Local View: Law, politics muddy in killing – Lincoln Journal Star

There is traditional (if an armed attack occurs), anticipatory (if an armed attack is imminent) and preventative (if an armed attack might occur in the future).

In the U.S. killing of Iranian Gen. Qassem Soleimani on Jan. 3 discussion focused on the second. Several Trump officials claimed that the head of the Quds Force of the Iranian Revolutionary Guard was planning imminent attacks on U.S. persons or property.

U.S. officials had to focus on this claim because officially Iran had not attacked the United States and because the claim of preventative self-defense had been given a bad odor when used by President George W. Bush regarding the invasion of Iraq in 2003.

Other U.S. officials like Secretary of Defense Mike Esper said they had not seen evidence of specific and imminent attacks. U.S. officials presented no supporting evidence. Earlier mendacious or misleading statements by high officials on various subjects led to doubts whether the facts supported a claim of anticipatory self-defense.

Then Trump said that imminence did not matter. This left the Trump team without a valid justification in international circles.

In U.S. domestic law, two points came into play. First, assassinations are banned in peacetime. This ban remains, even though it is widely accepted that the president has a plenary authority to protect the nation in an emergency.

Second, there is the subject of constitutional war powers, which has never been clear since the Korean War of 1950-1953. Truman decided to fight without a declaration of war from Congress and, for that matter, before the U.N. Security Council, absent the USSR, voted to resist the North’s invasion of the South.

We have had an imperial presidency since at least 1950, with Congress often failing to take a clear position on use of force abroad. Presidents of both parties have extended their powers, and members of Congress in both parties have been complicit in allowing their right to help make forceful foreign policy slip away. Congress last declared war in 1942 regarding certain East European states.

Since 1950, there have been many complex situations of sizable violence said by the White House not to be war. Armed non-state actors and terrorists confuse the scene. States may use proxy forces to avoid direct responsibility, not only Iran via Hezbollah in Lebanon and Syria but the United States in organizing and arming the Contras in Central America. Situations of violence are often complex and do not easily yield to consensus judgments about when congressional war powers should kick in.

Presidents and their supporters often argue for flexibility rather than legislative action. It is usually the party not controlling the White House that demands attention to domestic war powers legislation (Vietnam was an exception). But, for all the reasons listed plus others, the 1970 War Powers Act has never worked well. Most presidents excepting Carter have tried to circumvent its major provisions, and no Congress has been able to pass a more effective substitute.

We should have a robust international law about peace and war, as well as an effective law of war about the process of fighting. But law about the start of war (jus ad bellum) is as weak as the law of war (jus in bello). This is in part because the U.N. Security Council is now badly divided, as it was during the Cold War, with the major powers there often unable to come to agreement.

The United States, claiming to be a rule-of-law state, should have an effective constitutional law about war powers. But since 1950 it has broken down, with both parties tolerating ambiguity about who acts and how regarding foreign violence. (Courts do not want to get into this political thicket.)

For now, the status of international and domestic law leaves us with power politics largely devoid of clear law. Trump authorized the killing of the top Iranian general in what passes for peacetime. Soleimani had a lot of American and other blood on his hands, but it was a risky act, probably not justified by international law and taken without consultation with congressional leaders.

Iran in its weakness has not resorted to major retaliation. It might try a cyberattack on the United States, which opens another Pandora’s box about whether a cyberattack rather than a kinetic attack can start a war. Trump has not consistently beaten the war drums, in part to please his supporters. War remains on the shelf, but so does clarity about the law applicable to the killing of Soleimani.