Tuesday, January 07, 2020

Law and ideology

Sandy Levinson

Jill Goldenziel's posting below is a truly incisive summary of the domestic and international legal issues surrounding the killing of General Suleimani.I am incompetent, professionally speaking, to do anything more than admire the acuity of her analysis.  That being said, I think the current discussion, including Prof. Goldenziel's excellent analysis, underscores the extent to which law, with some obvious exceptions, works primarily to legitimize the actions of those in power.  (That is, the story we tell in the legal academy about the Supreme Court's serving as a true check on those with power is a pleasant fairy tale that exemplifies the ideological service provided by those who valorize the judiciary.) 

I am prepared to believe that Donald J. Trump's abrupt decision to kill General Suliemani was constitutional, just as it is clearly the case, thanks to "delegation run riot," that his arbitrary trade war with China (and most of the rest of the world) is constitutional.  One can certainly read the Commander-in-Chief Clause to allow the kind of unilateral exercise of presidential power seen in Iraq (even if there are alternative readings available that would question this).  And once one offers a capacious understanding of "imminence," as was done during the Obama Administration, then perhaps it's even possible to argue with a straight face that the killing was legitimate under international law. 

But so what?  C. Wright Mills coined the term "crackpot realism" in the 1950s to refer to the "hard-headed" analysts who, for example, counseled pre-emptive war against the Soviet Union (as Bertrand Russell in fact advocated in 1948.).  My own view is that the response of the Kennedy Administration during the Cuban Missile Crisis could be viewed such "crackpot realism," in that the U.S., by Kennedy's own estimate (as reported by Ted Sorenson), was that there was a 1/3 chance of thermonuclear war even though, as Robert McNamara had told the EXCOMM, the missiles in fact did not increase the threat to the security of the American homeland, even if it speeded up by 45 minutes or an hour the speed with which a Soviet missile could reach Miami or Washington.  In reviewing a book by Abram Chayes, the legal advisor to the State Department at the time, which defended the legality of the Administration's action, I referred to "crackpot legalism," tpified by a conversation, occurring after the nuclear war, in which  the survivors would say "At least it was legal."

I'm inclined to refer to Suleiman's killing as an "assassination.," though I realize that one might accept the category of "legitimate assassination,"just as the murder by the state via systems of capital punishment is conceptualized differently from ordinary murder.  That's a central function of lawyers, to make what would otherwise be unacceptable applying naive ordinary understandings appear perfectly legitimate because done in the name of the state (especially if one can claim that the state in some ways reflects the will of God).  The ultimate question with regard to the assassination/killing is its wisdom, not its legality.  I have many times in the past recommended Christopher Clark's The Sleepwalkers, examining the run-up to what became World War I in August, 1914.  No one expected the catastrophe that ensued.  All of the "leaders" believed there would be a short war that would achieve their policy aims.  They were disastrously wrong, even if the decisions made by Germany, France, the UK, Austria, and Russia all complied with their domestic laws and what was then international law.

No doubt this is  a somewhat overheated analysis.  There are lawyers (and judges) who deserve real admiration and veneration.  Think only of Brian Stevenson (who, of course, was "unthinkable" as a potential nominee to the Supreme Court) among current lawyers.  But we should recognize that the "natural arc" of law and lawyering is to defend and legitimize the desires of ruling political elites rather than genuinely to rebuff them.  (This is, among other things, why McCulloch is so much more important than Marbury, though the legal academy often wishes to pretend otherwise.)


This was a retaliatory strike, and international law permits military responses to attacks as well as pre-emtion of imminent attacks. Why would "imminence" be an issue?

I'm genuinely curious about this point, Jill Goldenziel below is making this strike about whether an attack was imminent, too, and I find this puzzling in light of the retaliatory nature of the strike.

Pompeo's initial statement said there was an "imminent" attack in planning. That appears to have been false and is no longer the justification offered, but I think any analysis has to deal with it anyway.

I'm not sure that we know that to be false; Killing the guy in charge is certainly prone to changing plans.

Pompeo provided word salad in response to questioning today, suggesting that he had no actual information.

There are times when decapitation can be a successful strategy. Taking out bin Laden before 9/11, for example. But organized militaries, such as Iran, have processes in place. I doubt removing Soleimani would have changed anything "imminent".

I'm somewhat agnostic on the question, myself, not being privy to intelligence briefings. I'm just wondering why the retaliatory justification gets so little attention.

Just ask yourself what the nature of a supposed "imminent threat" would be that would be successfully disrupted by removing a few of the high-level commanders. (Mark alludes to this in his comment above.)

It's not as if the proxies wielded by Soleimani were so firmly under his tight control that they can't do anything except under his direct supervision. That's obvious even to those of us not privy to "intelligence briefings" (which, by all accounts, aren't received as definitive by the POTUS anyway.)

Frankly, it doesn't pass the smell test. Added to the routine lying by the current administration, and the only conclusion you can reach by logic is that Trump decided he needed to have a strike at Iranian interests and picked this one.

You can then ask yourself why Trump felt he needed to have a strike at Iran. We can't know. Much of Trump's decision-making is opaque. Dyspepsia? Something he saw on Fox News? To instill terror in anti-American leaders (yes, in that case it would be "terrorism".) Whether you call it justifiable retribution (which is what I think is meant by "retaliatory justification", a pair of words that appear, to me, mismatched) or "battlefield execution" (who is comfortable with the world being a "battlefied?) it appears that Trump just chose to kill someone for little or no really good reason: just because someone is an enemy it doesn't mean he (or she) should be slain wherever and whenever a POTUS chooses.

Personally, I don't find any answers to the question of why Trump chose to act that make me comfortable.


I would expect it to be more in the nature of deterrence than incapacitation.

And just what do you imagine will or has been "deterred"? Iran has started enriching Uranium without limits. It's become unsafe for Americans in Iraq. If the goal was to protect the position of American forces fighting ISIS, that's obviously failed, and the action may lead to the loss of any American forces in Iraq.

So what has been gained versus what has been lost?

During Sandy's prior post on this subject, I addressed how Iran has waged a generation long proxy war against the United States killing several hundred of our troops and citizens, General Suleimani was commanding that war and, thus, the POTUS was well within his Article II CiC powers to kill Suleimani as an enemy combatant in defense of our military.

I would further note...

Article II does not limit the CiC power to employ military force in self defense against an "imminent" enemy attack. The POTUS may kill enemy combatants waging war against the United States at any point during that war.

When my platoon killed several dozen Iraqi troops at my command during the Persian Gulf War, the proper term was "killing," not "assassination," a term generally reserved for killing political figures. Ditto Trump's killing of Suleimani.

The wisdom of killing Suleimani is clear - his decades of experience dies with him and his high level death discourages others in the Iranian command structure from continuing their unofficial war against the US. If the "mad man" Trump can reach Suleimani, why not the ayatollahs?

Finally, there is no basis for the caterwauling about ground wars and military drafts. Iran is not in a position to invade the US and the US is not deploying troops to invade Iran.

Indeed, any effective Iranian retaliation has enormous downsides.

If the Iranians attack Gulf oil shipping, they are attacking the energy supplies of their allies in the EU and China. We remain energy independent and gain a pretext to wage an air and missile campaign against the Iranian military and infrastructure.

If the Iranians attempt to ramp up their proxy war against our troops in Iraq, Trump sent in large elements of the 82d Airborne Division counter that move. Believe this old paratrooper, Iranian militia is no match for the Airborne. When you care enough to send the very best..

C2H5OH said...And just what do you imagine will or has been "deterred"? Iran has started enriching Uranium without limits.

Iran never stopped. Supporters of the Iran Nuclear Agreement admitted they were only delaying Iran's ability to build a nuke by weeks, maybe months.

It's become unsafe for Americans in Iraq.

Became? Iran started waging war against our troops and personnel in Iraq soon after they arrived and never stopped. Thus, the LONG overdue elimination of their commander - General Suleimani.

This comment has been removed by the author.

Long time readers here remember that Bircher Bart was a huge cheerleader for W's Iraq debacle, uncritically championing the entire neo-'con' line for line (it's certain they have WMDs! this will be over soon and we'll be treated as liberators! etc) even long after Powell, W and the gang conceded they were mistaken and had messed up. If there's one person whose track record suggests a lack of insight into Middle East policy, it's Bircher Bart. The more confident he predicts something the more skeptical anyone should be.

That would be "Bryan Stevenson," who is the subject of the new film "Just Mercy" that is based on his own book by the name.

"Iran has started enriching Uranium without limits."

Good Lord, are you actually going to pretend Iran was complying with that agreement?

"I'm just wondering why the retaliatory justification gets so little attention."

Retaliation has to be proportional. I guess Trump's people don't want to make that argument.

"Retaliation has to be proportional."

What idiot told you that? Proportional retaliation puts your foe in control of the level of conflict. Retaliation should always be disproportionate. That tells your foe they're always going to lose more than they gain by attacking you.

Proportional retaliation is for fools who don't mind prolonging a conflict. When the goal should be to END it.

Proportional retaliation is a long time tenet of international law. It has to do with protecting non-combatants (collateral damage) and follows the same logic of individual self defense law. You can't shoot a man because he shoves you. Though I imagine that would be fine for Bircher Brett. These people have deranged moral compasses.

"According to Trump's secretary of state Mike Pompeo and the International Atomic Energy Agency, the agency tasked with verifying and monitoring Iran's compliance with the JCPOA, Iran has been in compliance with the JCPOA and there is no evidence otherwise.[33][34][35][36]"


I have read some comments here and at Just Security & Lawfare on the legality of the killing, which covers various issues. One passage:

That said, this arrangement of authorities is not immutable. Even executive branch lawyers have generally acknowledged that Congress has substantial authority to set limits on the president’s authority to use military force through statutes. And there is reason to believe that federal courts may feel more compelled to enforce such limits through judicial review if they are enacted with clarity.

Ironically, a majority of the members of the current Congress voted to do exactly that this past summer in regard to Iran. Motivated by concerns over escalating tensions with Iran, both the House of Representatives and 50 members of the Senate supported an amendment to the most recent National Defense Authorization Act (NDAA) that would have prohibited the use of funds for military operations against Iran—most likely preventing the Jan. 3 strike, or at least forcing the Trump administration to rely on narrower and more contentious legal grounds. That legislation failed because it did not secure the 60 votes in the Senate necessary to proceed. But future legislation might be more successful, especially if the Trump administration’s policy decisions and related legal justifications trigger a backlash.

There are some appropriate limits and good practices, including not relying on over fifteen year old authorizations of military force, along with basic rules of legal use of force here and abroad. Good policy and constitutional principle would dictate it.

Or, we can go another way.

Mr. W: Proportional retaliation is a long time tenet of international law.

Proportionate? Retaliation for Iran's generational war on the US will be proportionate when we kill several hundred of their soldiers. Killing Suleimani does not get within a light year of proportionate.

The International Atomic Energy Agency, the agency tasked with verifying and monitoring Iran's compliance with the JCPOA, Iran has been in compliance with the JCPOA and there is no evidence otherwise.

The Iran agreement only allows the IAEA to inspect 18 indemnified nuclear facilities and nine other facilities in Iran. The rest of Iran is off limits without Iranian permission. The IAEA has never asked for such permission. Ali Akbar Velayati, senior adviser to Ayatollah Ali Khamenei, told the press: “The Americans will take their dream of visiting our military and sensitive sites to their graves… It will never happen."



If Congress tells the POTUS he cannot use the military to defend the nation and its citizens from Iran, Trump should issue a signing statement that Congress may not assume the POTUS's CiC power.

Iran claims they launched multiple surface to surface missiles toward the Iraqi al Asad airbase and another base in Kurdish Irbil where US personnel are based. Iraq made some sightings, but no reports of casualties or damage.

I see that Sandy has requested an echo chamber for his latest post. Sad, but I'll oblige him.

I found the request troubling, but the way he ended his penultimate paragraph was modestly reassuring:

"Best, of course, for the country is if I am in fact Chicken Little, simply caught up in a delusional belief that the sky is falling. As a good liberal--that is, a person trained to be skeptical even of my own arguments--I realize that is a genuine possibility, whatever my beliefs to the contrary."

So long as he can continue to entertain the possibility that he's wrong, he isn't totally lost. Cling to that, Sandy, it's your life preserver in this storm.

Bircher Brett's reign as the least self aware man on the planet continues.

In the latest post: Well said, el roam. Sandy's expressed opinion of Trump is in conspicuous conflict with is apparent lack of fear in expressing it.

Again,This is a guy who regularly talks, openly, using his real name, about a tyrannical federal government which he feels he needs a small arsenal to defend himself against. Least self aware guy ever.

No inconsistency here, Mista Whiskas; I don't believe our government is, as yet, a tyranny. Though it has shown disturbing trends in that direction, which Trump has at most slowed. If I thought we were already a tyranny, my public statements would be most anodyne, though likely futilely, as I have a long history, and doubtless have an extensive government file.

I am most concerned about the intelligence services' omnipresent spying on Americans, and the implications of this for potential blackmail of politicians. I often worry that this is already beginning to warp our politics, especially in terms of killing any efforts to control that spying.

This comment has been removed by the author.

"doubtless have an extensive government file."
Paranoid delusions.


"I don't believe our government is, as yet, a tyranny."

Neither does Sandy.

Paranoid delusions by somebody who's watched a police car driving through the parking lot at a political rally, photographing license plates, and seen police observing us through rifle scopes from the roof tops at the state capitol? Yeah, I've got a file.

Post a Comment

Older Posts
Newer Posts