Earlier this year, we wrote about an increasingly important statutory provision that requires the executive branch to provide notice and an explanation to Congress within 30 days of any changes the administration makes to the legal and policy framework governing the use of military force. The statute is broad and covers not only targeting operations but also detention, interrogation, and prosecution operations. As we explained, under this provision the Trump administration was required to submit to Congress an unclassified explanation of the change in the legal and policy frameworks that the administration relied upon for the targeted killing of Qassem Soleimani, a senior Iranian military commander. The statutory provision required the administration to spell out its claimed “legal, factual, and policy justification for such change.” The Trump administration submitted this notice in late January, and Ryan Goodman analyzed it here.
But, thanks to a recent amendment by Congress, the statute now also requires much more than just the 30-day notice. It also mandates that the administration, by March 1 of each year, submit an annual report “on the legal and policy frameworks for the United States’ use of military force and related national security operations” as originally produced when the first framework report was issued by President Obama in 2016. This year, the deadline for the annual report is Sunday.
Although a classified annex is permitted, the report itself must be unclassified, and it must “be made available to the public at the same time it is submitted” to Congress (emphasis added). What’s more, “[t]he unclassified portion … 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[.]” In other words, the administration cannot keep a change and its claimed justification entirely secret even if some related information is classified.
These requirements are all contained in Section 1264 of the Fiscal Year 2018 National Defense Authorization Act (NDAA), as amended by Section 1261 of the Fiscal Year 2020 NDAA.
For the 2020 annual report, here are a few items to watch:
- Will the administration submit the report punctually? If so, will it submit the congressional version, which may include a classified annex, and the unclassified public version simultaneously?
- What will the unclassified version reveal regarding the Soleimani strike and the widely reported—but not officially acknowledged—unsuccessful strike in Yemen against Iranian military leader Abdul Reza Shahlai? Will the minimum requirements for unclassified elements force the administration to reveal further information?
- Whether the annual report properly includes the current and complete “list of all foreign forces, irregular forces, groups, or individuals for which a determination has been made that force could legally be used under the [2001 AUMF];” explains “the legal and factual basis for such determination;” and provides “a description of whether force has been used against each such foreign force, irregular force, group, or individual[.]”
- Whether the report provides, as explicitly required by the statute, “the criteria and any changes to the criteria for designating a foreign force, irregular force, group, or individual as lawfully targetable, as a high value target, and as formally or functionally a member of a group covered under the Authorization for Use of Military Force.”
- To what extent and how will the administration explain its revocation of part of an Obama-era Executive Order regarding civilian-casualties reporting. As one of us along with Dan Mahanty explained in a separate article, “[t]he change in policy … effectively eliminated any commitment by the executive branch to include CIA strikes in public accounts of the government’s lethal operations and civilian casualties.” In the 2020 NDAA, Congress remedied the gap that the Trump administration created, but the administration must still explain the reason for revoking this section of the Executive Order despite Congress having enacted a statutory requirement reversing that decision.
- How thoroughly will the administration address the other required elements of the report?
The foregoing items are, of course, not tantamount to an exhaustive list. Indeed, there may be other important developments or omissions in the report. But with the annual report’s deadline now upon us approaching, we will soon know how effectively the administration has complied with the statutory requirements.