December 3, 2020

jdean-law

Politics and lawyers

Forcing President Trump to Comply with the Law

For the past six months, President Trump has been breaking the law. We don’t mean that in some generic sense, but in a very specific one.

Under 50 U.S.C. § 1549, the president was supposed to provide both Congress and the public with a report on the legal and policy frameworks for the use of military force. The report was due on March 1. But Trump never filed the report. He didn’t argue that the reporting requirement was unconstitutional or provide any reason for his non-compliance. He just ignored it.

For months, we waited and inquired as to the delay, but neither a report nor an explanation was forthcoming. So in June, we decided to bring our case to the courts, working alongside our friends at Protect Democracy and with expert representation from Democracy Forward. And while we knew it would be an uphill fight, we sought a writ of mandamus from the U.S. District Court for the District of Columbia to compel the president to issue the report.

But then, last night, something surprising happened: we won.

Before the court had an opportunity to rule on our claim, the Trump administration posted a cover letter on the White House website suggesting that it had communicated the report in question to Congress. A few anxious hours later, we received a link to where the administration had quietly posted the unclassified report in full. We put a copy up on Lawfare last night, and are embedding another below:

Annual 1264 Report on Legal and Policy Framework Re Military Use of Force (Text)

To our knowledge, this is the first time that anyone has successfully sued to compel the executive branch to comply with a war powers reporting requirement. In part, this is because the statute we were suing over—50 U.S.C. § 1549, as recently amended by the 2019 National Defense Authorization Act (NDAA)—is the first to require that such information be publicly disclosed.

Regular Lawfare readers will most likely have read about this reporting requirement and our lawsuit in these pages before. But for those that haven’t, here’s a quick review, taken from our earlier piece:

The Obama administration released the first iteration [of the report in question]—entitled the “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations”—in December 2016. By providing the public with a detailed overview of the key legal and policy frameworks governing various aspects of U.S. national security policy, President Obama hoped to “not only suppor[t] the process of democratic decisionmaking” but “demonstrat[e] the legitimacy and strengthe[n] the sustainability of our operations[.]” Obama also published a presidential memorandum in the Federal Register directing the National Security Council staff to coordinate an update at least annually and provide it to the public, underscoring his hope that his successor would follow his example.

While Trump has never withdrawn this memorandum, his administration did not appear intent on following it. In December 2017, however, Congress—both chambers of which were then under the control of Trump’s own Republican party—elected to make the report a permanent feature of the American legal landscape. Section 1264 of that year’s [NDAA] directed Trump to update Obama’s report to reflect his own views by March 2018 and then notify Congress within 30 days whenever a subsequent change was made—obligations that were later codified at 50 U.S.C. § 1549 as subsections (a) and (b), respectively.

In late 2019, the current Congress opted to strengthen this reporting requirement even further. As part of the most recent [2019] NDAA, it amended § 1549(a) to require that the president provide Congress “[n]ot later than March 1 of each year” with a report detailing “any changes made to such legal and policy frameworks from the preceding year.” It also added language to § 1549(c) requiring that Trump make the unclassified portion of that report—which is required to include, “at a minimum, each change made to the legal and policy frameworks during the preceding year and the legal, factual, and policy justifications for such changes”—”available to the public at the same time it is submitted to [Congress].”

This move gave interested private citizens like us the legal standing necessary to sue and compel the executive branch to comply. As noted above, our case was still an uphill battle, and a particularly steep one because of how difficult it is to compel the president to do just about anything. Nonetheless, although we never had the opportunity to vindicate our arguments in court, it seems that they ultimately proved compelling enough for the Trump administration to reconsider its intransigence.

The report itself is short, concise, and—despite some snippets of new and interesting information—almost certain to disappoint. The classified appendix that Congress also received as a result of our litigation may be more forthcoming, but we will likely never know. But in many ways, this is unsurprising and ultimately beside the point. Our goal was to use litigation to force the president to comply with a war powers reporting obligation he was choosing to ignore. And the result is the rebuttal of Trump’s implicit claim that he is free to ignore the law and keep essential information secret on how the U.S. engages in questions of war and peace, even where Congress directs otherwise.

What’s in the Report?

A concise three pages, much of the report consists of recycled information that has been included in prior public statements, testimony, and war powers reports. The section on Trump’s decision to strike a reporting requirement on civilian casualties, for example, cribs almost verbatim from the executive order and associated 30-day notice that implemented and notified Congress of the move in early 2019. This section adds little to what was already known.

The government also makes the notable choice to interpret its annual reporting obligation under § 1549(a) to cover activities during the prior calendar year—not the year leading up to the Mar. 1 due date. This means that the report focuses on events in 2019 and omits the first two months or so of 2020—a period that just happens to coincide with the controversial airstrike that killed Iranian paramilitary commander Qassem Soleimani. The report does acknowledge the Soleimani strike in a footnote and refers back to the 30-day notice the administration provided to Congress under § 1549(b), which was later publicly released. But this notice itself was largely an exercise in obfuscation, which did little to shed light on the domestic and international legal justifications for the attack—other than to confirm predictions that the administration was relying in part on a broad reading of the 2002 Authorization for Use of Military Force (AUMF) relating to Iraq. By interpreting the Soleimani strike as out of the scope of this report, the Trump administration has once again avoided a fuller discussion of the legal basis for its actions—and its broader views of its legal authority to engage in hostilities with Iran.

Other parts of the report, however, are more revealing. Despite its brevity, the document makes several assertions and observations that confirm or shed additional light on the Trump administration’s views regarding relevant legal and policy questions. Some require inferences and logical connections that cannot be easily made without some familiarity with the administration’s prior positions and statements in this space. But collectively, these aspects of the report help to demonstrate the degree to which even limited public disclosures can help to improve the public’s knowledge and understanding.

Use of Force

The substantive portion of the report opens with a seemingly straightforward statement that, “[i]n 2019, the United Stated used military force in the following countries: Afghanistan, Iraq, Syria, Yemen, Somalia, and Libya.” Less clear, however, is what definition of “us[ing] military force” the report is employing to arrive at this list. After all, by their plain language the 2001 and 2002 AUMFs authorize the use of force, but they are often cited by the executive branch as the legal basis for a much more diverse array of military activities. And in prior war powers reports, the Trump administration has suggested that it was pursuing such activities in many other corners of the world as well, ranging from Jordan to Niger to the Philippines.

Perhaps the report is focused on incidents in which the United States took direct military action. But if this is the case, it’s omitting at least one notable event: the June 2019 shooting down of an Iranian drone over the Strait of Hormuz. Maybe the report doesn’t cover this incident because the United States maintains that the attack occurred in international airspace, not within a country—though it’s not clear why Congress should be less concerned about a military attack on a foreign country’s property, even if it didn’t take place in that country’s territory or put its personnel at risk. Regardless, without some clarification about what precisely this list is addressing, it’s not particularly useful.

Applying the 2001 AUMF

The report then goes on to discuss the Trump administration’s use of the 2001 AUMF. After noting that the 2001 AUMF “does not authorize the President to use force against every group that commits terrorist acts[,]” the report provides a list of organizations that the Trump administration has determined fall within the scope of the 2001 AUMF, specifically: al-Qaeida, the Taliban, certain affiliated groups in Afghanistan, al-Qaeda in the Arabian Peninsula, al-Shabaab, al-Qaeda in the Islamic Maghreb (AQIM), al-Qaeda in Syria, and the Islamic State. In addition, it notes that the United States used military force against all these groups in 2019, except AQIM.

The list itself isn’t particularly surprising, as it essentially lines up with the list that the Obama administration provided in its original legal and policy framework report in 2016. The Trump administration provided similar information in its 2018 update, albeit not consolidated into a single list like this. But the fact that the Trump administration is providing it to the public is notable, as this is a step that the executive branch has resisted in the past. In 2019, however, Congress amended 50 U.S.C. § 1549 to require the administration to disclose a full list of entities determined to be within the scope of the 2001 AUMF. Now the Trump administration appears to have decided that this warrants including at least a basic list of entities in the unclassified report as well.

Of course, it’s not clear that this list is exhaustive or up to date. The report itself suggests otherwise, acknowledging that, as recently as Sept. 8, 2020, the administration has provided Congress with a 30-day notice amending the “specific information about the application of the 2001 AUMF to particular groups” included in the classified annex of the 2018 update. Whether this amendment is reflected in the list of entities provided in the public report is unclear. But this underscores the fact that substantially more information is being included in the classified annexes to the legal and policy framework reports—and that it is being actively adjusted by the Trump administration as recently as last month.

Finally, the report gives some detail about the process the Trump administration pursues in order to determine if an entity falls within the scope of the 2001 AUMF. According to the report, such determinations are “fact-specific” and made “at the most senior levels … only after a careful evaluation of the intelligence[.]” With regard to organizations, the report notes that the application of the 2001 AUMF is informed “by the traditional concept of co-belligerency in conflicts between States[.]” As for individuals who may or may not be parts of those organizations, the report notes that policymakers consider, among other factors, whether the individual in question is acting on or receiving orders from the group or performing functions for the group’s benefit that are analogous to those performed by soldiers. While this resembles similar discussions in the Obama administration’s original 2016 legal and policy framework report, the specific factors this report identifies provide some additional insight into the executive branch’s reasoning.

Iraq and Syria

The report then goes on to specifically address the application of relevant legal and policy frameworks in Iraq and Syria—a curious inclusion, as the document does not single out any other theaters for discussion. Of course, these theaters have been among the most active in recent years. And the report’s account of each provides some new insights.

Concerning to Iraq, the report confirms that U.S. forces are still there to assist Iraqi forces in combating—and pursue direct military action against—the Islamic State. Importantly, the report also notes that this is being done “at the invitation and with the consent of the Government of Iraq.” During the political controversy that followed the Soleimani strike, Trump had suggested that U.S. forces might maintain a presence in Iraq over the Iraqi government’s objections—an approach that would raise serious questions under international law. But the report suggests that the Trump administration has not yet embraced this legal justification and continues to rely on the consent of the Iraqi government, despite continued tensions with Iraqi officials over the U.S. military presence.

As for Syria, the report reaffirms a dubious domestic legal justification for the U.S. military presence there. According to the report, the United States remains in Syria to pursue military operations against the Islamic State pursuant to the 2001 AUMF, and “maintains a small, residual force presence in Syria … to preclude the resurgence of ISIS, including preventing ISIS from retaking critical petroleum infrastructure[.]” The latter, it notes, includes the controversial outpost at al-Tanf. Critics have alleged that this presence is aimed more at monitoring and restricting Iranian forces than combating the Islamic State, which no longer controls territory nearby. By doubling down on these arguments, the Trump administration is arguably further stretching the 2001 AUMF, to the point that it now authorizes the holding of territory for a potentially indefinite period as a preventive measure against the resurgence of forces within its scope—even after Trump spontaneously ordered a partial withdrawal in Oct. 2019 that curtailed a variety of activities far more closely related to targeting the Islamic State.

Collective Self-Defense

Finally, within the context of Iraq and Syria operations, the report makes an interesting assertion about the practice of “collective self-defense”—a term used to refer to the use of U.S. military force in defense of partner forces from third-party attacks. We addressed this issue both in our complaint and previously in Lawfare, concerning a June 2019 letter from the State Department to Congress asserting that collective self-defense was authorized by both the 2001 AUMF and 2002 AUMF: in our view, this was a new assertion as far as the 2002 AUMF was concerned, and should have been the subject of a 30-day notice under § 1549(b). The report doesn’t concede this point, but it confirms that the State Department letter does in fact reflect the views of the Trump administration. In a footnote, the document makes the even broader assertion that “[s]tatutes that authorize the use of necessary and appropriate force, including the 2001 AUMF and 2002 AUMF, encompass the use of force both to carry out the missions under the statutes and to defend U.S. or partner forces as they pursue those missions.” In effect, this further extends the availability of collective self-defense past the 2001 and 2002 AUMFs to other existing and future statutory authorizations, at least so long as those authorizations use the common “necessary and appropriate” formulation. This arguably makes collective self-defense a more permanent feature of American wars, at least so long as the executive is acting at least in part on authorization from Congress.

Lessons for Congress

Perhaps the biggest takeaway from the report, however, should be for Congress. And it has less to do with the report itself than what our experience shows about how the legislature should design this sort of reporting requirement.

There is genuine bipartisan interest in transparency around the executive branch’s war powers decisions. But achieving it is often easier said than done. While unclassified versions of the reports required by the War Powers Resolution have traditionally been released to the public, this isn’t required by the law. As the Trump administration made clear when it chose to file its 48-hour report on the Soleimani strike solely in classified form, a presidential administration that is intent on withholding information from the public can still do so quite handily.

Nor are required disclosures to Congress always an adequate substitute. Classified reports to the legislature can provide much more information than the executive branch would be able to share with the general public. Yet that doesn’t mean that such documents are necessarily more forthcoming. Moreover, if the executive branch fails to provide a required report, it is up to Congress to push back and secure it. Doing so, however, requires not just substantial political support within Congress but a willingness to make the missing report an issue with the executive branch, above other issues of concern. In this context, missing or inadequate war powers reports may not be able to compete with other legislative and policy priorities for bandwidth, providing an easy out for the executive branch.

Public disclosure requirements can help fix this problem. Statutorily requiring the executive branch to make public disclosures gives private individuals and organizations with an interest in that information and the legal standing necessary to sue for it. Moreover, if the public disclosure in question is derivative of a separate report made to Congress—as is the case with the annual report required by 50 U.S.C. § 1549(a)—then private plaintiffs are arguably able to sue to compel the government to provide those reports as well. This creates litigation risk that may encourage the executive branch to make the required disclosures without a case even needing to be filed.

Of course, those lawsuits aren’t always guaranteed wins. As we discussed in an earlier post on our lawsuit, the fact that 50 U.S.C. § 1549 imposes the reporting obligation directly on the president can make it complicated to compel disclosure because, among other reasons, the president is outside the scope of the Administrative Procedure Act (APA), which is usually used to challenge governmental actions. Hence, while there’s an understandable political desire to “hold the president responsible” by assigning a statutory duty directly to him or her, doing so can in fact make that requirement more difficult to enforce. In addition, the less specific a statute’s disclosure requirement, the harder it will be for private plaintiffs to show that the executive branch has disregarded a legal duty in failing to fully respond to it.

In the future, Congress could make enforcement more effective and easier to secure by crafting disclosure requirements to be more explicit and assigning them to lower ranking officials, either instead of the president or as a backstop to an obligation on the president. Alternatively, Congress could also choose to make the president subject to the APA for the purposes of such requirements, though this in turn may raise constitutional questions.

Either way, our lawsuit has shown that such public disclosure requirements can be a powerful tool for promoting transparency and enforcing reporting obligations with minimal effort by Congress. Our case is thus a useful model, one that could be strengthened even further with additional refinements to the law.

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As for our case, it’s not necessarily over yet. Under 50 U.S.C. § 1549, the annual report we’ve been suing over is supposed to, “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.” We’re not sure the report we received meets these and other requirements. Over the next several days, we’ll be meeting with our co-plaintiffs and counsel to determine whether further litigation is warranted to ensure that the Trump administration fully complies.

We will, as always, keep Lawfare readers informed of where the matter proceeds from here.