Biden administration should start its ‘war on secrecy’ by releasing reports on major war powers

At the beginning of the week it was reported that the Biden administration had quietly begun a “war on secrecy,” aimed at reforming the national security classification system. The objective of this initiative was described as enabling increased disclosure of material information to allies, government departments and agencies outside of the 18-Agency Intelligence Communityand the American public.

While this effort should certainly be applauded, it should be noted that there are several national security-related reporting obligations mandated by Congress that the Biden administration has either not fully met or has failed to fully meet. The Biden administration should take these legislative requirements seriously not only because they are mandated by Congress, but also as a way to act on its own agenda to improve the disclosure of material information on security matters. national level that are in the public interest.

Missing or inadequate reports include the annual report on strikes outside areas of active hostilities, which the administration has never provided (required by item 1723 National Defense Authorization Act (NDAA) for fiscal year 2020); the semi-annual (every 180 days) unclassified report on “actions taken” pursuant to the Authorization to Use Military Force (AUMF) of 2001, which has never been made public (item 1285 FY20 NDAA); and the Public Report on the Legal and Policy Frameworks Guiding the Use of United States Military Force and Related National Security Operations (“Framework Report”), which falls far short of the disclosure requirements specified by Congress (item 1264 of NDAA FY18, as amended by item 1261 of the NDAA FY20).

Origin and importance of the framework report

The framework report is particularly noteworthy, given its genesis in the Obama administration. On December 5, 2016, President Obama voluntarily released the first framework reportwhich compiled years of national security policy positions delivered in speeches, congressional testimony, court filings, and other public pronouncements on the administration’s view of its national war powers and international and related national security issues.

The report was 66 pages long and included the administration’s interpretation of the scope of the 2001 and 2002 Authorizations for the Use of Military Force (AUMF), including the groups the United States was fighting as part of the AUMF of 2001, as well as its lethal driving policy. strikes outside “active hostilities”.

Importantly, when releasing the framework report, Obama issued a memorandum requiring that the report be updated annually and “made public”. Public release of this information, Obama said in the memorandum, “not only supports the democratic decision-making process, but also demonstrates the legitimacy and enhances the sustainability of our operations while promoting mutual understanding with our allies and partners.” .

In 2017, perhaps aware of the ease with which a future administration could undo such a presidential memorandum, Congress codified the requirement to produce an updated framework report as a one-time requirement in Section 1264 of the NDAA for fiscal year 2018. The provisions specified that the report was to be public but permitted the inclusion of a classified appendix.

The Trump administration presented its report on March 14, 2018. While the report included some new information, in particular on the interpretation by the administration of the Iraqi AUMF of 2002, the commentators noticed that it was only nine pages long and “likely not to respond to the detailed discussion that many might have hoped for”. In another palpable departure from the Obama administration’s report, the entirety of the Trump administration’s interpretation of the scope of the 2001 AUMF has been relegated to a classified appendix.

Congress responded by amending Section 1264 to require that the framework report be submitted on an annual basis. It also explicitly required public disclosure of “every change made to the legal and policy frameworks during the previous year and the legal, factual and policy rationales for those changes.”

Initially, the Trump administration missed the March 1, 2020 deadline to deliver the congressionally mandated report. The administration was then for follow-up by Ben Wittes and Scott Anderson of Lawfare and Protect Democracy, who commissioned the production of the framework report. Finally, the administration published the report on October 20, 2020, which reluctantly logged three paltry pages.

How the Biden team can do better

With the commitment to transparency promised By the burgeoning Biden White House, it was hoped the administration would revert, at the very least, to the Obama-era disclosure practice regarding information in the framework report. This was far from the case. Indeed, its record so far has been worse than that of the Trump administration in some respects.

The Biden administration submitted two public framework reports, both of which were barely more than a page long and were confusingly and inaccurately labeled as an “unclassified appendix.” The first report adhered to the Trump administration’s practice of including the administration’s entire interpretation of the scope of the 2001 AUMF in a classified appendix. The second gear, published six weeks after the March 1 deadline, said there was “no change” in the groups targeted by the 2001 AUMFs or the criteria for designating them as targetable. But without having made this information public in previous years’ reports, the public cannot know what these groups or criteria are.

The next framework report is due March 1, 2023. This gives the administration’s lawyers and policymakers ample time to take the next report seriously, including working with relevant agencies to make public as much information as possible. possible and using a classified appendix only if absolutely. necessary to do so. A comprehensive framework report consistent with Obama administration practice:

  • Publicly name groups deemed covered by the AUMF 2001 – the American people should know who they are at war with; anything less than full transparency in this regard is inconsistent with the democratic principles that the Biden administration seeks to restore and promote at home and abroad.
  • Explain whether the Biden administration dismisses the Trump administration’s deeply problematic issues claim that Iraq’s 2002 AUMF and 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 for doing so given Congress’s emphasis on the executive branch explaining changes to prior legal positions.
  • Explain the administration’s position that Congress does not need to authorize ongoing hostilities against “Iranian-backed militias” in Syria and Iraq.
  • Explain the extent to which the Biden administration has returned to or even improved the Obama era rules governing strikes outside areas of active hostilities, after the Trump administration relaxed those guidelines.

The Biden administration’s efforts to more easily share information about national security issues with the American public are important and welcome. Providing a comprehensive framework report, consistent with the Obama administration’s own initiative, would be a good start.


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