The Legalities Surrounding the U.S. Airstrike

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Lawyer 2 Lawyer: Law News and Legal Topics

The Legalities Surrounding the U.S. Airstrike

01/10/2020

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Rebecca Ingber: What we need to look for is a clear legal justification that comes out of the United States Government. I would like to see one, not only from OLC, from the Office of Legal Counsel in the Department of Justice, but also from the State Department that is uniquely suited to address the international law questions, laying out the case, having looked at the intelligence, I want to see that lawyers inside the government who actually had access to this intelligence, I would like to know that they looked at it beforehand and that this is not just a post hoc rationalization.

Bradley P. Moss: But it speaks to sort of the slapdash and haphazard way this administration has handled this response in attacking someone who by and large most Americans certainly didn’t shed any tears to see gone, but needs to be handled in a proper way.

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Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from a sunny and warm Southern California.

I write a legal blog called May It Please the Court and have two books out, titled ‘The Sled’ and ‘How to Get Sued’.

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Well, at the top of the New Year President Trump ordered an airstrike killing Iranian Commander Qasem Soleimani, the head of Iran’s elite Quds Military Force. President Trump justified the action by citing Soleimani’s decades long tension with the United States, threats directed toward Americans and the killing of an American contractor near the Iraqi city of Kirkuk.

The question today is was that airstrike legal?

Today on Lawyer 2 Lawyer we are going to discuss the legal issues surrounding that airstrike as well as the circumstances that prompted it and the potential ramifications, both domestic and international.

To help us explore this topic, we have got two great guests for you today. First up, we have returning guest attorney Bradley P. Moss from the Law Office of Mark S. Zaid, P.C. Brad specializes in litigation on matters relating to national security, federal employment and security clearance law, as well as the Freedom of Information Act and Privacy Act.

In connection with his work on behalf of clients in the Federal Government, media and defense contracting industry, Mr. Moss has been quoted in articles for the Washington Post and POLITICO.

And welcome back to the show Brad.

Bradley P. Moss: Thank you very much. Happy to be here.

J. Craig Williams: And our next guest is Professor Rebecca Ingber. She is an expert in international and national security law, bureaucracy, and presidential power at Boston University’s School of Law.

Rebecca is a Senior Fellow at the Reiss Center on Law and Security at NYU School of Law and she previously served in the Office of the Legal Adviser of the U.S. Department of State.

Welcome to the show Rebecca.

Rebecca Ingber: Thanks so much for having me.

J. Craig Williams: Well Rebecca, let’s start with you and kind of give us a little bit of a background on what the power of the president is to order an airstrike of an individual and how that decision occurred?

Rebecca Ingber: There are two main legal questions that are at stake here. There is a domestic legal question and then there is this international legal question and we can start with the domestic now and perhaps discuss the international separately.

So as a matter of domestic law the Constitution gives Congress, not the president, the power to declare a war, and yet most scholars agree that the president has some inherent authority to use force when addressing an actual armed attack to the nation or perhaps an imminent attack that is — one that is truly imminent in such a nature that there is no time for consultation with Congress.

And so if that scenario does not actually exist, then the president must look to Congress for congressional authorization to act and Congress has over time in the past declared war, in recent years it has done so through authorizations to use military force. And so you will hear Executive Branch officials talk about the 2001 authorization used military force and the 2002 authorization used military force.

The 2001 of course was in the aftermath of the 9/11 strikes intended to authorize the president to use force against al-Qaeda and the Taliban and the 2002 AUMF was authorizing the president to use force to address the security threat posed by Iraq. Neither of these authorizations obviously was intended to authorize force against Iran and yet you will see some US officials sort of toss them around right now as it seems to me they are grappling to sort of settle on a legal justification for this strike.

(00:05:01)

J. Craig Williams: Well Brad, what’s the intelligence behind this? I mean we have heard from a number of the administrative officials that there was an imminent threat and it was justified for President Trump to order this airstrike, but really nothing has come out about that yet.

Bradley P. Moss: Yeah, and that’s been kind of the least transparent aspect of this, it’s been rather concerning, not only from a legal standpoint, but more particularly from a public interest and public understanding standpoint.

So as my colleague mentioned, a lot of this is kind of built in the idea that Congress has the power to declare war, but the president has a lot of authority, a lot of discretion when handling sort of these urgent and exigent circumstances to respond. And so what Congress had done in the aftermath of the Nixon era and everything was they built in certain notifications, requirements to provide information to relevant committees of Congress when the president is going to act in sort of that exigent circumstance, as we know is like the Gang of Eight, as we know as the War Powers Act in terms of these specific individuals and relevant leadership individuals who have to be notified. And so far that largely has not happened.

We are just now starting to have some of the relevant players, some of the relevant members in leadership, in the House and Senate and in the relevant committees start to learn the details of what it was that the administration was relying upon. And there is not necessarily anything “illegal” about that because a lot of this implicates separation of powers and constitutional concerns and prerogatives in the two different branches, but it speaks to sort of the slapdash and haphazard way this administration has handled this response in attacking someone who by and large most Americans certainly didn’t shed any tears to see gone, but needs to be handled in a proper way.

J. Craig Williams: Well Rebecca, is Trump bypassing the War Powers Act, I mean by just simply taking an executive action to take out one individual and Iran has responded with a declaration of war essentially, is that how it gets bypassed or what’s going on here?

Rebecca Ingber: Right. So there are two questions here. One is does the president — when the president acts, the president needs the source of authority to act, and so the first question is does the president have a source of authority in either the Constitution or statute, and we just discussed that, right?

The second question is when the president acts, Congress has created through this War Powers Resolution certain parameters, certain requirements that when the president acts unilaterally, because there will be some circumstances in which he is engaging in a direct threat to the United States, he must do so within certain parameters and follow certain requirements, in particular certain reporting requirements.

And there are two major obligations that are relevant here. One is that the president is supposed to consult with Congress before introducing armed forces into hostilities, but the War Powers Resolution is a little bit soft on this. It says in every possible instance. And so we know that the president did not consult prior to engaging in this act and so did he violate the War Powers Resolution in that respect? Well, it depends on what you take — whether you think that it was possible in this instance.

I think it’s probably fair to say it was possible, because we know that he was talking to Republican leadership down in Mar-a-Lago, hinting that this was coming. So it seems — that seems to suggest to me that clearly it was possible to consult ahead of time.

The second requirement is that after — once he has engaged in such strikes, he must report to Congress within 48 hours. He has got to submit a report to the Speaker of the House and to the president pro tempore of the Senate and we understand that he actually has done this. He submitted a classified report and that report is supposed to detail the circumstances that were necessary to introduce forces, it’s supposed to include a legal justification and explain the estimated scope and duration.

Now, we know that there was a report that was filed, we know that it was classified, so we don’t know what was in it, but we also know that Nancy Pelosi suggested that it raises concerns with her. And the suggestion is that it sounds like there probably wasn’t the hard sharp evidence included in the report that would suggest that this was truly the kind of imminent situation that would call for the president needing to respond without getting authorization from Congress in the first place.

J. Craig Williams: And Brad, what are the consequences here? I mean if it’s determined that there wasn’t an imminent threat and that there wasn’t justification for this assassination, which essentially it was, what happens?

Bradley P. Moss: This is the realities of the wonderful constitutional republic we live in and the way the Constitution was framed is, the only consequences are political. There are always never-ending inherent tensions between these two branches with respect to the ability of the President to act and the extent to which he has to keep Congress informed and Congress’ ability to restrain it.

(00:09:52)

There is certainly no ability to render what happened a criminal action against the president or anything like that, that somebody doesn’t exist. The only thing that Congress has right now, and this is what my colleague mentioned was in terms of the War Powers Act, the initial finding was reported to Nancy Pelosi and this classified notification was that initial part, if there are going to be deployments of additional forces, if there is going to be sustained military action, the president has a set period of time, I believe it’s, and I am going to mess up, it’s either 30 days or 60 days, I can’t remember the figure off the top of my head.

Rebecca Ingber: 60 days.

Bradley P. Moss: 60 days, thank you, to secure approval from Congress to authorize that deployment of military forces. Absent that, the way the War Powers Act contemplates and considers a scenario, the operation is supposed to end. What no one knows is what will happen if the president simply says, I don’t care that you didn’t authorize it, I am doing it anyway.

We almost had this constitutional crisis in Gulf War 1, with the vote going to Iraq to repel their invasion of Kuwait. We don’t know what would have happened then if the vote hadn’t passed. If this were to happen now, we don’t know what would happen because there is no clear parameters, no clear precedent of how to resolve it, it’s inherently a political question. And so that’s going to be more than anything for the president, especially leading up to his reelection fight over the next few months is whether or not there is a political cost to how this was handled.

J. Craig Williams: Rebecca, at the top of the show as you were explaining the background, you mentioned that there was also an international aspect to the consequences here or to the situation, and does that include some of the allegations that have been made by Iran that this actually constitutes a war crime and is there a forum where that could be prosecuted, and if so, how?

Rebecca Ingber: Yes, and again, there are two different major issues going on in the international space. One is whether the United States was prohibited from using force in Iraq to attack Soleimani and the other is within the context of an armed conflict, is any particular action that the United States takes lawful, and that’s where the issue of war crimes comes up and that’s where the issue of the president’s recent proposal to attack cultural sites of Iran, which is clearly a war crime, is implicated.

But on the first issue, the prior issue, can the United States use force in the first place, under both treaty law and custom, states are prohibited from using force against the territorial integrity of other states. So there are certain narrow exceptions, but that’s the baseline rule. And the exceptions include consent, they include when the UN Security Council authorizes force. Neither of those are relevant here.

Consent is interesting because we are actually in Iraq due to Iraqi consent, but Iraq did not consent to this particular operation and they control the parameters of the consent to use force in their territory. So we don’t have either of those things. And so the only thing we are left with as a justification, as a possible justification would be self-defense and so here again international law raises the same question we are raising in domestic law, which is, were we truly facing an armed attack or an imminent armed attack.

Now, Iraq did not attack us and yet we are using force in Iraqi territory, and so the question is did Soleimani pose such a threat that Iraq was unwilling or unable to mitigate such that it was necessary for us to act in Iraqi territory? So that’s the international question, and that is a very, very high bar, and none of the evidence that we have seen thus far come out suggest that we have met that bar.

Of course the intelligence is classified and so what we need to look for is a clear legal justification that comes out of the United States Government. I would like to see one, not only from OLC, from the Office of Legal Counsel in the Department of Justice, but also from the State Department that is uniquely suited to address the international law questions, laying out the case, having looked at the intelligence, I want to see that lawyers inside the government who actually had access to this intelligence, I would like to know that they looked at it beforehand and that this is not just a post hoc rationalization.

J. Craig Williams: Well, as we look at that justification, let’s talk about what’s going on in the media. I mean Brad, we have seen a significant change in the media’s response to this particular crisis compared to in the past, where we talk about weapons of mass destruction, it seemed like a lot of the newspapers pretty much accepted that and went with Bush’s statement, but here there is a lot of questioning of Trump going on. What’s happening?

Bradley P. Moss: Yes. So there are two parts to this. So one is that, yeah, in 2002, leading up to Operation Iraqi Freedom and Gulf War 2, there was certainly a level of deference to the statements coming out of the Bush White House that what was being outlined, the explanations being provided about what Saddam Hussein was involved in was true, and we were also dealing — we were just months — sorry, two years out from 9/11 at that point, so there was a lot of reticence, a lot of hesitation, not only amongst members of the media, but a lot of political figures to push back too hard on it.

(00:15:05)

The levels of nationalistic pride was still very high and so there was a concern about how skeptical to be that said, there weren’t some who were skeptical and rightly so.

I mean a lot of it just got burned by that. You see a lot of political figures to this day, we are in 20/20. We’re still talking about people’s votes on the AUMF to go into Iraq. Joe Biden for us to talk about, Hillary Clinton was still talking about it in 2016. This still remains something that a lot of Democrats felt burned over and a lot of members the media did felt like they kind of got fooled by the initial statements coming out of that White House.

In the second part though is the credibility issue that this particular president has is very much spent the last three years trying to push this idea of alternative facts, trying to push the idea as Rudy Giuliani said truth isn’t truth, always having an issue with whether or not he — what he expresses, what he says this act is factual is actually accurate. So that’s part of the underlying problem. He specifically faces and that the media is picked up on in terms of why they are pushing back because there’s been three years of this fight, three years of fact-checking and correcting the president’s statements and so that’s underlay as a more inherent foundational problem for the president, the resistance to just accepting hook, line, and sinker what’s coming out of The White House.

J. Craig Williams: And Rebecca, as you stated before, there’s got to be some notification to Congress of what’s happening here. Trump has come out and said, “For the last three years don’t trust intelligence agencies, instead we’re going to take the word of Russia for some things and we’re going to take the word of Korea for some other things.” Now, he’s saying that maybe tweets serves as notifications to Congress. How does that work constitutionally?

Rebecca Ingber: Yeah, we are really seeing Trump’s delegitimization of his own intelligence agencies come back to bite him, because he’s been telling us forever that we shouldn’t trust everything the “deep state” is up to and now he’s saying now this is all — you can leave everything in their hands and allow me to basically bring us to war on the word of intelligence that he’s been denigrating for years.

Now, I’m inclined to take a more middle ground between those two poles. As a matter of classification issues, I’m extremely sympathetic to the argument that we can’t release all information to the public. We burn sources, we burn methods, but that is precisely why we have an oversight system in Congress and so we have the gang of eight, we have cleared staffers and cleared members of Congress who are prepared to receive on the intelligence committee who are prepared to and supposed to receive intelligence briefings precisely so that they can act as proxies for the rest of us who can’t see the information.

At some point we have to trust that someone is overseeing this process and that it’s not simply a black box. And so in order for that to work properly though you can’t use the intelligence committees as politicized tools in this partisan hackery project and so when we’ve seen Devin Nunes trying to use his position of power for a partisan agenda that delegitimized the ability of the intelligence committees to actually serve as a real oversight function over the intelligence community and so that’s a disservice, and now we feel like we can’t trust anyone, and so this is immediately so quickly turned back to bite the president.

J. Craig Williams: Right, well, before we move on to our next segment we’re going to take a quick break to hear a message from our sponsor, we’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Attorney Bradley P. Moss from the Law Office of Mark S. Zaid, P.C. and Professor Rebecca Ingber, an expert in International and National Security Law, Bureaucracy, and Presidential Power at the Boston University School of Law.

We’ve been discussing the legalities surrounding the U.S. airstrike as well as some of the implications from it.

Brad, do you have any kind of prediction here on how Iran is going to retaliate? Apparently Iraq has suggested or demanded that we remove our troops from that state, so it looks like our influence is going to be dwindling in the Middle East.

(00:19:57)

Bradley P. Moss: That has to be kind of the other $64,000 question that we’re facing at the moment is what will the Iranians do here? I mean, this was a very senior figure in the Iranian government. They certainly are not prone to just taking it sitting down I think more than we would be if it was one of ours and they will certainly want to respond, but at the same time, the leadership there is not necessarily suicidal. They have to know that especially with someone like Trump serving in The White House that a counter response to anything they do would be massive and arguably disproportionate but it would be a massive response that would come out of the United States.

And so they have to figure out what can they do to save faced politically to satiate their grassroots and to satiate the public which right now, I mean, there was massive funeral processions for Soleimani in Iran and various other areas within the Middle East.

What can they do to make it appear like they’ve responded without actually bringing down the hammer of whatever Donald Trump would unleash? And so, you’re going to see certainly some rocket launchers, a lot of, I would say skirmish is almost the best phrase I’m looking for at the moment, within The Green Zone in Baghdad in terms of where a lot of U.S. forces are deployed in the area at the moment, and so just be hoping more than anything at the moment. I think they’re going to try to basically look for whatever little way they can to exact some small measure of retaliation without truly angering Trump to the point that he just says all gloves are off, let’s go.

Because they are not going to want to see what he would possibly authorize that another president probably would and we’ve seen that with some of the comments the president has been making, that he’s been talking about bombing cultural sites which put aside international log, that would be a violation of U.S. Federal Law, and ran afoul of U.S. Military Rules of Procedures in terms of how we do not deliberately strike foreign cultural sites at the time of war. So they’re not going to want to poke in such an unpredictable bear no matter how angry they might be at the moment.

J. Craig Williams: Rebecca, under international law does Iran at this point have a legal justification for a declaration of war and a counter-attack against the United States?

Rebecca Ingber: Well, the question for Iran is the same question we are facing. It is, can we use force in a particular place against a particular target and so the question they’ll be facing is, do we have to, is it necessary for us to use force in self-defense in response to an armed attack?

I think it’s fair to say that this was an armed attack on Iran. Some will say that we were already engaged in armed conflict but that itself the existence of skirmishes between states doesn’t itself authorize the use of force.

And so I think it’s probably fair to label the attack on Soleimani as an armed attack, we certainly would consider a high-level attack on one of our generals as an armed attack. And so the question then is, is just a question of customary international law, which is, is it necessary and proportionate to take any particular action in response in a way that would mitigate the threat that we pose to Iran.

So that’s the question that Iran is going to be facing and so that’s just going to be fact-dependent based on what they’re looking at and what they actually think the threat is coming from us.

J. Craig Williams: Brad, what role does the United Nations play here? Can they step in and what kind of response should we expect?

Bradley P. Moss: The UN essentially is more of an advisory body especially in this day and age and anything else. I mean, there’s no UN army for instance. There’s nothing like they don’t have any ability to prevent one country another from intervening, a lot of it is based off what is provided in terms of forces from member nations including the United States.

So it’s not like the United Nations could intervene and force the United States out if we were to launch an assault or Iran or force out Iran if Iran was to invade Baghdad anything like that, they don’t play that kind of role and they never have arguably throughout the history of the United Nations.

It has always been the idea of serving more as a moderator, as a mediator to the situation to try to reduce tensions and try to bring conflict to a cessation so that the parties can negotiate diplomatically.

J. Craig Williams: Well, it looks like we’ve just about reached the end of our program, so at this point I’d like to take the opportunity to invite our guests to share their final thoughts as well as their contact information and maybe lay out what is coming next. Rebecca, let’s turn to you first.

Rebecca Ingber: Great. So I would just add to that explanation by Brad. The fact that the UN Security Council, of course, can authorize the use of force, but is unlikely to do so in particular because in this case, both the United States and Russia have a veto on the Security Council and so depending on which direction we’re talking about, either of those would be likely to use it.

(00:25:09)

As for Congress and the question of whether or not there’s anything Congress could do, Congress does have tools at its disposal but the further we get into a full-blown war, the less useful those tools are going to be. There’s no way Congress is going to defund the U.S. military in the middle of a full-blown war, but it does have the power of the purse, and so it can actually enact restrictions now on the way the U.S., the president uses the military. And there are other means that’s disposal as well, and so I would urge Congress to actually hold hearings immediately, debate this question right now so that we can get a public airing so the public as a whole can actually decide do we want to go to war with Iran, is this what we’re actually looking to do rather than leave it inside the black box of presidential decision-making?

J. Craig Williams: Well, thank you, and your contact information for our listeners?

Rebecca Ingber: Of course, well, you can find me at Twitter @becingber.

J. Craig Williams: Great, and it’s I-N-G-B-E-R, right?

Rebecca Ingber: That’s right, @becingber.

J. Craig Williams: Great, thank you. And Brad, your final thoughts and contact information?

Bradley P. Moss: Sure and just to follow up on what Rebecca said, this is going to be a very critical moment for Donald Trump as president as something he hasn’t truly faced in terms of a possibility of a full-out war. One of arguably his own making he’s faced some master security crises over the last three years but nothing like this in particular we’re going to see does Donald Trump, the man who destroys all manners of conventional rules and procedures and systems how does he handle this kind of situation, where there are a lot of things, whether it’s the War Powers Act, whether it’s a lot of Gang of Eight notification.

A lot of things that are built on customs and norms not so much based out in kind of binding law that you can use to enforce through the courts, how will he respond to that, we’ve already seen some indication of his reticence to cooperate and there’s sort of a normal fashion we have been accustomed to over the last 50-60 years when it comes to president who is dealing with deployments of military forces.

How will he respond to that, how will he handle that, and will it require firmer congressional pushback whether it’s hearings or something else should you try to ensure that be legislative body, the one who actually has the constitutional authority to declare war and is supposed to be authorizing any sustained employment? How much will they have to get involved to make sure they’re fully informed in making a render determination of their own?

J. Craig Williams: Great, and your contact information?

Bradley P. Moss: People can find me on Twitter @BradMossEsq.

J. Craig Williams: Great, and we didn’t define or say who’s in the Gang of Eight, can you fill us in who those people are?

Bradley P. Moss: Sure, it’s the leadership for both the majority and minority in both the House and the Senate as well as the Chairman or woman and ranking members for the intelligence committees in both, the House and Senate.

J. Craig Williams: Great, thanks so much. Well, for our listeners if you like what you heard today, please rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com, where you can leave a comment on today’s show and sign up for our newsletter.

I’m Craig Williams, thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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