Soleimani Strike: No Advance Congressional Notice Required
On January 3, 2020, President Donald Trump ordered an U.S. airstrike that killed Iranian Major General Qassem Soleimani, commander of the Islamic Revolutionary Guard Corps’s Quds Force, in Baghdad, Iraq. As a terrorist leader responsible for killing and maiming thousands of U.S. soldiers, few Americans are questioning the strike’s justification. However, leading Democrats are stating that the Trump administration needed to provide advance congressional notification for the strike. This is false.
Following the strike, ranking Democrats have criticized the White House for not notifying Congress—particularly the Gang of Eight lawmakers who are typically warned of sensitive intelligence actions—beforehand. Rep. Eliot Engel (D-NY) said, “[T]his strike went forward with no notification or consultation with Congress. To push ahead with an action of this gravity without involving Congress raises serious legal problems.” Senate Minority Leader Chuck Schumer (D-NY) echoed the notification criticism: “The operation against Soleimani in Iraq was conducted, however, without specific authorization and any advance notification or consultation with Congress.” House Speaker Nancy Pelosi (D-CA) also lamented the lack of advance notification. Nonetheless, the Soleimani strike did not legally require advance notification.
According to Section 3091 of Title 50, U.S. Code, “The President shall ensure the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity” which is defined as covert action “to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.” However, the Trump administration’s outspokenness and recent actions against Iran indicate that the administration did not seek deniability.
After U.S. airstrikes hit Iranian-backed Iraqi militias in late December 2019, Defense Secretary Mark Esper hinted at a future strike against Iranian targets, largely eliminating a future U.S. attack’s deniability. “We discussed with him [President Trump] other options that are available. And I would note also that we will take additional actions as necessary to ensure that we act in our own self-defense and we deter further bad behavior from militia groups or from Iran.” Furthermore, a precision urban drone strike on a high-level Iranian target in Baghdad would only be attributable to the U.S. By all accounts, the Trump administration did not seek deniability for the Soleimani strike, and accordingly, the strike would not entail advance notification.
However, even if the Trump administration sought deniability, Section 3093 of Title 50, U.S. Code, excludes traditional military activities—defined in an explanatory report as “activities by military personnel under the direction and control of a United States military commander”—from advance notification. The U.S. military commanded and conducted the strike; therefore, the Soleimani strike would classify as a traditional military activity and not necessitate advance congressional notification.
The Trump administration acted legally in eliminating Soleimani without advance notification. While criticizing the escalation dangers and legal authorization of the Soleimani strike are warranted, Democrats stating that the Trump administration needed to provide advance congressional notice is misleading and unequivocally false.