White House Has Ignored Statutory Requirement to Disclose When It Believes It Can Take Military Action Without Congressional Authorization
Annual Report Provides Crucial Details About President Trump’s Interpretation of War Powers; Allows Congress, Public to Conduct Effective Oversight
Benjamin Wittes, Scott R. Anderson, and Protect Democracy Seek to Better Inform the Public and Congress About American Military Actions
Washington, D.C. — Today, on behalf of national security law experts Benjamin Wittes and Scott R. Anderson and advocacy group Protect Democracy, Democracy Forward filed a complaint and petition for a writ of mandamus seeking to require President Trump to release a legally mandated annual “report on the legal and policy frameworks for the United States’ use of military force and related national security operations,” which provides a critical, up-to-date overview of the U.S. government’s legal and policy frameworks for the use of military force. The 2020 National Defense Authorization Act (NDAA) required that the president release this “War Powers Transparency Report” report to Congress and the American people by March 1st — a deadline President Trump has failed to meet. This lawsuit requests a court order compelling the White House to publish the legally-required report.
“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,” said Scott R. Anderson of Lawfare. “By openly disregarding a requirement imposed by Congress, the Trump administration is putting into question Congress’s authority to promote transparency and accountability around uses of military force. That is a serious enough development to warrant public attention and a public response.”
“Acting on a bipartisan basis in 2019, Congress required the president to report to Congress and the American people on the use of war powers. This president has failed to comply with the law or his duty to come clean with the American people about the use of military force,” said Protect Democracy’s Soren Dayton. “President Trump is depriving the American people of the information they need to hold their elected leaders accountable.”
“The law requires President Trump to be transparent with Congress and the American people about how and when the Executive Branch claims the authority to exercise U.S. military force,” said Democracy Forward Senior Counsel Nitin Shah. “We are going to court to make sure that the president follows the law and Americans aren’t kept in the dark.”
As Wittes and Anderson explain in a piece published today on Lawfare, the Executive Branch’s interpretation of its war powers is not always self-evident or obvious. Historically, presidential administrations voluntarily provided ad hoc public accounts of their national security choices. Indeed, until 2016, the public was relegated to piecing together information from a patchwork of sources to assess the Executive Branch’s understanding of its authority to use military force. The Obama Administration’s release in December 2016 of its “War Powers Transparency Report,” however, offered a thorough account of the administration’s interpretation of the war powers it wielded.
To ensure the Trump administration would continue the practice of thorough disclosures, Congress codified the release of an annual War Powers Transparency Report through a provision in the 2018 NDAA. The 2020 NDAA further strengthened that mandate by setting an annual March 1st deadline to submit the report to the relevant congressional committees and to release its unclassified portion to the American people.
It is essential that the War Powers Transparency Report is released as required by law. Without a full view of the Executive Branch’s interpretation of its legal authority to use military force, Congress cannot effectively consider, analyze, debate, and, as it deems appropriate, act to modify the scope of the president’s war-making authority and military engagements. Likewise, the American people cannot ascertain when, where, why, and against whom the president believes he or she may use U.S. military force.
Without access to the report, plaintiffs Wittes and Anderson, two national security law experts and writers-editors of Lawfare — a publication that covers national security issues — cannot fully explain to the public how this administration conceives of its war-making authority. The same is true of Protect Democracy’s ability to educate the public and conduct effective external oversight.
Three months after the statutorily mandated March deadline has passed, President Trump has failed to release the War Powers Transparency Report that would, at a minimum, better expound on his administration’s view of its legal authority for several changes in the legal and policy frameworks for the use of military force over the past year, including:
President Trump’s March 2019 executive order revoking a previously established requirement that committed the government to annual public reporting on civilian casualties as a result of U.S. military action
The administration’s June 2019 suggestion that the U.S. may use military force against Iran in collective defense of U.S. partner forces under the 2002 AUMF
President Trump’s “risk of escalation” calculation for his decision to order the killing of Iranian Major General Qasem Soleimani in January 2020
This week, the Senate Armed Services Committee began consideration of the 2021 NDAA, and, according to media reports, the House is expected to consider its package later this month.
The suit was filed in the U.S. District Court for the District of Columbia on June 9, 2020. Read the full complaint here.
Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.
Protect Democracy formed to prevent American Democracy from declining into a more authoritarian form of government.