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The Presidential Policy Guidance for targeting and capture outside Afghanistan, Iraq and Syria

Kudos to the ACLU for having compelled the government  to release a fairly modestly redacted version of the May 2013 Presidential Policy Guidance, which “establishes the standard operating procedures for when the United States takes direct action, which refers to lethal and non-lethal uses of force, including capture operations. against terrorist targets outside the United States and areas of active hostilities.”  (The Administration has recently clarified that its self-defined “areas of active hostilities” are Afghanistan, Iraq and Syria.)  In conjunction with this release, the government also released four other documents, described, with links, on the ACLU site, reflecting notifications to Congress on the same subject matter.  Those include the 2014 DOD Report to Congress on which organizations are considered to be “associated forces” for purposes of the AUMF.  In addition, the judge in the ACLU FOIA case, Chief Judge Colleen McMahon of the District Court for the Southern District of New York, has written a memorandum opinion on the subject, and yesterday the government lodged the results of its classification review of that opinion, for the court’s in cameraex parte review.  Presumably we will see Judge McMahon’s opinion very soon.

For the most part, the PPG and other released documents do not reveal any major information that the government had not already disclosed.  The principal value of the release is that it reveals the extraordinarily detailed and comprehensive procedural requirements the President and Congress have established for all uses of force, including capture operations, against terrorist targets outside the United States and areas of active hostilities.  I can’t say for sure, but I suspect that there’s never been anything, in any nation, quite like the interagency and interbranch review reflected here.  It is certainly leagues beyond what DOD is ordinarily required to do–in terms of interagency and congressional review and approval–when it uses force overseas.  [UPDATE:  Charlie Savage with more details here.]

I’ve only had time to review the documents quickly once, but here are some of the details that I think are most worthy of attention.  I’ll update this list if and when others identify further important details:

— As the government has previously explained, at least as of 2014, the only possible “associated force” outside Afghanistan was AQAP, although, even there, the government considers that group to likely be part of al Qaeda itself.  The only significant effect of the “associated forces” reading of the AUMF, therefore, is with respect to certain organized forces within Afghanistan–“notably including the Haqqani Network”–that are engaged alongside al Qaeda and the Taliban in hostilities against the United States or its coalition partners, and against which the U.S. Armed Forces conducts operations pursuant to the 2001 AUMF.  (To the extent this changes, and the Administration concludes that new groups are “associated forces,” it ought to be forthcoming about that information, too, to the extent possible.)

— All operational plans to undertake direct action operations against terrorist targets outside Afghanistan, Iraq and Syria must be reviewed for legality by the general counsel(s) of the operating agency executing the plan, to ensure that the action contemplated is lawful and may be conducted in accordance with applicable law; must be submitted to the National Security Staff for interagency review; shall be referred to the NSS Legal Adviser (currently Chris Fonzone); and are subject to consultation with the Department of Justice by the NSS Legal Adviser and operating agency GC.

— If a proposed direct action would be against a U.S. person, DOJ must conduct a legal analysis to ensure that such action may be conducted against the individual consistent with the laws and Constitution of the United States.

— In addition to the several requirements previously announced for all uses of force outside Afghanistan, Iraq and Syria (i.e., that the target poses “a continuing, imminent threat to U.S. persons”; near certainty that the target is present; near certainty that non-combatants will not be injured or killed; an assessment that capture is not feasible at the time of the operation; an assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and an assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons), the redactions indicate that there is one other, classified operational requirement, which appears to have something to do with interagency agreement.  (An associated footnote reads:  “Operational disagreements [several redacted words] shall be elevated to Principals.  The President will adjudicate any disagreement among or between Principals.”)

— The PPG clarifies something that many observers have misunderstood:  So-called “signature strikes” are not necessarily against persons whose identity is unknown (such as individuals at an enemy training camp, or (in 2001-02) in a cave at Tora Bora); what the PPG calls “terrorist targets” can also include other military objectives, apart from individuals, such as “manned or unmanned Vehicle Borne Improvised Explosive Devices or Infrastructure, including explosives storage facilities.”

— Capture, if feasible, is to be preferred “even in circumstances where neither prosecution nor third-country custody are available disposition options at the time.”

After using force, the department or agency that conducted the operation must provide the following preliminary information in writing to the NSS within 48 hours:  (i) a description of the operation; (ii) a summary of the basis for determining that the operation satisfied the applicable criteria contained in the approved operational plan; (iii) an assessment of whether the operation achieved its objective; (iv) an assessment of the number of combatants killed or wounded; (v) a description of any collateral damage that resulted from the operation; and (vi) a description of all munitions and assets used as part of the operation.

— The operational agency must also prepare and promptly provide notice “to the appropriate Members of the Congress” whenever:  (i) a new operational plan for taking direct action [redacted] is approved; (ii) authority is expanded under an operational plan for directing lethal force against lawfully targeted individuals and against lawful terrorist targets other than individuals; or (iii) an operation has been conducted pursuant to such approval(s).

Perhaps the most important questions that remain unanswered are those involving the Administration’s determination that the PPG rules shall not apply to Afghanistan, Iraq and Syria.  For example:

What is it about those three nations that distinguishes them from all other nations, and that justifies a categorical exclusion of the PPG’s elaborate array of procedures and requirements to the use of force there?

Indeed, what, if anything, do those three nations have in common with one another?  (At one point, many assumed that “areas of active hostilities” referred to nations in which U.S. ground forces are present in significant numbers.  But that does not describe, e.g., Syria.)

What are the internal rules (procedural and substantive) that apply to operations in those three nations, in lieu of the PPG?  Are the substantive rules similar to those in the PPG?  What about NSC oversight?  (It’s hard to imagine DOD has to go through the entire PPG interagency procedures with respect to, e.g., each one of its operations in Iraq.)

The Administration would do well, before the end of the President’s term, to provide more transparency and detail on these questions about operations within Afghanistan, Iraq and Syria, just as it has done with respect to operations elsewhere.


About the Author

is a professor at the Georgetown University Law Center. You can follow him on Twitter (@marty_lederman).