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The Pentagon’s General Counsel Defends the Legality of the Soleimani Strike

Robert Chesney, Eric Talbot Jensen
Wednesday, March 11, 2020, 3:28 PM

Speaking at Brigham Young University, Defense Department General Counsel Paul Nye offered the most-detailed defense we have yet seen of the Soleimani airstrike, addressing both international and domestic law as well as the underlying facts.

Secretary of Defense Mark Esper talks to President Donald J. Trump, July 25, 2019 (Source: Flickr/The White House/D. Myles Cullen)

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Speaking at Brigham Young University Law School on March 5, Defense Department General Counsel Paul C. Ney delivered an address setting forth both the international and domestic law justifications for the Jan. 2 airstrike that killed Iranian General Qassem Soleimani. This was an important development, as the administration has not provided clear messaging on this topic before now (notwithstanding this two-pager submitted to Congress in February). Ney’s address goes into far more detail than the administration has previously set forth. Read it in full here and at the bottom of this post, and read on for our thoughts on the key insights to be gleaned from it.

I. The Factual Basis for the Strike

Ney spends more than a third of his speech establishing the factual basis for the attacks. Starting with the passage of the 2002 Authorization for Use of Military Force (AUMF), he outlines the progression of congressional support and the pattern of Iraqi cooperation. Ney walks through the defeat of the Islamic State and then spends the last half of his fact section identifying the “malign presence” of Iran. Ney details Iran’s efforts to destabilize Iraq and the rest of the region through the use of its own Quds Force and through proxies such as “Hizballah, Hamas, and the Houthis.” He draws particular attention to Kata’ib Hizballah, the group believed to have launched a late December 2019 attack on a U.S. military base in Iraq, and then carefully makes the connection between all of these organized armed groups and Qassem Soleimani, quoting Secretary of State Mike Pompeo’s conclusion that “[t]here is no terrorist except Usama bin Ladin who has more American blood on his hands than ... Qassem Soleimani.” Ney concludes his factual portion of the speech by presenting an “escalating series of attacks” by Iranian-linked groups in the nine months prior to the Jan. 2 attack on Soleimani, specifically recounting 11 attacks or series of attacks that he tied to Soleimani and his proxies.

To take a third of the presentation to recount the factual basis for the attack is significant. This was a deliberate reminder that the U.S. government believes any response in self-defense is grounded in a very fact-specific analysis. As Ney says, “Legal analysis isn’t that different whether you’re a law school student or the [Department of Defense] General Counsel: you start with the facts.” Knowing that any claim of self-defense is subject to the criticism that such a claim is simply a cover for what would otherwise be its own armed attack, Ney appeared to want his factual analysis to lay a precedential floor on similar future invocations of self-defense. As will be discussed below, to the extent that self-defense has become the self-serving and elastic justification for “name your preferred military mission,” Ney’s expansive reliance on facts was an attempt to dispell any of those allegations with respect to this attack.

II. The International Law Analysis

Ney followed his factual section with an explanation of the international law basis for the attack on Soleimani. Earlier in the speech, he articulated the reason for the mission in clear self-defense terms: “The strike was ordered to protect U.S. personnel; to deter Iran from conducting or supporting further attacks on U.S. forces and interests; to degrade Iran’s and Qods Force-backed militias’ ability to conduct attacks; and to end Iran’s strategic escalation of attacks on U.S. interests.”

He then acknowledged the three traditional bases for armed actions—Security Council authorization, self-defense and consent of the state in which the action took place—and identifies this action as “an exercise of the United States’ inherent right to act in self-defense, consistent with Article 51 of the Charter of the United Nations and customary international law.”

In one of the most striking statements in the speech, Ney described the issue of imminence as a “red herring” in this case. Despite early mentions by President Trump and other members of the administration emphasizing the imminence of future attacks in justifying the attack on Soleimani, Ney denied that the U.S. needed imminence to justify the attacks under a theory of self-defense. Rather, he relied on the facts mentioned above to establish that “the United States had been subject to an escalating series of armed attacks by Iran and by Iran-supported militias in the Middle East, including Iraq.” The U.S.’s response to these prior armed attacks was completely in accordance with current understandings of customary international law and of Article 51. In other words, Ney implied that an analysis of whether an attack was imminent was unnecessary because the U.S. had already been the victim of a number of armed attacks from Iran or its proxies in the preceding months, while acknowledging that the U.S. government had determined that “[a]ttacks against U.S. forces and interests were assessed to be highly likely to continue in the absence of a military response in self-defense.” Thus, there was no need to rely on some form of anticipatory self-defense in which imminence would play a greater role because the U.S. acted “consistent with” the plain language of Article 51, having already been the victim of multiple armed attacks.

Though not relying on some form of anticipatory self-defense to justify this particular air strike, Ney did take the opportunity to reinforce the U.S. belief that

the threat of an imminent armed attack can also justify a resort to force under international law. That is, although Article 51 refers explicitly to self-defense only in response to an actual armed attack, the United States maintains that international law also includes the right to use force where an armed attack is imminent. This view of the United States is widely known and also shared by many like-minded states in the international community.

Ney also made an interesting, though mostly noncontroversial statement connecting the jus in bello targeting rules to a jus ad bellum self-defense action. When addressing the legitimacy of targeting Soleimani and the others who were killed with him, Ney stated that “[a]s the leader of the Qods Force, Soleimani was a legitimate military target in Iraq under the international law governing the conduct of hostilities. The others killed in the U.S. strike were the leader and members of KH, an Iran-backed militia. As such, they, too, were ‘military objectives’ who could be made the object of attack under the law of war.” Having already stated that the jus ad bellum response was “subject to the customary international law requirements of necessity and proportionality,” Ney clearly stated that the attack was also governed by the principles of jus in bello targeting.

However, in referencing the jus in bello, Ney left relevant questions unanswered. At what point, if any, was there an armed conflict between the U.S. and Iran? And when, assuming armed conflict existed, did it come to an end? Ney spoke of “international law also regulat[ing] the conduct of hostilities” with respect to the attack on Jan. 2 but did not go any further to answer the question of the existence of an armed conflict. It seems that given the explicit application of targeting principles to the attack, one could assume from his speech that the Department of Defense’s position is that at least as of Jan. 2, the armed conflict existed. And one could further assume that, at the latest, the Jan. 7 statement by Iran’s foreign minister, Javad Zarif, that the country does not “seek escalation or war,” marked the close of the armed conflict.

Accepting that the existence of armed conflict under international law is a factual and not a political determination, the question of when armed conflict began may be a less important question for resolution. Or it may just be that the U.S. government is not ready to express a view on that question.

III. The Domestic U.S. Law Analysis

It helps to be clear upfront regarding what we really are asking when we ask about the domestic U.S. legal basis for a use of military force. In this particular context, it boils down to a separation-of-powers concern: Did the Trump administration usurp the constitutional prerogatives of Congress by authorizing this attack, or was it instead within the scope of either the president’s own constitutional authority (the “Article II argument”) or authority already delegated to the president by statute (the “AUMF argument”)? Ney’s answer: both.

Let’s focus first on Ney’s Article II analysis. According to his account, there are two questions one must ask in order to determine whether the president has independent Article II authority to direct the use of military force: “First, whether the President could reasonably determine that the action serves important national interests. Second, whether the ‘anticipated nature, scope and duration’ of the conflict might rise to the level of a war under the Constitution.”

Taking up that first question, Ney focused on the proposition that there surely is an “important national interest” when it comes to preventing or responding “to attacks on U.S. personnel and property,” citing the examples of Operation El Dorado Canyon in 1986 (responding to Libyan attacks on U.S. personnel), as well as the Clinton administration’s 1993 strikes against Iraq’s intelligence service following revelation of a plot to kill former President George H.W. Bush and its 1998 strikes targeting al-Qaeda following the group’s attacks on the U.S. embassies in Nairobi and Dar es Salaam.

Turning to the second question, whether the conflict rises to the level of a war, Ney noted that the president cannot long sustain armed force in hostilities without congressional support, in light of the presumed need for funding this would entail. Then, building on that practical insight about the problems that might follow from unilateral action of this kind, Ney observed that the Office of Legal Counsel accepts that the president should have to “seek congressional approval prior to initiating military action that would bring the Nation into the kind of protected conflict that would rise to the level of ‘war’ in the constitutional sense” (a sense he then defined to mean a likelihood of lengthy engagements that would expose U.S. personnel to significant risks over a long period). Applying that standard, Ney concluded that the Soleimani strike did not entail sufficient risk of a prolonged engagement of U.S. forces to constitute “war” in the sense that would trigger the need for congressional approval.

This idea—i.e., that the role of Congress is limited by a definition of “war” that is much narrower than the notion of “armed conflict”—is by no means new. It was central, for example, to the Obama administration’s sustained air campaign against Qaddafi in Libya in 2011. That campaign involved a remarkable amount of lethal force, but relatively little direct risk to U.S. personnel, given the manner in which the U.S. intervened and the limited ability of the Qaddafi regime to respond. And so it is no surprise that Ney emphasized that exact precedent. From a certain point of view, the Soleimani strike does seem to pale in comparison. At the same time, Iran plainly has far more capacity to strike back against U.S. personnel than did the Libyans under Qaddafi circa 2011, and the prospects for the 2019-2020 Iran affair to spiral into a larger conflict were obvious.

Ney emphasized that such a spiral did not ultimately occur (though the Iranians did harm many American service members in their retaliatory missile barrage). Even assuming that this apparent return of an equilibrium holds, though, the magnitude of risk to U.S. personnel tolerated in this instance nonetheless appears far greater than that associated with any prior example (unless one cares to inject the Korean War or the early days of the Vietnam War into this conversation). From a practical-precedent perspective, in other words, this rationale makes the Soleimani precedent into one that would seem to permit significant risk-taking before the scenario would be categorized as “war.”

This is unfortunate, for if the factual and international law analysis set forth above is correct, there was no need for the administration to argue that this situation fell below the constitutional threshold of war in the first place. Instead, the better argument would have been, as with Article 51, that the strike was an act of national self-defense responding to prior Iranian attacks.

This line of argument does not require any effort to calibrate the “war” threshold unusually high. The idea, rather, is the Prize Cases concept that the president has inherent authority—indeed, an affirmative duty—to use force in defense of the nation (including its armed forces) when they are attacked, notwithstanding that the circumstances may amount to war. On this view, there is no need to analyze the general “national interests” of the United States, still less to claim that it was not an act of war to conduct an airstrike on Iran’s top general in the midst of an ongoing shadow conflict in Iraq and elsewhere.

It is not clear what to make of Ney’s omission of this argument. Perhaps it reflects his disagreement with the proposition that, as a constitutional matter, the self-defense category extends to this scenario. Or it could simply be that he found the argument he ultimately went with to be more compelling. At any rate, it is a dog that didn’t bark.

Ney then went on to contend that the strike was in fact authorized by Congress, in that it fell within the scope of the 2002 AUMF originally enacted to support the use of military force to topple Saddam Hussein—and which for better or worse remains active today as both the Obama and Trump administrations have construed it to support military force in connection with stabilization of Iraq. Citing Soleimani’s presence in Iraq and his role in directing proxy and other forces to use violence against American and allied forces there, Ney contended that the 2002 AUMF applies to this particular scenario.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.
Professor Eric Talbot Jensen is the Robert W. Barker Professor of Law at Brigham Young University Law School. He has been teaching law for over ten years after serving in the U.S. government. He recently served as the Special Counsel to the General Counsel of the Department of Defense in 2016 and 2017.

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