Last night, Protect Democracy filed an amended complaint in its suit against 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.
In the complaint, Protect Democracy demands that documents relating to the justification for the Soleimani strike be released before a critical upcoming vote in the House of Representatives on the Iran War Powers resolution. Soleimani’s killing 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. In order for Congress to exercise its role as a representative of the people, the people must be able to provide their representatives with their views. The public cannot do this in an informed way prior to the upcoming vote in the House without access to the administration’s legal and policy justification for the strike on Soleimani.
The Trump administration has 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 last week’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 could vote on the Senate-passed resolution as soon as February 25th when it is back in session.
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.”
Protect Democracy 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. Despite agreeing to our expedited processing request, the Defense, State, and Justice Departments have failed to comply with FOIA’s deadline for responding.
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. District Judge Christopher Cooper ordered the government to expedite Protect Democracy’s request and supervised review and production of documents. Judge Cooper reminded the government that an open democracy requires that 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, in that case, 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 amended complaint here.
Read the brief in support of the preliminary injunction here.