A U.S. drone strike near the Baghdad airport killed Maj. Gen. Qasem Soleimani on Friday, January 3, 2020.
Soleimani was the head of the Islamic Revolutionary Guards Corps-Quds Force (IRGC-QF), a U.S. designated Foreign Terrorist Organization (FTO). In the last week, members of Congress and the Trump administration have engaged in a debate over the strike’s rationale and justification. While this has been largely cast in the media and by some analysts as a partisan tug-of-war, in issues pertaining to the use of force, the Constitution remains an “invitation to struggle” between the legislative and the executive branch. Moreover, this debate is necessary for the health of U.S. democracy given the shifting nature of warfare. Americans deserve to know how their military is being used.
Q1: What is the U.S. administration’s rationale for the strike?
A1: Pursuant to the War Powers Resolution, on January 4, 2020, the Trump administration submitted notification to Congress of the Soleimani strike. Among other matters, the notification set out “the constitutional and legislative authority for the action.” Unfortunately, it has been classified and its contents unavailable to the public. Still, several different rationales have publicly been provided by the administration.
The President, Secretary of Defense, and Secretary of State have, at different times, stated that the strike was carried out because “Soleimani had been ‘actively plotting’ to ‘take big action . . . that would have put hundreds of lives at risk’ and that the United States had acted to eliminate ‘imminent threats to American lives.’” However, in more recent days, Secretary of State Pompeo has focused less on the imminent threat posed by Soleimani and more on “Soleimani’s alleged role in an attack in Iraq that left an American contractor dead last month.” Additionally, the initial statement issued by the Pentagon stated that “[t]his strike was aimed at deterring future Iranian attack plans.”
Q2: What has been the reaction in Congress?
A2: Perhaps not surprising, in the days following the strike, the reactions in Congress were varied, though they fell largely along party lines. Republican lawmakers have praised the president’s decision as a significant blow to Iran’s ability to conduct operations and as a reasonable exercise of restraint. Democrats, however, have said that the strike places U.S. and partner forces at greater risk. Moreover, others in Congress took issue with the administration failing to alert top House and Senate leaders before conducting the strike, including the Gang of Eight.
However, most of the discussion has focused on questions regarding the authority of the president to conduct the strike. According to some officials, the notification given by the administration to Congress via the War Powers Resolution, “provided no information on future threats or the imminent attack . . .” Others argued the notification was improperly classified, with Senator Richard Blumenthal (D-CT) stating that it was, “vague and unacceptably unspecific.” Critics also included Senator Rand Paul (R-KY) who, “questioned the administration’s claim of an imminent attack, citing Secretary of State Mike Pompeo’s repeated criticism of General Soleimani.”
On January 3, Senator Tim Kaine (D-VA) introduced a resolution stating, generally, that neither the 2001 nor 2002 Authorizations for the Use of Military Force (AUMF) support a war against Iran and that the president should remove U.S. armed forces from hostilities against Iran. On January 8, Rep. Elissa Slotkin (D-MI) introduced a resolution in the House, which directed the president to terminate the use of force against Iran and asserted that the president “may only use the Armed Forces to engage Iran militarily if Congress specifically authorizes it or if ‘use of the Armed Forces is necessary and appropriate to defend against an imminent armed attack upon the United States . . .’”
Following closed door briefings by administration officials on January 8, most lawmakers emerged, still, divided along party lines. However, Senator Paul and Senator Mike Lee (R-UT) stated that they would support “the Senate version of the House Democrats’ resolution because they found the administration’s presentation to be so ‘insulting.’”
The House passed the resolution on January 9. It is unlikely to secure the necessary support in the Senate given partisan divides, but it is a healthy expression of the type of debate the United States should have over the changing nature of the use of force.
Q3: What next steps should the administration and Congress take in accordance with the rule of law?
A3: Moving forward, the administration should make every effort to inform Congress, especially the Gang of Eight, before such high-profile targeted strikes. The administration also should provide an unclassified version of the notification delivered to Congress pursuant to the War Powers Resolution and for transparency and accountability to the U.S. public. Secretary Pompeo has been asked to testify before the House Foreign Affairs Committee. He should take this opportunity to candidly explain to Congress and the American people the rationale for the strike. Additionally, depending on the rationale for the strike, the administration should ensure that it is acting in accordance with international law and continues to do so in the future.
There are several steps that Congress should also be taking. First, in accordance with their constitutional oversight role, Congress should continue to hold hearings and request briefings that further probe the administration’s rationale for the strike. If Congress is not satisfied with reasons offered, it should act accordingly and in support of the rule of law and pass legislation that accounts for this particular strike. Additionally, Congress should also begin in earnest the serious and difficult task of reviewing and repealing the 2001 and 2002 AUMFs—authorizations that are now nearly 20 years old and do not reflect current geopolitical realities or the nature of the counterterrorism threat today.
Q4: Was the Soleimani strike indicative of a broader shift in how the United States is exercising the use of force? If so, does the United States have the policy and legal frameworks necessary to ensure effective oversight, transparency, and accountability in the U.S. constitutional system?
A4: Existing policy and legal frameworks for the use of force are built around concepts of defense, deterrence, and conflict that explicitly involve state actors and conventional forces. However, geopolitics and the nature of war are shifting, and states increasingly compete in the gray zone—the space that exists between routine statecraft and direct military conflict. While states still rely on the use of force, they do so through proxy forces, cyber and space tools, and other forms of coercion, which can provide plausible deniability and, sometimes as a result, immunity to the state-sponsored perpetrator. As such, the conventional use of force as a deterrent has been diminished.
Soleimani was both an official of the Iranian government and the leader of an FTO. The January 3 strike was an instance where the United States chose to draw a straight line from actions taken by Iranian proxy forces straight to Soleimani and act against him. It alleges that it did so to both prevent an imminent attack and to deter further Iranian aggression.
If the United States is going to adopt a new approach to deterrence that increasingly relies on the use of force in a gray zone era, aside from remaining within the boundaries set by the Constitution, it needs a new policy framework that accounts for the broader use of both military and non-military tools that can have “forceful” effects—e.g., resulting in loss of life, territory, or economic activity. Such a framework should account for decision thresholds that reflect U.S. interests, values, and constraints across a range of gray zone-like scenarios. It should also clarify ambiguous parameters for what constitutes “offensive” and “defensive” measures, particularly in the cyber domain. Such parameters for cyber were first tested in the Obama administration and have blurred further under the Trump administration.
In fulfilling its Article One responsibilities, Congress should consider the implications of this evolving landscape. It should hold regular hearings, briefings, and consultations with administration, intelligence, and military officials to provide effective oversight of new approaches to the use of force in cyber, space, irregular, and proxy operations, as well as targeted strikes on high-level individuals. And it should consider whether the 1973 War Powers Resolution should be updated to reflect the way in which the executive branch is exercising the use of force in the twenty-first century.
The Defense 2020 podcast episode, Debates on the Use of Military Force, also explores this issue. Listen here: https://www.csis.org/podcasts/defense-2020/debates-use-military-force.
Joseph Federici is an associate director and associate fellow with the International Security Program at the Center for Strategic and International Studies in Washington, D.C. Melissa Dalton directs the Cooperative Defense Project and is deputy director and a senior fellow with the International Security Program at CSIS.
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