The Obama administration says it plans to release a redacted version of the policy standards and procedures that govern its “use of force in counterterrorism operations outside areas of active hostilities.” It also plans to release data on the number of combatants and non-combatants killed in such strikes since Obama took office in 2009.
These disclosures will hopefully enable more informed public debate about the lawfulness and effectiveness of counterterrorism strikes, a debate that is particularly important as other nations continue to acquire armed drones and Obama prepares to transfer authority to his successor. But how much value these disclosures will add to the debate depends on the quality of the information in the policy document and data analysis, as well as on how much of that information is withheld or redacted. Below is an overview of some key issues to look for in the policy document and casualty data when they are released — and some thoughts on the possibility of an executive order to further institutionalize the administration’s policies.
The Presidential Policy Guidance
President Obama signed the policy standards, known as the Presidential Policy Guidance or PPG, back in May 2013, but the document has remained secret ever since. The day after signing it, President Obama announced that he had done so in a counterterrorism address at the National Defense University but the White House released only a “Factsheet” summarizing key elements of the PPG.
The Factsheet, however, raises as many questions as it answers. It contains quasi-legal terms with unclear meanings — including “continuing, imminent threat,” “feasibility of capture,” “areas of active hostilities,” and “an individual who is targetable in national self-defense” — but provides little information as to how the administration defines or applies those terms. It also does not say where the policy applies. The State Department Legal Adviser Brian Egan recently shed some light on where the PPG does not apply (Iraq, Afghanistan, the Federally Administered Tribal Areas on the border of Pakistan, and Syria), raising the question of whether it is fair to assume that the PPG does apply everywhere else. The Factsheet also appears to mix-and-match standards from different bodies of law — including the United Nations Charter and other restrictions on violations of state sovereignty, the law of armed conflict, and possibly human rights law — and in the process fails to demonstrate clearly that the policy complies with any of them. When the actual PPG comes out, it will be telling to see if it:
- Defines and clarifies its terms;
- Specifies where and to whom the policy applies;
- Distinguishes between law and policy;
- Demonstrates how the policy ensures compliance with all applicable bodies of law; and
- Explains how often and under what circumstances the reservation to not apply the policy has been used.
In particular, it will be important to assess whether there are gaps between the policy and what international law requires. During armed conflict, lethal force may be used as a first resort against combatants as well as against other individuals directly participating in hostilities. It is also permissible for civilians to be killed as collateral damage if their deaths are proportional — i.e., they not excessive in relation to the anticipated military advantage of an attack and the required precautions to minimize risk of civilian harm are taken. But when addressing threats posed by individuals who are not lawful targets under the law of armed conflict or who are outside of an armed conflict altogether, law enforcement standards governed by human rights law apply. In that setting, government officials may only use lethal force as a last resort when necessary to address the threat, and the amount of force used must be proportionate to that threat.
Three of the requirements the Factsheet trumpets as heightening the protections required under international law are the obligations to only use lethal force against individuals posing a continuing, imminent threat to US persons; to capture suspected terrorists where feasible; and to strike only where there is “near certainty” of no civilian casualties. But the PPG Factsheet’s requirements are only a step up from what international law requires if the law of armed conflict — and not human rights law — is the proper legal framework for the particular strike at issue. The policy constraints described in the PPG Factsheet suggest an attempt to make strides in the direction of human rights law in more circumstances than the US government considers itself to be bound to — perhaps to appease counterterrorism allies who dispute the US view that the law of armed conflict follows fighters in a non-international armed conflict (i.e., a conflict between non-state armed groups or such groups and a state/states) across international borders.
Hopefully the release of the PPG will enable an assessment of how well the policy’s requirements to capture where feasible and only use force against individuals posing an imminent threat to US persons comply with human rights law standards. Understanding the gap between the current US policy and what human rights law requires is significant for assessing the legality of strikes where the applicability of the law of armed conflict is in dispute. In addition, understanding the extent to which US policy and practice complies with, or approaches compliance with, human rights law is critical if the United States is to succeed in distinguishing its approach from a forever global war on terror.
(As an aside, it’s also important to keep in mind that even in situations covered by the law of armed conflict, applying the standards of the PPG does not necessarily mean that the United States has gone above and beyond its legal obligations and/or that the strike is lawful. Many aspects of the US interpretation of the law of armed conflict are in dispute, as evidenced by the ongoing debate over various aspects of the Defense Department’s Law of War Manual, including recently its provisions related to protections for medical personnel.)
The Casualty Data
Back in early March, Lisa Monaco, President Obama’s homeland security and counterterrorism advisor, announced that the administration will release casualty data for strikes outside areas of active hostilities since 2009:
And in keeping with the President’s commitment to transparency, I can announce that, in the coming weeks, the Administration will publicly release an assessment of combatant and non-combatant casualties resulting from strikes taken outside areas of active hostilities since 2009. Going forward, these figures will be provided annually. Because we know that not only is greater transparency the right thing to do, it is the best way to maintain the legitimacy of our counterterrorism actions and the broad support of our allies.
Based on State Department Legal Advisor Brian Egan’s recent speech noting that Afghanistan, Iraq, and Syria are currently considered areas of active hostilities, the casualty data will likely not include deaths resulting from strikes in Afghanistan, Iraq, or Syria. However, recent reports say that the data will include strikes in Pakistan (despite Egan’s suggestion that the Afghanistan-Pakistan border region was included with Afghanistan as an area of active hostilities).
The release of this data, which has been repeatedly delayed but appears to be coming soon, should be an important step towards greater transparency, accountability, and compliance with the rule of law. Without such data, it is difficult for the American public and the world to assess whether strikes are lawful, or whether they are ultimately effective as a counterterrorism strategy.
To be meaningful, however, the casualty data must include more than lump numbers of combatants and non-combatants killed by strikes in various parts of the world over seven-plus years. The information disclosed should explain how the assessments were conducted and the basis by which the administration classifies individuals as combatants or non-combatants. Recent reports that the government believes approximately 100 civilians have been killed in over 500 strikes are at odds with studies by non-government sources, which have calculated significantly higher numbers. For the public to understand what the numbers mean — and to assess whether they are accurate, the disclosures should include the information necessary to address these discrepancies. Brian Egan shed some light on how the administration classifies individuals as combatants in his recent speech. But questions remain about the administration’s classification standards and procedures, including how the administration is classifying the deaths of individuals whose identity remains unknown or whose targetable status could not be confirmed.
The casualty numbers should also be disaggregated by strike location and date. Disclosing these details should not pose insurmountable security or feasibility challenges given that the Defense Department already releases fairly detailed strike information for operations in “areas of active hostilities” and non-governmental sources routinely report the number of civilian deaths including by individual strike date and location. Additionally, the administration should disclose which organized armed group it asserts the deceased was a member of whenever it has classified an individual as a combatant. This would better enable an assessment of the legality of using force against that individual. Without such information, the numbers will do little to answer questions about the lawfulness and effectiveness of the strikes — both individually and as a whole.
An Executive Order?
President Obama, who ran for president promising hope and change and who won the Nobel Peace Prize in 2009, vastly expanded the use of armed drones to kill terrorism suspects. He has also now been at war for longer than any other American president. Without taking significant action to define the scope of the current armed conflicts, he is at risk of leaving a legacy of war without limits. But there are signs that the administration will set formal limits before the end of Obama’s final term. In April, Obama said that he hoped that by the time he left office there would be an internal structure in place for implementing the policy limits he has placed on the use of lethal strikes, as well as for the annual release of casualty data. And in May, The Washington Post reported that the procedures for implementing the PPG’s standards may be formalized in an executive order.
But the administration needs to do more than formalize the procedures for limiting the use of lethal force outside of hot battlefields or for reducing civilian harm. As Obama himself explained in his 2013 speech at the National Defense University, “We must define the nature and scope of this struggle, or else it will define us.” His administration has made a significant effort to define and narrow the scope of the current armed conflicts, to bring counterterrorism operations in line international law, and to avoid leaving the US on a perpetual or global war footing when he leaves office. But these labor-intensive efforts are scattered throughout dozens of administration documents, many of them speeches with no force of law even in this administration, let alone the next.
President Obama should further define and limit the counterterrorism struggle before he leaves office to ensure that the struggle does not permanently redefine American values. In particular, he should:
- Reaffirm US compliance with and commitment to all applicable international law in counterterrorism operations;
- Constrain the scope of existing domestic statutes authorizing the use of force against terrorist organizations to prevent further expansion of these authorities to new or emerging threats beyond the existing armed conflicts;
- Bridge any gaps between the PPG standards and the necessity and proportionality requirements of human rights law when using force outside areas of active hostilities;
- Protect the primacy of law enforcement tools and the civilian justice system for countering terrorism;
- Limit the use of law of war detention and military commissions to the narrow and exceptional circumstances in which these tools may be used under international law;
- Define the point at which the current armed conflicts end and other tools — including self-defense authorities, law enforcement, intelligence, foreign assistance, and diplomatic means — should serve as the primary means for countering remaining threats; and
- Address remaining loopholes in the laws and policies prohibiting torture and cruel, inhuman, and degrading treatment to ensure that no future administration may resort to such practices.
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The upcoming disclosure of the administration’s targeted killing policy, casualty numbers, and potentially a new executive order should be an important step toward greater transparency, accountability, and compliance with the rule of law — a step that will also bolster the fight against terrorism. Just how big a step, however, remains to be seen. And whether any of it will matter come January 20, 2017, depends on what additional steps President Obama takes to protect his legacy by defining the US struggle with terrorism before it permanently defines us.