Will the Next Use of Force “Transparency Report” be Transparent? Devil May be in Classified Details

Congress recently required the President to submit a report that describes the administration’s legal and policy positions on the use of military force and related national security operations. There is an existing model for the rich type of information such a report can contain. The question is what the Trump administration will do in fulfillment of this new congressional requirement. The report is due in two weeks, on March 12, 2018. It is required by Section 1264 of the 2018 National Defense Authorization Act (NDAA), which the President signed into law in December.

With this provision of law, Congress is carrying forward a practice started in December 2016, when President Obama publicly released a “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations” and an accompanying Presidential Memorandum (PM) encouraging the institutionalization of that practice by the Executive Branch.  As explained in an associated fact sheet, the Report and PM were intended to inform the Congress and the public of the “legal basis and policy parameters” of United States use of force and related operations, and in so doing, “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.”  Articulating publicly the legal and policy basis for U.S. operations was intended to generate more than good will – it was also seen as a way to bolster the sustainability and legitimacy of those operations in the eyes of the public and the international community. To achieve those goals, the report was thorough, and the information set forth was detailed. (Disclaimer: I was involved in the drafting of the December 2016 report.)

Congress’ decision to codify this practice has rightly been lauded as an important step in institutionalizing the kind of transparency that will allow an informed debate regarding when, why, and on what legal basis the United States uses force abroad.  It is vitally important that the Congress, and the public more broadly, have an opportunity to engage in this debate in an informed manner, particularly given the unprecedented length of the conflicts in which the United States is now engaged and the vast geographic span of those conflicts around the globe.

In the 2018 NDAA, Congress went one step further than President Obama’s Report and PM, also requiring notification of any changes made to the legal and policy frameworks in the report to be provided within 30 days (Section 1264(b)).  This is another welcome step for transparency and inter-branch dialogue and accountability.

But despite these positive steps, the devil may well be in the details of section 1264.  Specifically, section (c) of the provision says that the main report, and each notice of changes to the legal and policy frameworks submitted thereafter, “may contain a classified annex.”

The availability of a classified annex runs the risk of undermining the entire endeavor.  It could ostensibly be used for aspects of the report itself, as well as any changes to the report that are subsequently notified.  To be sure, there are circumstances when it may be necessary to provide a classified annex in a congressionally-mandated report, such as to ensure the Congress has an opportunity to be fully informed even when sensitive national security information about a particular operation cannot be released publicly.  This is not such a situation.  The Executive Branch can and should be able to describe clearly to the public the legal basis on which it is using force and the policy frameworks it applies.  The public should be assured that while there may sometimes be secret facts of necessity, our nation’s decisions to use force abroad are not governed by secret legal reasoning.

The Executive Branch found it possible in December 2016 to provide a report of identical scope to that required by Section 1264—and it did so in completely unclassified form.  For the legitimacy and sustainability of our operations, as well as our nation’s ability to have an informed public dialogue about our use of force abroad, I hope the Executive Branch is once again able to do so in its congressionally-mandated March 2018 report.

(Mark Wilson/Getty Images)

 

About the Author(s)

Tess Bridgeman

Former Special Assistant to the President, Former Associate Counsel to the President, Former Deputy Legal Adviser to the National Security Council (NSC), Formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@bridgewriter).