This is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.
On August 5, under legal pressure from the ACLU, the US government released its guidelines for overseas kill and capture operations against terrorist targets located outside of active American war zones. The guidelines also include standards for striking non-human targets, such as various forms of terrorism-related infrastructure.
The White House sets these rules out in an 18-page document, known as the Presidential Policy Guidance, or PPG, that’s laden with so many bureaucratic procedures, we thought it would be useful to set them out below in five relatively simple charts that track the PPG. As you’ll see, the key word here is relatively.
While these five diagrams don’t capture the PPG’s every detail, they are designed to allow readers to visually trace the flow of the government’s kill and capture decision-making processes.
The public version of the PPG lacks clarity in some places due to its structure, drafting style, and redactions. As a result, so too do the diagrams below. If you can help improve the clarity and detail of these diagrams, please get in touch (and forgive the Powerpoint-esque nature of these charts, we work in national security and law, not design).
Below the five diagrams are additional, but not exhaustive, comments on unresolved and problematic issues.
A PPG primer
Before diving into the individual elements of the PPG, it’s worth quickly noting that generally speaking, the document contains six core standards for all overseas uses of force occurring outside areas of active hostilities, one of which is redacted.
In general, for an operation outside a war zone to move forward, the PPG states there must be:
- Near certainly that an identified high-value target (HVT) or other lawful terrorist target other than an identified HVT is present
- Near certainty that non-combatants will not be injured or killed
- If lethal force is employed: “(i) an assessment that capture is not feasible at the time of the operation; (ii) an assessment that the relevant government authorities in the country where action is contemplated cannot or will not effectively address the threat to the U.S. persons; and (iii) an assessment that no other reasonable alternatives to lethal action exist to effectively address the threat to U.S. persons.”
Additionally, the PPG requires that individuals can be attacked only if his or her activities pose a “continuing, imminent threat to U.S. persons.”
To implement these and other standards that the PPG sets out, each “operating agency” (e.g., CIA, DOD) must propose and have approved a generalized “operation plan” as well as a separate plan for specific direct action operations. This two-layer planning process is logical enough. It allows an agency to come up with a general framework (i.e., an operational plan) that is then supplemented by a more specific plan that will often take into account case-by-case issues that require individualized attention.
Diagram 1 – Operational Plans (click to enlarge):
(Above: how general operational plans are proposed, reviewed, and approved)
First among the procedures laid out in the PPG, are the requirements for the generalized operational plans that each “operating agency” must propose to govern missions against “(1) suspected terrorists who may be lawfully detained; (2) identified HVTs [high-value terrorists or targets] who may be lawfully targeted for lethal actions; or (3) lawful terrorist targets other than identified HVTs.”
This section of the PPG also makes it clear that agencies and departments are responsible for harmonizing policies and procedures for assessing whether there is “near certainty that a lawful target is present,” along with “near certainty that non-combatants will not be injured or killed,” and who or what constitutes a lawful terrorist target other than an identified HVT.
Diagram 2 – Approval Process for Captures (click to enlarge):
(Above: how a PPG capture is proposed, reviewed, and approved)
Next, the PPG shows how the “operating agencies” (also known as “nominating agencies” throughout the PPG) along with the Justice Department, can propose plans to capture “suspected terrorists or individuals providing operational support to suspected terrorists.” Notably, the PPG prohibits additional detainees from being brought to Guantanamo Bay.
Concerningly, as Marcy Wheeler points out, the PPG appears to contains no requirement for operating agencies to establish criteria for assessing whether it is feasible to capture rather than kill an individual. Perhaps these criteria are included in the redacted portions of the PPG. Either way, greater clarity and transparency on this issue is needed, especially in light of human rights groups, including the one that one of us works for, have repeatedly raised concerns that the government has killed people where capture—whether by the US or the host country—may have been feasible.
The PPG also sets out a process for conducting a capture review after someone is taken into custody. This would, presumably, address issues that arise when the US unexpectedly captures someone during an operation aimed at a different individual. We have not included this process in the diagram for purposes of keeping the diagrams as simple as possible and because the PPG does not provide sufficient clarify on this process.
(It’s also important to point out that the PPG standards do not apply to all captures outside areas of active hostilities, such as FBI arrests, extraditions for the purpose of civilian court prosecutions, and individuals taken into custody by foreign governments upon a US request.)
Diagram 3 – Approval Process for Killing High Value Terrorists (click to enlarge):
(Above: how use of lethal force against HVTs is proposed, reviewed, and approved)
Operating agencies can propose killing specific HVTs when their specific plan to do so complies with their broad operational plan for lethal missions (including the PPG’s six common core standards), the target is lawful, and the individual’s activities pose a continuing, imminent threat to US persons. The PPG also requires an annual review aimed at ensuring that intelligence sources continue to support the authorization of individuals for possible killing as HVTs.
Diagram 4 – Approval Process for Targets other than Identified HVTs (click to enlarge):
Section 4 of the PPG focuses heavily on non-human targeting, such as strikes against terrorist infrastructure. But this part of the PPG may also provide policy for so-called signature strikes, which are strikes against individuals whose identities are not known but who, according to the US, nonetheless meet a set of (still classified) criteria making them targetable. It’s in this section that we find another of the document’s more concerning elements; the fact that although a nominating and approval process exists for targets other than identified HVTs, the PPG does not explain that process. Instead, that process must be contained in the agency’s broad operational plan for such operations.
All we know from the PPG about the operating agencies’ proposals to attack targets other than identified HVTs is that they must comply with the agencies’ broad operational plans, and as with HVTs, the targets must be lawful and must also pose a continuing, imminent threat to US persons.
Diagram 5 – Variations from Operational Plans and PPG (click to enlarge):
(Above: how variations to PPG are proposed, reviewed, and approved)
Section 5 of the PPG contains three processes that permit variations from the PPG’s guidelines. All of them serve as troubling loopholes to the standards laid out by the White House.
Option 1: An operating agency can vary from its approved operational plan as a result of “unforeseen circumstances and in the event of a fleeting opportunity.” This requires the operating agency to propose a new individualized operational plan, which it must submit to the NSS. In “extraordinary circumstances” that new operational plan doesn’t have to identify the legal basis for the action or mandate that the plan meet the PPG’s core common standards. The NSS then submits the proposal to the president for approval.
Option 2: The Principal of an operating agency (e.g., CIA director) may act outside the PPG in instances of “extraordinary cases.” In such cases, the proposed operation must undergo the same interagency review process as outlined in the diagram for operational plans.
Option 3: When there is an extraordinary case of a “fleeting opportunity,” the principle of an operational agency may send a proposal to the president seeking approval to vary from the PPG.
While the PPG requires that all variations “contemplate an operation that is in full compliance with applicable law,” what is most troubling about the section of the PPG is that, for the most part, it bypasses the PPG’s standards and the White House-touted safeguards contained within. This problem is compounded by the fact that the PPG gives no definitions or examples for how it defines the terms “extraordinary circumstances,” “extraordinary cases,” or “fleeting opportunity.”
* * *
While the PPG illuminates the bureaucratic procedures that apply to certain US capture, kill, and other targeting operations, the strength of the procedures rests on how robustly they are followed and implemented. But, even if that is done well, it is troubling that we have little understanding—beyond very vague language—about when variations to the PPG are permitted. And that is only one of a number of questions that remain unanswered.
The public continues to have little understanding of how the government determines what constitutes an area outside of active hostilities. The PPG requires operating agencies to establish harmonized policies and procedures for making assessments that there is “near certainty” that a target is present and “near certainty” that civilians will not be injured or killed, yet the public has not seen this criteria and remains in the dark on these issues.
The same is true for capture feasibility assessments, which is doubly concerning because these assessments are based on the circumstances at play “at the time of the [kill] operation.” Sure, this might be a reasonable approach if the US took a narrow interpretation of what constitutes an “imminent threat.” But that’s not the case. The Obama administration has expanded the notion of an “imminent threat” to the point that it “does not require the United States to have clear evidence that a specific attack on US persons or interests will take place in the immediate future.”
This begs the question as to whether the PPG’s prioritization of capture over kill can be made moot in many cases by that fact that, on the one hand, an individual can be regarded as an imminent threat over a relatively long period of time while, on the other hand, a capture feasibility assessment only evaluates the conditions for capture at the precise time when the government is planning to carry out its kill operation. Take for example the US deciding to target an individual in one week’s time for a threat that he might carryout in the next month or so. It would seem that even if capture were feasible in two weeks’ time (perhaps the target is planning to travel to a location where capture is feasible), the PPG would allow that strike to go forward.
Furthermore, the public continues to lack understanding of how the US assesses whether another government is able to effectively address a threat. We do not know, for example, what goes into this assessment and what happens when the US disagrees when another government says it can effectively address the threat. What if the host government is willing to capture the threat, but the US doesn’t think that such a response by the host government is sufficient or doesn’t think the government will do it quickly enough? It is important to know how those differences are resolved, especially because if they aren’t resolved they can raise serious questions as to whether the US breached the sovereign rights of the host government, including violating the prohibition against attacking another state.
Finally, the PPG contains a redaction of what appear to be two mystery government entities that participate in the National Security Staff’s Restricted Counterterrorism Security Group and, also, the Deputies Review relating to capture operations. The PPG is relatively open about what government entities take part in the proposal, review, and approval process. So why the redaction of these two entities?
The release of the PPG, while a step toward educating the American public about some of the most important decisions that are being made in its government’s pursuit of a seemingly never ending conflict that has tremendous impact on their lives, is only a step. As we’ve seen, not only does it entrench the government’s view that it is policy, rather than law, that restricts its use of lethal force as a means of first resort against suspected terrorists in areas outside active hostilities, but the PPG also demonstrates that more can and should be revealed about how the US government decides to capture and kill people in these situations.
All images via Wikimedia Commons: a US MQ-9 Reaper drone, US Army Special Forces fast rope from a Black Hawk helicopter, Nashir al-Wuhayshi, al-Qaeda in the Arabian Peninsula fighters, sensor suite inside a US Air Force AC-130 gunship.