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Protect Democracy files FOIA lawsuit on Legal Basis for Soleimani Strike

Today, Protect Democracy sued the Departments of State, Justice, and Defense to enforce Freedom of Information (FOIA) requests for the legal and policy justifications for and communications with Congress about the military strike on Qasem Soleimani, Iran’s top general and second most powerful government official.

Read the complaint here.

Read the memo in support of the motion for preliminary injunction here.

We filed these FOIA requests on January 3, seeking expedited processing because the American public has an urgent need to understand the Trump Administration’s reasons and authority for the strike. This targeted killing of a senior Iranian official created a grave risk of escalation of hostilities and the American people must be able to engage in robust debate on any decision that could put U.S. troops in harm’s way, including sharing their views with representatives in Congress.

On January 9, the House of Representatives voted on a bipartisan basis to restrict further military activities with Iran, and Senators Kaine and Lee have introduced similar legislation in the Senate, which is now eligible for a vote. The Trump administration has provided shifting explanations for the policy and legal basis of the missile strike and provided a classified War Powers Resolution notification to Congress, which remains hidden from the public. The documents Protect Democracy seeks through this lawsuit are directly relevant to congressional debate on this legislation. Protect Democracy filed a similar FOIA and lawsuit in 2017 after the bombing of Syria’s Shayrat airbase, leading to the release of the Administration’s legal rationale for the use of force in Syria.

Protect Democracy’s Soren Dayton said: “Under our Constitution, the President doesn’t get to decide by himself to put the country on a path to war. Congress also has a role in decisions about whether the U.S. takes military action. We are filing this lawsuit to ensure that the American people and Congress are fully informed about the legal and policy rationale for the missile strike. The administration must immediately comply with these FOIA requests to ensure that Congress and the American people can engage in robust public debate about hostilities with Iran. Congress must demand this information and more aggressively assert its constitutional responsibility in decisions about war-making.”

Background

Protect Democracy filed a similar FOIA request after the April 2017 bombing of Shayrat airbase in Syria. The Administration’s compliance with the War Powers Resolution of 1973 (WPR) in that attack was inadequate. We sued to enforce those requests in Protect Democracy v. Dep’t of Defense. In that case, U.S. Federal Judge Christopher Cooper ruled for Protect Democracy and reminded the government that an open democracy requires that the it expeditiously respond to FOIA requests about the legality of U.S. military action, especially when the relevant legal questions are subject to open, widespread debate, as the questions surrounding the January 2 drone strike on Soleimani already are.

Judge Cooper explained that failing to “obtain[] in a timely fashion information vital to the current and ongoing debate surrounding the legality of a high-profile government action” like the military strikes against the Syrian government, would harm the American people in at least two different ways. First, when the American people are “closed off from such a debate,” this is “itself a harm in an open democracy.” Second, when the public is kept in the dark about legal justifications for military strikes taken in their name, this raises “[t]he possibility for the strikes to recur without legal justification.” Judge Cooper’s reasoning applies today as forcefully as it did then.

In our democracy and under our Constitution, the Congress and the President jointly decide whether U.S. forces and our country will be put into harm’s way. Congress affirmed this principle in the War Powers Resolution of 1973. The WPR required that the President notify Congress of the legal and policy basis for the missile strike against Qasem Soleimani within 48 hours of the strike. The notice the President shared regarding the targeted killing of the most important military leader in Iran was entirely classified, depriving the American people of crucial information and Congress of its ability to conduct public debate on hostilities with Iran.

Protect Democracy and coalition partners have called on Congress to enact reform legislation to reclaim its authorities over war powers.

In 2019, bipartisan majorities of both houses of Congress voted to prohibit a strike such as this one with the Khanna-Gaetz-Biggs-Udall-Paul-Lee amendment. It would have “prevent[ed] federal funds from being used for any military force in or against Iran without congressional authorization” and clarified that “neither the 2001 nor 2002 Authorization for the Use of Military Force (AUMF) can be invoked to justify the use of military force against Iran.”

Read the complaint here.

Read the memo in support of the motion for preliminary injunction here.