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Weighing the threat of war: Here’s how the US decides when to engage in a military strike

By Sara Jarman, KSL.com Contributor | Posted - Jan. 23, 2020 at 10:14 p.m.



SALT LAKE CITY — An impending conflict with Iran has seemingly dissipated, but questions remain.

The United States’ strike on Qasem Soleimani jarred the international community and generated fears of an impending World War III. Going forward, in order to realistically anticipate future conflict, one has to understand the basic legal framework in which this decision to attack was made.

Former staff judge advocates (JAGs) for the U.S. Army — Eric Jensen, a professor at BYU’s J. Reuben Clark Law School, and Geoff Corn, from the South Texas College of Law Houston — offered KSL.com some legal insight on the Soleimani attack and general information on how the U.S. decides to strike targets.

To understand the Soleimani attack, one has to understand the basic tenets of the law of armed conflict.

Define the target

First, as each target is unique, the decision-maker behind the strike varies. In this case, because the target was controversial and of such high value — namely an Iranian major general for the Islamic Revolutionary Guard Corps — it is likely that only President Donald Trump possessed the authority to make the decision, both professors explained.

But this is not always the case. Jensen explained that if Soleimani had been a member of the Islamic State group or another nonstate actor, a lower-level U.S. commander could have made the final call.

“Each president establishes his or her own decision-making process in the National Security Council. Presumably, this target (Soleimani), or attack, was proposed among a number of courses of action to protect U.S. assets from alleged imminent threat of unlawful attacks,” Corn said. “Those options are vetted at the National Security Council, then the principals — such as the national security advisor, the secretary of defense and the chairman of the joint chiefs — make their recommendations.”

Weighing the costs

Regardless of who is at the helm, though, each decision-maker must ask if the strike will be proportional and what the status of the target is: Will the strike harm others, and if so how many? Is the target a nonstate or state actor?

The answer to these questions determines whether the U.S. can legally strike or not. In this case, Soleimani was a state actor, which complicates the analysis. A strike on a state actor can viably be seen as a declaration of war against that country, Jensen emphasized. In striking the Islamic State group, a declaration of war is not assumed because they are nonstate actors.

The confusion over this issue is why some commentators and legislators were incensed over Trump’s decision to strike Soleimani, as they believed Congress legally should have been consulted before the strike. However, Jensen explained that this is not always the situation.

“Soleimani is a state actor, but this does not necessarily mean President Trump has to contact Congress initially regarding his decision to strike under the War Powers Resolution Act (WPR),” Jensen elaborated.

“President Trump has the legal authority to argue that because Soleimani had been behind the Dec. 27 attacks in which U.S. contractors and servicemen were injured, he attacked U.S. assets and armed forces. And thus, the president does not have to inform Congress prior to the decision-making, under this exception to the WPR. But he does have to inform Congress within 48 hours following.”

One of the Trump administration’s arguments justifies the attack under the 2002 Authorization to Use Military Force in Iraq (AUMF), but that doesn't hold up, according to both professors. The only way the attack could be justified is under an exception to the WPR, not the AUMF.

“I don’t think it is credible to suggest that Congress anticipated this type of action (in 2002) or that an attack on an Iranian asset falls within the scope of an authorization focused on Iraq (AUMF),” Corn said.

The attack also wasn’t technically an assassination.

“An assassination is a peacetime attack and a murder or killing for political purposes — that is never what this was,” Jensen explained.

And while a partial justification has been offered as to why the U.S. recently targeted Soleimani, given that Soleimani was on the U.S.’s radar for decades, according to Jensen, additional information will likely never come forward in order to protect intelligence assets and processes.

Armed conflict and future attacks

Jensen elaborated that this attack did trigger an armed conflict between the United States and Iran, even if for a brief period of time. What this means is that any U.S. assets, from military assets in Iraq to the military in general, became legally targetable during this time. However, soon after Iran launched retaliatory missiles against U.S. bases in Iraq, Iran also simultaneously declared that its attacks would be ending, signaling that there was no longer an armed conflict. Because of this, U.S. targets are not currently legally targetable by Iran under the law of armed conflict.

This attack damaged U.S.-Iraqi relations, having significant, not-yet-understood repercussions. Consequently, the most intriguing questions are not about the Soleimani attack itself, but about the results of and the responses to the attack, Jensen explained.

“Iraq feels betrayed, and rightly so. You blew up an individual at the Baghdad airport without Iraqis knowing. And you don’t want Iraq becoming Iran’s proxy. Because of that attack, we have moved closer to that scenario, though. Iran has also one of the five most capable cyber armies. I would not be surprised if Iran now tries to engage in more cyberattacks against the U.S.”

Sara Jarman

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