For months, Sen. Chris Murphy (D-Conn.) has been working to pry loose the legal justification for Trump’s order of the assassination of Iran’s Maj. Gen. Qasem Soleimani in January. The White House sent Congress a formal notification of the killing under the War Powers Act just after it happened, but kept it classified — meaning the official rationale was kept secret.
At the time, Democrats denounced the move as “highly unusual,” and observers noted that it raised grave questions about the scope of the presidential warmaking power and the ever-waning authority of Congress over those matters.
Six months later, that War Powers notification still remains classified.
“There’s a veil being pulled over the foreign policy of this country,” Murphy told me.
As you’ll recall, the administration offered shifting and weak public rationales for the killing. The classified War Powers notification should contain the official reasoning and be backed up with real intelligence. Its release — with selective sensitive information withheld — would allow us to properly evaluate that reasoning.
But Murphy’s effort to get it unearthed is morphing into something so byzantine that Franz Kafka couldn’t have done it justice.
Now here’s the new and interesting part: In late June — having waited the required 120 days — Murphy appealed the classification to an agency called the Interagency Security Classification Appeals Panel, or ISCAP, which is housed at the National Archives and adjudicates appeals of classification decisions.
The principle here is that this statutorily created independent body is needed to evaluate such classification decisions, to ensure that they are undertaken in good faith — that they properly balance the public’s need to know with the need for governments to keep some things secret.
An independent body can ensure that those public interest imperatives remain in balance, according to Steven Aftergood, a government secrecy specialist at the Federation of American Scientists.
We’re now in a waiting period: ISCAP has up to 60 days to make its decision. But ISCAP has since informed Murphy that this may be delayed due to the novel coronavirus, his office says.
Here it gets even more convoluted: ISCAP may well determine that the White House acted improperly in classifying the justification for the killing and order it declassified. But even if it does, under the law, Trump then has another 60 days during which he can overrule that decision.
If he does, the official justification for the assassination of a foreign general will remain secret. And Trump will very likely do just that.
Murphy said that even if that happens, this effort could have a positive effect.
“At that point an independent board has called Trump out for an abuse of classification,” Murphy told me. “At least it creates a norm that future administrations have to pay attention to.” (Trump might not overrule the decision, in which case it would be declassified.)
Aftergood tells me he is unaware of past examples of a member of Congress appealing a classification decision via this mechanism. This could be because the classification was so unusual: Aftergood also says he’s unaware of any other examples of the entire War Powers notification being classified.
That’s why this whole mind-numbingly bureaucratic dispute matters. If this war powers notification remains classified, that sets a precedent for more such future abuses.
“Does the classification system exist to protect national security, or is it merely an instrument of raw political power?” Aftergood asked.
More broadly, what’s at stake is whether profoundly consequential decisions about war will remain out of public view.
“There’s nothing more important when it comes to foreign policy than having a public debate over whether we should go to war or not,” Murphy told me. “If you’re going to assassinate a foreign leader, you’d better be willing to publicly talk about the reasons why you did it, and the legal justification for it.”
Which brings us to one more point: Trying to establish a new norm here could be salutary if Biden wins. President Barack Obama was a disappointment on some government secrecy questions, such as those surrounding his drone program and also on presidential war powers.
Biden should be put on notice that we cannot see a rerun of that. Establishing that an independent body says the classification of the rationale for the Soleimani killing was improper could create a standard to hold Biden to.
“It’s important for us to make clear that no administration, Republican or Democrat, should be using this tactic,” Murphy told me. “The Obama administration overused classification. The Trump administration put that on steroids. The next administration has to rewind.”
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