War Powers

We Filed Suit Over Trump’s Missing War Powers Report

By Scott R. Anderson, Benjamin Wittes
Tuesday, June 9, 2020, 1:05 PM

For more than three months, President Trump has been sitting on an important report outlining his views about when and where he has the legal authority to use military force. He was obligated to provide it to Congress on March 1. He didn’t. He was supposed to provide the unclassified portion to the public. He hasn’t done that either. And while members of Congress have repeatedly complained, the White House hasn’t even tried to justify the Trump administration’s refusal to file the document, let alone explain how it is consistent with the law .

That’s why, this morning, we and our friends from Protect Democracy—with representation from the fine people at Democracy Forward—sued to force the release of Trump’s missing war powers report. You can read our complaint here:

Lawfare regulars may have read about this report in these pages before. The Obama administration released the first iteration—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 democatic 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While Trump has never withdrawn this memorandum, his administration did not appear intent on following it.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 National Defense Authorization Act (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 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 was intended to ensure the sort of democratic transparency that both the Obama administration and the 115th and 116th Congresses have felt was due on an issue of such national importance.

But Trump has now chosen not to comply, without providing an explanation as to why. The closest he has come is his signing statement for the 2020 NDAA, which included the provision amending § 1549 among a list of provisions that “purport to mandate or regulate the dissemination of information that may be protected by executive privilege, including by interfering with Presidential control of the process for making a determination that information is protected.” There Trump indicated that his administration would “treat these provisions consistent with the President’s constitutional authority to control information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President’s constitutional duties,” suggesting an intent to comply to at least some extent.

Trump has even admitted that changes he is required to include in the § 1549(a) report have been made. Twice in the year prior to March 1, 2020, Trump sent 30-day notices to Congress alerting it of “change[s] . . . made to the legal and policy frameworks” pursuant to § 1549(b)—the events that he is obligated to disclose in the unclassified portion of the missing March 1 report under § 1549(c). These notices also provided information on “the legal, factual, and policy justification” for such changes, as required by § 1549(b)—the same minimum information that is required to be included in the unclassified portion of the March 1 report and disclosed to the public.

Nor are these the only two changes that the Trump administration appears to have pursued. In a June 28, 2019, letter to Congress, the State Department asserted that the 2002 Authorization for Use of Military Force (AUMF) relating to Iraq authorizes the use of military force where “necessary to defend U.S. or partner forces” (emphasis added), a practice that the Trump administration has elsewhere described as “collective self-defense.” This authority, however, was not included in the original 2016 legal and policy framework report authored by the Obama administration, and was only discussed in relation to the separate 2001 AUMF in the March 2018 update that the Trump administration provided Congress. This makes it a change in the legal and policy frameworks that should be included under § 1549(a), even if the Trump administration did not previously notify Congress that it had occurred.

For those of us who work in the field of national security law, Trump’s refusal to comply with his disclosure obligations under § 1549(a) isn’t just of academic interest. The president simply doesn’t put forward comprehensive statements on the scope of their war powers and related authorities that often. Instead, scholars often have to infer these views from lower-ranking executive branch officials’ ad hoc public statements and practices. Both of us have spent years collecting, reviewing, and analyzing these materials in order to inform the public on how the executive branch views these authorities and may seek to use them. Indeed, one of us even co-wrote a whole book about it. Protect Democracy has similarly sought the release of this sort of information through Freedom of Information Act requests, litigation, and other mechanisms, both to help educate the public on war powers accountability issues and to advocate for related reforms.

Both these sets of activities, moreover, are particularly important given that 2020 is an election year. The political process has always been a central check on presidential war powers. But for it to function effectively, the electorate must know and understand where the president stands so that it can vote accordingly.

The missing March 1 report would provide an unparalleled amount of information regarding Trump’s own views of his authority as president, in a single location and with a level of certainty that is otherwise difficult to achieve. By withholding it, Trump is making our efforts to educate and inform the public immensely more difficult, in the leadup to a pivotal election. It’s hard to imagine an outcome more inconsistent with what Congress had hoped to achieve in installing § 1549’s requirements.

We believe that the injury Trump’s refusal to publicly release the March 1 report does to these activities gives us the legal standing we need to challenge his decision in the courts. But that doesn’t make suing the president easy. The Supreme Court has held that the president is not covered by the Administrative Procedures Act (APA), making the usual legal avenues for challenging unlawful governmental action—or, in this case, inaction—unavailable. Instead, we have to pursue the more extraordinary remedy of a writ of mandamus. When it comes to the president, separation of powers concerns have led the U.S. Court of Appeals for the D.C. Circuit to conclude that mandamus may only compel the president to pursue a “purely ministerial duty” that “admits of no discretion, so that [he] has no authority to determine whether to perform the duty”—a rather demanding bar.

We are not aware of a prior case that has addressed mandamus relief in an identical situation—namely, one in which the president has refused to comply with a clear statutory disclosure obligation. At a minimum, it starkly draws into question “the bedrock principle that . . . government is founded on the rule of law” that has traditionally counter-balanced the suggestion that mandamus is categorically unavailable against the president. Yet we also must recognize that securing such relief is likely to be an uphill climb.

Fortunately, there are steps Congress can take to give private plaintiffs additional avenues to enforce § 1549 in the future. While one option might be to pull the president within the ambit of the APA, doing so would raise its own set of constitutional questions. A more straightforward approach would be for Congress to simply add a provision to § 1549 passing the reporting obligation on to lower ranking officials who are subject to the APA if the president does not comply. This could be done as simply as adding the following subsection somewhere in § 1549:

If the report described in subsection (a) is not submitted to the appropriate congressional committees by March 1 of a given year as required by subsection (a)(1), then the Secretary of Defense and the Secretary of State shall each submit to the appropriate congressional committees a report on the legal and policy frameworks for the United States’ use of military force and related national security operations that includes the matters described in subsection (a)(2) and that comports with subsection (c) by March 15 of that same year. The unclassified portions of each of these reports shall, 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, and shall be made available to the public at the same time they are submitted to the appropriate congressional committees.

Of course, Congress may also want to make a similar reporting provision retroactive so as to cover the year leading up to March 1, 2020, if that report is not disclosed. It also may wish to include the period from March 2018 to March 2019 that is not currently covered by a reporting requirement other than the 30-day notices required by §1549(b).

The reader, however, should have no illusions: any such report would be far inferior to the one currently promised by § 1549. Neither secretary can speak to the executive branch’s views with the authority and certainty of the president, as it is the president’s views that ultimately define the legal positions of the executive branch. This is precisely why Congress made the deliberate choice to obligate the president to divulge those views to the public, not his advisors—and why, if no remedy is available to make him comply, there may be no reliable means by which Congress can require the president to disclose some of the most important legal views within his administration to the public that elected him.

In our view, this is also what makes the current missing war powers report worth fighting over. As Sen. Mike Lee wrote earlier this year: “When we don’t debate matters of war and peace, we don’t allow the American people (who will be most affected by these decisions) to weigh in. That is [a] recipe for arrogance and overreaction.”

But to have this debate, we must know where President Trump stands. Ensuring compliance with § 1549, as Congress intended, is a much needed step in this direction.

As always, we will keep Lawfare readers informed as the matter moves forward.

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