CIA Exemption from President’s Restrictions on Drone Strikes in Pakistan

In May 2013, President Obama announced a new directive which presumably places heavy restrictions on drone strikes and other lethal operations outside of the Afghan theater. One might have thought the new rules, codified in a “Presidential Policy Guidance (PPG),” applied to all agencies conducting drone strikes. Think again. According to an important story by the Wall Street Journal’s Adam Entous, the President attached a “classified addendum” to the directive which exempts CIA operations in Pakistan from one of those restrictions, namely, the requirement that a target pose an “imminent threat.” (The PPG states: “the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons.”)

One item that should not be lost, in the WSJ and in related news coverage of the recent strike, is that the PPG applies to CIA operations in Pakistan. That is news. The PPG by its own terms apply only outside so-called “areas of active hostilities,” and it was not always clear whether the administration considered the Pakistan border regions inside or outside that zone.  In a post at Just Security last year, Thomas Earnest and I did a deep dive into the publicly available material to answer that question.

Notably, Thomas and I speculated back then that the CIA might have received an exemption from the PPG. Here’s what we wrote:

At least in terms of the policy guidelines, perhaps the CIA drone operations have received a temporary exemption. The May 23, 2013 PPG is based on the “playbook” that the administration developed over several months. In January 2013, the Washington Post reported that the CIA received an exemption from those heightened standards. And, the White House’s Fact Sheet conspicuously provides the following caveat:

“This document provides information regarding counterterrorism policy standards and procedures that are either already in place or will be transitioned into place over time.” (emphasis ours)

The WaPo story suggested the following timeline: “The CIA exception is expected to be in effect for ‘less than two years but more than one,’ [a] former official said, although he noted that any decision to close the carve-out ‘will undoubtedly be predicated on facts on the ground.’” Notably, that timing roughly coincides with the drawdown of troops in Afghanistan.

Considered in light of that historical context, it is important to note that the CIA apparently did not get everything it wanted, which was a more complete exemption from the new rules.

Also it is not so surprising to me that the PPG came with an addendum issuing a waiver to some of its restrictions. The rules themselves hinted at such possibilities. As I wrote in a post in April 2014, “One provision of the New Rules that has escaped significant media attention is a clause that appears to allow the President to override these restrictions.” After setting forth the new criteria for lethal operations, the rules state:

“Reservation of Authority.  These new standards and procedures do not limit the President’s authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies.”

Finally, despite the WSJ and other recent reports, I am still left wondering whether the PPG applies throughout Pakistan under all circumstances—including to border regions where militants may be preparing to direct attacks inside Afghanistan or cases of hot pursuit from Afghanistan across the Pakistan border. Indeed, it is hard to reconcile the current news reports that the PPG applies per se to Pakistan with earlier news reports, which Thomas and I highlighted, which suggested the opposite.

One of the deeper problems here is that the administration’s lack of transparency leaves the public guessing. In terms of public diplomacy, the administration, for example, may have done itself a favor by being transparent long ago that the new restrictions, at least on the prevention of civilian casualties, apply everywhere outside of Afghanistan … as now seems to be the case. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.