Taking Bearings

“The game has changed” — Defense Secretary Mark T. Esper.

It’s about time. The American airstrike killing Iranian Gen. Qassem Soleimani and others was warranted and years past due. Soleimani’s hands were soaked with American blood. (See footnotes 1, 2, and 3.)

Any assessment of Soleimani’s acts, expenditures, and influence in creating satellite militias across the Middle East over the past decade, especially with his expenditures made possible by the economic boost to the Iranian economy after the Joint Comprehensive Plan of Action (hereafter referred to as the Iran nuclear agreement), will quickly dispel any assertions that recent escalations in tensions with Iran are the result of the U.S. pulling out of that deal. That’s Tehran’s line, and those who push it become pro-terrorist propagandists. The Iranian nuclear agreement, with the economic boost and cash it brought Iran–along with the Obama administration’s weakness toward Iran–fueled the regional instability and terrorism orchestrated by Iran.

Iran will, of course, threaten retaliation, and because they can only fight asymmetrically, Iran will probably mount a violent response, most likely through proxies, against innocent civilians or U.S. diplomatic missions. “Death to America” will once again be the chant du jour.

In the end, however, allowing Iran to dictate or constrain our policy and actions by threat of asymmetrical warfare is capitulation to terror.

Courage is required. We must see through those proxy smokescreens and hold Tehran accountable by ensuring that the price for such acts is ultimately too steep a price to pay even for a theocracy exhorting martyrdom.

Cost versus benefit calculus must be made to apply to both sides.

As to ongoing media coverage, much time is being given to partisan complaining about lack of notification to Congress. Take note of who speaks such nonsense, for they knowingly seek to mislead the unwashed.

The usual partisan histrionics and hand wringing have been on full display since the attack. The response of Speaker Pelosi and rants by Senator Tom Udall (D-NM) are exemplar.

Pelosi knows this assassination was a Title 10 action, not a covert Title 50 action. Congressional leaders complaining about lack of notification–along with sycophantic media hacks–also know the difference, but honesty does not suit their agenda of whipping up criticism regardless of merit. They do not care if their criticism hurts America, demoralizes troops, or places innocent Americans in harm’s way by playing into the hands of terrorists.

Questions about presidential notifications to Congress are inherently contextual, and the requirements surrounding notifications to Congress rely on several factors, the first being whether an action is a Title 50 covert action that requires prior congressional notification. 50 U.S.C 3093(e) defines “covert action” as “an activity or activities of the United States Government 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.” (See Footnote 4)

After the killing of Soleimani et al., the U.S. took immediate credit for the airstrike and so, at first glance, Title 50 notification requirements do not apply.

Things are, however, a tad more complex. To guard against an administration disclosing only successful operations and concealing unsuccessful operations, any determination regarding whether an action is a Title 50 covert action is actually based on disclosures made prior to and during an operation.

Most operations have an inherent deniability component/option because there is no public disclosure of action ahead of time and/or during an operation itself. However, even if one determines that the U.S. structured the airstrikes on Soleimani to allow potential deniability if things went wrong (thus making the operation potentially classifiable as a covert operation), many exceptions exist to the Title 50 notification requirements.

“Traditional military activities” are exempt and, as defined under 50 U.S.C. 3093(e)(2), provide an exception that would apply in the killing of Soleimani.

This was an attack by U.S. military forces in a defined theater of operations (Iraq) against an Iranian military commander of a group designated an enemy and/or terrorist group. As the strike was conducted by U.S. armed forces under U.S. military command, the airstrikes count as traditional military activities. That makes them a Title 10 action, not a Title 50 action. (See Footnote 5.)

Title 10 targeted military strikes do carry notification requirements if the traditional military activity is designed to kill or capture specific individuals.

10 U.S.C. 130f requires that the secretary of defense (not POTUS) transmit a “notice in writing” to both the House and Senate Armed Services Committees within 48 hours after the commencement of action (note: not notice to the Speaker of the House, nor House and Senate Intelligence Committees).

This notification requirement only applies if a military operation takes place outside Afghanistan, Iraq, or Syria (countries designated as theaters of ongoing military operations in the face of hostile forces).

As the American airstrike was in Iraq, such notification is technically not required. The secretary of defense may opt to make it anyway.

Everyone in the game knows these rules, and so those that claim otherwise are deliberately trying to mislead the public and–much more seriously–offering aid and comfort to America’s enemies.

Footnotes

1. The U.S. State Department officially attributes 603 American deaths directly to Suleimani. Defense Department analysts characterize that figure as ridiculously low; the difference in estimates comes from differing standards applied to make a direct attribution.

2. Friedman, Thomas L. “Trump Kills Iran’s Most Overrated Warrior:
• Suleimani pushed his country to build an empire, but drove it into the ground instead.” The New York Times. Jan. 3, 2020. https://www.nytimes.com/2020/01/03/opinion/iran-general-soleimani.html?action=click&auth=login-facebook&fbclid=IwAR3c32iYS8LRRmRd5MuZ16sXGatDf1ChFF-v1zvtpqzoEu7mG44Gdvg1d3s&module=Opinion&pgtype=Homepage

3. Takeyh, Ray. “Why the Death of an Iranian Commander Won’t Mean World War III: The U.S. dealt a major blow in taking out Iran’s imperial strategist. But the mullahs’ next move likely won’t be a dramatic escalation.” Politico. January 03, 2020. https://www.politico.com/news/magazine/2020/01/03/iran-loses-its-imperial-strategist-093175

4. Much of the legal analysis with regard to relevant statutes and analytical methodology contained herein is heavily indebted to an excellent analysis of the targeted killing of Abu Bakr al-Baghdadi by Robert Chesney, the Charles I. Francis Professor in Law at The University of Texas School of Law, where he also serves as the Associate Dean for Academic Affairs and teaches courses relating to U.S. national security and constitutional law. Chesney, R., “Targeting al-Baghdadi and Selective Notification to Congress: Assessing the Issues.” Lawfare Blog. October 27, 2019. https://www.lawfareblog.com/targeting-al-baghdadi-and-selective-notification-congress-assessing-issues

5. If an operation is under CIA command (as was the bin Laden raid), the traditional military activities exception to reporting requirements does not apply unless there is a covert-action finding in place that authorizes use of lethal force. 50 U.S.C. 3093(b)(1): covert-action reporting requirements include statutory obligations to keep congressional intelligence committees informed about operations conducted under covert-action findings via a “memorandum of notification” (MON).