1/ I have written a legal opinion in government and many pieces out of government on presidential war powers. And FWIW I have grown very, very cynical about legal constraints on those war powers. Here are some thoughts as the lawyers begin to weigh in.
2/ First, with the exception of the War Powers Resolution (WPR), which has always been a very weak constraint, practically all of the law in this area has been developed by executive branch lawyers justifying unilateral presidential uses of force.
3/ Unsurprisingly, these lawyers view unilateral presidential power very broadly. Congress has done nothing since the 1973 WPR to push back on these ever-broader constructions of executive power. Indeed, it has gone along with them through appropriations and acquiescence.
4/ Second, the context of the killing of Suleimani is maddeningly complex, factually and legally.
5/ The domestic-law basis for our military operations throughout the Middle East rests on a combination of the 2001 AUMF, the still-extant 2002 AUMF, various appropriations, and Article II. And once we are there, Article II provides very broad self-defense powers on POTUS.
6/ The international law picture is also murky. We are in Iraq, where the strike took place, more or less with Iraq’s consent. That consent extends to at least some military operations in Iraq. But does it extend to the targeted killing of Suleimani?
7/ According to the WSJ, “Iraqi Prime Minister Adel Abdul-Mahdi condemned the targeted killing as a violation of the terms underpinning the U.S. troop presence in the country.” wsj.com/articles/leade…
8/ Third, there will be lots of focus by the lawyers on OLC legal opinions written to justify the constitutionality of interventions in Libya (2011), fas.org/irp/agency/doj…, and Syria (2018), justice.gov/olc/opinion/fi…
9/ These opinions were primarily about humanitarian intervention. They emphasized that the uses of force there did not require congressional authorization because “the anticipated hostilities would not rise to the level of a war in the constitutional sense.”
10/ Some will claim that because the strike against Suleimani will foreseeably result in "war," Congress must be consulted. But there are many reasons why these opinions, and this standard, won’t come into play in the USG's justification for the Suleimani killing under US law.
11/ Those reasons include (1) this strike will be justified as a self-defensive action that rides atop the affirmative authorizations to be in Iraq and fighting there and elsewhere—affirmative authorizations that Congress has gone along with in various ways.
12/ And (2) there are other Bush-era OLC opinions that take an extraordinarily broad view of the president’s self-defense powers in a context much closer to this case than the humanitarian intervention opinions.
13/ I wrote about these opinions here, in a different context. lawfareblog.com/ease-writing-o….
Here is some the relevant language from these opinions.
Here is some the relevant language from these opinions.
14/ Note that the Bush administration and the Obama administration withdrew many OLC opinions issued during the Bush era. They did not withdraw these two opinions, which remain on the books.
15/ Nothing I have said is meant to state definitively whether the Suleimani strike was lawful or not, under domestic or international law. It’s complicated.
16/ My main points are (a) the Executive branch will have an easy time justifying the strike under extant opinions, (b) Congress (both parties) has gone along with the expansion of presidential war power, especially with regard to the complex Middle East wars,
17/ (c) the president has broad self-defense powers in these wars, and (d) the legal arguments are a distraction from what is going on here, since law has very little if anything to do with it.
18/ The most important point: Our country has, quite self-consciously, given one person, the President, an enormous sprawling military and enormous discretion to use it in ways that can easily lead to a massive war. That is our system: one person decides. END
