Durbin Seeks Justice Memos on Domestic Military Deployment

The Senate Judiciary Committee’s top Democrat is asking the Justice Department to rescind five opinions regarding presidential war powers issued by the Office of Legal Counsel and make public other documents regarding the president’s ability to deploy the military domestically.

“Unfortunately, a number of OLC opinions dating to prior presidential administrations which remain on the books contain conclusions that are inconsistent with Congress’s prerogatives with respect to war, Congress’s role in treaty-making, and/or the President’s duty under the Take Care Clause,” Richard Durbin (D-Ill.) wrote in a letter on Tuesday to Attorney General Merrick Garland that was obtained by Bloomberg Law.

The OLC opinions include ones regarding the FBI’s authority to apprehend suspects overseas, congressional authorization of military force, and whether the president is obligated to give Congress advance notice before withdrawing from a treaty.

Durbin said a 2020 OLC opinion concluding a statutory provision requiring such notice before a treaty withdrawal was unconstitutional is “inconsistent with a statute” requiring congressional action before the US withdraws from NATO.

Durbin also requested that the Justice Department release 290 letters, opinions, and manuals pertaining to the domestic use of the US military.

“The need for transparency regarding these legal interpretations is particularly urgent today given the risk of domestic military deployment to suppress protests or carry out mass deportations,” Durbin wrote.

The request sent 13 days before President-elect Donald Trump’s inauguration comes amid Democratic concerns that he could seek to withdraw the US from NATO and how he might deploy military forces domestically as part of his pledge to deport undocumented immigrants.