Soleimani would still be dead under Senate resolution on use of force

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Iranian general Qasem Soleimani would still have been a legitimate military target in Iraq under a resolution proposed by Sen. Tim Kaine (D-Va.), that on the surface promises to limit the use of force but in reality simply accepts the status quo of U.S. forces in Iraq and the Middle East.

The resolution “directs the President to remove United States Armed Forces from hostilities against the Islamic Republic of Iran or any part of its government or military… unless explicitly authorized by a declaration of war or specific authorization for use of military force.”

So, except as otherwise authorized to use force by Congress, the President cannot engage in hostilities with Iran.

Which means, given standing authorizations to use force against Iraq and against terrorists, the drone strike in Iraq by U.S. forces against Soleimani would have been authorized as a legitimate military target, and he would still be dead even if this resolution had been in place.

Specifically, under the broad 2002 authorization to use military force in Iraq, “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to — (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.”

That authorized the overthrow of the Saddam Hussein government in Iraq in 2003, and the use of force after Hussein was removed from power.

It also authorized the use of force to enforce UN Security Council Resolutions, including Resolution 1483 that authorized the occupation of Iraq by coalition forces, stating, “Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future…”

Therefore, in order to have targeted Soleimani in Iraq under the aforementioned provisions, all President Trump had to determine was that the use of force was necessary and appropriate to protect U.S. national security, to promote the welfare of the Iraqi people, to restore security and stability in Iraq or create conditions to help the people of Iraq to freely determine their own future.

Soleimani is said by the U.S. to be responsible for waging war in Iraq against the U.S. and Iraqi forces, including arming Shi’a militias in Iraq, the placement of roadside bombs that have killed, maimed and wounded thousands and the recent occupation of the U.S. embassy in Baghdad by those same Shi’a militias.

Soleimani’s actions would qualify him as a legitimate military target in Iraq, even though he was from Iran. The 2002 authorization covered targeting foreign fighters, including the Jordanian-born al Qaeda lieutenant Abu Musab al Zarqawi. If you’re running arms and fighters through Iraq, since 2002, the U.S. military has been watching.

As for how strong the evidence against Soleimani was, note this is not evidence for a trial, it is the intelligence the President was acting upon under his Article II constitutional responsibilities as the Commander-in-Chief, which in a war zone is often all you have to go on in determining targets.

To meet the legal standard, which is what the Senate is arguing over, the President has to have acted in his determination to protect U.S. national security and to secure Iraq. He makes the determination. That is all that is necessary once Congress has acted, which it has.

When Soleimani freely traveled to Iraq, having waged war there for years against the U.S., he was opening himself up to being targeted. And that would remain true, even under the Kaine resolution, which provides clear exception for prior Congressional authorizations, including those authorizing special forces to take out terrorists regardless of which country they are in.

Americans for Limited Government President Rick Manning noted in a statement, “The President’s decision to target the terrorist general Soleimani is authorized under current law, and would remain so authorized even under the resolution being proposed by Sen. Tim Kaine, which allows for force otherwise authorized by Congress.”

Now, if Congress wanted to address the fact that the authorizations to use force in Iraq and Afghanistan are nearly 20 years old without any end in sight in terms of stabilizing those countries, that’s a legitimate argument to be had. President Trump should invite that debate. Look at the authorizations and see if it is still in U.S. interests to remain in these countries militarily, engaging in operations against enemy combatants, or if it is finally time to leave the Iraqis and Afghans to their own devices.

But that is not what Congress via the Kaine resolution seeks to do. It is merely posturing so that members can pretend they are opposed to actions that they, through their own actions, have repeatedly authorized. This will be little more than a show vote.

So, keep on pretending. Either way, Soleimani would be dead and there’s not a word printed by Congress that will change that.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.  Reproduced with permission. Original can be viewed here.