An expert on why the Soleimani assassination was almost certainly illegal

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On Thursday night, the US authorized a drone strike that killed Maj. Gen. Qassem Soleimani, the head of Iran’s paramilitary forces and arguably the second most powerful military official in the country.

Almost immediately after the news broke, one big question emerged: Was the attack legal? And if so, on what basis?

The Department of Defense issued a statement Thursday arguing that the US strike on Soleimani was an act of self-defense, though it doesn’t explicitly use that term. “General Soleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region,” the statement asserts. “This strike was aimed at deterring future Iranian attack plans.”

There’s a lot to unpack in that argument. The most significant question has to do with whether the alleged threat from Soleimani and Iran was “imminent,” meaning was it absolutely necessary to act when we did in order to neutralize an attack? If it was, the president has the authority to authorize a strike. If not, well, it’s complicated.

To get some clarity on this, I reached out to Heather Hurlburt, a national security expert at the think tank New America. We discussed the legality of the Iran strike, why it matters, and what’s likely to happen next.

A lightly edited transcript of our conversation follows.

Sean Illing

Is what the US just did in Iran legal?

Heather Hurlburt

I’m primarily a national security specialist, but my understanding is that in order for this strike to be legal without congressional authorization, it would have to be in response to an imminent threat to the United States. And then we immediately enter into a discussion about what “imminent” and “threat” actually mean.

Sean Illing

What does “imminent” and “threat” mean to you? As you know, Secretary of State Mike Pompeo says Soleimani represented an “imminent threat to American lives” and therefore the strike was a preemptive act of self-defense.

Do you buy that?

Heather Hurlburt

Based on the preponderance of evidence that I’ve seen and my own understanding of how Iran and Soleimani work, it’s rather unlikely that he was signing off on an operation that was immediately going to target Americans as he was driving back from the Baghdad airport for meetings. Now, that is my definition of imminent, but other experts will disagree.

I’ll say this, though. Many of the people who have shaped our legal understanding of “imminent” over the years understood it to mean that the threat was unfolding right now and there’s no time to do anything other than to kill the person.

The Soleimani killing doesn’t appear to meet that threshold.

Sean Illing

People use those terms “preemptive” and “preventative” interchangeably but you’re saying there’s a distinction and it really matters in terms of justifications for the use of force.

Heather Hurlburt

Yes, and we’ve been arguing all the way back to the George W. Bush administration about whether “imminent” means hours or weeks or months, and if you think imminent means weeks, then this is legal. I reject that view, but there are people who hold it. And there’s certainly an argument that the standard of imminence has been stretched that way for so long that this now fits under it.

Sean Illing

Let’s grant that the administration decided the threat here was imminent, justifiably or not, does that mean they don’t have to notify Congress before taking action?

Heather Hurlburt

Then we get into a second question: Is this an act of war or just a thing we did? If this is just a thing we did, then Congress doesn’t need to be notified. But if it’s an act of war, then clearly Congress needs to be notified.

Sean Illing

If assassinating the second most powerful military leader of a foreign country isn’t an act of war, I don’t know what is.

Heather Hurlburt

This is why I am not so sure we can separate the legal discussion from the political discussion. We are, for better or worse, at a point where the majority of lawmakers have basically acquiesced to the administration’s interpretation of the law when it comes to war, and again, this goes back to the George W. Bush era. So if that’s the case, then eventually the law becomes whatever the current administration says it is. That’s where we are.

Sean Illing

Is there anything like a constitutional test for the imminent threat argument? In other words, does the administration have a duty to provide evidence of such a threat or can it simply assert it?

Heather Hurlburt

Under national security law in general, the president’s assertion goes a very long way, especially in these matters. That’s just the way it’s been for decades. The courts, overwhelmingly, have been incredibly reluctant to go against the judgments of the administration in power, and that’s been true for Republican and Democratic administrations.

Sean Illing

The Authorization for Use of Military Force (AUMF) was passed by Congress shortly after 9/11 and it gave the executive branch the authority to use force against anyone deemed to be associated with the 9/11 attacks. Could the administration invoke that as a possible legal basis for the killing of Soleimani?

Heather Hurlburt

Well, there were several AUMFs but none of them, in any way, were directed at Iran. Each of them very clearly gave the executive branch the power to fight the Taliban and al-Qaeda in Afghanistan and later, ISIS in Iraq. And in fact, Iran has been on our side in the fight against ISIS and the Taliban. So there’s just no plausible legal justification under which you could stretch any of the AUMFs to include an attack on an Iranian official.

Sean Illing

Some, like National Review writer David French, have argued that the killing was legal because it occurred in Iraq, where US troops are fighting a congressionally-authorized war with the permission of the Iraqi government.

Do you buy that?

Heather Hurlburt

If the Iraqi government asked America to kill someone on its soil, and for whatever reason felt it was incapable of doing the job itself, then perhaps that’s permissible under domestic and international law. But simply having troops stationed in a country doesn’t give us blanket permission to kill anyone we feel like killing. And it’s also worth noting that Congress has approved a mission to fight ISIS in Iraq, not to kill Iranians.

Sean Illing

I should also point out that the Iraqi government has made clear that they did not consent to this attack.

Heather Hurlburt

Precisely. Neither Congress nor the Iraqi government authorized the administration to target Soleimani.

Sean Illing

Practically speaking, does it even matter at this point if the strike was illegal? Or is the president simply an unchecked authority in this domain?

Heather Hurlburt

It matters for a few reasons. First, the rest of the world sees not just the US president but the American government as a rogue actor, and that’s a problem. It’s a problem in terms of trying to claim that anything we do is legitimate, now and in the future.

It may matter when it comes to what Iran says about its right to respond to this act. For example, it will be unfortunate if there are Iranian attacks that target Americans and we want other countries to help protect us and other countries say they’re not comfortable because we engaged in this illegal provocative act. So it might make it harder for other countries to assist us.

The other question is whether this idea of Trump as a renegade actor has any valence in American politics. You have, on the one hand, this idea of Trump as an illegal actor versus the idea of Trump keeping us safe from imminent threat. Historically, Americans don’t like being seen as rogue actors, but we’re much more worried about feeling safe, and that’s typically the view that wins.

So I guess we’re going to find out what’s more potent now.

Sean Illing

For a variety of reasons, the reality seems to be that we’ve given one person, the president, the power to unilaterally authorize actions that will lead to a massive war. Is that a fair characterization of our situation?

Heather Hurlburt

Yes.

Sean Illing

So where do we go from here? What kind of fallout do you anticipate?

Heather Hurlburt

One of the most important questions is, do the Iranians confine their revenge-seeking to the region or do they go farther afield? Will they target Americans in the Middle East? Will they target Israel? That’s a very real consequence for American civilians and soldiers.

Another possibility is whether the Iranians make good on their threat to leave the Nuclear Proliferation Treaty and make a dash for a nuclear weapon, which would be a very bad outcome. In the long run, that has the potential for casualties dwarfing anything we’ve seen up to this point.

At home, I’d expect a rallying of disaffected Republican voters back to Trump, at least in the near term, because that’s what usually happens. And another possible consequence is how much fear there is among Muslims, Iranians and immigrant communities here in America. Will they be targeted in the name of security? How far might that go?

Those are extremely important concerns.