How Trump’s Team Can Use Obama’s Counterterrorism Playbook to Defeat al-Qa’ida and ISIL

 

The First of Many Challenges. The U.S. military’s January 29 raid in Yemen vividly illustrates the high-stakes challenges involved in counterterrorism operations – particularly when such operations happen in parts of the world away from the hot battlefields of Iraq, Afghanistan, and Syria.  How the new Administration addresses these early challenges may shape its ability to conduct counterterrorism operations in the future. Having grappled with the tradeoffs ourselves, here are some thoughts about how these challenges might be faced in the near term and over the horizon.

As a recap of the events that unfolded on that moonless night, press reports provide the following details:  U.S. Special Forces, partnering with troops from the United Arab Emirates, conducted a raid on an al-Qa’ida in the Arabian Peninsula (AQAP) compound. During the raid, a firefight ensued during which a U.S. servicemember, Chief Petty Officer William “Ryan” Owens, lost his life and three other U.S. servicemembers were injured. The U.S. forces and their partners collected intelligence during the raid and killed a number of senior AQAP officials.  There were also civilian casualties. Villagers told the Bureau of Investigative Journalism that 25 civilians, including 9 children under the age of 13, died in the raid. CENTCOM – which, commendably, was relatively quick to acknowledge that there had been civilian deaths – has not yet put forward its own figure. As more information became public about the civilian toll, the Yemeni government was reported in early February to have withdrawn permission for U.S. ground missions in the country and then, a week later, to have softened its position – saying that it had not suspended future raids but had requested a “reassessment” of the January 29 raid and closer coordination going forward.

Despite the early press reporting, it appears our partnership with the Government of Yemen remains in place. Nonetheless, the reaction to this raid highlights several important considerations that drove the development of the policies and practices that make up the U.S. government’s counterterrorism playbook.  It also comes at a time when the incoming Administration is considering revisions to this playbook — for example, President Trump has recently directed the Secretary of Defense to develop a plan for defeating the Islamic State that includes recommended changes to any rules of engagement or policy restrictions “that exceed the requirements of international law.”  While we think it is both sensible and appropriate for an incoming President to review a framework he is inheriting for U.S. counterterrorism operations, the existing playbook, which incorporates years of learning across two administrations, has a lot working in its favor.  It is designed to enable the United States to conduct sensitive counterterrorism operations in a manner that is not only lawful but also legitimate, sustainable, and consistent with our deepest values. These may seem like abstractions, but as the January 29 raid demonstrated, they can become operationally relevant very quickly.  So as the incoming Administration reconsiders its counterterrorism policies, we thought it would be helpful to describe some of the key elements of the existing framework implicated by the Yemen raid and why and how these rules of the road serve interlocking security and humanitarian objectives.

A Playbook for a Long and Unconventional War:  The United States is now fifteen years into an unconventional conflict against enemies who do not wear uniforms, respect geographic boundaries, or comply with the law of war.  Rather, these enemies intentionally intersperse themselves with the civilian population to insulate themselves from attack – often in States where it is difficult for the central Government to assert control over its entire territory.  The United States thus finds itself conducting operations that raise novel legal and policy questions simultaneously in a number of theaters – often in areas that the Obama Administration described as “outside of active hostilities,” in other words, away from hot battlefields.

The U.S. Government has learned much over the years on how to confront these challenges – including that the countries we need to help confront the terrorist threat are often operating under different legal and policy constraints than the United States. They belong to different treaties, answer to different courts, are held accountable by different publics, and face different political risks, particularly when they agree to allow U.S. forces to operate on their territory. Against such a backdrop, it is essential that the United States take actions pursuant to a playbook that not only ensures the lawfulness, legitimacy, and sustainability of operations from the U.S. government’s perspective, but also takes into account what will make them lawful, legitimate, and sustainable from the perspective of our key partners.  And the rules and policies that make up this playbook should also take into account that the United States’ actions will almost surely be cited as precedent by other countries when they conduct their own operations.

So what should the elements of the playbook look like?  The existing ones have been developed over time and described at length in a White House document issued at the end of the last Administration and include:  a solid domestic and international law basis for acting; an emphasis on intelligence-based decision-making by senior government officials and lawyers from departments and agencies with relevant expertise and institutional roles; a policy framework that in certain circumstances exceeds the safeguards that apply as a matter of law in the course of an armed conflict—particularly in areas concerning the preservation of civilian life and transparency; and a prioritization on working by, with, and through local partners. Our former colleague Luke Hartig has already provided some thoughts on the important role of an interagency process in vetting operations like the Yemen raid, so we’ll focus here on the kinds of considerations that in our experience inform a useful process:

Legal Considerations.  U.S. counterterrorism policy starts with the imperative of operating consistently with all applicable domestic and international law, including when conducting operations like the January 29 Yemen raid. This means complying with the law of war, including its fundamental principles of proportionality and distinction–a practice deeply ingrained in the U.S. military.

That said, there are very good reasons for why the U.S. government has migrated over time to an approach that does not begin and end with the idea that our operations simply need to comply with applicable law.  To begin with, as a recent State Department Legal Adviser and a recent General Counsel of the Department of Defense have emphasized, our current conflict requires the United States to apply conventional legal principles found in treaties and customary international law to a fight against an unconventional enemy.  And Adil Haque recently discussed in Just Security that how exactly to apply those principles continues to be debated.  Indeed, even our closest allies (and most trusted non-governmental interlocutors) may disagree with our views on such fundamental questions as the proper geographic scope of an armed conflict against a non-state actor or the extent to which human rights treaties govern armed conflict. These allies–including some of our most capable European partners–also may be placed in the position of having to answer to both domestic courts and international tribunals that do not employ the same canons of deference and avoidance as U.S. courts when confronted with questions implicating ongoing military operations, making it more likely that such operations will be subjected to judicial review in some form. One of the many implications is that U.S. practices may be publicly scrutinized by a foreign tribunal, and our foreign partners may be constrained in what actions they can pursue then or in the future.

Under these circumstances, applying policy standards that exceed what the United States believes is required as a matter of law not only recognizes the unsettled nature of the law in this area (and the fact that, over time, the U.S. government’s interpretation of contested legal questions might not always prevail), but also may align us with the legal views of our allies and partners — which can be essential for operating in coalitions.  Any decision to move away from these existing policies should thus, at the very least, be accompanied with outreach to our allies to make sure we aren’t creating a scenario where we risk losing important cooperation that facilitates and enables our counterterrorism efforts.

And finally the Yemen raid highlights an even more fundamental legal consideration that involves a basic underpinning of US military activity abroad.  In nearly every theater in which the United States is operating, its legal basis for doing so rests at least partly on that country’s consent to our operations.  Yemen, in the end, does not appear to have withdrawn its consent for U.S. operations based on the January 29 raid, but future operations like it could very well lead to Yemen at least temporarily withdrawing its consent, which would require the United States identifying another legal basis for its operations.  Such a basis might exist – e.g., the United States perhaps could argue that its operations are a necessary and proportionate response to the threat posed by AQAP and that Yemen is either unwilling or unable to address that threat – but these alternate bases are likely to be less widely accepted internationally and almost certain to complicate the efforts of U.S. forces trying to get work done on Yemen’s territory. Without host government permission, it could become much harder to fly missions, gather information about the battlespace, and otherwise operate.

A Sustainable Policy Framework.  We have briefly explained some of the drawbacks of a counterterrorism framework that would aim for policymakers to have “chalk on their cleats”—operating up against the line of what the United States considers legally permissible. With that in mind, let’s turn to considerations that informed the more restrictive lines in the U.S. government’s counterterrorism approach as they existed at the end of the Obama Administration.

Mitigate Civilian Harm.  The default rule currently requires “near certainty” that there will be no civilian casualties for operations in theaters away from active hostilities–such as Yemen and Somalia.  While it’s a high standard, the “near certainty” standard was crafted against a backdrop where civilian casualties are not only tragic at the personal level, but potentially deeply damaging to the cultivation of positive relationships in local communities that may be far removed from a hot battlefield and wobbling between opposing and supporting the enemy.  Thus, although we are mindful that there can be civilian casualties even when the most stringent precautions are observed, we simply note that the January 29 raid underscores the adverse strategic and humanitarian effects of civilian casualties which prompted the “near certainty” standard being put in place.

Looking more broadly, current policies also incorporate the full suite of practices inscribed in the July 2016 Executive Order that President Obama issued on civilian casualties, which governs all U.S. operations in all theaters–not just theaters outside areas of active hostilities. These practices range from acknowledging responsibility for civilian casualties, to offering condolences, to making discretionary “ex gratia” payments to families that have suffered losses.  The Executive Order recognizes that operational imperatives or other considerations may not allow the United States to take these actions in all times and places.  But in a world where we want communities to side with us, the Order provides a model and framework for how we might go about doing so, especially when our actions may sometimes be the source of terrible personal trauma. And as others have pointed out, this is the insight that General McChrystal had in creating a robust mechanism for identifying civilian casualties and offering ex gratia payments in the Afghanistan counterinsurgency campaign.

Wherever Possible, Be Transparent.  When even small things go wrong, there is often an understandable tendency to run away from them. This is almost never a good strategy, particularly since this kind of information tends to find its way into the public eye one way or another. The 2011 campaign in Libya is a case in point.  Notwithstanding an extraordinarily successful operation in terms of mitigating civilian casualties, NATO’s initial reluctance to engage the press on the possibility of such casualties–instead insisting that none had been “confirmed”– prompted months of investigations and second-guessing by the press and civil society that tarnished an aspect of the campaign that should have been, on the whole,  a good news story.  By contrast, when we are transparent—difficult though this is when dealing with sensitive national security information– it not only permits the public to hold the government accountable, but enhances credibility and builds trust with our partners and the media, and thereby serves the broader interests of sustainable operations.

The U.S. government has taken this lesson to heart in a number of ways.  The civilian casualties Executive Order sets out a requirement for the annual disclosure of statistics and related information for combatant and noncombatant deaths as a result of U.S. operations outside areas of active hostilities.  An Obama-era Presidential Memorandum additionally requires the preparation of an annual report that lays out key legal and policy frameworks within which the U.S. conducts national security operations.  And at a more day-to-day level, the U.S. military has become increasingly forthcoming about the results of its operations all around the world.

At least some of these practices appear, encouragingly, to have carried over to the new Administration, at least in the context of the Yemen raid, where CENTCOM was relatively quick to acknowledge the occurrence of civilian casualties.  Whether this played into the government of Yemen’s calculations in backing off the suspension of cooperation that it announced in earlier February is difficult for us to know, but it certainly seems like a defiant public posture that denied the occurrence of casualties would have made the climbdown more difficult.  This is a space worth watching as the new team wrestles with its own approach to counterterrorism.

Promote Sustainability by Empowering Partners and Focusing U.S. Efforts. In a 2014 speech at West Point, President Obama emphasized that a key element of the U.S. government’s counterterrorism strategy would be empowering partners to fight terrorism alongside us.  As the President noted, working with partners expands our reach in a sustainable way, by not stretching U.S forces too thin or stirring up local antibodies to a U.S. presence.  (Of course, working by, with, and through partners does not mean providing assistance or support without considering how that support is being used.) Similarly, the elevated targeting standards of the existing playbook — which, as a default, focus U.S. efforts on “continuing, imminent threats to U.S. persons” when operating away from hot battlefields — are designed to increase the sustainability of U.S. operations by focusing them on high-leverage opportunities and potentially limiting political and local blowback. (They also help align our targeting standards with those of partners who may take the view that an imminent threat must be identified in order for there to be a legal basis to take a strike.)

As others have noted, there can be some tension between a partner-based strategy and the elevated targeting standards that the playbook calls for the United States to apply outside areas of active hostilities: when we support or operate alongside others, they may focus on targets other than those that pose a “continuing, imminent threat to the United States.”  That said, both the partner-based strategy and the elevated targeting standards can help the United States keep its powder dry and lower the risk of an escalatory cycle in a country where it has no interest in seeing the temperature rise.

Of course, it is important for the U.S. government to vet partnered operations carefully to ensure that they allow the pursuit of counterterrorism goals without engendering the kind of blowback that threatens the sustainability of U.S. operations.  The Yemen raid illustrates the challenges of performing this calibration in practice.  U.S. forces partnered with UAE operators.  But the United States was also perceived to be in the lead, and as Jon Finer has pointed out, Yemen is a country currently embroiled not only in an armed conflict (with the support of the United States and others) against AQAP, but also in a conflict (with the support of a Saudi Arabia-led coalition) against a Houthi insurgency that has Iranian backing. To the extent increased U.S. ground operations would risk bringing U.S. forces into contact with the Iranian and Houthi forces that are caught up in this second conflict, that sobering prospect must of course be weighed.  More relevant to the present discussion is whether a heavier U.S. footprint in Yemen could undermine the sustainability goals that underlie both the partner-based strategy and the threat standard.  Indeed, consider the very public debate over whether the Yemen raid should be considered a “success.”  We raise this not to weigh in on the debate – we are not privy to the sort of classified information that would be necessary to make such a determination – but only to demonstrate that greater U.S. involvement raises the stakes of U.S. operations, not only internationally, but also within the United States – with consequences that are difficult to predict.

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A final thought: We have been engaged in a war against certain terrorist groups in multiple countries for over a decade, and it is therefore easy to lose sight of the extraordinary nature of the authorities the United States is claiming and exercising.  As President Obama repeatedly emphasized, decisions of war and peace – life and death – are among the most, if not the most, consequential that any nation faces.  Given this, it is simply not enough for us to believe that we are acting consistent with the law.  Rather, it is incumbent upon us to convince others, who may not agree with all or even most of our approach, that these consequential decisions are being made in a principled fashion with due regard for the gravity of our actions and the precedents we are setting.

These, at bottom, are key purposes that the counterterrorism playbook that the Obama Administration handed over serves.  Although we freely admit our personal investment in the standards and processes described above, we also recognize and acknowledge that they are not perfect and will inevitably change as U.S. needs and strategies evolve and further operations provide more evidence of what is working and not working.  As any changes are made, however, it is vital that they are made with a full understanding of the legal and policy considerations that we have tried to detail.  Although the Yemen raid ultimately did not cause a rupture in our relationship with Yemen, the costs should not be minimized, as it is difficult to know when we might reach a tipping point that seriously undercuts our ability to operate–whether in Yemen or another theater where we face a terrorist threat.  Managing this interlocking set of issues will almost certainly remain vital to the continued legitimacy and sustainability of our operations, for once trust is lost, it can be very difficult to recover.

  

About the Author(s)

Christopher Fonzone

Former Deputy Assistant to the President, former Deputy Counsel to the President, former National Security Council Legal Adviser, formerly worked at the Department of Justice in the Office of Legal Counsel and on the Civil Division’s Appellate Staff, formerly served as Special Counsel to the General Counsel of the Department of Defense.

Stephen Pomper

U.S. Program Director for International Crisis Group, Served in the Obama Administration as the National Security Council's Senior Director for Multilateral Affairs and Human Rights Follow him on Twitter (@StephenPomper).