Lawfare Archive: The National Security Law Podcast Guys Talk Soleimani

On Friday, March 6, Laugh Fair and Georgetown Law are bringing together leading scholars,

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I'm Marissa Wong, Internet Law Fair, with an episode from the Laugh Fair Archive for March 8, 2020. On February 28, the United States and Israel launched coordinated strikes, targeting Iran, that have reportedly killed at least 1,045 people in Iran, including the regime's Supreme Leader.

Iatola Ali Hamanik. These strikes are a part of the U.S. campaign to debilitate Iran's nuclear and missile capabilities and destabilize the current regime. The Trump administration's willingness to strike Iranian military assets dates back to January 2020.

When a U.S. drone strike assassinated Kusem Soleimani, the commander of this Islamic Revolutionary

Guard Corps includes force. For today's Archive, I chose an episode from January 11, 2020, in which Robert Chesney and Steve Vladak discuss the legality of the strike that killed Soleimani and what it means for the future of U.S. Iran Relations. I'm Benjamin Whittison, this is the Laugh Fair podcast, January 11, 2020.

“The National Security Law podcast is something you should be listening to every week.”

The brainchild of Bobby Chesney, Laugh Fair co-founder and Steve Vladak, both of the University of Texas Law School, is the deepest dive on the National Security Law subjects of the day available anywhere in podcast land. This week, however, the conversation between the two of them on the Soleimani killing and the law there of was so fabulous that we thought we would inject it into your feeds through

the Laugh Fair podcast feed as well.

Here's what we did, we took the podcast, we edited it down just to the substantive discussions

of the law of the strike. Some parts may be a little choppy move from subject to subject, but we took out everything else and we brought you just the discussion which is as deep a dive as we get on the subject. It's the Laugh Fair podcast episode 494, the National Security Law podcast guys talk Soleimani. Hello from Austin, welcome to episode 149 of the National Security Law podcast, we're

brought to you by the Strauss Center at the University of Texas. It's Monday morning, January 6th, 2020, I'm Bobby Chesney, Steve Vladak, we're going to

“focus today, I think, Steve on Iran, is that right, Iran and Iraq?”

All right, it's hard to know where to jump in on this, but probably it's best to provide some background before we start turning into legal issues, but maybe it's illegal and policy. Yeah, but it's someone I know will give a pretty good quote to the Washington Post. Yeah, and I wanted to kind of reprise, thank you, I want to reprise that a little bit.

Oh, you too, yeah, there is a lot of legal discussion coming up and I think you and I have experienced plenty of times before, but certainly in the past couple of days, it seems hard for some people to hear an assessment of legal frameworks without assuming that I, if you're arguing something is or isn't legal and must be because you want it to be possible to have done that or to have not done that.

So, so this is, but I do want to sort of flag as part of our discussion of the law and policy of everything, also the insanity of what the president is doing and the extent to

“which some of his public reactions, I think should be given ever more calls for concern”

that, you know, something is not computing and there's, there's, this is, this is what many of us feared about a president who like, you know, kind of goes a little cray cray.

I think that for those of us like me who were never Trump conservatives, as opposed to me,

well, back to my Twitter trolls, right, well, right, you, whatever you were, you weren't a conservative. True. To back to you, I give you a title, back before, when he, when he was still the primaries and suddenly it began to appear that there might actually be some momentum behind that

person, a lot of what, uh, those of us who were taking this, uh, very rigid view against him, working turned about, was that he would be a dangerous steward of foreign policy and national defense. That hasn't turned out at all though.

“Well, well, here's the thing, I mean, let's, let's start right there.”

I mean, up to this point, I think it's fair to say that, um, in his, in his interactions with North Korea, with Iran and others, he's had this strange combination of sort of, there's the sucking up to, to strongman, strongman, there's the bloodstream and the, the sort of the stereotypical bullying and blustering behavior. There's precipitous actions, sometimes where he does do things that are confrontational

like, you know, backing out of the nuclear agreement with Iran, that sort of thing. But, but for the most part, it's been known about him for a long time that he's relatively pro-isolationist in his views about military entanglements, or least he often frames himself that way. But I think a lot of people felt that that actually was one of his more guiding might

commitments into far as he had any. And so part of what's striking about this is that after so many concrete examples of him wanting to reduce our military footpurnal overseas and kind of viewing that as, as sort of, I guess, I guess he views it, do some kind of financial ones or whatever you've used it through.

“Suddenly he's leaning in so aggressively, I think it's part of what caught everyone so”

by surprise in this, in this, this turn of events, but let's, let's talk about what these last turn of events are. We need to understand everyone's, and I do especially like the defense of this, that this is, he just wants to get our troops out of Iraq. Well, I hadn't heard it put that way, but there's there are people out there saying that's,

you know, defending this nonsense on those grounds. Well, whatever else is true about this, it's not like it's super well thought through, you know, three-dimensional chess, so I think we can, I think we can rule about it. But it's just hard. Although there is, I mean, there's, I'm only talking about him.

But there's a report on a Pompeo and the Sanctuary Defense and Esper and Miley and all these guys that like this actually have been in the worst for a while All right, so right, but you're not saying that those guys were hoping to bring all the troops home and get the USA No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no

“No, no, no, no, no, no, no, no, yeah, no, I've been quite to the contrary right now. So I'm saying that but that but that's the disconnect here, right?”

Well, there are many different decision makers with many different motivations that all coalesce in this one intersection that gave rise to this all right So so this all started what with the should we start with the attack on the contractor? So no, I think I want to go deeper and there's a report there. Reuters so with this topic The U.S. Iranian below the radar uses a lethal force in other aggressive forms of interaction You could of course go back decades and many people are going back decades and in pointing out that this is but the latest and a really really long

Sort of lifetime long series of exchanges of sometimes violent sometimes nonviolent Interactions but I want to highlight a report that Reuters put out on Saturday I'm gonna read from this because it provides some really hopeful context. I think so again This is from Reuters and I'm quoting here in mid-October Iranian major General Kasem Salamani met with his rocky Shiite militia allies at Evela on the banks of the Tigris looking across at the U.S. embassy complex and Baghdad

The revolutionary guards commander instructed his top ally in Iraq Abu Madi al Mohandis and other powerful militia leaders to step up attacks on

U.S. targets in the country using sophisticated new weapons provided by Iran Two militia commanders and two security services briefed on the gathering told Reuters and then the article goes on to kind of unpack things talks about And increase in the supply of Katusha another Missile capabilities from Iran to the militia groups, especially Katub Hezbollah, which is Mohandis's group and how

The idea at least according to these these Shiite Iraqi sources who talked to Reuters the whole idea was to bait the United States into some sort of military action which might then a Distract the Iraqi public from its growing Enrest over Iranian influence in Iraq turning their attention instead towards the U.S. Foreign troop presence and and be perhaps even bait the United States into doing something so provocative that it could end up getting the United States kicked out of

Iraq which is arguably what's unfolding as we speak and in event So we say a bit about why that would be good for Iran. Yeah, you want let's talk let's frame this let's pause there and frame some Competing what are their interests in the area? What are our interests? So I mean the you know a short of short of actually

Invading and ticking over Iraq which you know didn't work so well right the first time to try it right the I think it's been clear for a while

Iran has had as a goal

Significant influence over just politics in Iraq government in Iraq, but also

Saterian violence in Iraq on the theory that instability in Iraq is good for Iran right and so yeah, so support for Shia militia groups right sort of Support for sort of different factions right in the Iraqi unrest in civil war right to sort of Stearn the pot because all chaos is good for Iran but particularly chaos is especially good for Iran Certainly certainly I agree in general with all that So if you're the Iranians what would you like to have you'd like the U.S. military to be out of next door to the bill because it gives you

It gives you free especially because one of them is your probably worried about as long as the U.S. has a military footprint is Provoking the U.S. right is sort of you will have a freer hand to conduct operations in an Iraq where there's no U.S. military There's no no great mystery to it. It's just like China would prefer for the United States not to military be in Japan and in

“South Korea, Iran would certainly like to know. I think we sometimes lose sight of the of the forest when looking at the”

Right so if we if we ask like so who wins if the upshot of all this in the end is the United States is kicked out of Iraq Strategic success for Iran now can I take those ones that further there are folks who also think it is therefore Strategic success for Russia. I think that's a little more complicated Right, I mean I think I think I think it's like anything that diminishes the U.S. is influenced in the Middle East probably is good for other

Powerful nations that also have interest in the region but I don't think it's quite as one to one

So you know I would argue that for China, it's bad in that China benefits from the shipping stability We we provide there. I do think Russia is a Decently strong indirect beneficiary insofar as their main strategic interest. I would argue is influence in Syria If we are out of Iraq our ability to continue to operate in Syria is is further reduced if not eliminated

“Which is going to be the next dominant follow-on. Oh, although the complication obviously is ISIS, right?”

Because it is much as Russia wants you know, sort of to support the Assad regime, right? Conditions in which ISIS conflurs are not necessarily conducive to that. I think I think that their view would be that we will take care We'll cross that bridge and we come to it in without you guys around we can crush it. That's right much more aggressively And illegally, but yeah, no doubt about that Clearly both in the the shiit leaderships and I use that plural purpose in Iraq and

The Russians and others in the Assad regime all of them are right now not primarily concerned with crushing these long states So much as preserving regimes stability or leadership stability all right, so go you know turn around look at it from the us perspective We could do a similar analysis white what are we therefore you have a multiplicity of interest security of energy resources is obviously limiting very large Suppressing ISIS is supposed to be and for many leaders is in fact a first-year security interest as well

placing pressure and and Heming in Iran is clearly a strategic priority Which is hard to see how any of those are advanced those strategic interests are advanced by getting kicked out of Iraq Could I add one more strategic interest? This may be a softer one, but to sort of given everything we've committed already to Iraq, right that just the the legacy of it

Right the sort of you know holding up to our end of the bark and if we haven't always done you mean you sort of don't throw away

Whatever gains have been achieved in Iraq in many cases over the you know over the blood of American service members Yeah, but it's okay, but so now this is where it starts giving tricky because one way to look at that interest Which I agree is an interest is that that is already risk because of the mounting dominance of Iran over the the various Shia militias and the politicians, and the apparent re and the apparent upsurge and sectarian violence they got it All right, and so from that perspective the main threat to that strategic interest and then by extension to the others is

Iranian Leveling up of provocations and this was a way of Interjecting a sharp shock to the system on Salomonas part that Salomonas was already doing this and in escalating bit by bit and not Being deterred from taking those further steps. This was a way to change that balance of calculations

So from that perspective, I don't think it's actually as cut and dry it as this is obviously insane to have done this But let's get back to the to the to the more media track record So entirely apart

“It's an important part of the conversation acknowledge that there's a there's a widely believed and asserted”

And I have no reason to doubt this is true set of facts about Salomon and the al-Quds forces responsibility directly and indirectly for the death of American service members and American personnel Over the years not just in Iraq, but certainly in Iraq More recently the claim would be that they're directly arming and directly at least at the strategic level

So here's back to that rotors article and again, we just set up how in October There was a decision to try to level things up and to try to Prompt the U.S. to take some sort of provocative action by continually increasing the scale of the attacks and the sophistication of the attacks The article goes on to say quote on December 11th the senior U.S. military official said attacks by Iranian backed groups on basis hosting U.S. forces in Iraq were increasing becoming more sophisticated pushing all sides closer to an uncontrollable escalation

His warning came two days after four Katushia rockets struck a base near Baghdad international airport Winning five members of Iraq's elite counterterrorism service Skipping ahead on December 27th more than 30 rockets were fired at a Iraqi military base near the northern Iraq city of Kirkuk The attack killed the U.S. civilian contractor wounded four Americans into Iraqi service members Washington accused Kateb has beloved of carrying out the attack

Naliation it denied the United States then launched air strikes two days later against the militia killing at least 25 militia fighters Wouldn't in 55 that of course, okay, that's the end of the quote that of course then immediately led to the Apparently at least partially instigated by Soleimani Encouraging into the U.S. embassy and then the air strike that followed against Soleimani and mohanous themselves killing them That's where we got to today

So do you want to jump in at this point do we we can talk about what glimpses were getting in the media about the process of the decision making Which is pretty interesting, but we we have only a complete picture there

We can talk about the legality of of the first air strike on Katab Hezbollah

“We could talk about the legality of the killing of Soleimani. Where should we jump in?”

I don't know Oh, let's let's kind of go in that chronological sequence then I guess Before the Soleimani decision you've got this air strike against Katab Hezbollah It seems to me at the time that that didn't generate a great deal of angst because I think people didn't proceed the same escalation risks Because it was an attack on Iraqi

PMF forces not Who who were Iranian proxies, but it wasn't perceived as directly attacking Iran I mean it wasn't it wasn't attacking a senior Iranian military commander right so people didn't people didn't pay as much attention Didn't get his wound up about it but from a legal perspective Domestic law what's the authority to attack this group that is not the Islamic state or in any way connected?

And indeed was was from that perspective part of right of the fight against the Islamic state

“What was the domestic legal authority for that and I think everyone including myself who looked at this out?”

Well, if it's true that these guys just launched launched 30 rockets that killed an American in the wounded others Of course you have unit self defense and national self defense concepts under article to the constitution So I didn't view that as particularly tricky question and to be frank I bring the same analysis to bear on the subsequent step of attacking Soleimani Although I recognize of course it's a more difficult and complicated question from a legal perspective

Let alone from a policy perspective. That's kind of where I'm coming at this from I think on the first strike I see the argument but I mean this is what we're going to get into a Soleimani

Like I have always understood the article to analysis right to include

Escalatory escalation risk right as one of the relevant considerations and You know, maybe it shouldn't be part of the analysis at least that's how I will just talk about that like you know We don't want a scenario where the president can use one act of self defense as a way of basically getting us into a war that he couldn't get Congress to otherwise authorize Should we unpack sort of in the abstract What little there is to say about the legal doctrine of article to national self defense?

“So yes, and I think this is actually probably the most important legal and combat point to take away from the last”

You know five days, right, which is what I really think of the Soleimani attack exposes is just how Problematic right the sort of legal space we live in and I don't mean pop a problem out from the perspective of what the answers are I would probably amount of from the perspective of there's no accountability right that like you know

The what the basically the way this operates is the executive branch conducts military operations based on its own analysis of its legal authorities

For obvious reasons those analyses tend to screw a bit in favor of the executive right whether they're right or not And you know because of both congressional abdication and because of judicial abdication You know what OLC says tends to be the law In the space at least you know not not because it is right or most convincing what because it's just you know There's nothing else and I think what we're so we've known that to be true forever

I mean right for as long as we've been doing this we've understood that I don't know if the average American understands that. I don't think that like you know like the first

And so I guess that to me the larger point of this whole thing is you know

Whether you like Trump or don't whether you like Obama or don't right whether you like the executive branch or don't

“Is this a sort of equilibrium or comfortable with right?”

Is this a world is this a sort of is this approach to what the legal to not what legal I ended up to who's answer on legal Questions is this one that we can be satisfied with I think what you've just described is is fair and is also entirely analogous to Similar realizations that others have had about say the national emergencies statutory framework or any number of other things We've talked about on the past 140 episodes where hey

Hello it turns out the executive branch under this particular framework has all this discretion and it's really

Been constrained in the past more by the quality of the mind or the or the morals or the norm

The norm acceptance of the office holder then it has by the legal framework and when it turns out there's someone who's willing to be a norms trans Grestor on some of those issues or who acts in a way that's from a policy perspective unpopular with Those who take a more conventional view then suddenly realize like oh wait the law doesn't train like I thought it was Now in some of those areas you've done especially good work and showing how hey Here's a reasonable alternative framework that would be more constrained so for example on national emergencies

on this one It's not nearly as clear to me what the more institutionally robust Alternative in practical terms in realistic terms really would look like Although that doesn't mean I'm not I'm not gain saying that it this proves to be a pretty dangerous amount of

Discussion, but I'm not sure what the alternative would actually be I don't know I mean I have some thoughts

“I don't think they're very popular thoughts, but I think it's a confrontation. We ought to be having and and because here's the problem”

Right like it's not just that we have historically trusted that the executive the person who actually Where that you know the person with whom the buck stops Is going to be someone who like him or not agree with him or not is going to make decisions that we at least understand it to be reasonable ones It's that the lawyers were understood to be constraints and I guess I am increasingly skeptical and have been for some time That the lawyers that the internal executive branch lawyers really are

Sufficiently effective. I mean, I'm sure they are more than zero constraint, right? But I don't doubt that there is an OLC opinion either in the works or already completed about why the strike on Soleimani was lawful But to be concerned about that Assumes that such an opinion would be wrong, but I don't think it's wrong. I don't think we agree on that I think it depends on facts that we don't know right? I mean so so you know this is where I think I mean we talked about this a lot

“When we did our deep dive on on Olocky right? I think if this is you know Olock is probably the case that people are most similar with before Soleimani”

Right on our Olocky U.S. citizen who we killed in a drone strike and in Yemen in what 2010 2011 and he was a QAP He was known to be a QAP's primary English language propagandist but was believed by the U.S. government from intelligence to be Intimately and personally involved in directing operational planning or at least instigating plots outside the outside of you

And and a crucial piece of the analysis was was the notion that he posed an imminent threat to the United States right not just a threat in the abstract and

To me the the article to legality because I don't think there's a case that the 2001 a U.M.F Authorizes the the strike against Soleimani. I really don't think there's a case of 2002 a you have authorized the strike against Soleimani and with all due respect to the national security counsel spokesperson who said this to reporters last week The more power resolution certainly does not authorize the strike against Soleimani. Yeah, can we do this because I feel like we we're not We need to bring the readers around with us and not jump ahead of ourselves. Let's first identify

I think I'm now up to five different statutes to the dimension or at least four for that are not useful here to keep getting brought up. Yes, and then we'll come back to what we started talking which aren't In the rebuilding up to the article. All right, so start the 2001 a U.M.F. Right, so so we've done we have exhausted ourselves on this show about why the 2001 a U.M.F. Which Congress passed one week after 9/11 to go after I'll hide in the Taliban doesn't apply to Iran except Maybe in a world where you have a theory about Iran harboring al-Qaeda in Iran and let's let's be clear about that

So because the vice president incredibly started touting or gesturing towards that theory Which has has a white following in in some more obscure corners of the internet Miners before after the last press and talked about the 12 hijackers on 9/11. I dad. I don't know about But I do know that he made a reference to Trying to tie so the money to to some sort of way of connecting him to al-Qaeda

Minershanian is that There certainly have been some transactional engagements between Iran and al-Qaeda despite their larger

tolerating the presence and allowing the presence of

Basically al-Qaeda fugitives within Iran

“But having said I think it's only fair to acknowledge that but there's no”

Plausible basis on anything that's been been shown in the public record that I've seen to suggest that actually Iran in any way or fashion was actually affirmably supporting al-Qaeda in connection without 9/11 or Is an associated force or is co-religion with it or any of the other tests that for two decades now Have to find the step of the 2018 So that's only a math off no, all right, so no and that that's a terrible argument

2002 Iraq AMF is still in the book at least about Iraq yeah, well and yeah I actually think it's a better argument than the 2001 AMF the whole that to me the whole question is did the Rather long period where we were out of Iraq it was over and done with did that effectively terminate the authority Or can you really look at where we are today and say this is just nonstop since the 2003 And it's worth noting that right I mean the house voted to repeal the 2002 Iraq AMF last year

Right, and it just got nixed in the conference version of the NDA Well, I think that actually that that cuts against well It's in because Congress has taken up the question of whether repeal it has failed to do so Yeah, although it's clearly still operative

“But but what is it up, but what is it authorized right? I mean that that's why I think that's a better argument”

I think I think the fact that the house took it up and then didn't get it across the finish line He's actually a bad fact maybe for those who want a narrow I trust I must admit it's a bad fact I think it's I think it's I don't think it's a clear I don't think it's a clear We have to at least that it doesn't actually move the needle cuz no

I just didn't get to roll the data point right that that out there in the world is commentary about whether the 2002 AMF is still doing anything But on the merits, I mean the two I don't want to let's go quite so if it's not Yeah, then why do they need to repeal it and and why would somebody resist repealing? Just to take off the table that even arguments like the one that we're having right now I don't know. I think it's a bad fact, but I think I'm very easy on the merits

It's scope doesn't encompass and it's act on an Iranian General um because right the whole purpose was sort of regime like the whole purpose was defending a rock, right? And and brings stability to a rock and the nose, you know Maybe if the Iraqi government were actually like maybe this operation have been carried out in conjunction with the Iraqi government There'd be a strong argument in that direction, but so far as we know it wasn't yeah

So if you mentioned you mentioned the war powers resolution, which of course by its own terms That's an authorized literally and and more and more symbolically is not itself a grant of authority to do anything So it really I'm not ever to be talked about in that particularly literally says so like I know

“Actually, that's why I said literally it's section 8 B or 8 C right. It literally shall not be cited as yeah”

All right, so as a stop to another fun one that really annoys me is that they're there have been a few references to the fact that

The IRGC the Islamic Revolutionary Guard Corps the White House keeps calling with the Iranian Revolutionary Guard Corps

I yeah that so IRGC got added to the list of very designated foreign terrorist organizations Yes, and it's I've seen several sources now acting as if that was there go as adding it to the list of associated forces under the AMF no The FTO list my friends and it has like 60 organizations all that's got tons of them We're not we that it is not a grant of use so force what is it? It is it triggers third-party liability under the material support laws

It has a bunch of immigration and nationality act consequences. It is not in any way a grant of authority There's four down. I'm gonna be a fifth one Somebody was quoted the day after the attack someone from the government was quoted as citing a provision in That that provides funding for special operations. Oh, you know what I'm talking about? Yes, it's special operations Or 20 is 10 to the SC 127 E. I believe it is it's it's authorization for socom to spend money on

Allies who are helping us in our counterterrorism operations to funding statute It is it is axiomatic as the Supreme Court would tell you that funding statutes are not authorization Well, but it's not even a funding to do this. It's a it's money for our money to do something to it's money to give to Allies right for helping us is so those five statutes are nowhere Should be driving this conversation so before we get back to our clothes because I want them the fact that we

Susan honestly pointed the staff like the fact that we have heard a shift in series of statutory claims from different spokespeople in the administration It's not exactly confidence inspiring that they went in with a clear sense of what they were doing Well, I would like a friendly amendment. I would say it's clearly the case that they did not settle on a

In a regular process sort of way here's what the legal justification is here's if you get questions

I do think reporters reach out to him. They reach out to you That's right many of these things we've just been knocking down are unnamed Unnamed officials who are answering questions from reporters not all of them, but some you know No, we have no one had names. We have one thousand seven e-thing no one is a one twenty seven But there are named people like the vice president the national security adviser and other name the DOD

“Spose person who's name. I don't remember, but who is a who is a real person”

Who have pointed to each of the first four right so we agree that it's a total shambles of a of a process

But let's get podcasts to total shambles of the process. That's that's our motto The article to you what's the motto with you? It's awful Anyways article to let's talk about how this basically works the battle line

This is a war powers constitutional separation of powers issue that this is where everyone has talked about once Yes, but boy did they talk about it in the prize cases in the civil war. It is actually three that'll touch that the question It arises in the following way It is clear that article one can first the power to declare war on Congress is clear the article two

Compare it can first the commander chief power on the president

“It's also clear that at some point during the constitutional convention”

There was some wrestling with the language of how the declare war power should be framed when given to Congress because there was an initial idea of having it be the power to make war That caused some of the the draft the drafters to say well make war sounds a little bit like How you run things we we don't want to do it that way. We'd had the experience of congressional Running things during the revolution itself. It wasn't a happy experience long in the short of it is

There's reason to believe from the drafting history that there was an expressed discussion at the convention about the distinction between Running the war when America has been attacked sort of it and what we'll call the national self defense scenario Where it seemed clear or if engineers are going to tell that people felt well that you don't need Congress to authorize it if you've been attacked

So we'll call that defense

Whereas the power to take America to war that was meant to be conferred on Congress So this gives rise to two really big questions that overhang this entire debate when all future cases arise One is what sorts of uses of the military require this debate to take place that is when do you have war or something close to war Such that you maybe should not be able to proceed without Congress blessing it Secondly if you do have that type of use of force

Where exactly is the line between offense and defense when do you have when do you have the sort of provocations that Contrigger this national self defense scenario Steve as you mentioned the the prize cases in in 18 63 so in the midst of the civil war some of Lincoln's early unilateral war related actions We're challenged in the Admiralty Court's process and the Supreme Court thought it perfectly appropriate to weigh in on Drawing the legal lines within or clarifying the legal lines on the some of these issues

In a firm that there certainly is an offense defense distinction said that the president not only has the authority to Use in direct the military when there's been an attack, but has a duty to do so But that doesn't solve the hard questions, of course, if knowing Just which types of provocations get you there and and of course It also does not weigh in because the civil war wasn't a hard question in this respect

It doesn't weigh in on the question of what are the sorts of Kinetic engagements that might be so small in scale that don't don't raise this debated all so you've got those two questions that then Sort of get developed and practice over time over the century and a half that followed One thing in recent years over the past 20 years we've had a number of uses of force The bigger ones have been under color of a UMFs

They've had congressional approval so we haven't really faced these sorts of line drawing issues The more interesting developments in the past 20 years have come in places like Libya and and on the sidelines of Syria With with Trump, you know authorizing a strike here or strike there not against the Islamic State Which is assimilated to the AOMF, but rather against the Syrian government those scenarios are ones in which We've seen some development from within the executive branch about how exactly it understands

Just how much authority

“Can be exercised before you have to have these debates about war powers and”

But the Obama administration and the Trump administration and the predecessor administrations have chosen in a in a way that's very Executive branch friendly to draw the line at a place that I think a lot of people as a layperson would say well That's not war. That's not sufficiently war related and this is the this is where you get into the idea of National interest Where the risk of escalation as you mentioned the risk of escalation is relatively modest if not

That's a bit of doctrine that's developed in my understanding to define when you can use the military to balance the executive branch

Yes, develop at the next executive branch and implement it in practice to establish when you could use military force without going to Congress Because you don't have to define the defense versus offense distinction because you're below the threshold of war And again, they'll probably the most Developed discussions really were publicly vetted during the Libyan intervention once that started to extend We saw a lot of development there and then there was an echo of it

more or less similar When Trump authorized some episodic strikes against Syrian government forces rather than the Islamic State forces which we talked about a little bit more right so I guess one one thing to say having said it all up that way is The Solemani strike best understood is being defended from an article to your perspective on the ground it

Oh, this is below the threshold of war. It doesn't raise these issues never mind. I didn't see here as long as there's national interest

It's not escalatory. We know the boots of the ground. It's okay. I don't think so

“I think that it actually fares badly on that frame because the escalation risk is so clear and latent”

But I think it's a different question to say This was defense this was price case a defense in the in this is national self-defense It is a war power's question. We're at that level But it's within the president's authority because we were attacked first hence the war powers resolution notification Yeah, I have an interesting question about that because they haven't made notifications for all of these strikes right?

They've just they've said some of them. They haven't been bothered to notify I'm not up to speed enough to know when precise that they've been doing it and also I don't have enough faith in their process to think that they did the Episodesity of their notifications would reflect a considered position, but so so the position I'm trying to carve out is this was this is on the national self-defense side not the national interest Exactly low thresholds and so therefore if I'm right about that

And let me let me let me underscore that this is based on the premise that the facts being asserted about Soleimani's responsibility for prior acts including this run up of attacks through this fall Aren't fact true or at least early as well enough has established to warrant the action if it all proves to be false Obviously that that doesn't hold up, but I think what it does suggest is that the escalation risk Of course still looms hugely large from the policy perspective

But I don't think it's actually part of the Article two doctrine that I have in mind as mainmost relevant here

“I think that escalation risk is indeed important if what your argument is well”

This may not be defensive but it's low so on on the morning, so on the morning of December 7, 1941, right? If FDR, you know FDR authorizes the use of military force and self-defense against the attack from the Japanese navy Right, he says you can go after the aircraft carriers. We didn't have the people to do it But if we spotted them right then you're going to be obviously there that's a huge escalation risk right like that Then we're going to be in an open all-out shooting war and after our chance to be we already are right and so to help

I think that would be a super easy case. I might even say it's a paradigm case with one wrinkle It would be by definition anticipatory self-defense if you got them before they bomb them before before they launch the plane All that you know you can make arguments in hell about it But if you could take them out in the middle of the Pacific I would say yeah, that was anticipatory self-defense, but that was still self-defense

But so here's the problem, right? So actually I have two problems the first is I have a problem with the entire line of

Low threshold national interest uses of article two power, right that that I I really do think that the prize cases are fairly Understood as drawing a pretty bright line between defense and offense and I just have not convinced that Acting in our national interest in our national interest when not in response to an immediate threat and provocation falls on the defense side But right, so so I actually have a problem with the whole line of OEC reason and they don't bad It's like Libya the Syria one off. I have a problem thought that sure

“I think I've been consistent about that. I hope I've been consistent about that”

As you say I think I am persuaded that that is not this right and that the drift of power that we saw in all those OLC opinions Starting in the Obama administration working their way into the serious strikes right is not as overtly And because here although obviously it's up a piece right that like you know if also can point to all of these accretions of power Then it looks like there's more and more present for it's doing The problem I have with the way you've I think quite elegantly frame this is

Then everything rises and falls on imminence, right? Because if you know what and this and this is the question why now right like why last week as opposed to last Like the Obama administration New or solid money was right most of the time right the I'm streaming at the end of the Bush administration

the attack attacks plural last week or Was this a long time in the making when they were just looking for an excuse right or was it you know

This sort of super cynical version right sort of wad of a dog right never by the president to distract from the bad

Other domestic headlines like this is you know

“That's what goes in my dandruff and what frustrates me to know and is we will never”

No, right because Historically I think the president would have felt obligated to provide a full Even if classified brief him right to the congressional leadership in both parties to a swage separation of powers concerns They've got buy in from the congressional leadership We've talked before about how this is not a kind of action requires getting with it notification by statute, right, but just by tradition

And the president sort of went out of his way not only to not notify congressional Democrats But and I realize this is petty, but I want him. I want to say this out loud. He retweeted a

Frick and dinesh disuser tweet right that basically said yeah, the reason why we didn't tell Schumer is because that would be like telling the radians

Right, I mean like you know, and so in a world and you know The historically the reason why I would have been comfortable with this kind of article to assertion of powers Because I had faith that the congressional leadership's you know notification would have allowed for them to either say yes We support this no we don't I have no faith right give him the toxicity of our current political climate that The relevant factual information is being shared with anyone who the president thinks this isn't as an opponent at this moment in time

So I want to separate the notification in role of Congress Apart from the decision making And let me talk first about you mentioned that it it all hinges on or you say it all hinges on eminent to meet to you right right

“So I take a different view. I think that actually”

Eminence is a red herring. It's very important from a policy perspective. I get that in the public diplomacy aspects I think it's legally a red herring here

I think the critical point is the claim that I think at least some of these officials are sorting and I think is actually the the plausible argument here

There is a series of existing attacks that have already occurred that provided already the predicate for action now you point out Okay, but then why not prior action? Why not you know any at any point previously? The decision asked to weather to take advantage of the potentially available legal authority That's a policy decision and there's nothing wrong with prior presidents in this president previously having decided not to go there at any point in the past I don't think that ever disables a future president from making the decision that okay at this point the policy calculus is different now

Do I have faith that Donald Trump went through some in even half a reasonable serious reasonable serious policy calculation? I'm not particularly no I doubt that very much. I have a lot of questions about What exactly was going through this person's mind that won't surprise anyone who listens to the show because I've as I said The outside earlier I've been saying for many many years now that this is a person who I don't trust to to make reasonable decisions in that respect But just looking at it from an abstract perspective of could a president reasonably and light of what may have been the facts here

Have decided that some money has ordered enough things to occur that have already caused enough Violence to occur to open the door towards a response of this kind. I think I think that was already the case. It's not a situation in which There needs to be a reasonable basis to believe there was yet another attack coming another rocket to be launched another American to be killed

“Then it would be okay as long as we thought that was gonna happen. I do think I do think that you need to believe that it's not all over and done with”

But of course it wasn't all over and done with I think it's pretty clear So I mean this this gets into a fascinating debate that was going on on Twitter between Marty Leiterman and Beck and Burr right and on a half the way and I don't I'm Gonna do adjust because like a 4,000 tweet debate But does that

Roku does your freedom of it that way Require the existence of an armed conflict between the United States and Iran? I don't think it requires one I think it gives rise to one once you decide okay, let's let's simplify the fact pattern rather than keeping it real mush Yeah, let's say that the best understand in the facts cut off everything prior to 2019 So the world begins 2019 we're there so the money begins to take an interest then obviously that's not it all hot was

It's been much more thick engagement over time Well, let's assume that all there is is what I described earlier from the Rogers report that One government decides to act through proxies provide them with sophisticated weaponry and then give them orders to begin launching those missiles Both at the host states forces and at the US forces there and that they begin doing so They don't succeed in killing Americans at first, but then they they finally with a barrage of 30 of them kill one American wound others and there's every reason to believe

First of all, I would argue that they are as a matter of state responsibly if we want to put on our international law hats

They've got state responsibility for the actions that those militia forces that they are army and directing if that's the real fact pattern

“I think that follows from Nicaragua and it follows from any other sources of international law”

I mean, that's even a hard call if those facts are accepted is true. I would argue that when one state is doing that Against the forces of another state these sorts of military kinetic engagements then I think you've actually got a state of armed conflict between them already Now both governments may choose not to publicly talk about it that way they may not take any particular actions for a variety of policy political diplomatic reasons But as a legal description what's going on

I think they've actually already got an international armed conflict between them even if that weren't the case

I certainly think that when the United States military conducts a military strike against an Iranian general

The international armed conflict models the international law of international armed conflict comes into bear eye juggams to bear it is an ixinario So I'm not sure if that's responsive to your question, but I definitely think low-acket that point governs Okay, so I guess my bottom line here is I think It is not obvious That the strike was illegal right as a matter of domestic law although then then we're gonna their there the international

Questions get much much messier because it has so much to do with our relationship with Iraq right There's there's some really naughty UN Charter you said balanced all because since right this is a strike against a Military leader of country C on the soil of country B by country a if we'd killed him in Iran right it would be a straight-up

Aviation of the white analogies. Oh, violet. No, that's not it. Oh, that was going

Well, it would be a real sorry sorry. It would be violence number on sovereignty and the question would be whether it was excused by our okay Yeah, yeah, yeah, yeah, right exactly we we replicate the entire national self-defense right type debate Only we'd be talking about it through the lens of article 51 was this or was this not a scenario where suemani wear a run We we were focused too much on suemani as an individual as if as if he's been mutton as opposed to a Manifestation of the Iranian state, but so we would be talking about whether Iran had engaged in an armed attack

Already opening the door for the United States to use force but necessary in proportion to force in response The fact that it occurs within a rock gets so tricky because what are we even doing in Iraq while we're there with Iraqi government consent But at the moment is module. Yeah, we were they're consent is modulated by a constraints on whether and how we use force within their territory It's also supposed to be Islamic state directed. So I don't claim to have an easy answer on it Exactly how you cash out the you said Bellum you and charter issues there. I do think that the underlying

National self-defense issue from article two Works out in analogous fashion involves the same sorts of questions in the same factual predicates As does the article 51 you and charter discussion

“So yeah, so but so to say I always say I think it's a close call on the article two question”

I think I think that's a closer call than you do. Yeah, no doubt I also think that the fact that like this debate is out there shows just how Problematic it is right that there's no one other than the executive branch to police the contours of article two, right? Because you know suppose that the sort of supposed that I was right and you were wrong Right, it wouldn't matter. Yeah, I was making a worse suppose the whole deal is that actually it turns out that

None of these attacks were directed by RGC now. I don't believe that no, but what if it turned out to be true and the end the White House knew it ended this anyway Yeah, we'll make it even worse, right? It's a straight-up wagged the dog right It wouldn't matter right like I mean it might matter politically, but I wouldn't I don't even matter politically because What Republican right now is going to stand up to President Trump over this? I haven't seen anyone if you if there was some sort of tape That showed that this was a straight-up wagged the dog scenario

I would argue that it would matter politically, but maybe I'm optimistic. There are lots of things I like to think what a matter of so so all right. No, so let's talk about what's happened since right because whatever one thinks of the original strike Some of what's happened since is How do I say before we leave it I want to I definitely want to go there. I before we leave where we've been I want to flag two things Because I do think that it is important for listeners to think about how they feel about this in comparison to prior examples

“I think the two probably most relevant prior examples”

1986 Operation El Dorado Canyon and the Reagan administration's Large-scale set of air strikes against the cadophi regime, which To be sure they were careful to say we weren't targeting cadophi himself However, they did they did target one of his residences and ended up killing some of his family So be careful how we parse the idea that we weren't targeting him and then and then also

Attempting to kill bin Laden and the sure council leadership of Al Qaeda, which missed

Because it took so long for the missiles to get there, but nonetheless wasn't attempt in both cases These were examples in which there was no authorization for use of military force from Congress There's no statutory foundation. These were both national self-defense, article two Air strikes conducted in ways that were arguably necessary in proportionate responses to prior attacks to killed Americans and both those cases Much more visibly attributable and much more

Much more high visibility more media covered events. These African embassy bombings, of course. We're hugely bloody and in the focus of intense attention and Relatively clear attribution pretty quickly the

1986 El Dorado Canyon raid was an immediate response to the

Libyan-Orc-straded bombin of the La Bel Disco-Tacon West Berlin the killed US service members It was also part and parcel of a larger train chain of what we today My call you know gray zone type Engagements in which Libions were engaging in all sorts of nefarious activity

“I actually think it's quite similar. I think the Libions. I think what happened here was really now just in some ways”

Except for the complexity of it taking place in Iraq instead of in Iran as we said a moment ago and And because the regular administration would have its way to say we weren't targeting Khadafi personally But actually don't I think once you're engaged in an international use of force of that Let's get on tinsity if you're otherwise Lawfully allowed to do it. I actually don't I think that because it would be an armed conflict between the two states in that context

If if who you're actually did if you decide to target Khadafi himself if he's the military commander of The Libyan forces in 1986. I think that would have been lawful And I think it was lawful here as far as the targeting of the individual as opposed to just bombing the building We're gonna kill lots of people. I mean, I mean One one point where I think you know don't disagree is in a world in which the strike as otherwise lawful is a matter of

“Article two authority right. I think you and I both agree that it doesn't contribute the assassination ban”

Yeah, right All right, so anyways, I thought that out there. It's food for thought. I mean, should anyone had thanks? No, no, it's distinguishable. I'd love to hear why I mean Iran's not Libya right and I mean that in a couple of respects right? I mean like I think you know I think the threat Iran as a country poses to the United States is to me significantly greater than the threat that Libya as a country pose to the U.S. stroke in 1986. We're not to say

I don't think I agree, but I think it's similar one of them has a nuclear program one of them doesn't You know and yet hasn't nuclear bomb let alone the missiles to deliver them here both in support terrorism Abroad I think I think they're quite similar. Okay, well, but all and now we also say and The Libya stuff was incredibly controversial and there are a whole lot of people who thought it was illegal. True. Yeah, there you go Yeah, I my goal is only to to establish an analogy. It may not be a helpful analogy

Fair enough for spite. No, so I don't think this is the first time we've had crazy shit in this context

I'm cursing lots of it all right So, okay, so it gets a little it starts then predictively then film right off the rail right so now we're at the bluster stage. Yes, so To the shock of absolutely nobody who understands anything right the strike produced immediate blowback from a whole lot of voices and a whole lot of sectors Which you know because the presence the president led him to double down And to threaten all kinds of uses of force against Iran

So let's start with his tweet Threat name that he was gonna identify 52 cultural and religious sites to target well That's not quite what he said right say the 52 sites include it may include yes cultural sites Yes, I don't think he ever said religious sites although that might or might not be Okay, but 52 sites include so 52 obviously is the number that number has meaning here. Yeah. It's based on the hostage

Right, yeah, target and cultural sites. That's cool. Yeah, so clearly you can't do that if if

“But you say you say clearly you can't do that who's gonna stop him?”

I think do you think that do you think the military commanders if Trump issues north says I want you to find some museums and some cultural sites And want you to blow them up. You think they'll just say yes, sir. I don't think so I've seen no evidence. It's just that they won't What's your evidence? I turn that back on you. That's for evidence that they would I think that the burden is on so many claims in military would obey a plainly illegal order to show me some reason to think that the military would say

Yeah, sure. No problem. I just I worry about that. I just I don't know. It's good to be worried for sure But I'm I'm very doubtful. All right, so we have Trump threatening war crimes, right? And so we agree right target and cultural sites is a war crime. Yeah, it's so there is no question That the principal distinction prohibits attacks on civilian objects and the only exception that is when they're being put to you

Right, but just destroying them. He's having a destroy museum. Yeah, now there's there's there's a further layer there. There's a view that says that

cultural Installation that are civilian objects that also have a further layer special cultural relevance May even get further protection. You don't need to have any debate about that. Okay, you can't attack civilians Try not being put the two exactly because I think it's somewhere in the tune when I said what he's okay. Good. Yeah, so the tweet says Bob Bob bless their bless their bless their let the service of one of the ferron strikes any Americans or American assets

We have targeted as we've already targeted like we know where they are right. Got a list 52 Iranian sites

“Reptima hostages some at a very high level and important to Iran and the Iranian culture, right?”

So so I think he's saying like the list of 52 includes cultural. I agree I agree that he's he's you're

I think I said maybe right and I want to go back. Yeah, you know, he clearly was saying that we will attack

Something that will include now he's he's obviously we don't want to fall into the trap of responding to all his bluster because he does bluster But it's a real risk that he might issue in order to attack civilian objects and I don't think the most right would comply with that So really don't here's my here's my concern right my concern is it would be I wouldn't have been a swaged if Anyone from his administration to up and said obviously the president didn't mean that right

Obviously the president knows that you can only attack military's harvest blah blah blah blah blah And instead you've got people like Pompeo go on the sun they show them same. Oh, that's not what you said Right like like literally say he said something else as opposed to if he said that I would stop it

I'm not familiar with what was how they tried to walk back this statement, but to your point if they were out there

Trying to walk back to the statement that's a sign didn't in fact even they who otherwise are real had to try to pursue this course of action in general Recognized why I'm not a place why about what he said is better than I actually say what he said was wrong I that's not what I said I know as well I said all right, okay, so so step one was president truck Threatening the attack cultural sites step two. This was the best two to the mall was the the the These media post will serve as notification to the commerce and that should erong strike any U.S. person or target

The U.S. will quickly and fully strike back and perhaps it a disproportionate manner Okay, so we agree I assume that disproportionate uses of military force are a mothl Yeah, I think that it'd be hard to construct if you're just going to use a few words Yeah, if you said on an exam like hey Using like four words the two easy issue in a mothl order right conduct a disproportionate strike

I guess of course again, I want to stick and be faithful to my own rule of not playing too much into Trump's hands when he's Blustering and BSing and doing these you know these bombastic statements Right and assume that that means therefore he's going to issue in order later. That's gonna be okay I purposely direct you to engage in disproportionate response. I agree, but it is too We are too far into this nonsense of an administration to have the whole like don't take anything he says literally

I'm I'm not saying I know you're not but there are people out there who are there people out there who say you can't ever take anything He says literally and therefore everything he says is fine right completely disagreed that what he says really matters

“This matters and that's why we're going to talk about it”

There's no doubt that whether he's referring to you sad bellum proportionality that is to say That the response to an armed attack in self defense will be a disproportionate response or whether he means You send below proportionality that is to say we're gonna intentionally kill more civilians than the then would be warranted under the principal proportionality Whether he means article two proportionality. There's proportionality and several different relevant frameworks by definition

If it's disproportionate then you you've caught your being the framework whoops and again I don't think that if he somehow could articulate a way of yes if he said like you know I want a disproportionate response what he would get would be a response. There would be a way to respond But it would not be an obviously war crime response Do you think do these just kind of go out there and say okay? He wants the principal distinction violated

Let's do it. He wants principal there's all the violated let's do it. I'm trying to remember I'm trying to remember there is a whole Western episode

“I think it's in the first season. It's like one of the early episodes called proportional response”

Or there's a whole like where like there's like what are the virtues of proportional response that I was like? It's the law. I'm gonna see that. I will say this though We don't want to fetishize the idea of proportionality in the sense of making it sound like it's a mathematical calculation And thereby running the risk of making people think that there's any kind of formula can be brought to bear here

both on the article two and add Bellum proportionality and and to a maybe a lesser extent

“But nonetheless a disturbingly real extent on the collateral damage proportionality fronts”

The question of exactly what's proportional has lots of room for district movement. Absolutely. But but we're always saying it's gonna be disproportionate

No, I know, right um two of the two two one small point and one big one right to sort of wrap this up So um third there were a bunch of reports yesterday that seem to have been sufficiently corroborated to now actually take seriously that Customs and border protection has been ramping up its detention of Iranian Americans trying to enter the United States, um, it's early right CBP denies that there's any policy change going on

That there's been any shift in how they approach, you know, arrive in we're not talking about people with no connection We're talking about people who are living in the United States Who are we talking about Americans citizens? So also some citizenship there are reports of both

There are reports of dual citizens there are reports of green card holders and there are reports of other lawful

But non-permanent residents. Okay people have the right to be in the United States Or is it so I don't know this news story. Yeah, are they saying that people are being held in custody or people being questioned So they're being detained for up to seven or eight hours and questions. It's not clear that anyone's being held beyond that Right, but that they're being subjected to a aggressive question name about their politics and their Networks and all kinds of items now. I say these are just you know a couple of scattershot media reports

There's a press release from an immigrant's rights groups in the Pacific Northwest, but if this is true Right, and I stress the F right. That's a rather alarming escalation And I just I mean, it it hard comes back to the very beginning of the travel ban right where there was this knee-jerk reaction Where the original policy was so On nuance that it swept up all these folks who had like clear due process rights to enter the United States

Like we're talking about someone who's got who's an Iranian citizen. Yeah

“Who's coming into the United States from wherever? Who's returning to the United States retired?”

We're talking about the claim is only for people who were here already. Okay, but okay, so it's hypothesized some individual who is an Iranian citizen He's just got student visa goes back to Iran comes back I certainly don't think it's crazy in the midst of where We absolutely can't and should expect the Iranians to be looking for some way to respond to the killing of their

Arguably second most important government official

For there to be enhanced screening if there's some so this is I mean this was back to one of the longest debates in our field Right, which is individualized suspicion versus mass suspicion, right and you know I would hope Fervently that any any additional screening right is based on facts beyond their their their national origin Right that that that there's at least some reason why you believe that someone who say someone's belonging to you I mean one of the reports is is a a writer who's living in the U.S. for 35 years

Right like some reason why all this sudden you think that they warrant additional process beyond the fact that they are You know, they were born and are on quickly clearly that we sound like both a Problemag and in stupid way to devote scarce borders. That's never stopped us before But but I can't say that the idea that in this context, you can't say all right We need special focus on the right people who have ties to Iran of any kind including people who are not Iranian citizens

But spend a lot of time over there for whatever reason I think it makes perfect sense for there to be some sort of leveling up of Screwed me in there was I for me at all rises and falls on whether there's some individualized reason why this person is more suspicious Could can we have it both ways in the following sense that there's in general a decision to focus on Iran as a target set in this sense And then within that general leveling up to exercise Sound individualized suspicion to determine just how long and probing the question needs going to be and indeed isn't that probably?

Possibly at least what's actually going on here. That sounds reasonable to me, but the idea to you can't say all right We have a special concern with the ran right now

“I think that can't be right. That's not that's how I'm saying it right. I think you're an interesting needs to be individualized”

But I think that I think that it's not just a binary Yeah, but I So I say you have more faith in CBP than I do I don't I don't think it's fair I don't think that's fair because I don't have a lot of faith in CBP necessarily. I have none so Well, okay, well, that is fair

That's not my definition but I think that the fact that there may be and across the board directive Let's imagine they reveal tomorrow. They already CBP positioned it directive by the way by the way if they reveal that tomorrow The music will have lied yesterday. Oh, is it right today? They denied there's any they denied that there's any the denied They're not anything was going on at all Well, that actually sounds almost incompetent because in fact I would argue they should be paying special attention to people with ties to a ran right now

It seems like that it says you know everyone stick on like you know we're not nothing radical has changed

Which is reasonable this is a dangerous time and we're right yeah consistent with the travel alert that the state department issued right the other day for Yeah, like we're real concerned about her in right now We're being careful, but we're not doing anything that's in one. It said their response was nope. Nope. No, no See here. I agree to that ridiculous All right, the last thing is just the the policy implications because we've really we've we patterned the ground the legal issues

Right, and I do think that we should talk about why you and I both have the reaction that legal issues aside right. This is

“Trouble him as a policy matter. Well, I think I think you'd be crazy to deny that this is”

Super high stakes in high risk. I suspect you and I made disagree on whether at the end of the day. This was unwarranted

What do you think I'm assuming that you think it was a terrible idea

But are you open to the possibility didn't in fact know there was this is so many Keeps getting American blood in his hands and at some point we had this we had to do something that would be effective Just but you I mean you said before something very important right that that it's important Understand the strike against solid money. It's not against the strike against the person But is the strike against someone who was a senior favorite or four right wrong that isn't a tack on a run and so the question is

What won't their net won't there be another salimony right? And so so I like like how to this is one guy who poses a unique threat Versus this we're attacking this guy in his official capacity right? I think there there's no question obviously. He's already got his replacement um I do think salimony to some extent was unique due to the tenure and

Charismatic elements of his leadership and the length of it and the extent to which he was I really did think he was almost uniquely powerful in this respect

It won't be quite the same as before, but it's this is an institution It's not like these ties and capabilities and totally but this goes to put this goes to my view of the optics right and of the and of the policy because It seems to me that there's no scenario in which Iran won't respond right and that and that the question that becomes like What does that response look like and how do we respond in turn right and I have so little fifth at the moment in the leadership of the executive branch to not

“Take any action by Iran right even what even what we might think of as a proportional response right?”

And react aggressive lawfully or not react at to the to the fullest extent that the law would allow them if not beyond that I think it's very likely that it look I think it's not clear that Iran will react quickly I think the actual tools available to it to react in a way That they feel they can control the escalations prior all they have to be very concerned about this as much as we do Probably more than we do. I don't think it's obvious how they respond

If I but doing it on the top of this that they'll respond I think they are going to feel tremendous pressure to be seen if you're responding because the level of provocation was was so strong But what let's let's play it out so and and and and and because there's a bit of an in your face Them going like I mean right, but but again, so so what would be enough to respond to the pressure They may feel to be seen to be punching back. So let's say they decided all right

We're gonna have our proxies there set up some ideas. We're gonna kill a X number of Americans in In a rock it's clear We are going to then respond militarily again right and in a larger scale right and it becomes a classic question If he's got escalation dominance here, so so let's say that they do that We respond we don't strike 52 cultural targets, but let's say there's one big air strike that destroys

An IRGC headquarters building in kills a bunch of people inside of it inside around this time So then they've got to respond again It's not obvious that they just keep leveling up every time we level up too It's not clear actually who's got the escalation. I think but that and that's part of why I don't think it's a possible to know now Right whether this was a good idea right but clearly we know that time will tell it could be

We need to be able to the possibility it could be that it turns out this was a significant deterrent below to them Is this causes them to pull back to some extent on their attack on Americans? So if I said to say I am far more if I had to put money down Right, I think it's far more likely that that more Americans will die Right and response to this then then then then then perhaps had this not happened

“I think it's really hard to know. I think it's certainly possible. It's also important to build in that calculus though”

How how many go on the tab if there'd been no action and they continued to provoke and not get this sharp a pushback But there's also I mean it is and so far as some of that conflict is asymmetric there's also the question of like you know It's not just escalation dominance, right? It's also like moral dominance, right and moral superiority

The the other piece of this and I think this is any any analysis of the of the policy ramifications of the strike

Is going to have to depend upon what this does if anything right to our footprint in rock Right, so so the Iraqi parliament what voted yesterday right to in a non-binding resolution to expel the US military to otherwise cut-off acts at you know blah blah Things that don't actually have a direct immediate impact, but that will put a fair amount of pressure on the Iraqi government to perhaps not go all the way But at least try to reach some kind of

Little quite if they're doing something to mitigate the footprint right to sort of push back against the US a little bit

“But I think there's no doubt that if the end result of this is they actually do”

Force the withdrawal of US forces or even this have net or even the substantial downsize in you know

We've got the we're talking about 5,000 acknowledged forces here many of him were there engaged in training and supportive The array of the Iraqi military it matters. I'm not sure how big a blow it is if there's some sort of face saving negotiation Where some number of them now's like 3,000 Exactly, I don't know how much that matters, especially if what remains is the special operations capability that I I have the impression is based out of the Kurdish region in the north anyways who by the way

May well stay no matter what the Iraqi parliament or the Iraqi Prime Minister say it's entirely possible that the Relative independence of the Kurds in that area and the relative emphasis of US special operations capability if they're that that all sort of remain Nothing else don't you know that there's only further complicates right the political situation in rock

“No doubt about it. No in a way that favors Iran right and that and that and so I think that to me is my bottom line”

Right is that is that when all of a sudden done I think that the the the the most Predictable consequences of this strike to me come out good for Iran and bad for us I think that's probably right and I think that there's none negligible chances it goes the other way. Yeah, you know All right, I've no doubt that we're gonna have more to talk about because I do think that there's this is gonna be a theme in 2020 We're gonna be on this topic a lot as the story develops

So depressing thanks for listening and it will be back next week I suspect we'll have something new to talk about on the we have the quantum anniversary coming up this Saturday Go on to anniversary quanton anniversary one time. I was about to be old enough Bobby to be sent to Guantanamo Oh, I think that actually that line actually was crossed. Well back and not violate that could mention on the right to the child All right guys topic to talk about he's that Bobby Chesdi MS even a score a lot if we were an NSL podcast

Stay safe out there by everybody. I'll be us The law fair podcast is produced in cooperation with the Brookings Institution and this week It's produced in cooperation with the National Security Law podcast and therefore the University of Texas Law School and the Strauss Center at the University of Texas thanks to Bobby and Steve for letting us use the audio

We are interested in your feedback on this is this a good cross-posting Situation should we be doing more of this getting the National Security Law podcast discussion into the law fair podcast feed

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Hadley Baker our music is as ever performed by Sophia Yan and as always thanks for listening