War Powers

White House Releases Annual Report and Notice Concerning Legal and Policy Frameworks for War Powers

By Tia Sewell
Tuesday, April 6, 2021, 11:04 AM

On April 4, the Biden administration released the unclassified portion of the annual report on the legal and policy frameworks for U.S. use of military force and related national security operations, which covers the calendar year 2020. President Biden provided the annual legal and policy frameworks report to Congress on March 3 but did not publicly release the unclassified portion until now.

The administration also released a notice of a change in the legal and policy frameworks since the last report was submitted to Congress by former President Trump on Oct. 16, 2020. The notification of change details that Biden “established new interim guidance concerning the United States’ use of military force and related national security operations” on Jan. 20, 2021. Last month, The New York Times reported that Biden has tightened permissions on counterterrorism drone strikes and commando raids away from war zones.

Under 50 U.S.C. 1549(a), the president is required to submit the annual legal and policy frameworks report to Congress by March 1. 50 U.S.C. 1549(a) requires that the report’s unclassified portion “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 released to the public at the same time it is made available to Congress. 50 U.S.C. 1549(b), meanwhile, requires the president to notify Congress “[n]ot later than 30 days after the date on which a change is made to the legal and policy frameworks[.]” Each notice is required to include “the legal, factual, and policy justification for such change[.]” The White House’s reason for labeling both the report and notice as “unclassified annexes” is unclear: 50 U.S.C. 1549(c) requires that both reports and notices be submitted in unclassified form, but permits the president to append classified annexes.

Last year, Lawfare’s Editor in Chief Benjamin Wittes and Senior Editor Scott R. Anderson were plaintiffs in a lawsuit that successfully secured the release of the last annual legal and policy frameworks report, after the Trump administration failed to provide it to Congress or the public as required by law.

You can read the report and notice below:

Unclassified Annex: Report on the Legal and Policy Frameworks for the United States’ Use of Military Force and Related National Security Operations

This report is provided in accordance with Section 1264 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. No. 115-91), as amended by Section 1261 of the NDAA for FY 2020 (Pub. L. No. 116-92), codified at 50 U.S.C. § 1549. It constitutes the calendar-year 2020 annual report on changes to the legal and policy frameworks from the preceding calendar year for the United States’ use of military force and related national security operations. President Obama issued the “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations” on December 5, 2016. Pursuant to Section 1264, as amended, former President Trump submitted reports on March 12, 2018, and October 16, 2020. Consistent with Section 1264(c) of the NDAA for FY 2018, as amended (50 U.S.C. § 1549(c)), this report contains a classified annex.

Although this report covers 2020 and thus addresses a period before the beginning of the Biden-Harris Administration, we note that on February 19, 2021, President Biden submitted a notification in accordance with Section 1264(b) of the NDAA for FY 2018, as amended (50 U.S.C. § 1549(b)), describing a change to the legal and policy frameworks for the United States’ use of military force and related national security operations.

2001 Authorization for Use of Military Force

The classified annex contains information about the application of the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) to particular groups.

Application of Key Domestic and International Legal Principles to Key Theaters

Iraq: At the direction of former President Trump, U.S. forces conducted an air strike in Iraq on January 2, 2020, killing Major General Qassem Soleimani, leader of Iran’s Islamic Revolutionary Guard Corps-Qods Force. Former President Trump provided his explanation for the legal and policy frameworks for this use of military force in a notice provided to Congress on January 31, 2020, in accordance with Section 1264(b) of the NDAA for FY 2018, as amended (50 U.S.C. § 1549(b)).

Unclassified Annex: Notification on the Legal and Policy Frameworks for the United States’ Use of Military Force and Related National Security Operations

This notification is provided consistent with Section 1264(b) of the National Defense Authorization Act (NDAA) for Fiscal Year 2018, as amended (50 U.S.C. § 1549).1 It provides notice of a change in the legal and policy frameworks since the last annual “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations,” which President Trump submitted to the appropriate congressional committees on October 16, 2020.

On January 20, 2021, as clarified on February 19, 2021, the President established new interim guidance concerning the United States’ use of military force and related national security operations. The justification for the issuance of the interim guidance is to ensure the President has full visibility on proposed significant actions in these areas while the Assistant to the President for National Security Affairs coordinates interagency reviews of the extant authorizations and delegations of Presidential authority with respect to these matters.

1 Section 1264, National Defense Authorization Act for Fiscal Year 2018, Pub L. No. 115-91 (2017), as amended by Section 1261, National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92 (2019).

2 Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, October 16, 2020. See Text of a Letter from the President to Certain Congressional Committees, October 16, 2020, available at https://www.trumpwhitehouse.gov/briefings-statements/text-letter­president-certain-congressional-committees/.

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