Lawfare: Why the Trump Administration May End Up in Court Over War Powers Reporting

  • February 28, 2020

This piece originally ran on Lawfare Blog, here.

This coming Sunday, March 1, is an important deadline for the Trump administration. That’s the day by which it must file a report detailing any changes to the “legal and policy frameworks for the United States’ use of military force and related national security operations” over the prior year. Moreover, because of a recent change in the law, this particular report, for the first time ever, also has to be “made available to the public.”

And if the Trump administration fails to follow the law, it may have to defend its decisions in court.

The reporting requirement in question has its origins in the National Defense Authorization Act (NDAA) for 2018. Later codified at 50 U.S.C. § 1549, it obligated the Trump administration to update the comprehensive report detailing the legal and policy frameworks for the use of military force first released by the Obama administration in December 2016, and to then notify relevant committees in Congress within 30 days whenever the views expressed in that updated framework changed. Only part of each report and notice had to be unclassified, however, and there was no requirement that any part be released to the public.

The Trump administration submitted its initial report updating the Obama administration’s legal and policy framework to Congress on March 12, 2018. While Congress permitted members of the public to read it in hard copy on Capitol Hill, no copy was made widely publicly available until the New York Times acquired and released a copy. For the most part, this 2018 update report signaled continuity with many of the Obama administration’s positions regarding the use of military force, albeit with a few minor departures and expansions. The Trump administration didn’t submit a subsequent update until early in 2020, when it provided congressional committees with a supplemental notice purporting to outline changes related to the Jan. 2 airstrike that killed Iranian military commander Qassem Soleimani. The House Foreign Affairs Committee ultimately chose to publicly release the unclassified portion of that report on Feb. 14, 2020.

The report due on March 1, however, is different. In December 2019, Congress used the 2020 NDAA to amend the existing reporting requirement to require the executive branch to submit an annual report, due each year on March 1, summarizing all the changes to the relevant legal and policy frameworks over the previous year. (This year, as March 1 falls on a Sunday, the Trump administration most likely has until the end of the next business day, March 2, to file the report.) The 2020 NDAA specifically requires that the unclassified portion of this new report, “at a minimum, include each change made to the legal and policy frameworks during the preceding year and the legal, factual, and policy justifications for such changes.” The earlier reports were also required to include this level of detail, but the executive branch was previously free to put it in the classified sections. Perhaps more importantly, the legislation also requires that this unclassified portion of the report “be made available to the public at the same time it is submitted to the appropriate congressional committees”—whereas previously, the congressional committees had the choice of whether to release the documents or not.

This public disclosure requirement isn’t just significant as a transparency matter. If the Trump administration chooses not to release a report—or releases one that falls short of what is required by law—the disclosure requirement also gives interested members of the public constitutional standing to sue for the information to which they are entitled.

The Supreme Court has repeatedly indicated that “a plaintiff suffers an ‘injury in fact’ when [he or she] fails to obtain information which must be publicly disclosed pursuant to a statute[,]” thereby satisfying the central element of standing. The U.S. Court of Appeals for the D.C. Circuit interprets this standard as providing for standing so long as the plaintiff also “suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.” Under these standards, research and advocacy organizations have been able to establish standing not just to sue where they’ve been denied information to which they are statutorily entitled, but also to challenge the adequacy of any information provided and any agency policies that might have resulted in nondisclosure or disclosure that’s inadequate.

So who might have standing when it comes to the release of the framework report? In December 2016, President Obama was quite explicit that the original framework report was intended “to explain … when and why the United States conducts [national security] operations, the legal basis and policy parameters for such operations, and how such operations have unfolded, so that the American people can better understand them.” And Congress seems to have legislated the requirement for subsequent reporting based on this model for the very same reason. Hence, organizations that focus on acquiring, disseminating and explaining information regarding U.S. national security to the American public seem to fit squarely within the universe of persons who Congress said should receive and make use of the annual legal framework report. For that matter, so might private citizens who believe any withheld information might “help them … evaluate candidates for public office” in the forthcoming presidential election.

This right to sue is important, as the Trump administration’s record when it comes to publicly disclosing information regarding its use of military force has been mixed at best. Protect Democracy has spent several years actively litigating to obtain the Trump administration’s legal justifications for several of its military actions, including its 2017 airstrikes in Syria and the 2020 drone strike that killed Soleimani. And while the Trump administration did file unclassified portions of the 2018 update report and 2020 30-day notice with Congress as required, neither contained the level of detail or clarity of the original 2016 report that Congress sought to institutionalize. Moreover, the Trump administration itself chose to make neither publicly available, leaving it to the media and Congress to ultimately do so. Earlier this year, the Trump administration similarly chose to file a different report on the Soleimani strike required by the 1973 War Powers Resolution solely in classified form, preventing it from being released to the public at all—an option that was legally available but departed from past executive branch practice.

The Trump administration has already signaled that it may not believe it is legally required to provide the public justification that Congress demanded. In his signing statement for the 2020 NDAA, Trump objected that the new public disclosure requirement might “mandate or regulate the dissemination of information that may be protected by executive privilege” and warned that his administration would “treat these provisions consistent with the President’s constitutional authority to control information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President’s constitutional duties,” suggesting it may not ultimately comply. And the Trump administration certainly has not been shy about asserting executive privilege in other circumstances.

In the present case, there should be no doubt that the Trump administration is required to file a report on March 1. The supplemental notice released on Feb. 14 expressly states that it was submitted to “provid[e] notice of a change in application of the existing legal and policy frameworks” detailed in the prior report, which alone is enough to trigger the new annual update requirement. But the Trump administration also has implemented at least two other changes to the legal and policy frameworks over the past year—updates that need to be explained in the March 1 annual update, even if the Trump administration didn’t previously submit a 30-day update notice.

The first occurred on Mar. 6, 2019, when the Trump administration revoked Section 3 of Executive Order 13732, which had previously established a reporting requirement relating to civilian casualties. Section 3 was discussed as part of the relevant legal and policy framework in the original 2016 report and was left undisturbed by the Trump administration’s 2018 update. Eliminating it was undoubtedly a substantial change to the policy frameworks for the United States’s use of military force and related national security operations.

Then on June 28, 2019, the Trump administration wrote to the chairman of the House Foreign Affairs Committee to notify him that it “ha[d] not, to date, interpreted either [the 2001 or 2002 Authorization for Use of Military Force (AUMF)] as authorizing military force against Iran, except as may be necessary to defend U.S. or partner forces engaged in counterterrorism operations or operations to establish a stable, democratic Iraq” (emphasis added). As one of us (Anderson) wrote at the time, this assertion that the 2002 AUMF authorizes the use of force to defend partner forces was the first suggestion that the Trump administration’s theory of “collective self-defense”—in which the United States is statutorily authorized to take military action to defend partner forces from third-party attacks—extended to the 2002 AUMF. No such theory was discussed in the original 2016 report. The 2018 report, meanwhile, discussed this collective self-defense theory only in relation to Syria and the 2001 AUMF. Hence, the adoption of this expanded view of the 2002 AUMF is also a change in the legal framework necessitating an update.

The March 1 report will need to address these issues, if it is to cover “each change” over the prior year as required by law. Moreover, describing the “legal, factual, and policy justifications” will require more detail and precision than the Trump administration has used in prior reports, including in the 30-day update notice it provided at some point before Feb. 14. If anything, that notice introduced substantial ambiguity regarding what purported changes to the legal and policy frameworks it was reporting, which also warrant clarification.

Perhaps the most notable ambiguity relates to the Trump administration’s views on the scope of the president’s Article II authority. The Feb. 14 notice asserts that “Article II of the United States Constitution, empowers the President, as Commander in Chief, to direct the use of military force to protect the Nation from an attack or threat of imminent attack and to protect important national interests,” without any limits or caveats. Yet the original 2016 legal framework report—citing opinions by the Justice Department’s Office of Legal Counsel (OLC)—recognized a “‘possible constitutionally-based limit’” on this Article II authority “where a planned military engagement constitutes a ‘war’ within the meaning of the U.S. Constitution’s Declar[e] War Clause.” Determining whether the Declare War Clause is at play in turn requires “a fact-specific assessment of the ‘anticipated nature, scope, and duration’ of the planned military operations” to determine whether they may be pursued under the president’s Article II authority. Not only did the Trump administration not raise any objections to this aspect of the legal framework in its 2018 update report (at least in the unclassified version), but it has pursued this sort of “nature, scope, and duration” analysis in its own OLC opinions. Hence, it’s unclear whether the Feb. 14 update constitutes a move away from a legal framework that recognizes a limitation under the Declare War Clause on the president’s Article II authority—a view that prior presidential administrations have at times embraced—or whether the administration still accepts that constraint but the update simply didn’t mention it.

The Feb. 14 update also raises questions about how the risk of escalation fits into the Trump administration’s legal and policy frameworks. OLC opinions that were incorporated by reference into the 2016 legal framework report note that a significant risk of escalation is usually a factor weighing in favor of the need for congressional authorization in any “nature, scope, and duration” analysis. The Trump administration’s OLC subsequently emphasized this factor in its own 2018 opinion on the Syria strikes, and it went to lengths to clarify why the 2018 airstrikes were tailored in a manner that limits the risk of escalation. Yet the Soleimani strike carried a clear and significant risk of escalation with Iran—a fact driven home when an Iranian reprisal left two U.S. military facilities in Iraq destroyed and more than 100 U.S. service members wounded. Has the Trump administration abandoned the view that a significant risk of escalation weighs in favor of congressional authorization? Or does it believe that it somehow mitigated this risk, as it claimed to have done in Syria?

Finally, the Feb. 14 report also risks confusion regarding the Trump administration’s views on how the 2002 AUMF applies to Iran. The language used in that report is unclear on whether the Trump administration believes it was authorized to target Soleimani under the 2002 AUMF because the general was threatening “a stable, democratic Iraq” or because he threatened U.S. military forces who were present in Iraq under the 2002 AUMF. The two interpretations have substantially different ramifications, as the former could read the 2002 AUMF as authorizing a broader range of military action against Iran, while the latter would limit military action against Iran to situations of self-defense. And of course there are major questions regarding the “factual justification” for either interpretation, particularly as the Feb. 14 notice appears to have formally abandoned the Trump administration’s earlier claims that Soleimani had been involved in planning an “imminent attack” against U.S. forces in the region.

Some observers may be tempted to view the new reporting requirement in the 2020 NDAA—and efforts to enforce its requirements—as partisan acts by those hostile to the Trump administration. But this would be a mistake. This requirement, which was passed by a Republican Senate in the 2020 NDAA and builds on an earlier requirement enacted by a Republican Congress, does not limit the Trump administration’s ability to develop and pursue its own national security policies within the broader confines of law. All it does is obligate the Trump administration to share as much information as possible on those views with both Congress and now the public. Armed with this information, individuals can better understand when and how the president can use military force in their name—and perhaps vote accordingly.

Hopefully the Trump administration will recognize this and release a timely and detailed report to the public as Congress has demanded, with any privilege or other disclosure concerns addressed as narrowly as possible. But if it does not, then members of the public now have the legal right to hold the Trump administration to account. And the resulting legal fight may ultimately prove far more troublesome than the administration’s resistance is worth.