Trump’s Opportunity to Keep Up with Obama on Use of Force Transparency

One year ago, today, the Obama administration released a 66-page report detailing the legal and policy framework governing the use of military force and related national security operations. As the Obama administration explained at the time, the report provides a detailed overview of the domestic and international legal basis for the use of U.S. military force, including with respect to U.S. operations in Afghanistan, Iraq, Syria, Somalia, Libya and Yemen. The report also describes the key legal and policy rules governing the actual conduct of hostilities, including targeting, capture and detention, prosecutions in Article III courts and military commissions, treatment of detainees, and transfers to foreign countries.

At the time, President Barack Obama directed the National Security Council staff to coordinate a review and update of the report, provide any updated report to the president, and arrange for the report to be released to the public. The Trump administration should not fall behind the last administration on this front.

As I noted then, the release of this Framework Report was an important step forward for transparency and accountability. But the Obama administration did not release this report to be nice. They released it because they understood that publicly articulating the legal and policy basis for U.S. military operations is critical to the sustainability and legitimacy of actions that the administration believes are lawful and justified: 

“Our actions are effective and legal, and the sustainability and legitimacy of these operations are best served through the clear and public articulation of the legal and policy frameworks under which such operations are conducted.  The Presidential Memorandum and accompanying report issued today help to demonstrate that the United States acts consistently with our values and all applicable law, including the law of armed conflict and international human rights law.”

Publicly articulating the legal and policy basis for the use of military force is also critical for democratic decision-making and maintaining needed support and cooperation from counterterrorism partners, as the introduction to the Framework Report and accompanying Presidential Memorandum both explain:

“I have emphasized the importance of transparency and my commitment to making as much information as possible available to the Congress and the public about the United States use of military force and related national security operations. Doing so, I believe, not only supports the process of democratic decision making, but also demonstrates the legitimacy and strengthens the sustainability of our operations while promoting mutual understanding with our allies and partners.”

Three dozen former national security officials who served in both Democratic and Republican administrations wrote to the Trump administration earlier this year explaining the important of transparency for U.S. national security:

While certain kinds of information must remain secret in the interest of national security, transparency to the public and oversight by Congress enhances the legitimacy of U.S. actions. Public disclosure regarding the legal and policy frameworks pursuant to which the U.S. operates—and the effects of those operations—enables the United States to broadcast successes; restore credibility when mistakes occur; and correct erroneous allegations of civilian casualties or unlawful operations that fuel enemy propaganda and recruitment, and can turn allies, partners, and local populations against the United States. Effective congressional oversight helps maintain confidence in U.S. operations when certain details must be withheld from the public.

Given the national security imperative of transparency for the long-term success of U.S. military operations, these officials urged Trump to “release to the public any updates or changes to the legal and policy frameworks that guide the United States’ use of force and related national security operations,” consistent, of course, with national security.

The new congressional reporting required by the 2018 National Defense Authorization Act, currently awaiting the president’s signature, provides the Trump administration with an opportunity to do just that. Now that he must provide an updated report and explanation of any changes to Congress in the coming months anyway, his administration should also keep pace with the public reporting of the last administration by releasing this report to the public as well.

Image: U.S. Department of Defense 

About the Author(s)

Rita Siemion

International Legal Counsel at Human Rights First Follow her on Twitter (@ritasiemion).