Published by The Lawfare Institute
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This coming Monday, March 12, the Trump administration is expected to produce a “report on the legal and policy frameworks for the United States’ use of military force and related national security operations[,]” the first such report issued under a brand new reporting requirement introduced through Section 1264 of last year’s National Defense Authorization Act. The reporting requirement could turn out to be the one of the most important steps toward increasing transparency in U.S. national security policy in decades. Whether the provision fulfills this potential, however, depends in substantial part on how the Trump administration chooses to interpret and comply with it.
The idea for this framework report did not originate with the 2018 NDAA but with the Obama administration, which put forward just such a report in its last two months in office. For the first time, that December 2016 report gathered in one place a detailed description of why the executive branch believed various U.S. national security policies—ranging from detention to targeted killings—were consistent with both domestic and international law. It also described certain voluntary policy measures that the Obama administration had adopted to ensure compliance with these legal regimes and further related humanitarian objectives. Many observers welcomed the report as the culmination of the Obama administration’s efforts to provide public legal justifications for its national security-related activities, something that it pursued through speeches and statements throughout its eight years in office. Yet, while President Obama nodded toward institutionalizing the report by directing agency personnel to update it annually moving forward, there was little he or anyone else in his administration could do to force the Trump administration to follow their example if it did not wish to do so.
But the same is not true for Congress. Whatever differences its members may have had with the Obama administration, the Republican-controlled 115th Congress appears to have agreed that the framework report was a good idea. Through Section 1264 of the NDAA, Congress made the framework report mandatory, requiring President Trump to submit his own report within 90 days of the NDAA’s enactment detailing “the legal, factual, and policy justifications for any changes made to such legal and policy frameworks” since the start of his administration. What’s more, Section 1264 further obligates the president to notify Congress of any future changes to these legal and policy frameworks within 30 days. In this sense, Congress not only institutionalized the Obama administration’s framework report but adapted it into a potentially strong tool for congressional oversight—one that would provide a near real-time account of what the executive branch sees as the legal basis for U.S. national security policies.
Appropriately, Section 1264 has since been nestled into Title 50, Chapter 33 of the U.S. Code alongside the 1973 War Powers Resolution, where it is a welcome addition to the patchwork system of reporting requirements that currently applies to national security operations. Section 4(a) of the WPR requires that the executive branch disclose to Congress the “constitutional and legislative authority” for certain major overseas deployments of U.S. military personnel. But it doesn’t reach beyond that. And while the last few presidential administrations have tended to organize the periodic six-month reports filed under Section 4(c) of the WPR in a manner that provides some insight into the legal basis for such actions, the results are ambiguous at best. Meanwhile, statutory provisions governing other related activities—including covert actions, security assistance, and sensitive military operations—generally contain their own reporting requirements to a diverse array of congressional committees. Yet the receiving committees do not always overlap and such reports are rarely made public. As a result, while it may be theoretically possible to assemble these various reports into a fairly complete picture of U.S. national security activities and their related legal justifications, it’s not clear if anyone is actually doing so. This point was driven home last fall in the aftermath of the tragic Niger incident, when members of Congress—including those on relevant committees—expressed surprise at the presence of U.S. troops in Niger and unawareness as to the basis for their presence there, despite several years of reports on the topic.
And the need for robust congressional oversight and public transparency is greater now than ever. Over the past 17 years, the 2001 authorization for use of military force has proven to be an immensely broad delegation of authority to the executive branch, one that neither Congress nor the courts seem intent on narrowing any time soon. Congress has in turn paired the 2001 AUMF—fas well as the 2002 AUMF regarding Iraq—with a range of other legislative authorities that allow the U.S. military and other U.S. personnel to pursue activities ranging from security assistance to train and equip missions in support of counterterrorism and other national security objectives. And both the Trump administration and its predecessors have proven willing to invoke the president’s authorities under Article II of the Constitution in order to pursue certain military activities, at least where limited in scope and not actively opposed by Congress. The result is a complex array of often overlapping legal authorities that allow the executive branch to act with a substantial degree of discretion in pursuing U.S. national security interests, and which the Trump administration has used to expand and intensify U.S. national security operations overseas. Such activities may be entirely warranted by the circumstances; certainly the Obama administration felt this was the case when it initiated many of them. Yet even proponents of these policies should acknowledge that effective congressional oversight is needed in order to ensure that the executive branch continues to be held accountable in exercising this discretion. And this, in turn, requires a substantial degree of public transparency so that electoral checks can constrain the president where he or she takes action too far beyond what the American people are willing to support.
So what should we expect on Monday? The Trump administration has made clear in various public statements that it accepts most of the Obama administration’s legal views regarding the domestic and international legal basis for the use of force, which were themselves frequently criticized as being overly permissive. As a result, the Trump administration is unlikely to introduce dramatic changes to the Obama administration’s legal framework report. That said, over the last 14 months, several possible points of departure have emerged that might warrant inclusion and explanation:
- In January 2017, the Trump administration reportedly designated parts of Yemen to be “area[s] of active hostilities,” excluding it from the “presidential policy guidance” (PPG) policy framework that the Obama administration adopted to govern the use of force outside such areas. It reportedly took similar steps in relation to parts of Somalia in March 2017.
- In April 2017, the Trump administration launched airstrikes against the Assad regime in response to the regime’s use of chemical weapons, on the grounds that these strikes were “pursuant to [the president’s] constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive.” The administration has declined to elaborate on this domestic legal explanation or provide an international legal basis for its actions. The disclosure of a reported internal memorandum on these topics is the subject of ongoing litigation and an outstanding congressional request.
- Beginning in May 2017 and periodically thereafter, U.S. military forces have engaged in direct action against pro-regime forces in Syria in defense of local allies in the fight against the Islamic State. The Pentagon and State Department have argued that these “limited and lawful measures ... to counter immediate threats to U.S. or partner forces” are authorized by the 2001 and 2002 AUMFs as a corollary to the counter-ISIS campaign, though they have explicitly rejected the conclusion that the Assad regime or related forces are “associated forces” of ISIS under the 2001 AUMF.
- In September 2017, the Trump administration reportedly replaced the Obama-era PPG with a less bureaucratic and restrictive “principles, standards, and procedures” (PSP framework. The Trump administration has declined to disclose any details on the PSP, the disclosure of which is the subject of litigation.
- In October 2017, the Department of Defense reportedly issued new rules of engagement allowing for broader use of airstrikes in Afghanistan, as part of the new strategy that the Trump administration issued the prior month.
- Since at least January 2018, the Trump administration has reportedly been considering a “bloody nose” strike on North Korea in response to any further missile or nuclear weapons testing, the international legality of which has been the subject of an extended academic debate.
- In February 2018, as part of a filing in Doe v. Mattis—the case of the U.S. citizen captured fighting alongside ISIS in Syria and currently being held by U.S. military forces in Iraq—the Justice Department claimed that, even absent statutory authorization, President Trump has the constitutional authority under Article II to detain members of ISIS “as long as U.S. troops are engaged in active hostilities on th[e] battlefield.”
- Also in February 2018, in response to an inquiry from Sen. Tim Kaine, the Pentagon and State Department explained their view that current and planned future U.S. activities in Syria—notably including “[the] facilitat[ion] of stabilization and political reconciliation efforts needed to ensure the enduring defeat of ISIS”—continue to be authorized by the 2001 and 2002 AUMFs, despite ISIS’s substantial loss of territory.
- Finally, last week, in a critique of a proposed joint resolution on Syria, the Defense Department suggested that legislative restrictions on military operations that “do not implicate Congress’s constitutional authority to Declare War” might “raise serious constitutional concerns[,]” a statement that might reflect a shift in views on related separation of powers questions (though its full intended meaning is unclear).
Joshua Geltzer, a former Obama administration attorney and counterterrorism official, has posed several pertinent questions that he would like to see the Trump administration’s framework report answer in light of these and other developments. In many cases, the answer may ultimately be that these actions are nothing new, but simply the logical extension of Obama administration legal and policy positions to new circumstances. But even in these cases, the Trump administration should acknowledge these extensions where they occur and explicitly incorporate them into the legal and policy frameworks as already described so as to maximize public awareness and understanding.
Section 1264, however, isn’t airtight. There are numerous ways that the Trump administration could resist disclosing this sort of information if it were so inclined. As with many such reports, the administration could simply choose to provide the bare minimum information required, employing ambiguous or conditional language that arguably satisfies the statutory requirements without actually disclosing much of substance. And while the requirement to explain any changes since the Obama administration’s report may make it difficult to reduce the report in scope, the Trump administration may resist expanding it by narrowly defining what constitutes a “legal and policy framework” for section 1264’s purposes.
More importantly, even if the Trump administration discloses relevant information to Congress, it could seek to withhold such information from the broader public. While Section 1264 requires that the framework report itself be unclassified, this does not necessarily mean that the report will be publicly released like the Obama administration’s report. If it isn’t, the Freedom of Information Act and other disclosure mechanisms are likely to bring it into public view eventually. But Section 1264 also allows for the use of a classified annex. As former Obama administration attorney Tess Bridgeman has recently warned, this could provide the Trump administration of a means of withholding much of the substantive information that Section 1264 requires from public scrutiny, limiting the effectiveness of the political checks essential to our constitutional system.
And there are signs that the Trump administration may be inclined toward such a closed-door approach. Both as a candidate and as president, President Trump has repeatedly indicated that he sees it as a strategic advantage to withhold information regarding possible limits on one’s conduct from the enemy. This includes legal limitations, as Secretary of State Rex Tillerson and Defense Secretary James Mattis made clear in their testimony opposing geographic or temporal limitations in any new AUMF last November. Defense Department acting general counsel William Castle similarly reiterated these views in a speech on the same topic in December, tying his case to the open-ended “conditions-based” approaches that the Trump administration is pursuing with the U.S. military presences in Afghanistan and Syria. This general preference towards maximum flexibility—along with the clear advantage of avoiding any legal or political opposition that particularly controversial stances might raise—may make the Trump administration resistant to the broad disclosure of legal limitations that Section 1264 clearly envisions.
For all these reasons, Monday’s release is likely to be a major event. Hopefully the Trump administration will agree with Congress on the importance of transparency and match or exceed the Obama administration in its level of public disclosure, reserving the classified annex for those few matters that are truly too sensitive to broadly disseminate. And certainly it is encouraging that the Trump administration has shown itself willing to discuss relevant legal and policy questions in public statements and congressional inquiries in the past, albeit with a few notable exception (not unlike the Obama administration). If the Trump administration does not engage in broad disclosure, however, then both Congress and private citizens must be prepared to push harder for the release of the information they need to hold the executive branch appropriately accountable.