Abu Dhabi, UAESaturday 26 September 2020

Donald Trump's order to kill Qassem Suleimani is on solid constitutional ground

But whether the US administration is prepared to deal with the consequences of a dramatic escalation with Iran is an entirely different matter

Some in Washington protest that Donald Trump has exceeded his authority by effectively taking the US into a war with Iran without congressional approval. Reuters
Some in Washington protest that Donald Trump has exceeded his authority by effectively taking the US into a war with Iran without congressional approval. Reuters

People around the world, and certainly in America, were taken aback to learn that US President Donald Trump ordered a drone strike to kill Qassem Suleimani, one of Iran's top commanders, and Abu Mahdi Al Muhandis, head of the pro-Iranian militia in Iraq, Kataib Hezbollah. Opinion in the country is divided about the constitutional legitimacy and wisdom of the move but rather less about whether this administration is prepared to deal with the consequences of a dramatic escalation with Iran.

Suleimani was head of the Quds Force, a unit in the Islamic Revolutionary Guard Corps, Iran's paramilitary militia, and has led his country's efforts to expand its hegemony and spread its influence in the Arab world over the past 20 years. He was probably the most significant military figure in the history of the "Islamic Republic" and, arguably, second in influence only to its supreme leader, Ali Khamenei. Killing him was the most significant blow Mr Trump could have struck against the Tehran regime anywhere outside of Iran itself.

The US government estimates Suleimani was responsible for the deaths of more than 600 US troops, largely in Iraq, since 2003. So, except for some far left and right-wing voices and a newly-emerging neo-isolationist think tank, people who follow the developments in the Middle East largely agree that the Iranian terrorist ringmaster got what he deserved.

However, major foreign policy developments, especially in an election year, are invariably subjects of ideological and partisan contention – and this is no exception. Among major figures in the US Congress, the division largely falls along party lines. Members of the Republican Party are applauding while those of the Democratic Party are seeking some way of expressing concern without being unpatriotic.

Within the mainstream, which is generally careful to welcome Suleimani’s demise, the demurrals are primarily constitutional and procedural. Most Democrats' objections focus on the appropriate relationship between the White House and Congress in strategic decision-making.

Some protest that Mr Trump has exceeded his authority by, in effect, taking the US into a war with Iran without congressional approval. The constitution explicitly states that Congress exclusively has the power to declare war. But since the Second World War, this has been largely a theoretical prerogative, with the president, as commander-in-chief, in effect deciding where and when the US engages in armed conflict. That has been consistent among both Democratic and Republican administrations.

A destroyed vehicle is on fire following a US strike on Friday at Baghdad International Airport that killed Qassem Suleimani. AFP
A destroyed vehicle is on fire following a US strike on Friday at Baghdad International Airport that killed Qassem Suleimani. AFP

The constitutional argument in this case is particularly weak. The drone strike that killed Suleimani has not taken the US into a war with Iran by any meaningful definition of the term. Nor has it sentenced the country to inevitably slide into one.

Even by the most traditional and strict reading of Congress' war powers, this kind of limited, quick-action and highly focused attack is actually a textbook example of why the framers of the constitution included an executive branch in the first place – and gave the president the powers of commander-in-chief of the military and control of most aspects of foreign policy.

The framers were anti-monarchical republicans rebelling against British, European and even classical Roman experiences of monarchy. Yet they concluded from their experiment with the early, decentralised and inadequate "Articles of Confederation" – the first written constitution of the US – that many essential actions of government were necessarily national and unsuited to the complex deliberations of any committee, whether small or large.

To deal with immediate contingencies, emergencies and decisions that perforce must be rapid, flexible and focused, even these anti-monarchists recognised that a powerful, centralised national executive was indispensable. That was particularly true in the case of day-to-day international relations and military matters, as well as unexpected contingencies such as natural disasters.

There is little doubt that Suleimani and Al Muhandis were plotting further attacks against American personnel and installations in Iraq. What, after all, was Suleimani doing there – and in the company of Al Muhandis?

Their focus was almost certainly planning the next stage in the "maximum resistance" campaign against the US and its allies in the region. It is implausible to think they were discussing anything else. Add to that, the insistence of US officials that there is meaningful intelligence that additional attacks were indeed being planned.

One must also factor in the great likelihood that elements of Iraqi intelligence were involved in gathering the information that led to the drone attack, and that they also could well have had knowledge of such plans.

Article II of the US constitution, which enumerates the powers of the presidency, anticipates precisely this kind of contingency. So even if this was a huge strategic error, it was well within presidential authority.

Democratic Party leaders, including Chuck Schumer, have complained that they did not receive the traditional briefings in advance of the action. AFP
Democratic Party leaders, including Chuck Schumer, have complained that they did not receive the traditional briefings in advance of the action. AFP

Mainstream Democratic Party leaders, including senate minority leader Chuck Schumer, have complained that they did not receive the traditional briefings in advance of the action, as familiar procedure would dictate. Mr Schumer complained that the "gang of eight" – the four senior-most members of the house of representatives and senate – did not receive such a briefing, as is customary.

That is unfortunate. But under the circumstances, including impeachment tensions between the White House and the Democratic majority in the house, it is hardly scandalous.

The real national anxiety is far more widespread and shared among Republicans and Democrats, left and right, and most serious observers: does Mr Trump really understand what he is getting the US into?

Responding to Iran's escalating provocations was essential to defending American interests in the Middle East. Yet Tehran might remain convinced that Mr Trump does not have the stomach for a full-blown war, including major combat operations, with Iran.

He has called their bluff. But they can call his, too. There are real questions about whether he has a viable strategy, a serious vision for the long term, the political commitment and the personal qualities to lead a showdown with the so-called Islamic Republic.

His performance thus far as president overall is not reassuring – arguably except when it comes to Iran itself. Is Mr Trump capable of competently directing the US in such a considerable, protracted and complex struggle? Skepticism remains widespread.

Hussein Ibish is a senior resident scholar at the Arab Gulf States ­Institute in Washington

Updated: January 5, 2020 01:40 PM

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