What a New Resource Says About the Value of War Powers Reporting

For all that is written on the subject of war powers, primary sources can be hard to come by. Congressional abdication and judicial reticence have largely allowed the executive branch to dominate the field—and executive branch lawyers are rarely inclined to put their legal analyses forward in full view. Even the legal opinions they occasionally produce are invariably laced with caveats and conditions that leave many details in doubt. As a result, observers often have to deduce many of the relevant legal views held by the president and his advisers from snippets of speeches, testimony, congressional correspondence and other sources that touch on relevant issues. Just finding these sources can be difficult. Making sense of them in relation to each other poses another set of immense challenges.

This is why any Lawfare reader with an interest in war powers should be aware of a valuable new resource that has just been made public by the Reiss Center on Law and Security at New York University School of Law: a comprehensive database of the “48 hour reports” that the War Powers Resolution requires the executive branch to file nearly every time it uses military force or takes certain other military actions overseas without congressional authorization. Coordinated by former National Security Council and State Department attorney Tess Bridgeman, the database not only assembles and organizes the full universe of publicly available reports but also makes them sortable by attributes ranging from the type of mission to the domestic legal authority claimed. (Bridgeman and Rachel Goldbrenner, the executive director of the Reiss Center, described the project in greater detail in a recent post on Just Security.) The result is a literal illustration of how presidents have used—and justified their use of—military force absent congressional authorization over the past half-century.

Both academics and experts should be able to derive any number of insights from the exceptional resource that the Reiss Center has assembled and organized. Bridgeman has even provided a head start by conducting her own analysis of the reports, which notes a number of interesting trends and practices. But for me, sifting through the database’s detailed entries drove home another, more troubling conclusion: that the sort of public resource the Reiss Center has so ably assembled and documented may be an endangered species.

The War Powers Resolution’s reporting requirements are by no means exercises in precision. They are triggered only by three specific uses of the U.S. armed forces: introduction into “hostilities,” entry while armed into foreign territory or substantial enlargement where already equipped for combat overseas. And the main requirement demands that the president inform Congress of the “circumstances necessitating” such action, the “constitutional and legislative authority” for it, and their “estimated scope and duration” within 48 hours. As Bridgeman documents, the executive branch has interpreted this language creatively over time, providing itself with substantial leeway in how (and whether) it responds in various regards.

Yet this discretion has not produced the one-way ratchet toward less disclosure that some might expect. To be certain, presidential administrations have at times adopted interpretations of the War Powers Resolution that allow them to avoid filing 48-hour reports in certain circumstances, such as in certain cases of self-defense or covert action. And most 48-hour reports are cagey on various points, including the expected scope and duration of given operations and how exactly the often multiple legal authorities cited relate to the various actions being pursued. But overall compliance with the 48-hour reporting requirement has, if anything, seemed to improve over time. Some recent administrations have even shown a willingness to err in favor of disclosure by submitting reports in cases when one is not clearly required, such as when military activities are purportedly authorized by statutory as well as constitutional authority. Others have included useful information not required by the War Powers Resolution, such as related justifications under international law. And these reports have become easier for the public to access, to the point that they are now routinely published on the White House website shortly after they are submitted to Congress.

This is all especially notable in light of one underlying fact: nothing in the War Powers Resolution requires the 48-hour reports to be made publicly available at all. Indeed, the War Powers Resolution does not even require that such reports be unclassified, so that Congress may later share them publicly even if the executive branch does not. Nonetheless, successive presidential administrations have increased disclosure over time. This is not to overstate the adequacy of these reports; there is still much to criticize about how the executive branch has approached its War Powers Resolution reporting requirements. But the public availability of these reports reflects not so much the law as established norms and practices, voluntarily sustained by executive branch officials across presidential administrations.

Yet this trend may now be coming to an end. Earlier this year, the Trump administration submitted to Congress its most recent 48-hour report, related to its controversial airstrike on Iranian military commander Qassem Soleimani. Only it did so strictly in classified form, preventing any sharing with the public. Members of Congress belonging to President Trump’s own party expressed dismay at the inadequacy of that report, even after it was supplemented with a subsequent briefing—but they weren’t able to share their concerns with the American public because of the classification.

Of course, this may not be the first time that a president has submitted a classified war powers report. It’s hard to say, precisely because prior cases would have been, well, classified. But even then, the Trump administration’s decision to file a classified 48-hour report for the Soleimani strike would stand out. By the time the report was filed, the Trump administration had already publicly accepted responsibility for the strike and described the logic behind the action, leaving it unclear why the administration couldn’t describe the “circumstances necessitating” and “scope and duration” of that military action in unclassified form as required by the War Powers Resolution. Moreover, the Trump administration did produce an unclassified account of the “constitutional and legislative authority” for the strike shortly thereafter, which it submitted to Congress in response to a separate war powers reporting requirement that is required to be partially unclassified.

For these reasons, the Trump administration’s grounds for classifying the 48-hour report are suspect, to say the least. Indeed, the Trump administration itself still has not provided a public legal justification for its actions. Instead, it was the relevant House committee that ultimately released this unclassified portion of the latter report to the public.

Moreover, this shift may reflect a deliberate choice on the part of the Trump administration. Both as a candidate and as president, Trump himself has presented ambiguity regarding the possible limits on one’s conduct as a source of strategic advantage. Consistent with this logic, his administration has opposed legislation that would impose more limits on the president’s authority to use force and has declined to release other unclassified war powers reports to the public (though it has publicly released a few 48-hour reports). In other words, instead of being an outlier, the administration’s approach to the Soleimani strike may become the new normal moving forward.

Nor is the Trump administration’s unique approach the only crack evident in the War Powers Resolution’s reporting system. In recent years, several unprecedented situations have raised challenging questions about how they fit in the War Powers Resolution’s reporting system. When U.S. Special Operations personnel engaged in train-and-assist missions in Niger repeatedly exchanged fire with local armed groups in 2017, the Trump administration did not submit a 48-hour report. The same thing happened when U.S. fighter jets shot down another fighter jet associated with the Assad regime in Syria that had threatened local allies in the fight against the Islamic State. Both cases arguably reflect the sort of dangerous escalation that Congress was trying to capture with the War Powers Resolution. The Trump administration later indicated that it viewed both incidents as covered by the 2001 Authorization for Use of Military Force under a novel new theory and, thus, outside the 48-hour reporting requirement. Neither necessarily means the Trump administration was deliberately withholding information or doing anything other than acting in good faith. But both raise questions as to whether the War Powers Resolution’s original reporting structure—and, more specifically, the triggers it relies on—has kept pace with the legal and operational realities of modern U.S. military activities.

Maintaining the public war powers reporting put on display by the Reiss Center’s recent project will likely require the active involvement of Congress. Only Congress can require the executive branch to disclose such information if it will not do so willingly. Fortunately, the current Congress has shown a willingness and capacity to do just that, most notably by installing new reporting requirements that demand the public disclosure of unclassified reports on changes in the legal framework used by the executive branch for evaluating uses of military force. Yet these reporting requirements—and others adopted in relation to specific types of military activity—are papered over the top of an increasingly antiquated War Powers Resolution reporting system that no longer serves our contemporary needs.

Instead of pursuing partial fixes, Congress needs to step back and take a look at its reporting system as a whole to make sure that the executive branch is providing it the information it needs to conduct reasonable oversight. And then it needs to make sure that as much of that information as reasonably possible is disclosed to the public. This is not (just) to satisfy the curiosity of policy wonks and national security lawyers such as me, but to ensure that individual voters have the information they need to evaluate the actions and words of their political leaders—including through projects like the Reiss Center’s database. In an era when both Congress and the judiciary have largely proved unable or unwilling to restrain the executive branch’s use of military force, the democratic check on the president may be the last effective mechanism for accountability the country has left. And absent adequate information, it can’t hope to fill that role.