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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. US officials are

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Speaker 1: bracing for Ran to respond to the killing of its

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Speaker 1: most powerful general, and today Secretary of State Mike Pompeio

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Speaker 1: defended the strike against Cassam Solomany ordered by President Trump,

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Speaker 1: saying there were multiple pieces of information that led to

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Speaker 1: the action. It's the right decision. We got it right.

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Speaker 1: The Department Events did excellent work, uh and the President

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Speaker 1: had a entirely legal, appropriate and a basis, as well

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Speaker 1: as a decision that fits perfectly within our strategy and

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Speaker 1: how to counter the threat of malign activity from Iran.

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Speaker 1: More broadly, But was Trump's strike against Solomany legal? The

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Speaker 1: opinions run a gamut. Joining me as Professor Karen Greenberg

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Speaker 1: a historian and director of the Center for National Security

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Speaker 1: at Fordham Law School. She's the author of Road Justice,

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Speaker 1: The Making of a Security State. So Karen, let's start

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Speaker 1: with US law. Is there any law regarding this type

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Speaker 1: of military strike. There's a lot of policy that, you know,

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Speaker 1: in order to get around it, you have to have

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Speaker 1: very very good reasons, you know. That would be the

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Speaker 1: more accurate way of describing it. That all the law

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Speaker 1: has been recommended in this regard in terms of assassination.

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Speaker 1: As a country, we didn't decide to go down that route. Instead,

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Speaker 1: what we've done is to rely on presidential executive orders

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Speaker 1: that have been renewed president after president, often expanded in

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Speaker 1: their scope, but basically political assassination for many reasons, many

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Speaker 1: of them protective of national security for the United States

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Speaker 1: has been banned under U S policy. So this is

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Speaker 1: a step in a new direction. Well, the White House

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Speaker 1: is not calling this an assassination. The White House is

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Speaker 1: calling it a targeted killing. What's the distinction, Well, it

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Speaker 1: depends on who you talk to. Obviously, some people would

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Speaker 1: say it's just a euphemistic distinction. But one thing you

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Speaker 1: can say about the targeted killing policy is that it

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Speaker 1: did lay out in an attempt to move away from

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Speaker 1: the ban on assassinations. It did attempt to have certain

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Speaker 1: guidelines by which the administration and military, et cetera would

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Speaker 1: conduct its strikes. Among those were that there had to

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Speaker 1: be an imit an attack, that it had to be

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Speaker 1: done in a way that was responsible in terms of proportionality,

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Speaker 1: a lot of things that were in accordance with international law.

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Speaker 1: So many of us would say that there isn't a distinction,

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Speaker 1: that we were really putting a patina on something. Also

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Speaker 1: was very interesting here in terms of the way the

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Speaker 1: Trump administration is describing it. Is there invoking of terrorism

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Speaker 1: that General Sulimani was a terrorist, a member of could

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Speaker 1: see Irunian Revolutionary Guard and they are have been put

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Speaker 1: on a terrorist list here, and so that puts us

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Speaker 1: again into a gray area. What is the distinction between

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Speaker 1: somebody who's acting within a sovereign state and somebody who

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Speaker 1: is said to be on a terrorist list, And so

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Speaker 1: again it's the confusion of legal authorities. The targeted killing

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Speaker 1: policy was very much designed in the context of war

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Speaker 1: on terror war on terrorism policies UM and this no

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Speaker 1: matter how you describe it, even if Clamony is understood

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Speaker 1: to be the terrorist that they're describing him to be,

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Speaker 1: and make no mistake about it, this is a man

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Speaker 1: who declared himself an enemy of the United States, who

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Speaker 1: wanted UM to conduct violence and inspire others to do

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Speaker 1: violence against the United States, and has a past of

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Speaker 1: violence against the United States. Nevertheless, the confusion of category

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Speaker 1: state non state actor up the States tremendously in terms

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Speaker 1: of what we can expect to come now because in

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Speaker 1: terms of next steps, who's going to retaliate? Is there

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Speaker 1: going to be a retaliation and what will that mean?

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Speaker 1: And further is and I know we started talking about

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Speaker 1: domestic law, but further if we tossed international conventions to

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Speaker 1: the wind, what does that mean in terms of other

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Speaker 1: countries and the restraints we can expect other countries to

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Speaker 1: place upon themselves. So we're in what I would consider

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Speaker 1: to be dangerous territory. We saw the use of targeted

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Speaker 1: killings or the term targeted killings in the Bush and

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Speaker 1: Obama administrations. Is President Trump just following his predecessors or

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Speaker 1: is the fact that Soleymany was an active general. Does

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Speaker 1: that make a difference. I think it makes a difference.

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Speaker 1: I think the Obama people would say it makes a difference.

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Speaker 1: Many of them have weighed in on this. And remember

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Speaker 1: the the Obama administration knew of solomany thought about whether

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Speaker 1: or not a targeted attack. Officials have told us since

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Speaker 1: I thought about whether an attack would have been wise

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Speaker 1: and decided it was not wise for the very reasons

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Speaker 1: of what we're seeing now, which is the escalation of

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Speaker 1: potential violence the approach to war. So while the term

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Speaker 1: may have been used, the consequences that were considered by

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Speaker 1: the predecessors of Trump look like they could be quite

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Speaker 1: worrying and endangerous. President Trump has been saying that the

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Speaker 1: strike was because of an imminent threat. Is there a

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Speaker 1: legal definition of what that consists of or is it

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Speaker 1: more political? I wouldn't say political is the word for it.

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Speaker 1: I would say a better word for what it is

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Speaker 1: is strategic, in the sense that imminence is considered, you know,

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Speaker 1: if you look it up in the dictionary, immanence is

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Speaker 1: considered something that is just about to happen. That is

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Speaker 1: the standard customary use of the term. Outside of the

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Speaker 1: legal terms and inside international law, it's been used to

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Speaker 1: mean that something that's about to happen. We actually don't

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Speaker 1: know if this was something that was about to happen,

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Speaker 1: and we may find out later this week when Congress

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Speaker 1: is brief and if they're briefed and we find you know,

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Speaker 1: X y Z was planned. This is the information we

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Speaker 1: have that may be the case. So far, we haven't

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Speaker 1: seen any credible evidence of that. There have been some

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Speaker 1: reporters who are saying that officials have told them that

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Speaker 1: there wasn't an imminent attack under Obama, and this is

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Speaker 1: something the Obama administration has received much criticism for. The

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Speaker 1: term imminent was used, particularly in one legal justification for

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Speaker 1: the killing of an American citizen who was the chief

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Speaker 1: spokesperson and online recruiter for al Qaeda. It was used

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Speaker 1: in a very broadway, well outside accepted understanding of it

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Speaker 1: under international law. Basically, the premise was, this is an

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Speaker 1: individual who means us harm, who's affiliated with terrorists organization

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Speaker 1: that has declared an enemy of us, and we are

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Speaker 1: in a war with them, and he may do disastrous

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Speaker 1: things to the United States in the future, and so

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Speaker 1: imminence was in the future rather than a specific plan,

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Speaker 1: a specific target, a specific time period. And so we

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Speaker 1: don't know whether there are a lot of assumptions about it,

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Speaker 1: but we really don't know and won't know until evidence

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Speaker 1: is presented, whether or not there was an imminent attack

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Speaker 1: of this nature. And there's a lot of doubt about

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Speaker 1: whether there was one. I've been talking about the legal

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Speaker 1: implications of the military strike against Iran's top general with

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Speaker 1: Professor Karen Greenberg, director of the Center on National Security

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Speaker 1: at Fordham Law School. Karen, let's turn to the Authorization

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Speaker 1: for Use of Military Force or a u m F.

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Speaker 1: How Speaker Nancy Pelosi and other Democrats have complained that

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Speaker 1: the Trump administration didn't consult with Congress before the strike.

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Speaker 1: What's the proper way for this to have proceeded. If

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Speaker 1: it was an imminent attack, then the president has the

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Speaker 1: right as commander in chief to launch an attack that

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Speaker 1: would be harmful to the country that is imminent, and

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Speaker 1: he has to report to Congress. And I think at

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Speaker 1: the forty eight hour period, it on what's happened. Barring

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Speaker 1: it being that pressing, he is supposed to consult with

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Speaker 1: Congress ahead of time, so there is some you know,

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Speaker 1: wiggle room there, but he does need to report to them,

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Speaker 1: and for the most part, the understanding is reporting would

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Speaker 1: have been done ahead of time, and now we're hearing

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Speaker 1: that he did consult individuals about this. But the question

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Speaker 1: you're raising about the authorization for the use of military

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Speaker 1: force is is much larger than anything about reporting because

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Speaker 1: that is not dealt with in the a u m F.

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Speaker 1: The issue about the au m F, which was passed

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Speaker 1: in the fall of two thousand and one in response

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Speaker 1: to the attacks of September eleventh, two thousand and one,

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Speaker 1: is that the a O m F has been reinterpreted

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Speaker 1: over and over again by successive administrations to encompass larger

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Speaker 1: and larger territories and new terrorist groups, and it's come

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Speaker 1: to the point where it's almost as if the word

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Speaker 1: terrorists can be used to justify the use of the

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Speaker 1: Authorization for the Use of Military Force, whether or not

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Speaker 1: it is attached to nine eleven or Al Qaeda, which

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Speaker 1: is the original intent of the Authorization for the Use

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Speaker 1: of Military Force, and it has changed over time, partly

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Speaker 1: because of policy, partly because of some legal decisions that

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Speaker 1: were made to spread to associated forces with al Qaeda. Nevertheless,

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Speaker 1: this would not be in that category, and so many

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Speaker 1: times Congress has brought up the idea of rethinking the

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Speaker 1: Authorization for the Use of Military Force, getting a new

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Speaker 1: one that is adaptive to today's current circumstances that would

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Speaker 1: either constrain or allow. We don't know the kind of

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Speaker 1: targeted killing strikes that we've seen in Yemen, Somalia, et cetera.

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Speaker 1: But that has not happened. They've shied away from it,

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Speaker 1: almost as if to say it's better to have a broad,

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Speaker 1: untethered policy than to nail them down. And it's important

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Speaker 1: to remember in this context the George Bush in two

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Speaker 1: thousand and three, when we switch the focus of our

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Speaker 1: military from Afghanistan to Iraq, went to Congress and got

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Speaker 1: an authorization for the use of military force for Iraq.

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Speaker 1: So the idea that each theater, each conflict needs its

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Speaker 1: own authorization is not something that hasn't been done even

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Speaker 1: since nine eleven. So it's something that Congress has been

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Speaker 1: just allowing to continue, not wanting to confront. It is

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Speaker 1: going to be a messy confrontation and a messy debate,

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Speaker 1: and now we say where we are. President Trump has

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Speaker 1: been governing in part by tweet, and he appears to

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Speaker 1: want to continue that with military actions. He sent a

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Speaker 1: message on Twitter on Sunday claiming he had no legal

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Speaker 1: duty to inform lawmakers. He said, quote, these media posts

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Speaker 1: will serve as notification to the United States Congress that

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Speaker 1: should have ran strike any US person or target, the

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Speaker 1: United States will quickly and fully strike back. Is this

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Speaker 1: notification enough? Is a tweet notification? And no, this is

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Speaker 1: our president's way of saying, I determine the law. The

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Speaker 1: law does not determine me and my actions. You know,

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Speaker 1: it's almost incomprehensible that he would say such a thing,

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Speaker 1: but he did. And it shows his general attitude towards

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Speaker 1: not just the courts, not just the law, but the

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Speaker 1: courts towards judges as we've seen, which is he's going

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Speaker 1: to do what he wants and go ahead, stop him.

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Speaker 1: And this is why it's up to Congress, it's up

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Speaker 1: to the American people to make this a priority and

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Speaker 1: to demand that the laws and the rules that are

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Speaker 1: in effect do pertain even in cases of national security.

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Speaker 1: And and many would argue along with me, especially in

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Speaker 1: cases of national security where we have to trust our officials.

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Speaker 1: And in this case, we found time and time again

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Speaker 1: that we don't aren't showing the evidence, we don't know

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Speaker 1: what's going on. And there for the pushing aside of

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Speaker 1: the law is just allowing for a transformation of the

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Speaker 1: presidency and of the balance of powers that really does

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Speaker 1: undermine the fundamental principles of our governing mechanisms. There is

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Speaker 1: confusion about the president's threat to target Iranian cultural sites.

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Speaker 1: He made that threat in a tweet and it has

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Speaker 1: since been walked back by the Defense Secretary. So let's

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Speaker 1: start with is it against international law to destroy an

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Speaker 1: Iranian cultural site? Yes, so, under the Hate Convention, which

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Speaker 1: was from four warring parties are not allowed to destroy

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Speaker 1: one another's cultural sites. There's also some responsibility placed upon

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Speaker 1: the country itself that's under attack or that's worrying about

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Speaker 1: his sites, to not put things in harm's way, to

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Speaker 1: reduce things from times way. And we saw a lot

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Speaker 1: of that prior to the Hate Convention, actually during World

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Speaker 1: War Two, a lot of hiding of things and protecting

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Speaker 1: cultural artifacts. But yes, it is against international law. There

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Speaker 1: are also references to it in the Geneva Conventions. The

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Speaker 1: United States ratified this treaty late, I might say, in

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Speaker 1: two thousand and nine, although it had been proposed earlier,

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Speaker 1: and although the military, the Joint Chiefs I believe, had

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Speaker 1: supported it much earlier on. But yes, it is considered

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Speaker 1: actually it's considered part of the attack on civilians to

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Speaker 1: attack cultural icons of a country. We've seen it violated

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Speaker 1: by ISIS repeatedly with much condemnation from the world at large,

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Speaker 1: and now the idea that the United States would threaten this,

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Speaker 1: I think has really made a number of individuals, including

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Speaker 1: individuals in the military both you know, the Chairman of

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Speaker 1: the Joint Chiefs of Staff and others, to say, wait

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Speaker 1: a minute, we're going to do this according to law,

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Speaker 1: and that would not be according to law. But the

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Speaker 1: threat itself is of some significance. And while the act

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Speaker 1: is forbidden, you know, the threat itself is a threshold

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Speaker 1: moment because it basically conveys to ings. One again, we're

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Speaker 1: not going to be beholden the international law, and two,

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Speaker 1: we're willing to do or we will do things that

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Speaker 1: are symbolic, not just um strategically effective in order to

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Speaker 1: introduce a level of almost humiliation into this conversation. And

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Speaker 1: so it's wrong on many levels, moral, legal, political, and

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Speaker 1: not a good sign of where we're headed. What else

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Speaker 1: can Congress do to sort of reign in a president's

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Speaker 1: military actions. For one thing, they could pass a very

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Speaker 1: specific authorization for the use of military force, repeal the

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Speaker 1: old one and pass a new one, which will be

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Speaker 1: hard in this context because we're facing so many different

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Speaker 1: potential enemies all at the same time, whether it's Iran

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Speaker 1: or North Korea or others. And so you know, there'll

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Speaker 1: be a lot of debate about how broad broadly it

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Speaker 1: can be UM. You know, determined world be geographically limited,

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Speaker 1: will be UM w M D related. You know what

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Speaker 1: exactly how are they going to word a new A

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Speaker 1: O M S UM. But that is one thing they

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Speaker 1: can do in particular. UM. A second thing is they

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Speaker 1: could UM probably I would argue they need to go

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Speaker 1: forward with this impeachment trial when it's ready UM, because

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Speaker 1: a lot of this problem, the problem is our president

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Speaker 1: and UM, the unwillingness for him to abide by custom.

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Speaker 1: And then when the dust settles and we have a

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Speaker 1: little bit of space and time, when we get there,

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Speaker 1: then we really need to think about larger ways of

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Speaker 1: UM passing legislation to contain UM what the president cannon

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Speaker 1: can't do without Congressional approval UM and so UM. There

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Speaker 1: will be a number of of legislative moments I think

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Speaker 1: in the future, but for right now, one clear focus,

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Speaker 1: something that Congress has been thinking about for a long time,

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Speaker 1: would be to UM look at the authorization producer Military fourth.

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Speaker 1: Thanks Karen, that's Karen Greenberg of Fordham Law School. Thanks

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Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe

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Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and

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Speaker 1: on bloomberg dot com slash podcast. I'm June Grosso. This

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Speaker 1: is Bloomberg