In a break from long-standing intelligence practices, President Donald Trump ordered the Defense Department to confirm that the United States was behind the missile strike that killed Qassem Soleimani, the commander of Iran’s secretive Quds Force, and six others, including Iraqi militia commander Abu Mahdi al-Muhandis. The public acknowledgement of responsibility is a game changer. While Iran (like most of us) assumed it was the United States, the public confirmation of the assassination removes any doubt and forces Iran and Iraq to deal with a direct and official attack. International law treats the targeted killing of a ranking military figure on foreign sovereign soil as a presumptive act of war. As always however there is no shortage of hypocrisy in the condemnations from Capitol Hill.
House Speaker Nancy Pelosi, D-Calif., has denounced the failure to confer with Congress before taking this act. I agree with that criticism and has been a long-standing critic of the expanded war powers given to presidents. However, the Democrats are in no position to criticize since they are less concerned with consultation when the president is from their own party. President Obama acted unilaterally in launching the Libyan War. I represented Democratic and Republican members challenging that unilateral action.
Michael Bloomberg has criticized Bernie Sanders for calling this an assassination but I am not sure what the distinction is between a “targeted killing” and an “assassination.” Both are targeting an individual.
For decades, I have criticized how Congress has ignored the constitutional requirement to declare war and given presidents blank checks in pursuing wars at their discretion. Most relevantly, President Obama claimed the right to kill not just any foreigner but American citizens on his unilateral authority. I denounced this kill list policy but Democrats like Speaker Nancy Pelosi and others supported President Obama.
Of course, the congressional Democrats are not the only ones caught in the hypocrisy of the moment. Russia, which has assassinated people around the world, has objected over the violation of international law.
I have long posed the question of what would happen if another country took out an American leader or military figure on U.S. soil. We would certainly treat that as an act of war. Claiming American exceptionalism is not enough. We have to maintain a clear and credible position on military interventions if we expect the same protections of international law.
This is precisely the danger that the Framers sought to avoid with the requirement that only Congress can declare a war. While the Administration claims that another attack was “imminent,” it should make that case to Congress. Even if one accepts that there are cases where a president must act on an exigent basis, that does not mean that the White House cannot confer with a handful of congressional leaders known as the Gang of Eight. Sen. Lindsey Graham (R., S.C.) however says that he was given a briefing when visiting the President in Florida.
This brings us back to the official declaration of responsibility for the assassination. We are now on the record in committing an act that is widely defined as an act of war not just against Iran but arguably against Iraq. That places even greater pressure on our rationale for the right to carry out a missile attack in a sovereign country to kill a foreign military leader. Secretary of State Mike Pompeo has referred to the “active . . . plotting” further acts. That has not been used previously as the basis for taking out a figure who is widely viewed as the second most powerful figure in a sovereign nation.
Few people are grieving the death of Soleimani who has a long history of terrorist associations as well as connections to operations killing many American personnel. He is not the issue. The issue is the constitutional authority of a president to unilaterally take an act that is widely viewed as a act of war without conferral, let alone a declaration, from Congress. Again, President Trump is not the first president to assert such unilateral authority, but this remains a glaring contradiction in our constitutional system of checks and balances.
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