In his State of the Union speech on Tuesday, President Obama called on Congress to authorize force against the Islamic State. This was consistent with the line he has been walking between urging Congress to provide force authorization and justifying his orders to use force without it.
Post-9/11 congressional force authorizations have been unduly malleable (susceptible to post-hoc, novel adaptation, i.e., the Amoeba problem) and persistent — without temporal limits or realistic logical conclusion, i.e., the Forever War problem. Such malleability and persistence have further eroded congressional participation in the joint exercise of war powers; an area already tilted toward the Executive. Despite divided government, there now appears to be momentum for new, or revised, Authorizations of Use of Military Force (AUMFs) against the Islamic State and other potential enemies.
In this post, I address a few issues related to legislation calling for reports from the Executive Branch as they relate to current AUMF deliberations. Ultimately, some reporting requirements are constitutionally valid and wise policy, some are legally valid but pragmatically unsound, such as those imposing unacceptable opportunity costs on the Executive, while others could become constitutionally problematic such as requirements treading on executive privilege.
I. The AUMF debate
Recent experience has been the mother of legislative invention. Credible thinkers – including many colleagues here at Just Security – variously advocate for a menu of legislative principles and provisions to address current problems, including sunset provisions, congressionally-mandated reports from the Executive Branch, and tactical restrictions.
Reporting provisions related to war powers are not unprecedented. One needs look no further than the War Powers Resolution, or various war-related appropriations legislation that has required detailed reporting from the Executive. However, current proposals indicate Congress may be poised to offer less deference to the Executive, from the initial authorization moment, than it has in the past.
For example, in December, the Senate Foreign Relations Committee approved force authorization language against the Islamic State or “a closely-related successor entity.” It conditions approval on restricted tactics (no ground troops except for limited operations against high-value targets), repeals the 2002 AUMF, and includes a 3-year sunset provision. Of most relevance for present purposes, it requires the Executive Branch to provide robust reports on a range of issues, including a comprehensive strategy, a list of associated organizations, geographic scope of operations, “methods for limiting civilian casualties,” budget estimates, and detailed information on contributions by coalition partners.
Rep. Adam Schiff (D-Calif.), likewise, offered a draft AUMF which commands that “The President shall…submit…a report on matters relevant to this joint resolution, including actions taken pursuant to the exercise of authority granted…and the status of planning for efforts that are expected…over the next 60 days.” For his part, Rep. Darrell Issa (R-Calif.), the outgoing chairman of the House Oversight and Government Reform Committee (HOGR), offered language that requires reports to Congress from the President every 60 days on the “status of all actions taken” and “all proposed actions” taken pursuant to the force authorization, as well as information about coalition partners and budgetary effects. He was also sure to include HOGR along with the Committee on Armed Services and Committee on Foreign Affairs as a recipient.
II. Competing interests at stake
Congress should know which groups the Executive Branch deems to be associated forces and the locations where we are involved in conflict. Sunset provisions are also a good idea. Congress has extremely strong claims to information that will inform to its policy choices. Nevertheless, I don’t think a public disclosure obligation — which could easily complicate, if not undermine, a war effort — necessarily follows.
We should distinguish between “public” reporting (to the people, the media, etc.) and reporting to Congress, the people’s representatives since pure public reporting provisions can be problematic. Transparency is an important democratic norm but it is not an end in itself, especially in the prosecution of a war. The democratic process—elections—require access to sufficient information to assess job performance by elected officials. This requires strategic-level transparency about policy choices, efficacy, and consequences. Such interests, however, are more attenuated as the information becomes more granular, especially in real time. The public’s interest in tactical information about troop movements, supply routes, methods of warfare, and civilian and combatant casualties may not be acute, depending on the nature and timing of the information, during prosecution of combat operations. The republican form of government makes the public’s claims to such information weak in comparison to those of Congress.
Congressionally-mandated reporting requirements are of mixed utility and propriety. They are an important oversight- and consultation-forcing mechanism, when well-designed. More consultation and oversight is generally a welcome development in the context of force authorization, appropriations, and congressional oversight of U.S. warfighting and national security policy. This is especially true in a strategic setting that is vulnerable to the Amoeba problem and the Forever War problem.
On the other hand, reporting requirements come at little political cost for Congress to implement relative to the burden they place on executive branch personnel. There is often a make-work quality to them, especially after initially intense congressional interest wanes. Moreover, while reporting requirements bolster congressional claims to information, they generally fail to resolve the most controversial disputes about information access between Congress and the Executive Branch.
Of course, not all reporting requirements are created equal. Some call for mundane information. Other congressional reporting requirements call for information at the core of executive branch confidentiality interests. Some requirements call for information that the subject agency does not collect, or call for data sets in a manner that the agency’s systems are not organized to meet.
There is also the question of the subject of the congressional command. Most congressional reporting requirements are directed at agencies and departments, and their leaders. Other legislative language, as noted in some of the draft AUMF language above, commands the President to report to Congress. Whether the addressee of the legislative reporting obligation is a distinction with any constitutional difference seems to me an interesting question in the abstract but offers little force in the day-to-day, in which the President routinely complies with such requirements.
In fact, Congress has imposed – and executive branch officials have complied with – statutory reporting requirements since the founding. According to CRS:
Legislation establishing the Treasury Department required the Secretary to report to Congress and to “perform all such services relative to the finances, as he shall be directed to perform.” Alexander Hamilton, serving as the first Secretary of the Treasury, submitted reports to the House of Representatives pursuant to this command, and began each report with an acknowledgment of the order of the House that had directed him to report. (footnotes omitted)
III. Three types of objections to reporting requirements
Over the years, the Executive Branch has raised three types of objections to congressional reporting requirements.
First, a policy objection: the Executive Branch argues that reporting requirements are often redundant and, in the aggregate, unduly burdensome. Per the Office of Management and Budget (in mid-2014):
Every year, Congress requires Federal agencies to produce thousands of written reports and plans on far ranging topics. While these reports and plans often provide useful information for legislative decision-making, oversight, and public transparency, some reports and plans that were once useful have become outdated or duplicative, and needlessly divert time and resources away from critical agency mission activities.
The Obama administration has identified over 450 outdated or duplicative reports and plans obligated to Congress across the federal government. Of interest to Just Security readers, 187 of the reports OMB identifies as problematic are the obligation of the principal national security agencies.
|Executive Component||Number of Reports|
|Department of Defense||77|
|Department of Homeland Security||57|
|Department of State||23|
|Office of Director of National Intelligence||29|
|US Agency for International Development||1|
For its part, the Executive Office of the President (EOP) identified 32 statutory EOP reporting obligations it wanted to see repealed or modified, some of which include national security matters. Finally, these numbers do not account for national security-related reporting obligations of Department of Energy, NASA, and Department of Treasury that OMB placed on its list.
This is not idle whining. The State Department and USAID, especially, seem to buckle under the personnel demands required by unending quarterly, semi-annual, and annual reports to Congress. Surely we should have diplomats developing relationships and forging goodwill rather than writing unending reports. The problem is also compounded by that fact that there is little political incentive to repeal older requirements. They cling like barnacles that eventually sink the ship.
Congress has taken some steps to address this criticism. As Chairman of the House Committee on Oversight and Government Reform, Rep. Darrell Issa (R-CA) sponsored the Government Reports Elimination Act of 2014, which, after enacted in November 2014, eliminated over 100 executive branch reporting requirements.
Second, a tailored constitutional objection: the Executive Branch argues that statutory reporting obligations should not tread on core executive confidentiality interests that could elicit an assertion of executive privilege. This is an as-applied objection.
President Obama’s statement on signing the Intelligence Authorization Act for Fiscal Year 2010 contains a good example of this type of objection:
Section 331’s requirement to provide a “general description” of a covert action finding or notification provides sufficient flexibility to craft an appropriate description for the limited notification, based on the extraordinary circumstances affecting vital interests of the United States and recognizing the President’s authority to protect sensitive national security information. Also, as previously indicated, my Administration understands section 331’s requirement to provide to the intelligence committees “the legal basis” under which certain intelligence activities and covert actions are being or were conducted as not requiring disclosure of any privileged advice or information or disclosure of information in any particular form.
In accordance with longstanding executive branch policy, my Administration understands section 405’s requirement that the Inspector General make an immediate report to congressional committees regarding investigations focused upon certain current or former IC officials as not requiring the disclosure of privileged or otherwise confidential law enforcement information.
President George W. Bush lodged similar objections but rather than assuming he was bound by the provision at all, he indicated he would provide requested information, to the extent he found it unobjectionable, as a matter of comity.
A congressional call for information from the Executive, whether by means of legislative reporting requirement or congressional subpoena, will be resolved according to the traditional accommodation process in light of the strength of Congress’s claim, the strength of any Executive confidentiality concerns, and the relative situational leverage of the two branches. The existence of a statutory reporting requirement, however, subtly shapes the political environment in which an interbranch dispute plays out. Rather than a starting position of a congressional request for information held by a busy Commander-in-Chief, the Executive is in an initial position of having failed to comply with statutory language. Therefore, even if a reporting requirement does not create a pat black letter legal obligation as a matter of separation of powers, the relative leverage of the branches has shifted to a degree in Congress’s favor.
Third, a broad constitutional objection: President George W. Bush’s administration advanced a facial objection to some statutory reporting requirements. In signing statements, he argued either that the subject matter is inherently executive or that a reporting command to the President – a constitutional peer – is itself unconstitutional. According to an analysis by Professor Peter Shane, President Bush “objected to 214 legally imposed reporting requirements as interfering with his constitutional authority to recommend measures to Congress.” The Bush administration constitutional claim is more controversial and largely invalid. Walter Dellinger’s 1996 Office of Legal Counsel memorandum, “The Constitutional Separation of Powers between the President and Congress” notes that congressional authorizations and delegated powers are often contingent on Executive reports and that INS v. Chadha, 462 U.S. 919 (1983) “specifically recognized” report-and-wait provisions.
It will be interesting to see what AUMF reporting requirement language, if any, emerges from Congress and, once presented, the President’s reaction.