Congress must demand Syria war powers memo

Today, the court ruled in Protect Democracy’s case seeking to compel the government to disclose its legal rationale for why the President had authority to order military strikes against the Syrian regime in April 2017. The court granted part of Protect Democracy’s request and denied another. Critically, the court is not ordering the Administration to turn over a 2017 legal memo drafted on the day of the strikes that purportedly contains the legal analysis justifying President Trump’s actions.

In a striking line, the Court noted that there is “no indication that the President was briefed on the legal basis for the strike,” and that the legal analysis — which was prepared the day of the strikes — was “not solicited by the President.”

“It’s deeply troubling that the President does not appear to have meaningfully engaged with the legal limits on his warmaking authority before ordering these strikes. And it is completely unacceptable in a democracy for a President to order military action against a foreign government — however despicable that government — without either the consent of the public or some clear statement of his authority to do so,” said Protect Democracy Counsel Anne Tindall in response to the ruling. “It is now up to Congress to demand the President release the memo and prevent the President from further trampling the Constitution’s command that it is the Congress’s role to declare war.”  

Protect Democracy filed a Freedom of Information Act (FOIA) request the day after the strikes and filed suit to enforce the request when the government failed to respond. When additional U.S. strikes hit Syrian pro-regime forces, we asked the court for a preliminary injunction, which it partially granted. This litigation unearthed that government lawyers from multiple agencies had prepared a seven-page legal memo, largely unclassified, that purportedly analyzes whether the President had legal authority to launch these strikes.

In addition to Protect Democracy litigating for the release of that memo, Senator Tim Kaine called for its release and obtained a promise from Secretary of State Mike Pompeo that it would be released.  Instead, however, the government drafted a new legal memo purportedly justifying yet another set of missile strikes the President ordered on Syrian forces in April 2018 and released that.

Protect Democracy argued that by releasing the 2018 memo, the Administration had waived any claims to privilege over the original 2017 memorandum. But in court, Department of Justice lawyers filed statements insisting that the two memos were substantively different, which the court confirmed today.  

“Since the court has now ruled as a matter of law that the 2018 memo is no substitute for the original one drafted in the heat of the moment the day President Trump first exercised his warmaking authority, it appears Secretary Pompeo owes Senator Kaine and the public the original document he promised to release,” said Tindall.  

Protect Democracy filed this litigation to force the Administration to get an answer from the government on what legal authority it thinks the President has to undertake military action. While it is now incumbent upon Congress to demand the memo’s release, this litigation has helped the public understand a number of things:

There is a legal justification for the April 2017 bombing that the Trump administration has refused to release in this FOIA suit or in response to a request by Senator Kaine and other Members of Congress. That memo was produced the day of the strikes, was not requested by the President, nor does it appear he was briefed on its contents before ordering the strikes. The government claimed that the 2017 legal justification is different from the justification that the administration released in 2018 after a similar bombing of Syria. While the court issued a careful and well reasoned opinion respecting long-standing privileges that entitle the President to receive candid advice, it also in the course of this litigation emphasized the importance of transparency over matters like this to a democracy: “both Protect Democracy and the public at large,” the court held, should not be “precluded … from obtaining in a timely fashion information vital to the current and ongoing debate surrounding the legality of a high profile government action—namely, military strikes against the Syrian government. Being closed off from such a debate is itself a harm in an open democracy” (internal citations and quotations omitted).

“Now it is time for Congress to demand that Secretary of State Mike Pompeo fulfills his promise to Senator Tim Kaine and provides the first memo produced in the Trump Administration laying out its view of the President’s warmaking power,” said Tindall. “And it is time for Congress to assert its authority and place additional limits on the President — any President — to use military force without Congressional authorization.”