Release the Memo
The day after the President ordered missile strikes against Syria in April 2017, Protect Democracy filed a FOIA request seeking the legal justification. That military action was against a foreign sovereign — not against ISIS — and no obvious legal rationale existed. Making these justifications public has been a norm since President Truman published The Authority of the President to Repel the Attack in Korea on July 3, 1950. Further background is here.
Because the government did not do so, Protect Democracy has pursued that FOIA through litigation. Protect Democracy requested and received a rarely granted preliminary injunction to accelerate document production.
Summary of key facts
These are the key facts that have been established through the FOIA, subsequent litigation, and other actions:
- There is a secret seven page legal memo that provided the legal justification for the April 6, 2017 bombing. It is not classified, but DOJ will not release it.
- Senator Tim Kaine has said that the explanation that he was given by the Administration “would completely wipe out Congress’s power [to declare war] under Article I,” that the basis was outside of the existing AUMF framework.
- Secretary Tillerson claimed that this was based on Article II authority, not Congressionally authorized AUMF frameworks.
- DOJ has said in a declaration this argument could be the legal basis for future strikes.
- The memo is not classified, but there are “a limited number of discrete words and phrases” on page one that are classified and thus exempt “under the FOIA.”
- The government is claiming exemptions on at least one other document, even though it has been published in full.
The existence of the memo confirmed by the Department of Justice
We have confirmed that there is a secret seven page memo that provides the legal basis. The government won’t share it with the public. The existence of the memo is disclosed in a “Vaughn index” here, at pg. 1, row 1. This was received in response to the FOIA requests and lawsuit.
In addition, the broader context of the document is described in a declaration by a DOJ attorney:
The first withheld document (Doc. 2, OLC 1 is a classified legal advice document prepared by an interagency group of attorneys- including OLC attorneys – for the purpose of providing advice and recommendations to the President and/or other senior Executive Branch officials regarding the legal basis for potential military action. The document contains confidential client communications made for the purpose of seeking legal advice and predecisional legal advice from OLC attorneys and other government attorneys transmitted to senior advisers to the President as part of governmental deliberative processes in connection with Presidential decisionmaking.
Senator Tim Kaine reads portion of explanation during an SFRC hearing
While DOJ or the White House have not shared the memo with Congress, they have shared a summary explanation of the contents of the memo. Senator Tim Kaine read portions of that explanation at a December 13, 2017 SFRC hearing, noting that “this White House is taking a position about Article II Power that would completely wipe out Congress’s power [to declare war] under Article I.” His extended statement:
If you would each look at this because this suggests to me that this White House is taking a position about Article II Power that would completely wipe out the Congress’s power under Article I. We ask about the military justification. Quote, “The April 6 US military strike on Shayrat Airfield in Syria was not based on the authority of the statutory authorizations for use of military force we’ve been discussing in the hearing, thus not 2001-2002. The president authorized that strike pursuant to his power under Article II of the Constitution, as Commander in Chief and Chief Executive, to use this sort of military force missile strikes overseas to defend important U.S. national interests.”
Claim of Article II Authority
In a explanation provided to Senator Tim Kaine by Secretary of State Rex Tillerson and reported by the Daily Beast’s Spencer Ackerman, the sole legal basis for the attack was Article II authority,
“The April 6 U.S. missile strike on Shayrat airfield in Syria was not based on the authority of the statutory authorizations for use of military force that we have been discussing at this hearing,” Tillerson told Kaine.
“The President authorized that strike pursuant to his power under Article II of the Constitution as Commander in Chief and Chief Executive to use this sort of military force overseas to defend important U.S. national interests. The U.S. military action was directed against Syrian military targets directly connected to the April 4 chemical weapons attack in Idlib and was justified and legitimate as a measure to deter and prevent Syria’s illegal and unacceptable use of chemical weapons.”
The basis for future actions
According to a declaration by a Department of Justice attorney, Attorney General Jeff Sessions was briefed on the substance of this memo after the attack, so that he would know “how to advise the President on future military actions.”
The memo is not classified, only the facts
In a declaration by an official in the Office of the Director of National Intelligence, the classified portions are described:
IC entities have identified a limited number of discrete worlds and phrases (hereafter “these phrases”) within or referring to the factual background section on page one of the legal memorandum that are exempt from disclosure under FOIA based upon Exemptions 1 and 3.
The government is not sharing other documents
The administration is claiming a deliberative process exemption from sharing talking points that Josh Rogin at the Washington Post claimed at the time to have “in full,” and, when published in full, Charlie Savage of the New York Times affirmed were given to Administration spokespeople.
Additional background materials
- Protect Democracy Memo to SFRC re Strategy for Hearing on “Using Force: Strategic, Political and Legal Considerations”
News about the case
- “The Backlash Against Trump’s Syria Strike,” The Atlantic, Conor Friedersdorf
- “Donald Trump Ordered Syria Strike Based on a Secret Legal Memo Even Congress Can’t See,” The Intercept, Jon Schwarz
- “GOP Leaders Fine With Trump Bombing Syria Without Congress’ Sign-Off,” Huffington Post, Jennifer Bendery
- “Mike Pompeo to push for release of memo outlining Syria attack justification,” Washington Examiner, Steven Nelson
- “Trump would break the law bombing Bashar Assad, some scholars say,” Washington Examiner, Steven Nelson
- “Critics Want Legal Rationale For Strikes On Syria. The White House Says It’s Secret,” NPR, Tim Mak
- “Presidential War: From ‘Not Normal’ to the New Normal,” CATO Institute, Gene Healy
- “Trump’s Military Strikes on Syria Will be Illegal,” The Daily Beast, Spencer Ackerman
- “How Congress Should Respond to the White House’s Failures on Syria Transparency,” Lawfare, Allison Murphy, Ariela Rosenberg
- “We Read the New War Powers Report So You Don’t Have To,” Lawfare, Scott Anderson, Allison Murphy
- “What’s Inside Trump’s Secret War Powers Memo?,” Daily Beast, Spencer Ackerman
- “The Syria War Powers Memo: Why it Matters,” Lawfare, Justin Florence and Allison Murphy
- “Sen. Tim Kaine demands release of secret Trump war powers memo,” NBC News, Heidi Przybyla
- “Sen. Kaine demands release of secret Trump war powers memo,” MSNBC, Morning Joe
- “Release the Memo that Really Matters,” National Review, David French
- “Summary: Lawsuit to Release the Legal Justification of Syria Airstrikes,” Lawfare, Chris Mirasola
- “Kaine demands secret memo on Trump’s ‘authority’ to declare war,” NY Post, Yaron Steinbuch
- “Want national security oversight? Don’t leave it to Republicans,” The Washington Post, Jennifer Rubin
- “The Other Memo Lawmakers Want the Public to See – But Trump Doesn’t,” Roll Call, Griffin Connolly
- “Tim Kaine calls for release of secret memo detailing Trump’s interpretation of war powers,” Washington Examiner, Melissa Quinn
- “How Congress can stop Trump from starting World War III,” The Washington Post, Ian Bassin
- “Will Congress Ever Limit the Forever-Expanding 9/11 War?” The New York Times, Charlie Savage
- “Watchdog Group Sues Trump Administration, Seeking Legal Rationale Behind Syria Strike,” The New York Times, Charlie Savage
- “It’s What the House Has Not Done,” The Washington Post, Jennifer Rubin
- “Watchdog Steps Up Demand for Legal Basis of Syria Strikes,” Politico, Josh Gerstein
- “Judge expedites requests for legal basis of Trump Syria strikes,” Politico, Josh Gerstein
- “The Trump Administration was Ordered to Hand Over the Legal Basis for its Syria Strikes,” The Intercept, Alex Emmons
- “President Trump’s War Powers, Congress, and North Korea,” Huffington Post, Justin Florence
- “Obama-era Lawyers Sue Trump over Legality of Syria Missile Strikes,” Newsweek, Callum Paton
- “Group Sues Trump to get legal justification for Syria strike,” The Hill, Ellen Mitchell
Key Litigation Documents
- PD’s Complaint – May 8, 2017
- PD’s Motion for a Preliminary Injunction – May 22, 2017
- Government Opposition to PD’s Motion for a Preliminary Injunction – June 13, 2017
- Transcript of Oral Argument – July 7, 2017
- Court’s Order Granting in Part and Denying in Part a Preliminary Injunction – July 13, 2017
- Government Motion for Summary Judgment – November 17, 2017
- PD’s Motion for Summary Judgement – December 8, 2017
- Government Reply in Support of Motion for Summary Judgment – January 9, 2018
- PD’s Reply Brief in Support of the Cross-motion for Summary Judgement – January 23, 2018
- Selected Government Declarations:
- Government Vaughn Index – November 17, 2017
- Declaration of Patricia Gaviria, Director, Information Management Division, Office of the Director of National Intelligence – November 17, 2017
- Declaration of Paul P. Colborn, Special Counsel in the Office of Legal Counsel, Department of Justice, on the case – November 17, 2017
- Second Declaration of Paul Colborn, in support of the Department’s Motion for Summary Judgement and clarifying certain statements – January 9, 2018
- PD’s Notice of Development – April 9, 2018