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Release the War Powers Memos

Overview

Since the Korean War, when the president has directed the use of military force, he has provided legal justifications to Congress and the American people.  The War Powers Resolution of 1973 codified this requirement in law. From 1973 until 2016, presidents of both parties issued these legally-mandated war powers notifications (a collection of all of past war powers notifications is here).

President Trump, in contrast, has repeatedly directed the use of military force without letting Congress or voters know what, if any, legal basis he’s claiming.  This was the case in:

  • Syria in 2017
  • Syria in 2018
  • The strike on Qassim Soleimani in 2020

In response to the President’s failure to follow the law, Congress upped reporting requirements in the National Defense Authorization Act (NDAA) of 2018 and again in 2019. 

Military action, just like all of the executive branch’s functions, must be constrained by law and transparent, national security permitting.  When the President and the Administration have refused to acknowledge these constraints, we’ve sued. After the 2017 Syria strike and the 2020 strike on Soleimani, Protect Democracy filed FOIA requests for the underlying legal justifications and we have enforced those requests via litigation after the Syria 2017 strike and the Soleimani strike.

You can learn more about the Syria litigation here and the Soleimani litigation here.

Protect Democracy wrote about the report that the Administration ultimately released in response to the 2018 NDAA here and here. To date, the administration is in violation of the 2019 Act. You can read more here.

Syria Litigation

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 fullCharlie Savage of the New York Times affirmed were given to Administration spokespeople.

Additional background materials

Iran Litigation

On January 3, 2020, Protect Democracy filed Freedom of Information (FOIA) requests with the Departments of State, Justice, and Defense seeking the legal justification, policy justification, and any Congressional communication with respect to the military strike on Qasem Soleimani, Iran’s top general and second most powerful government official. Later in January, Protect Democracy sued to enforce those FOIA requests

The Trump administration provided shifting explanations for the missile strike and—breaking with precedent—provided a classified War Powers Resolution notification to Congress, which remains hidden from the public. The day after February’s bipartisan vote in the Senate to make explicit that all future military action against Iran is prohibited, the Trump administration sent over yet another incomplete attempt to legally justify the Soleimani strike. The House voted to curtail military action against Iran and passed the Senate-passed war powers resolution on March 11, 2020

In our complaint, Protect Democracy has demanded that documents relating to the justification for the Soleimani strike be released immediately because Soleimani’s killing created a grave risk of escalation of hostilities and the American people should be able to engage in robust debate on any decision that could put U.S. troops in harm’s way. In order for Congress to exercise its role as a representative of the people, the people should have been able to provide their representatives with their views. The public cannot do this in an informed way without access to the administration’s legal and policy justification for military strikes. 

Protect Democracy’s Soren Dayton said: “Congress and the American people deserve a full and serious accounting of why the President decides to use military force against our adversaries. Congress is properly exercising its power to limit the scope of military intervention, but this administration is hamstringing that debate. The administration must immediately comply with these FOIA requests to ensure that the American people and their elected representatives  have the information they need for this debate.”

Key Documents

Key Documents

Iran

Syria

Media

Iran

Syria

  • “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

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