Yesterday, Federal District Court Judge Christopher Cooper issued an unusual 14-page ruling in a Freedom of Information Act case brought by Protect Democracy and a preliminary injunction ordering the government to expedite its processing of the matter. The lawsuit is seeking documents laying out the Trump administration’s legal rationale for the United States’ April 6 airstrike against Assad regime forces in Syria as punishment for using chemical weapons. As a development, this is too incremental for a New York Times story, but it’s worth noting for executive power specialists — especially given some striking language the judge used.
A bit of background: One of the mysteries of the Trump administration’s first six months in power has been what the government was thinking, legally, when Trump ordered that airstrike. Congress had not authorized the U.S. government to use military force against the Syrian government as a matter of domestic law, and the United Nations Security Council had not done so as a matter of international law. Moreover, Syria had not attacked the United States and was not threatening to do so, so there was no self-defense claim. I wrote a New York Times article working through those war-powers legal puzzles on April 7, and on May 8 I wrote another NYT article about a newly filed a Freedom of Information Act lawsuit by Protect Democracy seeking documents. On June 20, I noted in another NYT article that the April 6 strike had been followed by several other violent encounters between the United States and Syrian government forces who were said to be threatening rebel militias that the United States is supporting — raising fears that the U.S. is sliding into war with Syria itself; the chairman of the Joint Chiefs of Staff, Gen. Joseph F. Dunford Jr., had claimed the authority for that subsequent combat stemmed from the 2001 authorization to use military force against the perpetrators of 9/11 because the American military presence in Syria was predicated on fighting Al Qaeda and the Islamic State there.
Against that backdrop, yesterday Judge Cooper wrote:
if production is unduly delayed, both Protect Democracy and the public at large will be “precluded . . . from obtaining in a timely fashion information vital to the current and ongoing debate surrounding the legality of” a high-profile government action, …—namely, military strikes against the Syrian government. Being closed off from such a debate is itself a harm in an open democracy. … But there is another potential harm, too: The possibility for the strikes to recur without legal justification. By then, any damage will have been done. … In short, because Protect Democracy has demonstrated a “compelling need” for the information it requested, the Court finds that the organization is likely to prevail on the merits of its expedited processing claim. (internal cites omitted)
Here is the ruling:
Protect Democracy FOIA Syria war powers expedited processing (Text)