The Pentagon Permission Slips That Enable Forever Wars

A conference is currently underway in Vienna to explore paths forward to reignite the 2015 Iran nuclear deal. The United States is not directly participating in talks with Iran, but it does have a delegation of representatives in Vienna to influence the situation. If the U.S. and Iran can agree to resume compliance with the 2015 deal, it may ease tensions between the two countries, and they may not stumble into a war with each other.

The June 18 presidential election of Iranian hardliner Ebrahim Raisi, whom the Trump administration sanctioned for human rights abuses, will unquestionably make negotiations challenging if they extend beyond August when Raisi takes office. There is, however, another important action that the Biden administration could take to help mitigate potential future conflicts.

The Biden administration faces many foreign and domestic challenges: a global pandemic, staggering unemployment, an immigration crisis on the border, and rising tensions with China, Russia, Iran, and North Korea. One problem, however, has received little attention: repealing the Authorizations for the Use of Military Force, which have permitted ever-expanding global conflicts in the last two decades.

Biden’s Off to a Good Start Undoing Trump's Global Damage

Jan. 3, 2021, marked the one-year anniversary of the highest-profile drone strike in history. Major General Qasem Soleimani was the leader of the Iranian Revolutionary Guard Corps’ Special Quds Force and widely considered one of the most influential leaders in Iran, second only to the Supreme Leader Ayatollah Ali Khamenei. Soleimani sowed discord throughout the Middle East for decades, providing arms, training, and funds to enemies of the United States. He was considered untouchable by previous U.S. administrations due to the unpredictable fallout of killing him. That changed on Jan. 3, 2020, when Soleimani, along with five local militant leaders in Iraq, was killed in a drone strike outside of the Baghdad international airport.

The Soleimani drone strike brought the United States and Iran to the brink of war. In the aftermath, the U.S. deployed additional troops to the area, tensions flared, and rhetoric between the two nations grew more openly hostile. The Iranians retaliated on Jan. 7, 2020, by launching 15 ballistic missiles at two bases in Iraq housing U.S. troops. Tragically, within a few hours of the missile attack and fearing a U.S. air strike on their homeland, the Iranians mistakenly shot down a Ukrainian commercial airliner outside of Tehran, killing all 176 people on board.

A year and a half removed, the Soleimani drone strike should serve as a warning for the Biden administration that the enabling 2001 and 2002 Authorizations for the Use of Military Force must be repealed or replaced.

Was the Soleimani drone strike legal?

To be considered legal, a drone strike must adhere to the principles of the law of war, the target must be lawful, and the act must be carried out by a combatant.

The legal principles of the law of war that come into play when the decision is made to strike a target are military necessity, distinction, proportionality, and unnecessary suffering.

In this instance, distinction, proportionality, and unnecessary suffering were all satisfied by the use of a drone to positively identify the target and by the use a proportional weapon, a Hellfire missile, which minimized unnecessary suffering.

But what about military necessity?

The Trump administration stated that it acted in anticipatory self-defense because Soleimani was planning imminent attacks on U.S. forces in Iraq. This self-defense legal basis adheres to Article 51 of the UN Charter and the general principles of international law. The justification holds true only if future attacks on U.S. forces were indeed imminent. No public evidence of this was offered by the Trump administration. Instead, Congress received a classified brief on the details. Let’s assume for the sake of argument that the self-defense rationale does hold true, though. Would it then be legal to kill Soleimani, an Iranian general, in Iraq?

The legal challenge to the location of the strike

Iraq openly protested the killing of Soleimani and threatened to expel U.S. forces from its country. The Iraqi government’s actions indicated that the U.S. did not have host nation consent to carry out the strike and that the Iraqis viewed the incident as a violation of their country’s sovereignty.

But does self-defense require consent of the host nation? If U.S. forces are in a country legally, is the host nation’s permission required for the U.S. forces to defend against an attack? No, the right to self-defense is never denied under the law of armed conflict. The legality of the strike once again hinges on the imminence of hostilities against U.S. forces by Soleimani.

Perhaps we should look at the location of the strike through a different lens to determine Soleimani’s intentions. Why was Soleimani in Iraq meeting with local extremist militants if not to foment more attacks on U.S. forces? His mere presence, coupled with his longstanding history of aiding enemies of the U.S. across the region, should be enough to demonstrate his hostile intent.

Once hostile intent of an enemy combatant is determined, the question of the immediacy of an attack becomes a matter of judgment based on the intelligence received combined with the context of past actions. In this instance, the U.S. concluded that Soleimani was an immediate threat and acted in anticipatory self-defense by taking the first shot with a drone when and where the opportunity presented.

Acting in anticipatory self-defense is not without precedent.

In 1998 President Bill Clinton authorized pre-emptive strikes against extremist non-state actors in Operation Infinite Reach. In a reprisal to Al Qaeda bombings of the U.S. embassies in Kenya and Tanzania, the U.S. Navy launched cruise missiles at Al Qaeda facilities and camps in Afghanistan and the Sudan. The legal justification that President Clinton provided for the cruise missile strikes: self-defense against future attacks that Al Qaeda was planning. It should also be noted that both of those strikes occurred without the consent of the Sudan or Afghanistan.

The Authorization for the Use of Military Force

The U.S. has been involved in ongoing conflicts for the last two decades as a result of loosely defined and liberally interpreted Authorizations for the Use of Military Force (AUMF) signed in 2001 for Afghanistan and in 2002 for Iraq. Those AUMFs have allowed the U.S. to expand combat operations to locations outside of Afghanistan and Iraq such as Yemen, Syria, Libya, Niger, and Somalia. The AUMFs have also allowed the U.S. to enter into conflict against new enemies, not originally named, such as ISIS and, in the instance of the Soleimani strike, Iran. The legal interpretation of the AUMFs by three presidential administrations has permitted the U.S. to engage in an ever-expanding global conflict with broadly defined enemies and unclear strategic objectives.

We have now entered our fourth presidential administration under these authorizations. It is time to reconsider how and when the U.S. determines to use military force in the future. The Soleimani drone strike undoubtedly exceeded the intent of the AUMFs when issued. The interpretations of the AUMFs have morphed to a point that a presidential administration felt they had legal justification to kill an Iranian general, which almost led to another conflict. That is precisely the danger presented by the legal gray area of the current AUMFs. President Biden’s failure to change or repeal the AUMFs will most certainly guarantee that Soleimani won’t be the last time a drone strike brings the U.S. to the brink of war.

Wayne Phelps is a retired Marine Corps Lieutenant Colonel and the author of the book On Killing Remotely: The Psychology of Killing with Drones.

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