Remarkable news from the Washington Post this afternoon. It appears that, at roughly the same time that U.S. Joint Special Operations Command (JSOC) conducted the Soleimani airstrike in Iraq, it attempted the same (albeit unsuccessfully) with a second Iranian Quds Force commander: Abdul Reza Shahla’i. According to a prior posting by the State Department, the U.S. government believes that Shahla’i
is a high-ranking commander in the IRGC–Qods Force, based in Sanaa, Yemen. Shahla’i has a long history of targeting Americans and U.S. allies globally. Shahla’i planned multiple assassinations of coalition forces in Iraq, provided weapons and explosives to Shia extremist groups and planned the January 20, 2007 attack in Karbala, Iraq that killed five American soldiers and wounded three others. As a financier and senior IRGC official, in 2011, Shahla’i funded $5 million dollars, and directed the plot to assassinate the Saudi Ambassador in Washington, DC. Shahla’i also planned follow-on attacks inside the United States and elsewhere. [emphasis added]
The Post reports that a “senior official said the two strikes were authorized around the same time and that the United States did not disclose the Shahlai mission because it did not go according to plan.”
Just like the Soleimani strike, the Shahla’i strike raises complex questions of domestic and international law. Here’s an overview:
1. Is there an argument other than self-defense that might work here?
I doubt it. As I’ve argued on Twitter in relation to the Soleimani strike, the various statutory arguments that some have floated are weak-to-ridiculous. In particular, there is no plausible argument that the various relevant sanctions designations, the War Powers Resolution itself, or Special Operations Command funding statutes provide affirmative domestic law authority for using lethal force. The 2001 and 2002 Authorizations for Use of Military Force (AUMFs) on their face are not relevant either, in my view; they help only if you read into them an implied clause authorizing the use of force in self-defense of the forces that are deployed for the AUMF-specified mission. But why read such a term into the AUMF when the clearer basis for such self-defense authority is Article II itself? At any rate, whether one derives the authority from Article II or an AUMF, the only plausible argument here is self-defense (for it certainly will not work to instead try to pitch these actions as somehow falling below the threshold of the war powers debate altogether, à la the Obama administration’s use of air power in Libya or the Trump administration’s isolated use of air power against Assad regime forces).
2. Okay, so the issue is self-defense. Now we have to argue about “imminence,” right?
No, we don’t have to do that. Everyone is doing that, to be sure. But it is not obvious that these strikes depend legally on whether there really was an imminent attack to be averted.
Let me explain what I mean. It is true that imminence is a critical—and hotly contested—concept that comes up in debates over self-defense. But it is not a necessary part of the analysis in all cases. The core case for self-defense, after all, is not the situation in which an attack is merely imminent (in which case, there are difficult questions about just how sure one has to be that the feared attack really will occur, how late in the game one must wait to act, and so forth). Instead, the core case for self-defense is a situation in which an attack has or is occurring already (in which case, those aforementioned questions don’t arise, at least not in the same way). Thus, for example, the Supreme Court’s famous case on Article II self-defense authority—the Prize Cases in 1862—spends no time dwelling on whether the Confederacy might attack, for of course they already had attacked and the hostilities were continuing at that time.
Let’s call that “responsive self-defense,” in contrast to “anticipatory self-defense.” This responsive self-defense is what we see, notably, in the Trump administration’s Article 51 filing at the U.N. The filing does not frame the Soleimani strike in anticipatory terms but, rather, responsive ones: “These actions were in response to an escalating series of armed attacks in recent months ….” (Although I’m focusing here on the domestic law [Article II] concept of self-defense, to my mind there’s no particular reason to think its parameters are different from the same concept as it is used in elaborating the scope of Article 51 of the U.N. Charter, which is the textual focal point for jus ad bellum and charter analysis of this issue.)
Critically, the possibility of further attacks remains relevant in the responsive self-defense scenario. If the scenario involves only a completed prior attack (or sequence of attacks) and there is no reason to believe those attacks will continue, then by definition there’s no need to use force in response to stop them. Thus it does matter what the future might have in store, and it needs to be a circumstance of ongoing attack in some meaningful sense.
But does that perhaps mean that one therefore must import the strict confines of anticipatory self-defense (with its requirement of imminence) to determine whether the situation involves ongoing attack? I think the better answer is “no,” for in this scenario the Rubicon has been crossed already via an initial attack. If the imminence test were to apply after all, it seems to me that the very idea of a responsive self-defense scenario would shrink, in practice, to encompass only situations in which specific operations remain in progress. That might be a very small category, with little existence apart from scenarios in which ground forces are contending for territory and engaged on a sustained basis.
If not imminence as a test to determine the ongoing nature of an attack, then what? The alternative is to focus on matters of intent and capability. Hardly precise, to be sure, but then again not much of this is.
3. Let’s say that the preceding analysis is correct, if only for the sake of argument. How would this apply to the apparent strike on Shahla’i?
Before answering that, we have to address another critical question, one that also has been the subject of much recent confusion: Are we supposed to be asking the above question vis-a-vis the specific person targeted, or should we instead be asking about the state (or nonstate actor in some cases) for whom that person is an agent?
I think the correct answer is the latter. Let’s say that all the allegations that the United States has made are true. These are assertions of actions by Iranian government institutions for which Iran is of course responsible, just as the JSOC strikes on Soleimani and Shahla’i are actions of U.S. government institutions for which the United States is responsible. But that’s not to say that anyone from either country can therefore be made the object of attack; the law of armed conflict serves to delimit the category of permissible targets (through the principle of distinction) when states use military force against one another. It does mean, however, that when we collect the facts in order to determine whether we have ongoing attacks sufficient to trigger responsive self-defense, it is wrong to zero in on the actions of a specific unit—let alone a specific individual—within the overall military apparatus of the responsible state.
If that is correct, then the issue at hand is whether Iran is engaged in ongoing attacks against the United States, not whether Soleimani, Shahla’i or any other Iranian individual is.
4. Wait, does that mean the U.S. might claim the authority to use force against otherwise-permissible Iranian targets anywhere in the world?
No. When the United States invokes self-defense and carries out an attack against an Iranian target in a third country—be it Iraq or Yemen or anyplace else—it implicates the U.N. Charter’s protections for the sovereignty of that third country vis-a-vis uses of force. Put another way, self-defense arguments that might have purchase vis-a-vis Iran do not automatically apply by extension to the state within whose territory the attack occurs.
This continues to loom as a substantial problem for the use of force against Soleimani in Iraqi territory. The Shahla’i scenario may actually be easier in this respect, insofar as it might turn out to be the case that the United States had consent to act in this fashion in Yemen or that the Shahla’i strike implicated the (also hotly contested) unwilling or unable test in light of where in Yemen’s territory it occurred.
5. All this talk of a state of ongoing attack makes it sound like the United States and Iran are in an armed conflict.
Well, yes, it certainly does. It seems to me that if one advances the position that there is an ongoing series of armed attacks from one state against another, it is nigh-impossible to avoid the conclusion that an international armed conflict exists between those states.
6. Good heavens, does that mean that the Trump administration could just launch an invasion of Iran à la the 2003 invasion of Iraq?
I don’t think so. There is no question, at the international level, that the self-defense concept is bounded by requirements of necessity and proportionality. I think the same should be true as to domestic-law self-defense under Article II. In both cases, the constraints are critical lest the most-limited forms of attack automatically convert into a legal blank check to conduct war.
Here we have claims (believed by some, not by others) that Iran has employed covert means directly and indirectly (through proxies) to conduct an ongoing campaign of armed attacks on U.S. persons. If true, some degree of responsive force is permissible by means of self-defense authorities. But it does not follow that a full-scale invasion of Iran is permitted, nor lesser yet still-disproportionate measures.
7. One last question: The Washington Post story suggests that the JSOC strike against Shahla’i was in some sense covert. Unpack that, in terms of U.S. law.
Readers may recall that the JSOC operation that killed bin Laden was described as having been a covert action conducted under Title 50, with SEAL Team Six formally aligned under CIA authority on a temporary basis (sheep-dipped) to achieve that formal legal effect. It is certainly possible that something of a like kind occurred here as well, and that we would not have heard anything about the Shahla’i attack if not for leaks.
I think it is more likely, however, that this was a “simple” Title 10 activity. Critically, it could still have been conducted on a deniable basis. How so? So long as an operation is commanded and executed entirely within a military chain of command, and is conducted in relation to a situation in which operational planning for hostilities has been authorized by the National Command Authority, a deniable operation will qualify for the “traditional military activities” exemption to the covert-action statutory framework. In practical terms, that means there would have been no need for a presidential finding in support of the operation, nor for reporting to the Senate and House Intelligence Committees.
Notably, there would still be congressional notification and oversight, thanks to the “sensitive military operations” provision that Congress established in recent years for situations exactly like this. Under 10 USC § 130f, kill or capture operations conducted by the military outside of Syria, Iraq and Afghanistan must be notified in writing (by the secretary of defense) to the Senate and House Armed Services Committees within 48 hours. Presumably that has occurred here. Heck, perhaps that is how the Washington Post came upon the story.
No doubt there is more to be said and, for that matter, more to be revealed. Stay tuned.