The public and Congress are still in the dark about possible deals President Donald Trump may have made with Russian President Vladimir Putin during their two-hour, one-on-one meeting in Helsinki, but the Russian Defense Ministry has indicated the two leaders may have agreed to begin military cooperation in Syria. Under a 2015 law, the Secretary of Defense would have to waive a prohibition on some types of military cooperation with Russia before that cooperation could occur, putting Defense Secretary Jim Mattis in the hot seat. Ryan Goodman dispelled some common misperceptions about how that law works and explained why it makes Secretary Mattis a “veto player” when it comes to military cooperation with Russia. Based on reporting in The Hill, some misunderstanding persists about the scope of the statutory prohibition on bilateral military-to-military cooperation with Russia, the relatively straightforward requirements to overcome the prohibition, and options for Congress to tighten the legal constraints going forward.
Congress doesn’t get to “grant” (or deny) a waiver, and the Secretary of Defense doesn’t need to “request” one
Sen. Lindsay Graham is reported to be considering whether to “grant” a waiver for the Trump administration to engage in bilateral military cooperation with Russia. But as Ryan Goodman has explained, under the statute as written, the decision to waive the prohibition is vested solely with the Secretary of Defense. He need not “request” approval from Congress to exercise the authority they’ve already given to him. Simply put, Congress has no further role if either of the following occurs: (1) the Secretary of Defense certifies that Russia has met certain requirements spelled out in the law, in which case the prohibition no longer applies; or (2) the Secretary of Defense waives the prohibition and provides to Congress a notification and report explaining that he has done so. Congress does not get to “grant” a waiver, and conversely, it can’t deny a waiver either, at least not without passing a new law.
What’s more, unlike other restrictions that Congress passed to tie President Barak Obama’s hands in the military domain (such as restrictions on the transfer of detainees from Guantanamo Bay, where the decision-making authority was also vested in the Secretary of Defense), there is no required waiting period after the notification is provided to Congress. In other words, while Congress could have made it harder to overcome the prohibition, bilateral military-to-military cooperation with Russia may begin immediately following the Defense Secretary’s decision to waive the prohibition. And also unlike the Guantanamo detainee transfer restrictions, the waiver authority can be exercised so long as the Secretary of Defense makes only one, straightforward determination — that the cooperation at issue is “in the national security interest of the United States.”
So why the confusion about this prohibition and how it can be overcome? It might be attributable to the informal practice in which Secretaries of Defense and other Department of Defense officials tend to consult with their committees of jurisdiction – here, the Senate Armed Services Committee – before exercising waiver authority that they have been provided in the National Defense Authorization Act (NDAA). Members of the Senate Armed Services Committee would likely expect such consultation especially in the heightened environment following President Trump’s Helsinki meeting with Putin. They may even threaten to exclude or significantly narrow the waiver in a future NDAA if it is exercised without at least some prior notice and meaningful consultation.
The constitutionality of the restriction and options for Congress going forward
In addition to the arguments Bob Taylor discussed on Friday, the ready availability of a simple waiver that can overcome the prohibition without any waiting period makes it harder to argue that the statute is a constitutional infringement on the President’s exercise of his Article II authority.
Given that we still don’t know whether President Trump made commitments to President Putin regarding military cooperation, in Syria or elsewhere, beefing up the restriction on military cooperation with Russia is one way for Congress to ensure that our military is deployed only when necessary and only to serve the interests of the United States, not to bolster the legitimacy of Putin’s military actions.
That said, if Congress did try to tighten up the law in the future by giving itself the formal authority to “grant” or “deny” a waiver by mere passage of a joint resolution without opportunity for a Presidential veto, for example, it would be unconstitutional under well-established Supreme Court precedent (INS v. Chadha). Congress could, however, use any number of more complicated, but constitutionally permissible, procedural mechanisms to deny effect to a waiver. For example, Congress could require notice of a waiver 30 days in advance and provide itself an opportunity during that period to pass legislation cutting off the use of the waiver, perhaps using expedited voting procedures, so long as there were sufficient votes to enact the legislation even over a potential Presidential veto. (This is what Congress did in the Iran Nuclear Agreement Review Act of 2015 to provide itself an opportunity to stop the Iran nuclear deal from being implemented by the United States.)
There are other, more straightforward ways Congress could give the existing prohibition more teeth. One route for Congress would be to make the certification more stringent, such as by requiring that the Secretary certify, perhaps in consultation with the Director of National Intelligence (DNI), that Russia is no longer attempting to interfere in our domestic democratic process. But there are diminishing returns here in practice – to make even the existing certifications, the Secretary would have to find that Russia has ceased a range of aggressive behavior. Given Russia’s continued illegal occupation and attempted annexation of parts of Ukraine, along with its continued lack of willingness to abide by the Minsk Protocols regarding the cease fire in eastern Ukraine, it will likely be factually impossible for the Secretary to make the certification already on the books for the foreseeable future. The inability to certify that Russia has ceased its aggressive actions is what brings the waiver of the prohibition into play in the first place.
Since Russia’s continuing aggressive actions make the existing certification impossible for now, a potentially more meaningful way to tighten up the restriction would be to add new requirements for the waiver to be exercised. For example, Congress could heighten the waiver standard by requiring that it be exercised only if the Secretary finds that bilateral military-to-military cooperation with Russia is “necessary” to the “vital” national security interests of the United States. Another option is to apply a heightened waiver standard (or even limit the circumstances in which the waiver may be used) based on whether the Secretary can certify that certain conditions are met – for example, Congress could require that the Secretary meet a higher waiver standard unless he can certify, in consultation with the DNI, that Russia is no longer attempting to interfere in our democratic process. And as discussed above, Congress could require that any waiver or certification – whether the standard is heightened or not – be provided in advance to allow time for Congress to attempt to enact legislation stopping it, or at least express its views before the cooperation begins.
Finally, Congress could also consider broadening the prohibition itself. For example, it could apply the prohibition against the expenditure of funds not only for bilateral military-to-military cooperation, but also for multilateral military-to-military cooperation (so long as it retains the existing carve-outs for any military activities necessary to ensure compliance with U.S. treaty obligations or to support NATO operations).