- The Defense and State Departments' comments appear to indicate that the US will make a case under the right to self-defense, which is recognized under US and international law.
- Most legal experts said interpretations of the Constitution have given the presidency broad powers to wage war, and suggested that the killing could be justified. But justifying the targeting killing may also require providing more evidence that the attack was imminent and Soleimani was responsible for it.
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Trump just had a top Iranian general killed, and it's triggering an intense debate over whether the strike is legally justified
President Donald Trump ordered the US military to kill top Iranian general Qassem Soleimani, a stunning move that has ignited a debate about whether or not the strike was legal and, if it was legal, on what legal-basis it is justified.
The US military, acting on the orders of President Donald Trump, killed Qassem Soleimani, a senior Iranian military official, in a drone strike in Iraq early Friday.
Some members of Congress, most of whom were not notified prior to the strike , were quick to express concern over its legality and possible retaliation. Members of the Iraqi government also condemned the strike, indicating that they, too, may have not been informed.
The Department of Defense said that the strike was "aimed at deterring future Iranian attack plans."
The Pentagon said that Soleimani, commander of the Quds Force of the Islamic Revolutionary Guard Corps (IRGC), "was actively developing plans to attack American diplomats and service members in Iraq and throughout the region."
Most legal experts said interpretations of the Constitution have given the presidency broad powers to wage war, and suggested that the killing could be justified under those powers and the inherent right to self-defense. However, some pointed out that the administration would be making a "big stretch" to justify this under the 2001 law passed to authorize military force against groups responsible for the 9/11 attacks, with one expert saying the US would need specific evidence to show the targeted killing was indeed imminent.
'Very broad' powers
The US armed forces are currently operating in Iraq under a combination of domestic and international authorizations, many of which are not clearly defined. That lack of clarity has resulted in different answers to this question.
Agnes Callamard, UN Special Rapporteur on Extra-Judicial Executions, wrote on Twitter Thursday evening that the killing of Soleimani, as well as others in the convoy, is most likely unlawful, explaining that the US would need to clearly demonstrate that the strike was intended to deter an imminent threat.
Secretary of State Mike Pompeo argued Friday "there was, in fact, an imminent attack taking place," explaining that "the risk of doing nothing was enormous." His characterization of the situation differed slightly from that of the Pentagon statement.
Chairman of the Joint Chiefs of Staff Gen. Mark Milley told CNN Friday that there was "compelling" intelligence that Soleimani was planning a "significant campaign of violence" in the coming days.
There are already calls on Capitol Hill for evidence.
"As a legal matter," Scott Anderson, who was previously with the State Department before joining the Brookings Institution, wrote in Lawfare, "the airstrikes are consistent with measures the United States claims the legal authority to pursue in defense of its personnel, under both domestic and international law."
The Constitution gives the president broad powers to command the military to face threats. Brad Bowman, the senior director at the Foundation for the Defense of Democracy's Center on Military and Political Power, told Insider that he has "high confidence" the Trump administration is "going to use the Article II Section II defense" of the Constitution, perhaps coupled with other justifications.
Jack Goldsmith, a senior fellow at the Hoover Institution who served as an assistant attorney general in the George W. Bush administration, notes that Article II "provides very broad self-defense powers on POTUS," with many authorities not requiring the notification of Congress.
Trump has previously said , incorrectly, that Article II of the Constitution gives him "the right to do whatever I want."
"My experience," Cully Stimson, a senior legal fellow in the National Security Law Program at the Heritage Foundation told Insider, "tells me that it's some combination of inherent right of self defense and probably the 2001 [Authorization on the Use of Military Force] AUMF."
Bowman explained, however, that it might be a "big stretch" to try to rely on the 2001 AUMF, although it would not be the first time the US has pushed the limits of that authorization.
Some experts suggested the US might justify the strike using the Foreign Terrorist Organization (FTO) designation, which the US broadly applied to the IRGC and the Quds Force in April.
That designation, according to Michael Pregent, gives the US more maneuverability.
"You have the AUMF, an FTO designation, and the ability of a commander on the ground to target a threat when you get credible intel that threat is getting ready to plan an attack," Pregent, currently a senior fellow at the Hudson Institute, explained to Insider.
"This is why an FTO designation matters," he wrote on Twitter. "It changes everything. It allows you to target an FTO designated terrorist," which, in this case, included Soleimani.
Speaking Thursday, Trump called Soleimani "the number one terrorist anywhere in the world," adding that under his leadership, "America's policy is unambiguous to terrorists who harm or intend to harm any American. We will find you. We will eliminate you."
The murky, undefined nature of the law has made it difficult to determine not only whether or not the strike was legal, but also how the US might justify the killing of the Iranian general.
The Pentagon did not respond to Insider's request for an explanation of the specific authorizations used to conduct the strike on Soleimani's convoy.
Perhaps more pressing, though, than the Trump administration's justification for the strike are now the actions of Iran, which has vowed to seek revenge.
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