In December 2016, the U.S. Government released a “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations.” This was an impressively collaborative effort involving lawyers and policymakers from across the national security parts of the Federal Government. The report attempted, for the first time, to put in a single place a wide range of answers to questions we in the executive branch often faced from Congress, journalists, advocates, think tank experts, and others, regarding the legal and policy theories under which the United States used military force and conducted related national security operations. Many of these answers were, in fact, already public, but those answers were scattered across various speeches, testimony, and other sources. Putting them all in a single place and providing a coherent organization to them was intended to increase transparency, facilitate effective congressional oversight, inform public debate, and educate governments and publics worldwide.
No one expected the answers to last forever. As threats to the United States and our partners evolve, so must our responses—including, where appropriate, through new uses of military force and new types of related national security operations. That’s why the report’s release was accompanied by a Presidential Memorandum encouraging the executive branch to continue the practice of releasing this type of report in the future.
Congress apparently saw the value of this exercise and agreed that it should continue. Section 1264 of the 2018 National Defense Authorization Act, which President Trump signed into law in December 2017, calls for a report describing the government’s legal and policy views on the same topics covered in the December 2016 report, especially any changes made since the last report was issued. The next report is due on March 12, 2018.
This report matters. There is so much consuming the news cycle these days that it can be hard to know what to focus on. But the basis for taking some of the most dramatic steps our government can take—capturing, detaining, or killing human beings—always deserves our collective focus and, moreover, our collective scrutiny.
What’s more, the report especially matters this year. That’s not because of the particular President in office, at least not directly. It’s because, in the fourteen months since the previous report was issued, U.S. operations have raised a host of new questions that this report was designed to answer—and to which Congress has now made clear it expects, and deserves, answers.
Here are a few key questions that a responsible report should cover, and to which all of us should be keenly interested in the answers:
- Has the executive branch’s analysis of the 2001 Authorization for Use of Military Force (AUMF) changed in any material way? For example, have any new organizations or sub-organizations been deemed “associated forces” for purposes of the 2001 AUMF?
- What is the full legal justification, under domestic and international law, for the U.S. airstrikes undertaken on April 6, 2017, against a Syrian regime airfield in response to the regime’s use of chemical weapons?
- What are the domestic and international legal theories pertaining to the 2001 and 2002 AUMFs, the President’s inherent authority under Article II of the Constitution, the inherent right to act in self-defense, and any other sources of potential authority that permit recent and potential future U.S. military operations against Syrian regime forces and other forces aligned with the Syrian regime, including Russian, Iranian, and non-state actors?
- Has the U.S. Government’s theory of its ability to act in a foreign country without its consent because that country is unable or unwilling to address certain threats emanating from inside its borders evolved, including but not limited to the theory’s application to Syria and to Iraq?
- What, if any, developments have there been with respect to views of the U.S. authority to engage in cyber operations in the context of the types of military operations and related national security operations covered in the Section 1264 report?
- What, if any, alterations have been made to U.S. interpretations of law and policy regarding cooperation with state or non-state partners in armed conflicts, including with respect to the treatment of detainees?
- What are the operative theories of potential jus ad bellum justifications for the use of U.S. military force against North Korea?
Trying to suggest, from outside government, the most important issues to be covered in the forthcoming report calls to mind Donald Rumsfeld’s “unknown unknowns”: we simply don’t know exactly what views of law and policy have evolved in material ways since December 2016. But, at a minimum, addressing the critical questions laid out above would ensure that this year’s report offers some insight into the consequential developments over the past fourteen months in America’s use of military force and undertaking of related national security operations. These questions may at first blush seem daunting, but the answers should exist in some form already as these issues presumably are occupying, and indeed should be occupying, the sustained attention of interagency lawyers.
The executive branch owes it to Congress—and all of us—to deliver the answers Congress has demanded to do the critical job assigned to our national legislature and serve the American people.
[Editor’s Note: For more on this topic, interested readers may want to peruse Tess Bridgeman’s “Will the Next Use of Force “Transparency Report” be Transparent? Devil May be in Classified Details”]