U.S. Air Strikes in Iraq Begin

Jack Goldsmith
Friday, August 8, 2014, 9:44 AM
The Pentagon tweets that the U.S. military has begun airstrikes against Islamic State (IS) positions in Iraq.  Precisely, force has been deployed against IS artillery that was used “against Kurdish forces defending Erbil, near US personnel.”  I have not yet seen a clear explanation of the domestic legal basis for the strikes, but the mention of “U.S.

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The Pentagon tweets that the U.S. military has begun airstrikes against Islamic State (IS) positions in Iraq.  Precisely, force has been deployed against IS artillery that was used “against Kurdish forces defending Erbil, near US personnel.”  I have not yet seen a clear explanation of the domestic legal basis for the strikes, but the mention of “U.S. personnel” suggests (as I speculated yesterday) a self-defense rationale, at least in part.  (Apparently the government of Iraq has consented to the strikes, which satisfies the relevant international law jus ad bellum requirements.)  As the WSJ notes, Congress generally supports the strikes.  That means that, for now, few will worry about the legal basis.  If anything, the pressure from Congress appears to be for the President to do more, not less, to degrade ISIS.  As long as this remains the case, the President can deploy U.S. military force against IS without domestic political/legal consequence or controversy, especially as long as the fire comes from a distance and from drones and nothing major goes wrong. Many stories this morning (e.g. here) note that the strikes in Iraq are a policy reversal for President Obama.  The President clearly wants to keep the use of American force in Iraq to a minimum.   The problem (well, one problem) is that the self-defense and humanitarian and strategic rationales for strikes against IS apply more broadly than these initial strikes.  (This WP story is a good summary.)  The administration will be pushed to explain why it should attack IS here and now and not elsewhere at another time.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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