Legal basis for US killing of Iran general depends on threat

A boy carries a portrait of Iranian Revolutionary Guard Gen. Qassem Soleimani, who was killed in the U.S. airstrike in Iraq, prior to the Friday prayers in Tehran, Iran, Friday Jan. 3, 2020. Iran has vowed "harsh retaliation" for the U.S. airstrike near Baghdad's airport that killed Tehran's top general and the architect of its interventions across the Middle East, as tensions soared in the wake of the targeted killing. (AP Photo/Vahid Salemi)
A boy carries a portrait of Iranian Revolutionary Guard Gen. Qassem Soleimani, who was killed in the U.S. airstrike in Iraq, prior to the Friday prayers in Tehran, Iran, Friday Jan. 3, 2020. Iran has vowed "harsh retaliation" for the U.S. airstrike near Baghdad's airport that killed Tehran's top general and the architect of its interventions across the Middle East, as tensions soared in the wake of the targeted killing. (AP Photo/Vahid Salemi) (Copyright 2020 The Associated Press. All rights reserved)

WASHINGTON, DC – Did President Donald Trump have the legal authority to order the killing of a top Iranian general in Iraq?

The answer depends largely on facts that aren’t publicly known yet. And experts are quick to point out that even if it was legally justified that doesn’t make it the right decision, or one that will be politically smart in the long run. Iran and its allies are vowing revenge.

In its limited explanation so far, the Pentagon said Gen. Qassem Soleimani was “actively developing” plans to kill American diplomats and service members when he was killed in a U.S. drone strike Friday near the Baghdad airport shortly after arriving in the country.

That would appear to place the action within the legal authority of the president, as commander in chief, to use force in defense of the nation under Article II of the Constitution, said Bobby Chesney, a professor at the University of Texas School of Law who specializes in national security issues.

“If the facts are as the Defense Department said, then the president relatively clearly has Article II authority to act in self-defense of American lives,” Chesney said.

That justification would apply even if Soleimani hadn't already launched an attack under the established doctrine of “anticipatory” self-defense, according to Jeff Addicot, a retired Army officer and expert in national security law at St. Mary's University School of Law in San Antonio.

“Legally there’s no issue,” Addicot said. “Politically, however, it’s going to be debated, whether it’s the correct response. In my opinion it’s the appropriate response, but it’s certainly legal.”

Self-defense would be a legal justification under both U.S. law and the laws of international armed conflict, though the experts consulted by The Associated Press repeatedly stressed that this would depend on what intelligence prompted the killing, and American authorities may never release that information.