Latest in War Powers Resolution
Yesterday, on Dec. 13, the Senate made history. By a vote of 56-41, it adopted S.J. Res. 54, a bipartisan joint resolution that directs U.S. forces to withdraw from “hostilities” in Yemen not related to al-Qaeda within 30 days of enactment—a move that, its supporters maintain, will end U.S. support for the Saudi-led coalition currently waging a military campaign against Yemen’s Houthi rebels.
Last Friday, Feb. 9, Sen. Tim Kaine asked the Trump administration to turn over a legal memo prepared by administration lawyers in connection with the April 2017 missile strikes directed at Syrian regime forces. The existence of that memo came to light in response to a freedom of information lawsuit filed by our organization, Protect Democracy.
Earlier this month, Quinta Jurecic noted a suit filed by the nonprofit Protect Democracy under the Freedom of Information Act (FOIA) to obtain the Trump administration’s legal justification behind U.S. airstrikes in Syria during April 2017. This post summarizes the ongoing battle over the release, in particular, of a legal memorandum (and related documents) provided to the National Security Advisor on the legality of the administration’s missile strike.
In May 2017, the nonprofit Protect Democracy filed suit under the Freedom of Information Act to obtain the Trump administration's legal justification behind the U.S. airstrikes in Syria during April of that year. The litigation produced proof of a seven-page legal memo analyzing the legal basis for the strikes, which the Justice Department has not yet released.
Just over a month ago, the Administration launched missile strikes against the Assad regime in Syria. The strikes followed a brutal chemical attack that killed scores of innocent civilians. We are all disturbed by Bashar al-Assad’s horrific attacks on his own citizens. But that cannot obscure the question of what the President’s legal authority was for the missile strikes, or whether he usurped power that belongs to Congress.
A few weeks ago, AFRICOM quietly brought to an end a five-year-old combat-equipped deployment that for a time had raised some very interesting War Powers Resolution questions.
With six hours to spare before the 48-hour deadline in section 4 of the War Powers Resolution, the White House has sent the President's report to Congress on Thursday evening's missile attacks on Syria.
The text is here:
THE WHITE HOUSE
The government has just filed its brief responding to Captain Smith’s challenge to the president’s unilateral war against ISIS. The government’s lengthy brief cites more than eighty judicial decisions, but fails to mention the Steel Seizure Case – where Justice Jackson explained that, even in matters of national security, presidential power is at “its lowest ebb” when the commander-in-chief violates express Congressional statutes.
Last week, U.S. Army Captain Nathan Michael Smith sued the U.S. Government in federal court, seeking a declaration that Obama’s war against ISIS is illegal. Jack Goldsmith and Marty Lederman have put forward competing views over whether this lawsuit is a big deal.
As I explained in a New York Times op-ed today, Captain Nathan Smith has gone to court for a declaratory judgment on the legality of President Obama’s undeclared war against the Islamic State. While I encourage readers of Lawfare to read the entire Complaint submitted by David H.