For the past month, while America’s attention has been understandably focused on the coronavirus crisis, the Trump administration has been disregarding an important new law concerning the president’s war powers. On March 1, President Trump was supposed to provide the public with a report describing any changes to the “legal and policy frameworks” governing when and where the president can use military force. More than a month later, that report still hasn’t been released—and the Trump administration hasn’t even offered an explanation as to why.
In many ways, this omission continues a troubling trend of silence around war powers issues, one that has been particularly notable since the controversial killing of Iranian military commander Qassem Soleimani earlier this year. But by openly disregarding a requirement imposed by Congress, the Trump administration is also putting into question Congress’s authority to promote transparency and accountability around uses of military force. And that is a serious enough development to warrant public attention and a public response.
The framework report in question began as a voluntary initiative of the Obama administration, which released the first 66-page report to the public just as it was preparing to leave office in December 2016. As President Obama described at the time, it was intended to support “the process of democratic decision making” by explaining “the legal basis and policy parameters” for military and related national security operations to the American public, allowing voters to more effectively take a president’s position on those issues into account at the ballot box. While Obama tried to institutionalize the practice using executive directives, the Trump administration opted not to follow suit and brought the effort to an end.
But President Obama, it turns out, wasn’t the only one who thought greater transparency around war powers was a good idea. In December 2017, the Republican-controlled Congress chose to make the framework report permanent. Specifically, it directed the Trump administration to update the report and then required that the president notify Congress within 30 days whenever there was a change in the legal and policy frameworks it describes.
The Trump administration complied with this law in March 2018, providing Congress with an update whose unclassified portions, while sparse, mostly signaled continuity with the Obama administration. But it bucked past practice when it came to transparency, choosing to submit the report to Congress without releasing the unclassified portion to the public. Until the New York Times acquired and released an electronic version, the only way for private citizens to read it was to review a hard copy made available by relevant committees on Capitol Hill. (The report was later posted on the State Department’s website.)
For its part, Congress doesn’t appear to have liked this evasiveness. In December 2019, it amended the law to require that the executive branch file an annual update whose unclassified portion covers “each change made…during the preceding year” as well as “the legal, factual, and policy justifications for such changes”. More importantly, it also directed the executive branch to make that unclassified portion “available to the public” at the same time that it submitted the whole report to Congress—specifically, each March 1.
More than a month has now passed since that deadline, and the new report still hasn’t appeared.
Nor is this the Trump administration’s only recent omission when it comes to war powers. In January, the White House was required to file a different type of report with Congress describing the legal basis for that action within 48 hours of the Soleimani strike. It did so—but only in classified form, departing from decades of past bipartisan practice. Even then, the information provided appears to have been far from satisfactory. Members of the president’s own party in Congress criticized his administration’s legal explanation as “unacceptable,” even after their initial submission was supplemented with a classified briefing.
Several weeks later, the Trump administration filed a 30-day notice with Congress of a change in the legal and policy framework relating to the Soleimani strike. But it once again chose not to make the unclassified portions of this report available to the public, leaving it to a House committee to eventually do so. And language the administration uses in the unclassified portion that was ultimately released is so open-ended that it creates as much ambiguity as it resolves.
By submitting this notice, the Trump administration has acknowledged that there has been a change in the legal and policy frameworks over the past year. It did the same thing in March 2019 when it filed a similar 30-day report after striking part of an executive order on civilian casualties. Either change would be sufficient to trigger the requirement for a report on March 1. So on what grounds has the Trump administration chosen not to comply?
Trump has hinted that some of the information required by the framework report may be “protected by executive privilege.” But legal interpretations of the Constitution and U.S. laws are not the sorts of information traditionally withheld on such grounds. Nor can privilege excuse the Trump administration from filing even a partial report, especially when officials have already publicly discussed relevant responsive information.
Instead, the Trump administration—worried, perhaps, about the report’s political ramifications in the upcoming presidential elections—may simply be relying on the fact that there is no easy means of forcing them to comply in the short-term. But there are less direct ways for Congress to push back, including by threatening to strengthen reporting requirements or withhold funding if the administration does not comply. And some private plaintiffs may actually be in a position to challenge the president’s intransigence in court, thanks to Congress’s decision to require that the March 1st report be publicly disclosed—an unprecedented move in the context of war powers reporting.
As Sen. Mike Lee, R-Utah, recently wrote, important decisions of war and peace must be debated “to make sure they can withstand the scrutiny of the only sovereigns in our republic—the American people.” And for such debates to be effective, the public needs a clear understanding of when and where the president is claiming he has the authority to take military action.
This is exactly what Democrats and Republicans in Congress sought to institutionalize when they incorporated the legal framework report into law. Allowing the Trump administration to simply disregard these disclosure requirements threatens Congress’s very ability to promote transparency and accountability in regard to war powers—and perhaps in other areas as well.
President Trump should comply with the reporting requirements imposed by Congress. If he does not, then he at least has to explain how doing so is consistent with his constitutional duty to “take Care that the Laws be faithfully executed.” Absent a response along these lines, the Trump administration will be doing potentially lasting damage to the system of transparency and accountability that Congress has gradually erected around war powers issues. And if Congress and the American people wish to preserve this system, they may ultimately need to hold him and his administration accountable for their continued silence.