The Trump administration’s decision to kill Qassem Soleimani—Iran’s most powerful military leader responsible for numerous attacks against U.S. servicemembers and interests—brought the United States and Iran to the brink of war without a word of debate, let alone a vote, in Congress. To say the least, the strike has caused a flurry of controversy over its legality and wisdom.
The administration’s stunning lack of transparency with both Congress and the American people about the strike has also raised alarm. More than a week after the strike, the administration has not provided the American people with a full explanation of the basis for the strike. Nor has the administration breathed a word publicly about a strike at the same time against another Iranian military leader, Abdul Reza Shahlai. We know of it only because of an investigative report by the Washington Post (which was confirmed subsequently by the Wall Street Journal, the New York Times, and CNN).
The administration should provide a formal public explanation of these strikes in respect of democratic principles by which we as a nation decide to engage in acts of war—and also because such an explanation is legally required thanks to Congress’ having recently passed a reporting requirement, which President Trump signed into law.
I. The Ongoing Concealment
Thus far, the administration has instead masked its explanations for the Soleimani strike under a cloak of secrecy—failing to notify congressional leadership ahead of the strike, classifying its written War Powers Resolution (WPR) report to Congress, and holding its congressional briefings entirely behind closed doors. As Speaker Nancy Pelosi noted, the decision to classify the WPR report was “highly unusual.” Aside from constantly shifting reasons offered by administration officials and President Trump’s brief and uninformative address to the nation on Wednesday, which occurred only after Iran struck bases housing U.S. forces in Iraq with ballistic missiles, the only formal public explanation in writing from the administration has been its dubious Article 51 letter to the United Nations Security Council.
The Pentagon won’t even publicly confirm the Shahlai strike. When Defense Secretary Mark Esper was asked about the operation on Face the Nation, all he would say is, “I’m not going to speak to any plan or alleged operations. … I’m not going to speak to any- any reports.”
This level of concealment is unacceptable in a democratic society. Congress and the American people ought to be able to publicly debate whether resorting to military force is necessary and appropriate—especially levels of force that risk embroiling the nation in war. While it is plausible that some factual information should remain classified, particularly information that would reveal intelligence sources or methods or other truly sensitive national security information, an unclassified report could include redactions for such information, and there is no good argument that the claimed legal authorities for the strikes should remain classified. Indeed, Sen. Tammy Duckworth (D-IL) has formally requested that the Department of Defense at least publicly list the legal authorities as an initial step. As Tess Bridgeman, former Deputy Legal Adviser to the National Security Council, noted in Just Security, classifying the report undercuts the purpose of the War Powers Resolution:
“The law doesn’t explicitly require that these notifications be submitted in unclassified form. But doing so forces the transparency that the 48-hour reporting intended to provide. Fully classifying the justification makes it much harder for the public to engage their elected representatives from an informed position, and indeed, makes it much harder for members of Congress to engage on the issues in public.”
Senator Mike Lee (R-UT) has captured the importance of democratic engagement on this issue. After receiving a classified briefing from the administration on the Soleimani strike, during which the Trump administration apparently discouraged senators from debating the merits of military force against Iran and did not provide the detailed factual and legal basis for the strike, Senator Lee expressed his disappointment. “When we send our brave [service members] into harm’s way, we owe the American people the decent courtesy to follow the Constitution—to debate and discuss these actions,” Senator Lee stated. He added, “[W]hen you don’t have debate and discussion, you don’t allow . . . the American people who will be most affected by these decisions to weigh in. That was insulting, that was demeaning to the process ordained by the Constitution, and I find it completely unacceptable.”
II. An Existing Congressional Reporting Requirement
The administration may have no choice but to report its claimed legal, factual, and policy basis for these strikes due to a fairly new and still relatively obscure statutory requirement. Section 1264 of the 2018 National Defense Authorization Act (NDAA), as amended by Section 1261 of the recently enacted 2020 NDAA, requires that the president submit:
- an annual report by March 1 of each year “on the legal and policy frameworks for the United States’ use of military force and related national security operations”; and
- a notification “[n]ot later than 30 days after the date on which a change is made to the legal and policy frameworks . . . including the legal, factual, and policy justification for such change.”
Notably, the statutory provision specifies:
“The report … and each notice … shall be submitted in unclassified form, but may contain a classified annex. The unclassified portion of each report shall, at a minimum, include each change made to the legal and policy frameworks during the preceding year and the legal, factual, and policy justifications for such changes, and shall be made available to the public at the same time it is submitted to the appropriate congressional committees.”
By way of background, the Obama administration issued a public report in 2016 that broadly outlined the United States’ legal and policy frameworks for the use of military force, along with a Presidential Memorandum calling for the public release “[o]n no less than an annual basis” of any updates. Congress then passed Section 1264 of the 2018 NDAA to ensure that future administrations would keep Capitol Hill and the public informed. The Act required an initial report from the Trump administration as well as updates within 30 days regarding any subsequent changes—all in unclassified form, albeit with a classified annex permitted. In the 2020 NDAA, Congress amended Section 1264 to require, in addition to the 30-day change notifications, an annual report laying out the overall frameworks and capturing all changes from the preceding year. The amendment also specifies what, at a minimum, must be included in the unclassified portion—each change to the prior frameworks and the “legal, factual, and policy justifications” for those changes. The law also requires that the public have access to the reports at the same time as Congress.
The Trump administration might argue that the 30-day notification and explanation requirement is not triggered in this situation because there was no change to the prior legal and policy frameworks. But as far as we know from the public record, none of the prior framework reports or 30-day notifications has included a determination that the 2001 or the 2002 Authorization for Use of Military Force (AUMF) grants the president authority to use military force against Iran, let alone any legal or policy framework that stretches to targeted killing of Iranian officials in Yemen. The Trump administration’s initial report pursuant to Section 1264 includes language broadly interpreting the 2002 AUMF to authorize the use of force for the “purposes of helping to establish a stable, democratic Iraq and . . . addressing terrorist threats emanating from Iraq[,]” but this claim was very clearly offered in the context of addressing threats from ISIS. Further, a June 2019 letter from the State Department to Capitol Hill states that “the Administration has not, to date, interpreted either AUMF as authorizing military force against Iran[.]” (Weeks later, Defense Secretary Mark Esper also stated during his confirmation hearing that neither AUMF applies to Iran.) It’s worth noting that the State Department letter claims an exception—“as may be necessary to defend U.S. or partner forces”—but this carve-out was almost certainly meant to cover situations where service members face direct hostile engagement.
Now, however, the administration has signaled that it is invoking the 2002 AUMF as part of the legal basis for the Soleimani strike—a clear change from prior legal interpretations. National Security Adviser Robert O’Brien cited the 2002 AUMF, and Democratic Representative Gerry Connolly (D-VA) noted after a classified briefing on Wednesday that the administration claimed it as part of the legal authority for the strike. Interpreting the 2002 AUMF as authorization for the Soleimani strike represents a remarkable change to the legal and policy frameworks for the use of military force. And as a result, this new determination not only must be explained in the March 1 annual report but also triggers the 30-day notification requirement. (It is difficult to know precisely when the 30-day notification would be due, given that the Trump administration may have made the 2002 AUMF determination some time ago or, sadly, perhaps even after the Soleimani strike occurred.)
The Shahlai strike suggests an even more radical shift in the legal and policy frameworks for use of force against Iran. Yet the administration has not even acknowledged the strike, let alone explained it.
It shouldn’t take such a forcing mechanism for the administration to provide the American people with a full explanation of the legal, factual, and policy basis for killing senior military leaders of a state with which the United States is not at war. Fortunately, Congress had the foresight to require such transparency, and President Trump signed it into law.