By Hannah Papachristidis
In August 2020, a letter was sent to Senator Christopher Murphy (D-CT) blocking a declassification appeal. The appeal in question referred to the classification of the War Powers Act notification following the drone strike which killed Iranian commander Qasem Soleimani in January 2020. Until January 2020, all known previous War Powers Act notifications were unclassified (accompanied on occasion by a classified annex), making Trump’s act of war not only highly belligerent, but also a threat to the principles of transparency and public accountability in times of war and crisis.
The Constitution gives Congress the power to ‘declare war’, meaning that presidents cannot independently declare war. It is generally agreed, however, that the Commander-in-Chief role allows the President to initiate military action to repel attacks against the country. The distinction between low-level hostilities or other situations which may not count as war and war itself is blurry, and is the source of much controversy. The War Powers Resolution, therefore, was Congress’s move to stake their claim on the power to declare war in the face of presidents who waded into the grey areas. It requires that, if a president takes unilateral action, they must inform Congress within 48 hours and that such military operation can only continue for up to 90 days without congressional approval. These requirements, however, have been deemed an unconstitutional infringement of Congress on presidential powers by every President since 1973.
Trump justified the strike on Soliemani as an attack of ‘self-defence’, the first time a nation has invoked self-defence as justification for carrying out an attack against a state actor in a third country. Invoking self-defence requires evidence, in this case of the ‘imminent attack’ referenced by Trump. Trump’s failure to produce such evidence meant the attack was an unlawful, arbitrary killing by the US.
Much has been written debating the event, the legality of Trump’s actions, the effectiveness of the 1973 War Powers Resolution, and the validity of using the ‘2002 Authorisation for Use of Military Force’ to justify the drone strike. What receives less coverage, however, is the way in which the classification of the War Powers notification fits within a wider pattern of opacity and secrecy by the Trump administration, particularly with regards to issues of defence and security. Whilst it is not unusual for a sitting president to challenge the War Powers Resolution, the desire of the Trump administration to shroud such an outrageous act of war in secrecy and over-classification makes Trump’s actions more disingenuous than his successors.
Senator Murphy’s challenge of the classification of the notification outlined the irregularity of such an approach, and he wrote; “I suspect the Notification was classified to restrict debate, rather than for national security purposes”. Murphy reviewed the notification as an authorised clearance holder and, with this in mind, he outlined in his challenge that the information included in the notification was already public record, providing no grounds for classification. Classifying the notification, therefore, was not a matter of national security but a direct attack on transparency, a key principle of good governance.
The Project on Government Oversight (POGO), an independent watchdog organisation that focuses on waste, corruption and abuses of power by the US government, put together a timeline documenting the changes to the Department of Defense (DoD) and national security policy that limited and undermined public access to information under Trump. The timeline starts with memos sent in 2017 from then Defense Secretary Mattis, the Chief of Naval Operations, and a Pentagon spokesman all warning staff against ‘over-sharing’. From there, a downward spiral into secrecy unravels, marked with long periods without televised press briefings, and the classification of data previously publicly available. The US Air Force, for example, ordered a freeze on media access and public outreach in 2018. In January 2019, the DoD stopped issuing ‘strike releases’, reports providing information on bombings targeting ISIS in Iraq and Syria. The strike releases were previously highly detailed, and useful for cross-referencing claims of civilian harm by monitoring groups.
An important milestone was the decision to no longer publish the number of troops in Iraq, Syria and Afghanistan announced by Trump in August 2017. These numbers were previously published every quarter. There is little evidence, therefore, that publishing these numbers would suddenly constitute an operational risk. Transparency around troop levels guides public understandings of ongoing conflicts and levels of troops at risk. Hiding the scale of the US military presence in war zones from the public, therefore, is a huge step towards undemocratic war waging. These policy changes illustrate how the Pentagon, led by Trump appointees, disengaged from the public and broke with previous information sharing practices. In doing so the DoD normalised secrecy without due justification, promoting a culture of over-classification in favour of transparency and accountability.
Much of this secrecy can be attributed to Secretary Mattis’ leadership; his successor, Mark Esper, reintroduced televised press briefings and was purported to favour greater transparency. Full transparency did not resume however, as the classified 2020 War Powers notification illustrated. Furthermore, in March 2020, the Department of Defense asked Congress to rescind the request for the Pentagon to provide an unclassified copy of the Future years Defense Program database, data which provides spending projections for five years in the future, key details which provide the public with outlines of DoD future investments. Although this hasn’t taken place yet, that the DoD would consider denying the public, civil society organisations, and independent watchdogs the opportunity to review and scrutinise projected expenditure, future acquisition plans, and personnel management plans, is a critical warning sign of continued desires to shut down important civil society oversight and dialogue on the use of taxpayer funds.
Transparency in the national security space is a constant push and pull, with those within defence and security institutions claiming defence exceptionalism and those outside pushing for greater accessibility. A balance is possible, in which classification is used as a tool for national security not a coverup for abuses of power, conflicts of interest, and corruption. Overclassification, as seen with the 2020 War Powers notification, is a pernicious issue, which not only threatens public understanding but ultimately undermines classification standards and information regulation.
With the start of Joe Biden’s presidency, there is hope that greater transparency and accountability will return to the US defence institutions. Biden has made some commitments to transparency but nothing specific regarding national security. He has the opportunity to reverse the policies and practices that emerged under Trump and to encourage a more transparent and accountable defence sector, and civil society should hold him to this.
Hannah Papachristidis is a project officer at Transparency International Defence & Security, where she manages research outputs for the 2020 Government Defence Integrity Index. She holds an MA in International Affairs from Columbia University and is an Emerging Expert at Forum on the Arms Trade.
