Three Half-Truths on U.S. Lethal Operations and Policy Constraints

Late last week, Charlie Savage and Eric Schmitt of the New York Times reported that President Donald Trump might soon adopt a new policy on U.S. lethal operations outside hot warzones. As reported, the new policy would make two key changes to the Presidential Policy Guidance (PPG), which President Obama adopted in 2013. First, it would eliminate the requirement that anyone targeted for attack be suspected of posing a “continuing imminent threat” to Americans. The targetable class would be enlarged to include, as Savage and Schmitt put it, “foot-soldier jihadists with no special skills or leadership roles.” Second, the new framework would no longer require “high-level vetting” of decisions to use lethal force; it would devolve decision-making authority to people closer to the operational level.

When the news broke, Luke Hartig wrote an excellent article for Just Security analyzing the reported changes. I agree with a lot of what Luke says and strongly recommend his piece. In particular, he’s right that we need more details before we can assess the implications of any policy change. Still, I’m less optimistic than he seems to be. To explain why, I want to expose the problems with three common claims on the PPG. These claims are not completely wrong, but neither are they completely correct. They obscure why the reported changes have the potential to be both legally and operationally significant—and quite problematic.

1. Half-truth: IHL governs these situations

Start with the U.S. position on the international legal standards that govern these operations. The United States has consistently claimed that it is in a borderless armed conflict with various terrorist groups and that wartime standards—i.e., standards of international humanitarian law (IHL)—apply. To the extent that IHL governs these lethal operations, it effectively displaces or redefines the content of international human rights law, which generally imposes more rigorous conditions on such conduct.

There is little doubt that IHL governs U.S. lethal operations in actual warzones. But there continues to be a heated debate about whether and, if so, to what extent it applies outside those areas—in situations for which the PPG is designed. This uncertainty means that the claim that IHL necessarily governs is misleading.

Luke suggests, as many others do, that the alternative to applying IHL is to apply what are essentially law enforcement standards under human rights law. That suggestion makes the application of IHL seem almost inevitable. (Is the United States really going to adopt the same protocols in, say, Yemen as it uses for everyday policing in New York?) But as I have underscored elsewhere, the standard in human rights law for using lethal force is itself highly context-dependent. Human rights institutions apply the standard more loosely—and afford a state more discretion to kill—when the situation is chaotic, and the state lacks much operational control, compared to when it acts in a typical law enforcement setting. Further, a state might have more wiggle room in certain extraterritorial situations than in its own jurisdiction.

The point is that, for the situations in which the PPG applies, the governing international legal standard on lethal operations remains unsettled. What can be said is that, as a situation’s resemblance to a hot battlefield becomes less apparent, IHL’s application becomes more dubious—and is more likely to be perceived and treated as the wrong legal standard.

The PPG reflects a recognition by the United States that, notwithstanding its legal claim, applying IHL outside areas of active hostilities is usually excessive. It manages that problem with the threat threshold—the requirement that any target be suspected of posing a “continuing, imminent threat to U.S. persons.” This requirement is more restrictive than “pure” IHL would be. Eliminating it would move the U.S. framework closer to an IHL one, in situations in which IHL’s application is already dubious. In other words, the change would make U.S. lethal operations more legally suspect.

The implications could be significant. For example, U.S. allies might be less willing to acquiesce in or assist operations that the United States claims is governed solely by IHL, as the locus of activity looks less and less like a warzone, and more like a normal law enforcement situation. That risk is not mere speculation. Two former National Security Council officials, Chris Fonzone and Stephen Pomper, recently wrote the following in an important article in Just Security:

“[T]he 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.)”

2. Half-truth: There are few, if any, civilian casualties

The PPG supplements the application of pure IHL in another respect. It aims to ensure “near certainty” that U.S. lethal operations will not injure or kill civilians outside areas of active hostilities. According to the Savage and Schmitt story, the Trump administration intends to preserve this part of the PPG. Luke says that keeping it would be a “dramatic affirmation that minimizing civilian casualties is both a moral and strategic imperative.”

Yes and no. The near certainty test helps limit civilian casualties, relative to what IHL would do. Under IHL, states may injure or kill civilians, after taking the relevant precautions to protect them and to ensure that their harms do not exceed the military gains of an operation.

But whether the United States satisfies the near certainty test depends on how it defines the categories of “civilian” and “combatant.” In its conflicts against militant Islamist groups, the United States defines “combatant” broadly—to include people who more mainstream definitions classify as civilians. I don’t want to get into the definitional weeds here. What’s important is that the U.S. claim that it causes virtually no civilian casualties might rest on a set of definitions that many others in the international community (including U.S. allies) reject.

The PPG currently limits the practical effect of the U.S. definition with the threat threshold. Again, this threshold defines the targetable class as people who are suspected of posing a “continuing imminent threat to U.S. persons.” If the United States were to eliminate the threshold and begin attacking low-level people who are not known to have any special skills or leadership role, it would increase its risk of killing people who it defines as combatants but by many other accounts are civilians. This would undercut the U.S. claim that its lethal operations outside areas of active hostilities rarely, if ever, harm civilians. Aside from the normative questions that this change would raise, it could create new public relations problems for the government and for U.S. relationships with foreign partners.

The change would also raise new questions about the operations’ legality. IHL permits states to cause proportionate harms to civilians when attacking combatants. But it prohibits states from purposefully directing lethal force at civilians. Because eliminating the threat threshold increases the likelihood that the United States will target for attack people whose combatant designation is dubious, it increases the likelihood that the United States will conduct operations that are, to say the least, legally suspect. The problem here has nothing to do with the relationship between IHL and human rights law. The problem is that the change could make the operations more dubious under IHL. To put the point strongly, deliberately attacking a civilian is a war crime, and the defense against such an accusation might turn on the reasonableness of adopting non-standard definitions of “combatant” and “civilians.”

3. Half-truth: The PPG is not operationally relevant

Finally, some people claim that the PPG does not really constrain the United States. The claim is not entirely unfounded. As Bobby Chesney emphasized last week on Lawfare, the PPG is not binding law. It is an internal executive branch policy. The executive branch thus may change or deviate from it at its discretion (as the Trump administration now seems poised to do). Further, as Savage and Schmitt report, the government seems to have evaded the PPG in specific situations in which it would have had real bite.

But the claim is misleading to the extent that it suggests that the PPG does not materially affect decision-making—and thus that revising the PPG would not be operationally significant. In fact, the PPG establishes the executive branch’s default positions on lethal operations. Once those positions are in place, deviating from them becomes harder, rather than easier, especially for officials who do not have high-level positions in the government. In particular, the PPG vetting process helps limit the extent to which any one official or agency is able to push U.S. practice in a radically new direction, without first defending that change internally and accounting for a broad range of the considerations at stake (including the nonmilitary considerations). Loosening the PPG’s substantive and procedural requirements would, quite simply, make it easier for individual officials to conduct lethal operations—which presumably is why a new administration would spend months assessing how and to what extent to do away with the policy.

 Image Credit: Predator remotely piloted aircraft – U.S. Air Force photo

  

About the Author(s)

Monica Hakimi

Professor of Law at the University of Michigan Law School and Former Associate Dean for Academic Programming of Michigan Law School