Earlier this week, it was reported that the Biden administration had quietly commenced a “war on secrecy,” aimed at reforming the national security classification system. The goal of this initiative was described as enabling increased disclosure of important information to allies, government departments and agencies that fall outside the 18-agency intelligence community, and the American public.
While this effort is certainly to be applauded, it’s worth noting that the are several existing congressionally-mandated, national security-related reporting obligations that the Biden administration has either not complied with fully or failed to comply with entirely. The Biden administration should take these legislative requirements seriously not just because they are mandated by Congress, but also as a means to act on its own agenda of enhancing disclosure of important information on national security matters that is in the public interest.
The missing or inadequate reports include the annual report on strikes outside areas of active hostilities, which the administration has never provided (required by section 1723 of the National Defense Authorization Act (NDAA) for fiscal year 2020); the semi-annual (every 180 days) unclassified report on “actions taken” pursuant to the 2001 Authorization for Use of Military Force (AUMF), which has never been publicly released (section 1285 of the FY20 NDAA); and the public Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (“Framework Report”), which has fallen far short of the disclosure requirements specified by Congress (section 1264 of the FY18 NDAA, as amended by section 1261 of the FY20 NDAA).
The Framework Report’s Provenance and Importance
The Framework Report is of particular note, given its genesis in the Obama administration. On December 5, 2016, President Obama voluntarily released the first Framework Report, which brought together years of national security policy positions delivered in speeches, congressional testimony, court filings, and other public statements on the administration’s view of its domestic and international war powers and related national security matters.
The report was 66 pages long and included the administration’s interpretation of the scope of the 2001 and 2002 Authorizations for Use of Military Force (AUMFs), including which groups the United States was fighting under the 2001 AUMF, as well as its policy for conducting lethal strikes outside “areas of active hostilities.”
Importantly, upon the Framework Report’s release, Obama issued a memorandum requiring that the report be updated annually and “released to the public.” Publicly releasing such information, Obama directed in the memorandum, “not only supports the process of democratic decision making, but also demonstrates the legitimacy and strengthens the sustainability of our operations while promoting mutual understanding with our allies and partners.”
In 2017, perhaps cognizant of the ease with which a future administration could rescind such a presidential memorandum, Congress codified the requirement to produce an updated Framework Report as a one-time obligation in section 1264 of the FY18 NDAA. The provisions specified that the report be public but permitted the inclusion of a classified annex.
The Trump administration submitted its report on March 14, 2018. While the report included some new information, including on the administration’s interpretation of the 2002 Iraq AUMF, commentators remarked that it was only nine pages long and “likely to fall short of the detailed discussion for which many may have hoped.” In a further palpable departure from the Obama administration’s report, the Trump administration’s entire interpretation of the scope of the 2001 AUMF was relegated to a classified annex.
Congress responded by amending section 1264 to require the Framework Report to be submitted on an annual basis. It also explicitly required public disclosure of “each change made to the legal and policy frameworks during the preceding year and the legal, factual, and policy justifications for such changes.”
Initially, the Trump administration missed the March 1, 2020 deadline to provide the congressionally-mandated report. The administration was subsequently sued by Lawfare’s Ben Wittes and Scott Anderson and Protect Democracy, who sought production of the Framework Report. The administration finally released the report on October 20, 2020, which grudgingly clocked in at a paltry three pages.
How the Biden Team Can Do Better
With the commitment to transparency promised by the burgeoning Biden White House, it was hoped that the administration would, at the very least, return to Obama-era disclosure practice concerning the information in the Framework Report. This has been far from the case. Indeed, its record thus far has been worse than the Trump administration in some respects.
The Biden administration has submitted two public Framework Reports, both of which have been barely over a page and were confusingly and inaccurately labeled as an “Unclassified Annex.” The first report adhered to the Trump administration practice of including the administration’s entire interpretation of the scope of the 2001 AUMF in a classified annex. The second report, released six weeks after the March 1 deadline, said there was “no change” to the groups targeted under the 2001 AUMFs or the criteria for designating them as targetable. But without having made this information public in the prior years’ reports, the public cannot know what those groups or criteria are.
The next Framework Report is due on March 1, 2023. This gives the administration’s lawyers and policy makers ample time to take the next report seriously, including working with relevant agencies on making public as much information as possible and only using a classified annex if absolutely necessary to do so. A comprehensive Framework Report in line with Obama administration practice would:
- Publicly name the groups deemed covered by the 2001 AUMF – the American people should know who they are at war with; anything short of full transparency on this score is not in keeping with the democratic principles the Biden administration is seeking to restore and promote at home and abroad.
- Explain whether the Biden administration rejects the Trump administration’s deeply problematic claim that the 2002 Iraq AUMF and the president’s Article II powers provided legal justification for the January 2020 strike that killed Iranian general Qassem Soleimani. Indeed, the Framework Report provides an excellent vehicle to do so given Congress’ focus on the executive branch explaining changes to prior legal positions.
- Explain the administration’s position that Congress need not authorize ongoing hostilities against “Iran-backed militias” in Syria and Iraq.
- Explain the extent to which the Biden administration has returned to or even improved upon the Obama-era rules governing strikes outside areas of active hostilities, after the Trump administration loosened these guidelines.
The Biden administration’s effort to more readily share information on national security matters with the American public is important and most welcome. Providing a comprehensive Framework Report, consistent with the Obama administration’s own initiative, would be a strong place to start.