Soleimani’s killing shows US police and military power can’t be separated
Was US President Donald Trump's order to kill Iranian military commander Qassem Soleimani by drone strike justifiable? Trump's surrogates have argued that the drone strike represented an appropriate response to a credible and imminent threat. Critics point out that Soleimani was an administrator, not an operator; that evidence for an imminent threat has not been produced and may be fictional; and that the United States had plenty of other tools to address the issue. Implicit in both positions is a long-standing argument about drone strikes made by proponents and detractors: They exceed the law because they are a response to an ongoing emergency.
Yet drone strikes are no longer exceptions but a normalized part of American power. To grasp the assassination's relationship to law, it may be better to think about it in light of recent police killings in the United States—as an exemplary instance of police power. The strike represents the ordinary activity of police taken to a geopolitical scale.
The defining feature of policing is discretion. Police decide when and how to intervene in various situations on the spot, often in a split-second decision. Sometimes discretion means choosing to issue a warning. Often it means citation or arrest. Occasionally it means pulling the trigger. Theorists of policing consider discretion inevitable because police encounter such varied, surprising, and confusing situations on a daily basis.
For police, discretion is the possibility of avoiding being bound by law in the act of enforcing the law. Exceeding, circumventing, or breaking rules that apply to regular people as a given situation warrants it is the essence of what patrol officers do. Police are authorized to answer exigencies with coercion. This makes policing an executive form of power, guided by officers' ability to identify and manage threats. The law needs police to enforce it, but police do not need the law to offer them detailed guidelines as they do so. When police kill, oversight occurs after the fact. Investigators assess whether officers have adhered to a patchwork of internal protocols. These are designed according to loose boundaries set in Supreme Court decisions that authorize but never define discretion.
Organizationally, the bureaucracy of policing is distinctive. At the top of the hierarchy are chiefs, pressed to lower crime rates and foster good community relations by mayors, city councils, and voters. In the middle are the commanding officers who decide where and how to deploy resources to achieve these goals. They typically have some flexibility. Down at the bottom are patrol officers, who decide on a minute-to-minute basis how to maintain social order. They have the greatest discretion, chiefs the least. Discretion increases as you descend the chain of command.
The military is the reverse organizationally, with discretion increasing as you ascend the chain of command. Soldiers and drone operators typically operate under strict guidelines called rules of engagement, which US police lack. Commanding officers make tactical decisions about where and when engagement should occur. Up the ladder of rank, military leaders develop strategy, planning for the long term. Many decisions are left to their expertise, informed by intelligence. At the top is an echelon of civilians, including the National Security Council, the secretary of defense, and, of course, the president. The executive maintains the greatest discretion to steer US global strategy.
Soleimani's killing illustrates how military power and police power have converged in contemporary US security operations. Under the claim that a threat was imminent—which seasoned observers recognized as flimsy, if not completely false—Trump acted unilaterally, with extreme prejudice. Although the president did not literally pull the trigger, the drone operator who did had no discretion. That operator could not have let Soleimani off with a warning. Only Trump has that executive ability.
The drone strike illustrates how the United States has globalized its police beat. The underlying assumption is that US leaders are rightful arbiters of what Theodore Roosevelt once called "chronic wrongdoing" requiring an international police power. A drone's reach facilitates this evaluation. Even as claims of imminent threat swirled, Soleimani's long biography factored in as well. The killing may have been ugly, but, as the press loves to say of the dead, he was no angel anyway.
Reports have indicated that this assassination was the most severe on a menu of options given to the president for dealing with turmoil or chronic wrongdoing in the region. After exhibiting what hard-liners like Secretary of State Mike Pompeo considered undue restraint in prior confrontations with Iran, Trump chose the opposite. Given this discretionary decision, it was up to Trump's surrogates to craft the legal reasoning in the hours and days after the killing and to notify Congress.
This reasoning is becoming circular. Presidents enjoy broad prerogative on national security, and the killing proves it. But not killing Soleimani would also prove it. Whether justified under constitutional authority (Article II, as clarified by the War Powers Resolution) or statutory authority (George W. Bush-era Authorizations for Use of Military Force, or AUMFs), the claim of imminent threat came ex post facto, once lawyers worried it was needed. Notifying Congress turns the killing into an act of war, but the fact that the administration had no intention of informing Congress in advance suggests that it saw the killing as a routine discretionary act, not an example of war power but of police power.
Trump is not inventing something new here. The era of drone strikes that President Barack Obama inaugurated differs in a crucial way from what immediately preceded it, even as a single legislative architecture underwrites both via the AUMFs. For Bush, stopping an imminent threat, "a ticking time bomb," was the reliable justification for torture.
Today, imminent threats summon a different response. Instead of capture and interrogation, targeted killing is often preferable. Soleimani's killing is the first of a government official, however. By virtue of his position in a complex bureaucracy, Soleimani's death would be unlikely to halt any attack plans already in the works.
Trump's critics argue the killing may increase security threats. The legal reasoning Obama's Justice Department developed to justify drone strikes recognizes this possibility by invoking policing. A 2011 white paper notes that speed limits do not apply to a police officer trying to catch a fleeing criminal. An officer may violate the law to enforce it. The threat to safety posed by speeding inherently ranks lower than the threat posed by a criminal, as evidenced by the extreme measures the officer employs to try to catch him.
It is always difficult to determine after a targeted killing whether a threat actually was imminent. In this case, supporting evidence acquired by intelligence agencies is unlikely to become public, nor will skeptics believe it anyway. Strong intelligence could help Trump's case that he did nothing illegal, but he is unlikely to face any legal challenges precisely because the national security rubric affords him such wide latitude.
This is also reminiscent of policing. Police executives use the phrase "good shooting" when officers who have killed someone claim that their lives were endangered. A constraint on using such force would be unreasonable because of the threat the victim posed, as the 2011 white paper acknowledges. When police kill, courts have determined that the test of whether it was justified is if, in the moment, officers' actions were "objectively reasonable." One way to interpret this finding is that anyone in a similar situation with a similar set of training and skills would also feel an imminent threat.
The problem is that only police are endowed with what the sociologist Egon Bittner defined as the right to "coerce a provisional solution upon emergent problems without having to brook or defer to opposition of any kind." Police discretion actually operates within a limited scope: kill, jail, or control, as one former Los Angeles Police Department deputy chief declared while stationed in Saigon in 1964, globalizing US police power. Even if it had been objectively reasonable for an officer to shoot Michael Brown or Tamir Rice in the moment, the other available options were also coercive. The outcome of the situation was predetermined by the officer's presence: some form of control of a suspect, living or dead.
On the global stage, Trump has arrogated to himself the desire, though not the actual ability, to exert control as well. In turn, the president will not be controlled by a democratic will. His ability to make such a discretionary decision is what insulates him from democracy. This is an old script, dating at least to Harry Truman's secret decision to drop the atomic bomb. The bureaucratic infrastructure of technocratic security expertise, unanswerable to the people, also dates to Truman's presidency, with the creation of the peacetime national security state. About it, we might ask an impossible question: What place does this unanswerable discretionary decision-making authority hold in a democracy?
The aftermath of the Soleimani assassination remains unknowable, but the conditions that enabled it were surprisingly ordinary. Perhaps the best outcome would be a reassessment of whether the chief executive should be endowed with the type of discretionary executive power already given on an everyday basis to police.