Legal Considerations Related to the U.S. Air Strike Against Qassem Soleimani
March 4, 2020, BYU Law School
Hon. Paul C. Ney, General Counsel, U.S. Department of Defense
Thank you very much for inviting me to BYU Law School. I am especially grateful to
Dean Gordon Smith, Professor Eric Talbot Jensen, and the rest of the BYU law faculty, staff, and
students for the gracious hospitality you’ve shown during my visit to Provo.
Professor Jensen, as most of you know, had a long and distinguished career in the U.S.
Army both as a cavalry officer and as a judge advocate. He also served at the Department of
Defense as Special Counsel. He has encouraged me to talk to you today about the role of
lawyers in national security and international affairs. I understand that more than half of you
have spent significant time in foreign countries. Your understanding of other cultures and
language mastery are tremendous assets, and I hope that you will consider careers in public
service to contribute those assets and the legal skills you are currently learning to the greater
good of our Nation. The Department of Defense, or DoD, in particular, has more than 12,000
military and civilian lawyers supporting our warfighters; we would be happy to put your talents
and commitment to good use.
The subject of my speech today is something that most of you have probably read a lot
about online and in the papers, or otherwise heard about in the media. On January 2, 2020, at the
direction of the President of the United States, the U.S. military conducted an air strike in Iraq
targeting Qassem Soleimani, a major general in the Islamic Revolutionary Guard Corps of Iran,
and the commander of an expeditionary Revolutionary Guards unit called the Qods Force.
Among others also killed in the strike was Abu Mahdi al-Muhandis, the leader of Kata’ib
Hizballah, also known as KH, a Qods Force-backed Shia militia in Iraq.
President Trump directed the strike on Soleimani in response to an escalating series of
attacks in preceding months by Iran and Iran-backed militias, including KH, against U.S. forces
and interests in the Middle East region. The strike was ordered to protect U.S. personnel; to
deter Iran from conducting or supporting further attacks on U.S. 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 U.S. interests.
My aim today is to explain the international and domestic law underpinnings of the
January 2nd air strike. Much of what I will explain is reflected in publicly available documents
that the U.S. Government has already provided to the United Nations Security Council and to
Congress. The key legal conclusions are already a matter of record.
In the Pentagon, we always begin with the Bottom Line Up Front or B-L-U-F. Here’s the
BLUF for my remarks today. First, with respect to international law, the President directed the
January 2, 2020, air strike against Soleimani as an exercise of the United States’ inherent right to
act in self-defense, consistent with Article 51 of the Charter of the United Nations and customary
international law. Second, as to U.S. domestic law, the President had legal authority to order the

 strike against Soleimani pursuant to his Article II constitutional power as Commander-in Chief
to use armed force to protect U.S. personnel and property in Iraq and U.S. interests in the Middle
East, and also pursuant to statutory authority under the 2002 Authorization for Use of Military
Force (AUMF) to “defend the national security of the United States against the continuing threat
posed by Iraq.”
I hope that by explaining how international law and U.S. domestic law applied to the
facts surrounding that operation, you will understand better why the strike on Soleimani was
lawful.
To understand the legal conclusions, it is first necessary to know some background
information about the situation in Iraq, Qassem Soleimani, the Qods Force, and Iranian and
Iran-backed militias’ hostile actions before the January 2, 2020 U.S. air strike. Legal analysis
isn’t that different whether you’re a law school student or the DoD General Counsel: you start
with the facts. Then, I’ll move into discussions about the legal bases for the strike, starting with
international law and then proceeding to domestic law.
A. Background
In October 2002, Congress enacted a statute i authorizing the President “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.”
The specific concerns at the time included Iraq’s support for international terrorist groups and its
suspected development of weapons of mass destruction. Acting under this 2002 Authorization
for Use of Military Force or “AUMF,” President George W. Bush directed combat operations
against Iraq in March 2003 that led to Saddam Hussein’s downfall.
Although the threat posed by Saddam Hussein’s regime was the initial focus of the
statute, the United States has relied upon the 2002 AUMF to authorize the use of force for the
purpose of establishing a stable, democratic Iraq and addressing terrorist threats emanating from
Iraq, even after Saddam Hussein’s demise.
Additionally, from 2003 to 2008, as sectarian violence erupted with the fall of the former
Ba’athist regime, President Bush directed a campaign against al-Qa’ida in Iraq pursuant to the
2001 Authorization for Use of Military Force or “2001 AUMF,” authorizing the use of force
against groups like al-Qa’ida—the “organization” responsible for the terrorist attacks of

1

2002 AUMF § 3(a), 116 Stat. at 1501.

 2

September 11, 2001. In 2014, al-Qa’ida’s Iraq faction split from al-Qa’ida’s core leadership and
became the Islamic State of Iraq and Syria, or ISIS.
As Iraq became more stable, the United States and Iraq signed a cooperation agreement
in November 2008 that included defense and security related commitments and a recognition of
the importance of cooperation to “improve and strengthen security and stability in Iraq and the
3
region.” The two countries also signed an agreement providing for the withdrawal of U.S.
4
military personnel from Iraq by the end of 2011.
But, after U.S. forces withdrew from Iraq in 2011, sectarian divisions again exploded into
violence, and ISIS arose. From late 2013 through mid-2014, ISIS and its allies captured the Iraqi
cities of Ramadi, Fallujah, and Mosul—Iraq’s second largest city, and reached the outskirts of
Baghdad and Erbil. ISIS used extremely brutal tactics—mass executions, kidnapping and raping
women and children, displacing hundreds of thousands of Iraqis—raising U.S. and international
alarm and outcry about the prospect of ISIS conquest of Iraq. In 2014, President Obama
5
declared ISIS “a threat to the Iraqi people, to the region, and to U.S. interests.” Upon the
invitation of the Iraqi Government and pursuant to the 2001 AUMF, he directed the deployment
of U.S. forces to Iraq as well as air strikes to defeat ISIS.
U.S. forces, Iraqi Security Forces, and forces from countries participating in the Global
Coalition to Defeat ISIS (or D-ISIS) together fought to reverse ISIS’s conquests in Iraq and
helped liberate the Iraqi people from ISIS’s brutal control. Today, 100 percent of the territory
ISIS once held in Iraq has been returned to Iraqi government control. But despite the defeat of
ISIS’s control of territory in Iraq, ISIS remains a threat, and so U.S. forces have remained in Iraq
to support Iraqi forces and ensure the enduring defeat of ISIS. There are presently more than
6
5,000 U.S. military personnel in Iraq.
2

Pub. L. No. 107-40, 115 Stat. 224. The 2001 AUMF authorizes the President “to use all necessary and appropriate
force against those nations, organizations, or persons he determined planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent
any future acts of international terrorism against the United States by such nations, organizations or persons.” 115
Stat. at 224. The United States has relied upon the 2001 AUMF to authorize the use of force against ISIS in both
Iraq and Syria.
3
Strategic Framework Agreement for a Relationship of Friendship and Cooperation Between the United States of
America and the Republic of Iraq, § 2, Nov. 17, 2008, T.I.A.S. No. 09-101.1 (“Strategic Framework Agreement”).
4
​See ​Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United States
Forces from Iraq and the Organization of Their Activities During Their Temporary Presence in Iraq, art. XXIV,
Nov. 17, 2008; ​see also S
​ trategic Framework Agreement § 3. ​See also R
​ emarks on the Withdrawal of United States
Military Personnel from Iraq (Oct. 21, 2011), 2 ​Pub. Papers of Pres. Barack Obama ​1316, 1316 (2011) (“[T]o date,
we’ve removed more than 100,000 troops . . . . Over the next 2 months, . . . the last American soldier will cross the
border out of Iraq”)
5
Remarks on the Situation in Iraq and an Exchange with Reporters (June 13, 2014), 1 ​Pub. Papers of Pres. Barack
Obama ​752, 752 (2014); ​see id. ​at 754 (“​It is in our national security interests not to see an all-out civil war inside
of Iraq,” and to “mak[e] sure that we don’t have a safe haven” in Iraq “that continues to grow for ISIL and other
extremist jihadist groups who could use that as a base of operations for planning and targeting ourselves, our
personnel overseas, and eventually the homeland.”).
6
​U.S. Armed Forces, Civilian Employees, and Contractor Personnel Deployed to Afghanistan, Iraq, and Syria in
Support of Operation INHERENT RESOLVE (OIR) and Operation FREEDOM’S SENTINEL, Report to Congress

 As the United States has sought to establish stability in Iraq and to address terrorist
threats in and emanating from Iraq, Iran has remained a malign presence there and throughout
the Middle East. According to the Defense Intelligence Agency, Iran remains “implacably
opposed” to the United States, the U.S. presence in the Middle East, and U.S. support for certain
governments in the region, all of which Iran views as threats to its goals of regime survival and
7
regional dominance.
To achieve these goals, Iran typically uses “unconventional warfare elements and
asymmetric capabilities,” including “a complex network of State and non-State partners and
8
militant proxies” in the Middle East. The Islamic Revolutionary Guard Corps Qods Force is
Iran’s “primary tool” for conducting unconventional warfare and providing support to its foreign
9
partners and proxies like Hizballah, Hamas, and the Houthis.
The Qods Force was established as a unit in 1990, shortly after the Iran-Iraq War, and has
become Iranian leaders’ favored all-purpose expeditionary mission force “to conduct operations
outside Iran, provide support for Islamic militants, and collect intelligence against Iran’s
10
enemies.” The Qods Force funds, trains, supplies, and supports partners and proxies
throughout the Middle East, including Shia militia groups operating in Iraq, such as the Badr
11
Organization and KH. According to the Defense Intelligence Agency, “Iran-supported . . . Shia
12
militias remain the primary threat to US personnel” in Iraq. Using Iranian-provided weapons
such as improvised explosive devices (or “IEDs”), explosively formed penetrators (or “EFPs”),
anti-tank guided missiles, rockets, and unmanned aerial vehicles, Qods Force-backed militias are
13
estimated to have killed more than 600 U.S. personnel serving in Iraq between 2003 and 2011.
Qassem Soleimani had commanded the Qods Force beginning in the late 1990s and
orchestrated the group’s ascendance. He was the lead architect behind Iran’s campaign of
terrorism, assassinations, arms-smuggling, and violence throughout the Middle East, including
14
against U.S. personnel in Iraq. Soleimani’s malign activities have not been limited to the
Middle East. In 2011, Soleimani supervised a Qods Force plot to assassinate Saudi Arabia’s
submitted in accordance with Section 1267 of the National Defense Authorization Act for Fiscal Year 2018 (P.L.
115-91)​, January 2020 (describing 5,200 U.S. forces deployed to Iraq in support of OIR as of December 1, 2019,
excluding certain military personnel whose deployment is not acknowledged publicly).
7
Defense Intelligence Agency, U.S. Dep’t of Defense, ​Iran: Military Power – Ensuring Regime Survival and Securing
Regional Dominance​ at v, 9, 23 (2019) (“DIA Assessment”); ​see also ​Daniel R. Coats, Director of National
Intelligence, Statement for the Record: Worldwide Threat Assessment of the US Intelligence Community at 29–30
(Jan. 29, 2019) (“DNI Assessment”) (“Iran’s regional ambitions and improved military capabilities almost certainly
will threaten US interests in the coming year, driven by Tehran’s perception of increasing US, Saudi, and Israeli
hostility, as well as continuing border insecurity, and the influence of hardliners.”).
8
DIA Assessment​ ​at v
9
Id.​; ​see also​ 84 Fed. Reg. at 59305 (“IRGC-QF personnel advise and support pro-Iranian regime factions
worldwide, including . . . Hizballah, Hamas, and the Taliban.”).
10
DIA Assessment at 57.
11
​See id.​ at 60.
12
​Id​. at 27.
13
​Id. a​ t 9 (estimating the figure to be “at least 603”).
14
​Id. ​at 29; ​see ​84 Fed. Reg. at 59306 (“Soleimani has run weapons smuggling networks, participated in bombings
of Western embassies, and attempted assassinations in the region.”).

 15

Ambassador to the United States with explosives at a Washington, D.C. restaurant. Secretary
of State Pompeo recently summed it up: “There is no terrorist except Usama bin Ladin who has
16
more American blood on his hands than . . . Qassem Soleimani.” In April 2019, the United
States designated the Islamic Revolutionary Guard Corps, “including the Qods Force,” as a
foreign terrorist organization, citing, among other things, the Qods Force’s support for terrorist
17
groups and plots in the United States, Europe, Africa, and the Middle East.
In the months preceding the January 2nd air strike against Soleimani, Iran and
Iran-supported militias had engaged in a series of attacks against U.S. personnel and property in
Iraq and against U.S. interests and Allies and partners in the Middle East. In June 2019, an
Iranian surface-to-air missile destroyed an unmanned U.S. Navy surveillance aircraft while it
was on a routine mission in international airspace monitoring the Strait of Hormuz.
The U.S. response to the attack at that time was measured and muted, but Iran continued
its pattern of aggression against U.S. interests in the region. In July 2019, USS Boxer, an
amphibious assault ship, came under threat from Iranian unmanned aerial systems while
conducting a planned transit of the Strait of Hormuz. Iran has also attacked and seized
commercial ships in the area, threatening freedom of navigation. And, Iran-backed Houthi rebels
in Yemen shot down two U.S. unmanned surveillance aircraft in Yemeni airspace and conducted
multiple missile and other attacks in Saudi Arabia targeting airports and other civilian facilities.
Moreover, on September 14, 2019, Iran launched a devastating air attack on a gas plant and an
oil refinery in Saudi Arabia.
In the weeks preceding the air strike against Soleimani, provocations against the United
States intensified with a series of attacks by Iran-supported militias on U.S. personnel and
property in Iraq. KH, the Qods Force-backed Shia militia group, fired rockets at bases in Iraq
where U.S. forces are located. Between November 9 and December 9, 2019, Qods Force-backed
militia groups fired rockets at the Qayyarah West Air Base, Al Asad Air Base, and the Baghdad
Embassy complex. Then, on December 27, KH attacked the K-1 Air Base in Kirkuk, killing a
U.S. contractor and injuring U.S. and Iraqi military personnel. In response, U.S. forces struck a
number of KH installations in Iraq and Syria to degrade the group’s ability to launch additional
attacks. Then, on December 31, KH and other Iran-backed militia groups organized a
demonstration that turned violent at the U.S. Embassy in Baghdad, inflicting significant damage
to U.S. property and imperiling U.S. lives.

​See ​Office of Public Affairs, U.S. Dep’t of Justice, ​Two Men Charged in Alleged Plot to Assassinate the Saudi
Arabian Ambassador to the United States​ (Oct. 11, 2011) (“‘The criminal complaint unsealed today exposes a
deadly plot directed by factions of the Iranian government to assassinate a foreign Ambassador on U.S. soil with
explosives,’ said Attorney General Holder.”).
16
Michael R. Pompeo, Secretary of State, Speech at the Hoover Institution at Stanford University (Jan. 13, 2020)
(“Pompeo Speech”), https://​www.​state.​gov/​the-restoration-of-deterrence-the-iranian-example/
17
​See ​Office of the Spokesperson, U.S. Dep’t of State, ​Designation of the Islamic Revolutionary Guard Corps
(Apr. 8, 2019), https://​www.​state.​gov/​designation-of-the-islamic-revolutionary-guard-corps/; ​In the Matter of the
Designation of the Islamic Revolutionary Guard Corps (and Other Aliases) as a Foreign Terrorist Organization​, 84
Fed. Reg. 15278 (Apr. 15, 2019).
15

 Those are the facts, and that is where events stood at year’s end, 2019. Let me turn now
to applying the law to these facts to assess the legal bases for the U.S. air strike on Soleimani two
days later.
B. International Law
First, let’s talk about international law.
The U.N. Charter generally prohibits States from resorting to the use of force against
another State without a legal basis. This rule is part of the law governing the resort to force, or,
to use the Latin term, ​jus ad bellum​. The United States recognizes three circumstances in which
a resort to force in a foreign country is ​not​ generally prohibited under international law: (1) use
of force authorized by the U.N. Security Council acting under the authority of Chapter VII of the
U.N. Charter; (2) use of force in the exercise of the inherent right of self-defense; and (3) use of
force in an otherwise lawful manner with the consent of the territorial State.
The strike targeting Soleimani in Iraq was taken under the second justification I
mentioned – in U.S. self-defense – consistent with Article 51 of the U.N. Charter. Article 51
provides in relevant part that:
Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a Member of the United Nations . . . .”
Article 51 thus recognizes the inherent right of States to resort to force in individual or
collective self-defense against an armed attack. In accordance with Article 51, the United States
reported the air strike to the UN Security Council on January 8, 2020, in written correspondence
from the U.S. Ambassador to the United Nations, Kelly Craft, to the other members of the
Security Council, through the President of the Security Council.
The use of force in self-defense is subject to the customary international law
requirements of necessity and proportionality.
As the DoD Law of War Manual explains, “[t]he ​jus ad bellum​ condition of necessity
requires that no reasonable alternative means of redress are available. For example, in exercising
the right of self-defense, diplomatic means must be exhausted or provide no reasonable prospect
18
of stopping the armed attack or threat thereof.”
Applying this legal standard to the facts which I just described, the United States had
been subject to an escalating series of armed attacks by Iran and by Iran-supported militias in the
Middle East, including Iraq. This included the threat to USS Boxer by Iranian unmanned aerial
systems and an armed attack by an Iranian surface-to-air missile on an unmanned U.S. Navy
MQ-4 surveillance aircraft in international airspace in the Persian Gulf region. And the strike
against Soleimani occurred in the larger context of continuing armed attacks by Iran that
18

DoD Law of War Manual § 1.11.1.3.

 endangered international peace and security, attacks on commercial vessels in the Gulf of Oman,
attacks on the territory of Saudi Arabia, and attacks by Qods Force-backed militias against U.S.
forces in the previous several months. Although I cannot speak to the classified information that
senior leaders reviewed, I hope you can see, based simply on these facts that are publicly known,
why our senior leaders and the President were reasonable in believing that the use of force was
necessary. Attacks against U.S. forces and interests were assessed to be highly likely to continue
in the absence of a military response in self-defense to restore deterrence.
Moreover, the strike on January 2d was also consistent with the international law
requirement that our measures in self-defense be “proportionate to the nature of the threat being
19
addressed.” As DoD communicated to the public at the time, “General Soleimani was actively
developing plans to attack American diplomats and service members in Iraq and throughout the
20
region.” “He had orchestrated attacks on coalition bases in Iraq over the last several months,”
and he also approved the demonstration that turned violent at the U.S. Embassy in Baghdad just
21
two days earlier on December 31. Targeting the Iranian commander responsible for
orchestrating, planning, and supporting recent attacks against the United States and planning new
attacks was a proportionate response to the threat of such attacks.
Some have questioned whether another Iranian armed attack against the United States
was “imminent” at the time of the strike targeting Soleimani. This is a red herring, as the saying
goes. Under international law, an imminent attack is ​not​ a necessary condition for resort to force
in self-defense in this circumstance because armed attacks by Iran already had occurred and were
expected to occur again.
Of course, although such analysis was not necessary in this case given this recent history
of past attacks, the ​threat​ of an imminent armed attack can also justify a resort to force under
international law. That is, although Article 51 refers explicitly to self-defense only in response to
an actual armed attack, the United States maintains that international law also includes the right
to use force where an armed attack is imminent. This view of the United States is widely known
and also shared by many like-minded states in the international community.
In addition to regulating the resort to force, international law also regulates the conduct of
hostilities. The law of war requires, for example, that attacks be directed against military
objectives, that precautions be taken to reduce the likelihood of civilian casualties, and that any
damage caused be proportionate to the military objective. The law of war does not prohibit
targeting specifically identified leaders of adversary militaries—they may be made the object of
22
attack as enemy combatants.

19

DoD Law of War Manual § 1.11.5.
https://www.defense.gov/Newsroom/Releases/Release/Article/2049534/statement-by-the-department-of-defense/
21
https://www.defense.gov/Newsroom/Releases/Release/Article/2049534/statement-by-the-department-of-defense/
22
​See​ U.S. Dep’t of Defense, ​Law of War Manual​ §§ 5.6.2 (Military Objectives), 5.7.1, 5.7.2 (Combatants) (Dec.
2016) (“​DoD Law of War Manual”​ ); ​see also DoD Law of War Manual. ​§ 5.4.6.4 (“Military operations may be
directed against specific enemy combatants. U.S. forces have conducted such operations.”)
20

 As the leader of the Qods Force, Soleimani was a legitimate military target in Iraq under
the international law governing the conduct of hostilities. The others killed in the U.S. strike
were the leader and members of KH, an Iran-backed militia. As such, they, too, were “military
objectives” who could be made the object of attack under the law of war.
To sum up, the January 2, 2020, air strike against Soleimani in Iraq was lawful as a
matter of international law as an exercise of the inherent right of self-defense recognized by
Article 51 of the U.N. Charter. An imminent attack is not a necessary condition for use of force
in self-defense under Article 51 when an armed attack has already been perpetrated and the
response is necessary and proportionate.
C. U.S. Domestic Law
Let me turn now to a discussion of the legal basis for the strike under U.S. domestic law.
The use of military force requires a basis in domestic law. The President may rely on
congressional authorizations for the use of force – such as the 2001 AUMF and the 2002 AUMF
– and the President may rely on Article II constitutional authority. In the absence of statutory
authorization, the President’s constitutional authority to direct military action can be distilled
into two inquiries. First, whether the President could reasonably determine that the action serves
important national interests. Second, whether the “anticipated nature, scope and duration” of the
23
conflict might rise to the level of a war under the Constitution.
Applying this domestic law framework to the circumstances of the strike targeting
Soleimani, the President had a sufficient legal basis both under his constitutional authority and
pursuant to the statutory authority of the 2002 AUMF.
First, with respect to the question of the President’s constitutional authority to order the
strike, the important national interest to prevent or respond to attacks on U.S. personnel and
property is at the very heart of his constitutional power as Chief Executive and
24
Commander-in-Chief. Past Presidents have used force specifically in response to attacks on
U.S. embassies and personnel, including by State actors abroad. For instance, in April 1986,
President Reagan directed air strikes against the Libyan leader Qaddafi and his intelligence
services in Libya following terrorist attacks that killed and wounded American soldiers and
25
civilians at a discotheque in Germany. And in June 1993, President Clinton ordered the launch
of cruise missiles on Iraqi Intelligence Headquarters based on “compelling evidence” that Iraqi
26
intelligence had tried to assassinate former President George H.W. Bush in Kuwait. President
Clinton also ordered air strikes in August 1998 against Usama bin Laden and al-Qa’ida in
23

OLC Syria Opinion at 9-10.
Henry Paul Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 11, 68 (1993).
25
​See ​Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the
United States Air Strike Against Libya (Apr. 16, 1986), 1 ​Pub. Papers of Pres. Ronald Reagan 4​ 78 (1986) (“Letter
to Congress”).
26
​See ​Letter to Congressional Leaders on the Strike on Iraqi Intelligence Headquarters (June 28, 1993), ​1 Pub.
Papers of Pres. William J. Clinton 9​ 40, 940 (1993).
24

 Afghanistan and Sudan, in response to al-Qa’ida bombings of the U.S. Embassies in Nairobi and
27
Dar es Salaam, which had killed more than 250 persons.
Let’s turn now to the second constitutional law inquiry: whether the air strike on
Soleimani presented a sufficient risk of broadened conflict with Iran such that pre-approval by
Congress may have been required. Although the Constitution vests in the President independent
authority to use force, it reserves to Congress the power to “declare War” and the authority to
fund military operations. This was a deliberate choice of the Founders. In the ​Federalist
Papers​, for example, Alexander Hamilton noted that the President lacks the authority of the
British King, which “extends to the declaring of war and … the raising and regulating of fleets
28
and armies.”
For that reason, the President’s decision to use armed force cannot be sustained over time
without the acquiescence, indeed the approval, of Congress, for it is Congress that must
appropriate the money to fight a war. The Department of Justice’s Office of Legal Counsel
(OLC) has similarly recognized that the President should seek congressional approval prior to
initiating military action that would bring the Nation into the kind of protracted conflict that
would rise to the level of a “war” in the constitutional sense.
So what does a “war” in the constitutional sense mean? The relevant Department of
Justice OLC opinions say that we must engage in a “fact-specific assessment of the ‘anticipated
29
nature, scope, and duration’ of the planned military operations.” Under this standard, military
operations may rise to the level of “war” in the constitutional sense when the actions are likely to
lead to “prolonged and substantial military engagements, typically involving exposure of U.S.
30
military personnel to significant risk over a substantial period.” Some of the most relevant
facts in this analysis would include the numbers of additional forces to be deployed, the quantity
31
of munitions expended, estimates regarding U.S. and enemy casualties, and whether ground
forces are to be deployed into a war zone. Making an assessment of the anticipated nature,
scope, and duration of planned military operations is one of those judgments that are, as Justice
32
Jackson described, “delicate, complex, and involve large elements of prophecy,” which have
traditionally been committed to the Executive branch, given its military, diplomatic, and
intelligence resources.
The strike against Soleimani did not involve a substantial military engagement, the
deployment of additional U.S. forces, or the risk of significant casualties. The operation was
circumscribed: it consisted of one targeted air strike in Iraq, executed by an unmanned aerial
​See ​Letter to Congressional Leaders, 2 ​Pub. Papers of Pres. William J. Clinton​ at 1464.
​See, e.g.,​ The Federalist No. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (explaining that the
President lacks the authority of the British King, which “extends to the declaring of war and to the raising and
regulating of fleets and armies”).
29
​Libya Deployment​, 35 Op. O.L.C. __, at *8 (quoting ​Haiti Deployment I,​ 18 Op. O.L.C. at 179).
30
​Id.
31
​See​ ​Libya Deployment​, 35 Op. O.L.C. __,​ ​at *13; ​see also ​DoD News Briefing with Vice Adm. Gortney from the
Pentagon on Libya Operation Odyssey Dawn (Mar. 28, 2011),
http://​archive.​defense.​gov/​transcripts/​transcript.​aspx?​transcriptid=​4803.
32
Chicago & Southern Air Lines, Inc. v. Waterman SS Corp., 333 U.S. 103, 111 (1948) (Jackson, J.).
27
28

 vehicle, designed to avoid civilian casualties or substantial collateral damage, and intended to
prevent future attacks against U.S. persons and interests in Iraq and throughout the region. It
was not “aim[ed] at the conquest or occupation of territory nor . . . at imposing through military
33
means a change in the character of a political régime.”
At the same time, there existed risk that the operation could escalate into a broader
conflict. Although Soleimani and the Qods Force were not a conventional military formation,
the Qods Forces is a part of the military of Iran, which has significant armed forces and military
assets that could respond with armed force.
However, the President decided based upon available intelligence that the targeted
operation would be unlikely to escalate into a full-scale war, and that, by restoring deterrence of
further attacks orchestrated by the Qods Force, the strike could in fact result in a de-escalation of
the conflict between the United States and Iran. As the President himself said, the strike on
Soleimani was taken to stop a war, not to start one. Indeed, the United States government made
clear immediately after the January 2d air strike—as it had planned to do ​before​ launching the
operation— that the strike reflected a limited engagement and that the United States did not seek
34
a broader war with Iran.
Subsequent events appear to have confirmed the reasonableness of the assessment that
the strike would not provoke an uncontrolled escalation. On January 7, 2020, Iran responded to
the strike on Soleimani by firing ballistic missiles at U.S. military and coalition forces at two
35
bases in Iraq. But the United States did not itself respond to this new attack with further air
strikes, although it took precautions to minimize casualties and damages. Immediately after the
missile attacks, Iran’s foreign minister, Javad Zarif, asserted that his country “took and
concluded proportionate measures” in response to the targeting of Soleimani, adding that Iran
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“do[es] not seek escalation or war.”
In sum, given the narrow scope of the mission, the available intelligence, and the efforts
to avoid escalation, it was reasonable for the President to have determined that the nature, scope,
and duration of hostilities directly resulting from the strike against Soleimani in Iraq would not
rise to the level of war with Iran for constitutional purposes.

​Bosnia Deployment​, 19 Op. O.L.C. at 332.
See Article 51 Letter at 2 (“The United States wishes to note—as it has done repeatedly over the past years—that
we remain committed to a diplomatic resolution. We stand ready to engage without preconditions in serious
negotiations with Iran, with the goal of preventing further endangerment or international peace and security or
escalation by the Iranian regime.”); ​cf.​ Syrian Airstrikes, 42 Op. O.L.C. __, at *22 (noting, among other things, that
“deconfliction processes were used” to “reduce[] the possibility that Russia would respond militarily” to U.S.
airstrikes in Syria).
35
​See ​U.S. Dep’t of Defense, ​DOD Statement on Iranian Ballistic Missile Attacks in Iraq​ (Jan. 7, 2020),
https://​www.​defense.​gov/​Newsroom/​Releases/​Release/​Article/​2052103/​dod-statement-on-iranian-ballistic-missile-at
tacks-in-iraq/.
36
Jeffrey Martin, ​Iran Says It Has Concluded Its Response To U.S. Strike, Does Not Seek Escalation​, Newsweek,
Jan. 7, 2020,
https://​www.​newsweek.​com/​iran-says-it-has-concluded-its-response-us-strike-does-not-seek-escalation-1480956.
33
34

 Although the President had constitutional authority under Article II to direct the January
2nd air strike, he also had statutory authority under the 2002 AUMF. Pursuant to the 2002
AUMF, Congress has authorized the President “to use the Armed Forces of the United States ​as
he determines to be necessary and appropriate​ in order to . . . defend the national security of the
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United States against the continuing threat posed by Iraq.” As I mentioned earlier, although the
threat posed by Saddam Hussein’s regime was the initial focus of the 2002 AUMF, the United
States has relied consistently upon the 2002 AUMF to authorize the use of force for the purpose
of establishing a stable, democratic Iraq and addressing terrorist threats emanating from Iraq
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under the George W. Bush, Obama, and Trump Administrations. Such uses of force need not
only address threats from the Iraqi Government apparatus but may also address threats to the
United States posed by militias, terrorist groups, or other armed groups in Iraq. For example, the
Obama Administration invoked the 2002 AUMF (along with the 2001 AUMF) as domestic legal
authority for conducting military operations against ISIS in Iraq and also operations in Syria to
address threats emanating from Iraq.
The air strike against Soleimani in Iraq is consistent with this longstanding interpretation
of the President's authority under the 2002 AUMF. The use of force was tailored narrowly to
Soleimani’s presence ​in Iraq​ and his support to – including in some cases the direction of –
militias that attacked U.S. personnel and bases in Iraq. U.S. national security officials believed
that Soleimani was actively planning additional attacks on U.S. personnel in Iraq and in the
region. Soleimani, as the leader of the Qods Force directly orchestrating hostilities against U.S.
personnel and property in Iraq, was a necessary and appropriate target for the President to use
force against under the 2002 AUMF.
In conclusion, I hope that I’ve given you a good sense of what it’s like to practice
national security law in the Department of Defense. The issues we work on are of significant
national importance. They are challenging. They routinely land on the front pages of national
newspapers. And judge advocates—our uniformed lawyers— do important work like this and
many other varieties at all echelons of the U.S. military, often relatively early in their legal
careers. I encourage all of you to consider careers in public service, and I heartily commend to
you service in the Department of Defense legal community.
Thank you again to Dean Smith and Professor Jensen for your kind invitation.

37

116 Stat. at 1501 (emphasis added).
S​ ee 2016​ ​Legal and Policy Frameworks,​ at fn. 25; ​2018​ ​Legal and Policy Frameworks,​ at 3; s​ ee also​ [HFRC Joint
Hearing March 4, 2008, at 23-24, available at ​http://library.clerk.house.gov/reference-files/110_for_131.pdf
38