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Sen. Dick Durbin (D-Ill.), the top Democrat on the Senate Judiciary Committee, is asking the Department of Justice (DOJ) to rescind a series of internal opinions on a president’s military powers as he seeks clarification on the domestic use of America’s forces.
The letter to Attorney General Merrick Garland comes less than two weeks before President-elect Trump takes office and asks the Justice Department to clarify the limits of the president’s authority on several fronts.
The letter, obtained by The Hill, refers to a cache of opinions compiled by the Office of Legal Counsel (OLC), which houses the department’s own legal advisers and sets guidelines on various legal issues.
Durbin asked the office to release its views on the extent to which presidents can use the military domestically, a request that comes as Trump has said he will use the armed forces to help carry out the biggest deportation operation the country has seen.
“I urge the Department of Justice to publicly release opinions and manuals regarding the domestic use of the U.S. military. For decades, the OLC has issued guidance on the circumstances under which the president can deploy the military to the U.S. , as well as what service members can do when deployed,” he wrote, noting that some of those documents have not been made public.
“The American people have a right to know how the executive branch interprets the president’s constitutional and statutory authority to use the military domestically. The need for transparency regarding these legal interpretations is especially urgent today given the risk of national military deployment to suppress protests or carry out mass deportations”.
The Justice Department acknowledged receipt of the letter but declined to comment.
The Department of Justice is one of the main focuses of concern for a second Trump administration.
Trump has tapped former Florida Attorney General Pam Bondi to be attorney general while assigning other top DOJ positions for his personal defense team to handle in his criminal trials.
He has also tapped loyalist Kash Patel, who wrote a book listing “government thugs” he says must be held accountable, to head the FBI.
Durbin’s letter also asks Garland to withdraw five OLC memos that could otherwise guide the Trump team, saying the memos “contain findings that are inconsistent with Congress’s constitutional prerogatives regarding war , the role of Congress in treaty-making, and/or the president’s duty under the Care Clause” to ensure that laws are faithfully executed.
A 1989 opinion greenlighting the FBI’s ability to detain people abroad would allow a president to “override” the U.N. charter’s ban on the use of force, he said Durbin
Another opinion deals with the president’s power to withdraw from treaties, with the OLC under Trump determining that presidents do not have to notify Congress of such moves.
But Durbin said that advice undermines a provision passed in last year’s defense policy bill that requires any suspension or withdrawal from the North Atlantic Treaty Organization to be approved by a two-pronged majority thirds of the Senate or an Act of Congress.
Trump has reflected on his feelings about NATO, considering withdrawing from the military alliance during his first term in office, although as recently as Tuesday he proposed that member nations should spend 5 percent of their economic output in military spending instead of the current 2 percent. .
In the same press conference, Trump too would not rule out the use of military force in Greenland, a member of NATO, and Panama.
Two other OLC briefs deal with the president’s ability to use the military without congressional consent, written at the height of the US response to 9/11. Durbin said these documents are “inconsistent with the OLC’s war powers doctrine, which recognizes that “war in the constitutional sense” requires congressional authorization.”
Durbin argues that a final opinion justifying the 2020 assassination of Iranian General Qassem Soleimani should also be withdrawn, as it also does not match the OLC’s guidelines on seeking congressional approval to declare war.
“Congress and the executive branch may have differing views on some aspects of the separation of powers between them. However, these views are outliers even by the standards of the executive branch’s own legal doctrine. Indeed , it does not appear that OLC has relied on these opinions in other publicly available legal memoranda,” Durbin wrote, arguing that they should be withdrawn.
