimani, leader of Iran's Islamic Revolutionary Guard Corps-Qods Force, a designated foreign terrorist organization. The President directed this action in response to an escalating series of attacks in preceding months by Iran and Iran-backed niilitias on United States forces and interests in the Middle East region. The purposes of this action were to protect United States personnel, to deter Iran from conducting or supporting further attacks against United States forces and interests, to degrade Iran's and Qods Force-backed militias' ability to conduct attacks, and to end Iran's strategic escalation of attacks on, and threats to United States interests.
Article Il of the United States Constitution, empowers the President, as Commander in Chief, to direct the use of military force to protect the Nation from an attack or threat of imminent attack and to protect important national interests. Article Il thus authorized the President to use force against forces of Iran, a state responsible for conducting and directing attacks against United States forces in the region. In addition, under the 2002 Authorization for Use of Military Force Against Iraq (2002 AUVIF) the President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq." Although the threat posed by Saddam Hussein's regime was the initial focus of the statute, the United States has long relied upon the 2002 AUMF to authorize the use of force for the purpose of establishing a stable, democratic Iraq and addressing terrorist threats emanating from Iraq.
Such uses of force need not address threats from the Iraqi Government apparatus only, but may address threats to the United States posed by militias, terrorist groups, or other armed groups in Iraq.
The airstrike against Soleimani in Iraq is consistent with this longstanding interpretation of the President's authority under Article Il and the 2002 AUMF. Iran's past and recent activities, coupled with intelligence at the time of the air strike, indicated that Iran's Qods Force posed a threat to the United States in Iraq, and the air strike against Soleimani was intended to protect United States personnel and deter future Iranian attack plans against United States forces and interests in Iraq and threats emanating from Iraq. The use of military force against Iranian Armed Forces was tailored narrowly to the identified Qods Force target's presence in Iraq and support to, including in some cases direction of, Iraqi militias that attacked United States personnel.
As a matter of international law, the strike targeting Soleimani in Iraq was taken in United States national self-defense, as recognized in Article 51 of the United Nations Charter, in response to a series of escalating armed attacks that Iran and. Iran-supported militias had already conducted against the United States. The United States reported the air strike to the United Nations Security Council on January 8, 2020, in accordance with Article 51 of the United Nations Charter. Although the threat of further attack existed, recourse to the inherent right of self-defense was justified sufficiently by the series of attacks that preceded the January 2 strike.
Statement by Representative Eliot Engel
"The administration has sent Congress a legally mandated report outlining its legal and policy justifications for the strike that killed Iranian General Qassem Soleimani. This official report directly contradicts the President’s false assertion that he attacked Iran to prevent an imminent attack against United States personnel and embassies. The administration’s explanation in this report makes no mention of any imminent threat and shows that the justification the President offered to the American people was false, plain and simple.
"To make matters worse, to avoid having to justify its actions to Congress, the administration falsely claims Congress had already authorized the strike under the 2002 Iraq war resolution. This legal theory is absurd. The 2002 authorization was passed to deal with Saddam Hussein. This law had nothing to do with Iran or Iranian government officials in Iraq. To suggest that 18 years later this authorization could justify killing an Iranian official stretches the law far beyond anything Congress ever intended. I was pleased to join many of my colleagues in voting to repeal the outdated Iraq war authorization, and I hope the Senate will follow suit.
“The administration has dissembled on this issue for long enough. The decision to kill Soleimani escalated tensions with Iran and risked plunging us into a war with Iran that the American people don’t want and that Congress hasn’t authorized. This spurious, after-the-fact explanation won’t do. We need answers and testimony, so I look forward to Secretary Pompeo testifying before the committee at an open February 28 hearing on Iran and Iraq policy, including the Soleimani strike and war powers.”