White House ‘1264 Notice’ and Novel Legal Claims for Military Action Against Iran

To its credit, the Trump administration has submitted a newly released notice to Congress, describing the legal and policy basis for the Jan. 2 airstrike against Qassem Soleimani, Iran’s top military commander. The notice was required within 30 days of the administration’s change to its self-proclaimed legal framework for use of military force. The reporting requirement is thanks to a recent statutory provision (under section 1264 of the National Defense Authorization Act) as explained by Rita Siemion and Benjamin Haas.

To its discredit, however, the administration’s notice raises very serious concerns about the legal basis for the strike and the president’s failure to go to Congress beforehand. What should also not be lost in any analysis of it are the assertions it makes about the administration’s ability to engage in future military action against Iran. In that respect, the notice should be read alongside a Jan. 27 “Statement of Administration Policy” by the Office of Management and Budget concerning the 2002 Authorization for Use of Military Force (AUMF) Against Iraq, including the administration’s claim that it already has congressional approval to wage a military campaign against Iran—and units of Iraqi armed forces.

The administration’s positions amount to a fundamental revision of existing legal foundations for military action against Iran that can be undertaken by this and future presidents. Some of the underlying propositions are so extraordinary that it’s unclear if the administration has sufficiently considered their implications. I offer the following observations to identify those implications and other concerns with the administration’s position. The fundamental revision cannot withstand close legal scrutiny.

As a side note: the notice states that it is accompanied by a classified annex. That annex might include reference to the widely reported, accompanying U.S. strike on Jan. 2 against another Iranian military commander, Abdul Reza Shahlai, in Yemen.

1. Drops claim that Soleimani posed an “imminent” threat

The claim that Soleimani posed an imminent threat of attack has been a central plank in the administration’s public justification for the Jan. 2 strike and for not going to Congress before taking action. When submitting a formal written statement to Congress, however, that justification drops out.

The absence of an imminent threat is relevant not only to the legal and policy basis for the strike on Jan. 2. It is also relevant for potential future military action. The administration’s position appears to boil down to an assertion that it can use military force against Iran without going to Congress even if responding to a threat from Iran that is not urgent or otherwise imminent.

The notice also engages in a sleight of hand. It refers to imminence as a potential element of the constitutional framework (a sufficient but not necessary condition for the President to use force under Article II), but never applies that element to the facts. Instead, in all instances in which the notice refers to the facts justifying the Jan. 2 strike, it does not describe the threat as an imminent one. As one example:

The President directed this action in response to an escalating series of attacks in preceding months by Iran and Iran-backed militias on United States forces and interests in the Middle East region. The purposes of this action were to protect United States personnel, to deter Iran from conducting or supporting further attacks against United States 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, and threats to United States interests.” (emphasis added)

Similarly, in describing the international legal basis for the strike, the notice states, “the strike targeting Soleimani in Iraq was taken … in response to a series of escalating armed attacks that Iran and. Iran-supported militias had already conducted against the United States. … Although the threat of further attack existed, recourse to the inherent right of self-defense was justified sufficiently by the series of attacks that preceded the January 2 strike” (emphasis added). And in another passage, the notice strangely refers to the U.S. military’s intention to “deter future Iranian attack plans” (emphasis added). Not attacks, but attack plans. That sounds like the statement that the Department of Defense issued on Jan. 2 immediately following the strike. The Pentagon, at the time, also refrained from any reference to a threat of imminent attack. Instead it referred to Soleimani’s “actively developing plans to attack” and “deterring future Iranian attack plans.” But “actively developing plans to attack” and “attack plans” sounds like something that has been going on for years, and many of those plans may be contingencies for if and when the United States uses force. As former Trump administration CIA official Douglas London wrote at Just Security:

I do not debate we had intelligence regarding any number of prospective attacks Iran was facilitating through proxies in Iraq, and elsewhere. But don’t we always? The Iranians design potential operations at various degrees of lethality and provocation, some of which they will execute, others to put aside for a rainy day. It’s what they do.

The important point for our constitutional system of government is why then the Trump administration decided to strike Iran’s top military commander when it did, and what justification could there be for not going to Congress beforehand.

As a side note: It is difficult to imagine how the strike against Shahlai would have simultaneously met the test of imminence. The U.S. embassy in Yemen has been closed since Feb. 2015, and the United States does not have a significant troop presence in Yemen. Was Shahlai about to strike the United States inside Yemen as Soleimani was about to strike the United States from inside Baghdad? That also seems difficult to square with statements by Secretary of State Mike Pompeo and other officials that the administration did not know the location of the future threats.

2. Claims of Iran’s responsibility for militias that could boomerang against United States’ support for militia and other military partners

The administration’s position is based on an unstated premise: that Iran is legally responsible for the acts of so-called proxy forces. The notice aggregates—one might say, conflates—military actions of Iranian-backed militias (e.g., the attack on an Iraqi base that killed a US contractor) with the military actions of Iran (e.g., shoot down of the US drone) as a justification for striking Iran. But that only works if Iran is legally responsible for the actions of those militias. So then, what theory of “attribution” under the law of state responsibility is the administration claiming applies? Under international law, there are two competing tests for attribution – a very high threshold of “effective control” and a lower threshold of “overall control.” International courts have split over which is the proper test. So which is it for the Trump administration?

Here are some important dimensions of this issue to consider:

First, Professor Oona Hathaway has written that it would be very difficult for Iran to meet either of these tests in its relationships with various militias.

Second, the administration’s earlier statements used terms to describe the relationship between Iran and militias that would not meet either test. Concepts like state “support” and “backing” an armed group do not make the cut. Yet, the War Powers Resolution report submitted by the White House to Congress on Jan. 4 (at least in its unclassified sections) refers to “Iran-backed militias” and “Qods Forces-backed militias.” In the U.S. report to the United Nations on Jan. 8, Ambassador Kelly Craft referred to “Iran-supported,” “supporting,” and “Qods Force ­supported militias.”

The notice includes new language—the term “direction”—that sounds more like a relationship that might meet the overall or effective control tests. It’s curious to know what explains this gradual shift in the administration’s language over time. More fundamentally, the notice indicates that the United States used force against Iran in some cases only for Iran’s “support” to militias. The following sentence deserves close scrutiny:

“The use of military force against Iranian Armed Forces was tailored narrowly to the identified Qods Force target’s presence in Iraq and support to, including in some cases direction of, Iraqi militias that attacked United States personnel.” (emphasis added)

This sentence appears to be an admission that “support” is broader than and does not always include “direction” by Iran—and that the United States has used force on the basis of Iran’s “support” to militias alone.

A very significant implication of all this is the extraordinary consequences of a lower threshold of attribution that the administration may be setting for the global community and for other actors to use against the United States when we support non-state armed groups. The International Court of Justice’s rationale for setting a very high threshold was likely to avoid interstate conflict. A lower threshold could transform many proxy conflicts around the world into direct warfare between states by attributing the actions of nonstate actors to their state patrons. What’s more, a lower threshold might put the United States on the hook – legally and politically – for abuses committed by non-state armed groups we support. Just think of the Syrian Kurds (YPG) and other Syrian opposition groups, the Kosovo Liberation Army (which a top US official labelled a terrorist group a few months before supporting them), the Northern Alliance, and various militia in Iraq. Does the Trump administration believe the United States is fully responsible for the violations committed by those armed groups and other groups we might support now or in future? What’s more, one of the armed groups in the Trump administration’s calculus is Iran’s support for part of the Iraqi state’s own armed forces. So, the same attribution rule might be applied to the United States’ support for other state military forces (think: Saudi Arabia’s bombing campaign in Yemen). Of course there may be sound humanitarian reasons to apply a lower threshold of attribution too. Where to set the threshold for attribution involves a delicate balance. There’s good reason to doubt the administration has sufficiently thought through the implications.

Finally, whatever the legal or policy test the administration is using for attribution, does the intelligence community’s assessment back up the claim that the relationships between Iran and various militia groups in fact meet the test? And what degree of confidence could the intelligence community provide? Is the administration using the concept of “support” as a fallback, because that’s all the intelligence community as a whole can support with a sufficiently high degree of confidence?

3. Avoids a key variable: Risk of escalation

The notice avoids a key variable for adjudicating whether the president acted within his Article II powers as Commander-in-Chief: The risk of escalation to war with Iran. Even expansive views of the president’s authority presented over time by the Justice Department’s Office of Legal Counsel (including its 2018 opinion on the US strikes against Syria) assign great weight to this variable. A Top Expert Backgrounder by Brian Egan (former State Department Legal Adviser, former National Security Council Legal Adviser) and Tess Bridgeman (former National Security Council Deputy Legal Adviser) written several months before the Soleimani and Shahlai strikes explains:

[E]ven in the OLC’s view, the threshold for “war” in the constitutional sense is more easily met when the use of force at issue is against another nation state (rather than in its territory but with its consent) where there is a high likelihood of escalation. Although Iran is not a nuclear power, which would necessarily affect that calculus, its capacity as a nation-state with a strong military, including its cyber and ballistic missile capabilities, are relevant factors in this analysis, as is the extent of U.S. exposure given its significant footprint in the region where Iranian military forces (and their proxies) are present and active. The scope of U.S. objectives for the use of force will also affect the analysis, especially if those objectives are likely to require sustained operations or engender use of force in response by Iran. Those factors may distinguish this case from the U.S. strikes against Syria, for example.

The substantial risk of escalation as a result of the Soleimani and Shahlai strikes should have required the President to obtain prior congressional authorization for the use of force. In terms of the specific risk assessment, former Trump administration CIA official Douglas London made two important points. First, the risk of such escalation has been a consistent part of intelligence briefings. “Intelligence assessments on the anticipated escalatory paths Iran would follow in response to kinetic U.S. retaliatory measures have been consistent and well briefed to every president,” wrote London. Second, as other experts have observed, the absence of a stronger response from Iran in the past month is no assurance at all. London explained that the regime is likely to employ a range of highly escalatory military actions against the United States without claiming attribution. Former senior CIA official, Marc Polymeropoulos, who served in the Trump administration until mid-2019, wrote at Just Security, “The U.S. and Iran are at the brink of open conflict and face years of asymmetric warfare because of the Soleimani killing.” And then there’s Iran’s nuclear program. “Israeli intelligence officials have also determined that the escalating tensions have made Iran only more determined to gain a nuclear weapon, and to take concrete steps toward amassing enough nuclear fuel to build one,” the New York Times reported on Feb. 13.

The administration may try to claim that its actions were de-escalatory. At least that has been part of the public messaging. Even if true, the substantial likelihood of being wrong means this was no decision for one man to make. It required going to Congress. The assertion of de-escalation also notably rests on the underlying claim that Iran was engaged in “an escalating series of attacks in preceding months,” as the notice, the White House War Powers report, another OMB Statement (on Feb. 12), and the US letter to the United Nations have each stated. But is that claim accurate?

First, as discussed above, a subset of these attacks were by militia groups, and it’s not clear what level of support Iran provided. Second, a major inflection point was the Dec. 27 strike on an Iraqi base that killed a US contractor; however there’s reason to doubt the administration’s public representations of that incident. The Iranians reportedly did not intend to harm any personnel or escalate the low-level conflict—and the US intelligence community knows that to be the case. The New York Times reported:

“American intelligence officials monitoring communications between Kataib Hezbollah and General Suleimani’s Islamic Revolutionary Guards Corps learned that the Iranians wanted to keep the pressure on the Americans but had not intended to escalate the low-level conflict. The rockets landed in a place and at a time when American and Iraqi personnel normally were not there and it was only by unlucky chance that Mr. Hamid was killed, American officials said.”

A recent report by the New York Times raises questions whether the Dec. 27 strike was even carried out by the Iran-backed militia group (Kataib Hezbollah) or instead by ISIS.

Assuming the Dec. 27 strike was carried out by the Iranian-backed militia, the US response was highly provocative and crossed a new line. The US military launched multiple attacks against Kataib Hezbollah, which is a formal part of the Iraqi armed forces. The U.S. strike reportedly killed at least 25 members of Kataib Hezbollah and injured at least 50 more. When groups stormed the US embassy in response, one of the most highly respected former US ambassadors, Thomas Pickering remarked on the U.S. responsibility for escalation:

“One wonders, however, how much consideration was given to the bombing of Kataib Hezbollah in Iraq….
If this is part of an extreme pressure campaign against Iran, and it appears to be, it doesn’t appear as if, yet, it has developed the kind of deterrent function that it’s supposed to. And one hopes that it will. But nevertheless, the continued ongoing nature of this particular conflict — and one has to call it a conflict now — of escalating pressure with no apparent basis for finding a way to turn that pressure into a diplomatic outcome does seem to be, once again, risking something that some of us call the bluff trap.
You use military force. If one of the sides doesn’t back down, and that’s the only option, then in fact, you keep raising military force. And you know, sooner or later that looks like a war, acts like a war, and becomes a war.”

The office of Iraq’s Prime Minister condemned the US action, describing “the American attack on the Iraqi armed forces as an unacceptable vicious assault that will have dangerous consequences.” Senior Iraqi officials appeared to blame the storming of our embassy on the United States’ action. In terms of future escalation, it should be noted that the Jan. 2 strike killed not only Soleimani but also the head of Kataib Hezbollah (see Crispin Smith’s analysis for the significance of that action). As a sign of the escalatory environment, the Pentagon hurried thousands of additional troops to the region following the Soleimani strike.

There’s also reason to doubt the clarity of the picture presented by the United States on some incidents involving Iran in the months preceding the Soleimani strike. For example, when US officials stated there was an increased threat from Iran in the region in summer 2019, a senior British military official contradicted that account. As another example, although the administration claimed that Iran’s shoot down of a US drone involved an unlawful use of force, significant legal questions remain about the position of the drone and its activities at the time. There are also good reasons to conclude that the US cyber operation in response to the drone shoot down crossed the line of a use of force, and its effects on Iran’s military reportedly exceeded the United States’ intended consequences.

None of this is to deny Iran has engaged in highly malicious military actions against the United States and our allies and partners in recent months, including the major strike on Saudi oil installations on Sept. 14. However, the full picture appears to be far different from that presented by the Trump administration of a one-sided, aggressive ratcheting up by Iran. The weaknesses of the administration’s claims on this score undermine the premise for the operation against Soleimani and doing so without going to Congress beforehand. Once again, there may be sound policy reasons for taking military action against Iran, but especially under what appears to be a proper understanding of the surrounding circumstances, it was not and is not a decision for one person alone to make.

4. Claims that Congress has already authorized military actions against Iran

An astonishing claim set forth in the new notice is that Congress has already authorized the administration to engage in wide-ranging military actions against Iran due to the 2002 Authorization for Use of Military Force Against Iraq. The OMB’s Jan. 27 Statement staked out a similar position, but did not receive significant public attention coming in the midst of the Senate impeachment trial. The notice makes even clearer that the administration’s position is not limited to unit self-defense of US and partner forces who come under fire from third parties (including Iranian-backed forces) while combatting ISIS. Rather the administration appears to be taking the position that Iranian forces, now designated as a terrorist organization, constitute a more general threat that triggers application of the 2002 Iraq-AUMF. Steve Vladeck and I have written an extended analysis that debunks this highly flawed position. The position is neither based on the best understanding of the law nor a “legally available” interpretation of the law (a lower standard that government lawyers sometimes use to satisfy their policy clients).

The notice uses vague language that appears to obfuscate when exactly administration lawyers changed their interpretation of the 2002 AUMF. The OMB states that the 2002 AUMF has “long been understood” to apply to Iran. The notice includes similar language (“long relied” and “longstanding interpretation”). But there’s every reason to be doubtful. The Acting State Department Legal Adviser Marik String told the Senate the opposite in a public hearing in July 2019. Then-Secretary of the Army Mark Esper similarly assured the Senate in July 2019 that the 2002 AUMF did not authorize military force against Iran in his nomination hearing for Defense Secretary. There’s also a dilemma here for the administration. The administration was required by statute to submit the notice within 30 days of any change in its position (and String promised he would do so). Then which is it? Did the administration fail to comply with statutory reporting requirement or did the administration reach its new view of the 2002 AUMF only in the past few weeks? Even more significantly for the rule of law is whether the administration’s lawyers reached this conclusion about the authority to kill before or after the Soleimani strike.

Finally, the administration’s position is significantly undercut by the House’s passage of HR.5543 (on Jan. 30) and the Senate’s passage of S.J.Res. 68 (on Feb. 13). Both bills include explicit congressional findings that no current statute—including the 2001 and 2002 AUMFs—authorizes force against Iran. Regardless of a presidential veto, a strong bipartisan majority in both houses of Congress have now clearly repudiated, through congressional findings, the idea put forward by the administration.

5. Fails under international law

Much of the preceding analysis affects whether the U.S. military operation against Soleimani (and Shahlai) complied with the UN Charter’s prohibition on the use of force except in self-defense. As I have previously written, the answer to that question has direct implications for the President’s domestic legal authority. Leading legal experts have raised serious concerns about whether the Soleimani strike violated international law, including Geoffrey Corn and Rachel VanLandinghamAdil Haque, Oona HathawayMarko Milanovic, and others.

Since those scholars wrote, other information has come to light such as the New York Times report that the Iranians did not intend to harm any personnel or escalate the low-level conflict in the Dec. 27 attack on the Iraq base. As Marty Lederman observed, if that reporting is accurate, it would knock another leg out from under the administration’s claim to have complied with international law in its direct response to the Dec. 27 attack—and, as a consequence, the president’s Article II authority to have undertaken that military action without congressional authorization.

The notice omits a legal question concerning the rules governing the targeting killing of Soleimani. One may wonder if the administration lawyers across the agencies failed to arrive at a common conclusion. The issue here involves questions whether international human rights law applies (which might label the strike an extrajudicial killing or assassination) and whether the law of armed conflict applies. (And by international human rights law, I include extraterritorial application of customary international law, not just treaties which may have peculiar jurisdictional constraints.) Regardless of the outcome to those questions, surely the administration is not claiming that the law of self-defense is a sufficient basis for addressing this issue, for that too would be legally unsustainable.

As a final note, regardless of the legal justification, the Soleimani strike represents a significant shift in U.S. policy by migrating targeting killing developed in the global war on terror for use against state actors. (Read Anthony Dworkin’s analysis, “Soleimani Strike Marks a Novel Shift in Targeted Killing, Dangerous to the Global Order.”) By statute, the 1264 notice was required to address not only the legal framework but the policy framework as well. The notice fails to do so on this question of profound importance. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).