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Pluses and Minuses of the Imminence Standard in Counterterrorism Strikes

Last month, I wrote on the revisions that the Trump Administration reportedly plans to make to President Obama’s drone policy.  The piece set off a robust conversation with human rights and humanitarian law experts, primarily around U.S. obligations under international human rights law and the implications of the Trump Administration preparing to end the Obama-era requirement that strikes outside of hot warzones like Iraq and Syria be taken only against terrorists who pose a “continuing, imminent threat to U.S. persons.”  I will leave it to my colleague Ryan Goodman to debate with the human rights community the international legal framework that underpins our counterterrorism operations.  Obviously, U.S. counterterrorism operations should be conducted consistent with all applicable domestic and international law.  But assuming that our operations are lawful, as I previously argued, I am not convinced that doing away with the imminence standard is necessarily bad policy, though the pitched nature of the debate calls for further explaining my rationale and why a different governor on U.S. action might be more appropriate.

I should state at the outset that, whatever the flaws of the continuing, imminent threat standard, it has served a number of important purposes, and it should not be jettisoned without putting a replacement framework in place to guide the United States’ use of force in theaters outside Iraq, Syria, and Afghanistan. First, the standard ensured that strikes were conducted only against targets that are fundamentally linked to a critical U.S. policy objective, namely protection of U.S. lives, and no further.  The standard accordingly helped protect against U.S. forces slipping into a counterinsurgency role or getting sucked deep into what is really an internal armed conflict. This is especially important in cases where there is an ongoing hot conflict on the ground (as is the case in Libya, Somalia, and Yemen) but our policy objectives are more limited in scope.  For even when a host country is supportive of U.S. action, it is important that we avoid the pitfall of becoming the air force for a country that doesn’t want to take effective ground action to address the threat.

Second, constraints on the use of force can also incentivize and accelerate the move toward non-kinetic approaches to counterterrorism — activities like building the capacity of partners’ security sector, countering terrorist recruitment and radicalization, or addressing the underlying political and socioeconomic conditions in which terrorism tends to thrive.  While the use of force is often necessary to reduce the terrorist threat so that these programs can take root, the continued reliance on force can be a crutch that prevents these programs from maturing.

Third, the continuing, imminent threat standard played an important diplomatic role.  Host nations or our external coalition allies will typically not assent to an unfettered U.S. strike campaign.  Even in the most discriminate and precise campaign on our part and no matter how terrible the militants we target, local populations and governments will usually not support high volumes of strikes, which are often seen as violations of national sovereignty or at least inconsistent with how a functional state should operate.  In this context, the policymaker must assume that there is a limited amount of direct action that can be conducted in a given theater and therefore force must be used discriminately and strategically. The continuing, imminent threat standard was an effective way to identify that quantum of force and communicate it to our allies and partners, addressing their concerns.

Finally, consistent with one of the animating principles driving human rights advocates, the continuing, imminent threat standard helped to support international norms by regulating the use of force outside of hot conflicts.  It was particularly important that the Obama Administration proactively address the international norms question, since the advent of the drone, as with many other novel military technologies, presented unique challenges and opportunities that called for its primary user to set and reinforce certain standards.

These were some of the principles that guided the Obama Administration as it developed its policies on the use of force, and they ought to also guide the Trump Administration.  Yet, as the Obama Administration realized, the nature of our terrorist enemies and the environment in which they operate is not static, such that our counterterrorism strategy must also evolve.  In some theaters, after the continuing, imminent threat standard was adopted, what were simmering insurgencies grew into full-scale devastating wars, requiring a more significant response from the United States and its partners.  Terrorist networks continued to improve their operational security, both through technical and procedural methods.  And the importance of supporting partners only increased over time, both as an everday practical and longer-term strategic matter.  In the context of this evolving landscape, the threat standard at times conflicted with good counterterrorism policy for two primary reasons — it is not always consistent with network-targeting principles and it conflicts with a partner-centric counterterrorism strategy.  As described below, press reports and official statements suggest that the Obama Administration took steps to address these tensions, but putting in place a new governor that more systematically addresses two key issues–the changing threat and the different needs of partners—could improve the efficacy of U.S. direct action. That said, any such steps must be carefully constructed to prevent these rationales from being used to justify a wide range of actions that essentially undermine the entire purpose of a governor.

The first major challenge presented by the continuing, imminent threat standard is that it can conflict, at times, with network-targeting principles.  Relying on network science to understand the enemy’s specific vulnerabilities has been central to our successes targeting terrorist and insurgent groups over the past 16 years.  (Those who claim there is an end, or end in sight, to the US conflict with various armed groups, have the application of this model, in part, to thank.) The academic field of network science holds that within a network, certain nodes (i.e., people when referring to a social network) are critically placed, by virtue of their connections to other nodes and clusters of nodes, to enable the transmission of things like information or disease throughout the system.  Identifying these nodes can be useful for applications like marketing products or distributing vaccines in underdeveloped areas or conversely, for preventing the spread of infectious disease or stanching the propagation of fake news.  Network science is particularly useful for counterterrorism analysis and targeting, because terrorist groups rarely organize themselves by standard government or business models.  Cells may not be in touch with one another, operational security may lead a group to limit in-person communications or designate a handful of intermediaries or couriers, and top leaders are rarely accessible to large numbers of foot soldiers.  Understanding the network is critical to making gains against a shadowy enemy.  My colleague Peter Bergen’s book Manhunt and the film Zero Dark Thirty show how tracking al-Qaeda’s courier network led the United States to Usama bin Laden.  General Stanley McChrystal’s My Share of the Task discusses how he applied network approaches to targeting al-Qaeda in Iraq and forged one of the fundamental mantras of the special operations community: “It takes a network to defeat a network.” Under a network-based targeting approach, the United States may not necessarily choose to target the top leadership of a terrorist group but instead those who are central to the network’s structure and whose removal would cause the greatest harm to the group or its core capabilities.  Within the bounds of legal constraints, such a strategy might hypothetically target a network of couriers that connects disparate cells, a mid-level commander who is centrally situated to connect different parts of the network, or an otherwise low-level fighter who provides a critical link to external terrorist groups. Although these individuals would only be struck when considered lawful military targets under the law of armed conflict, they may not always pose a “continuing, imminent threat to U.S. persons.” In other words, targeting based on network principles may allow the United States to more effectively strike the organizational vulnerabilities within terrorist groups that threaten the United States. Depriving our operators of this ability may, as a result, actually lead to greater use of force for a longer period of time, as the United States could be forced to strike each and every imminent threat that emerges while also having to wait until the enemy has built up its operations to the point it has the power to conduct such attacks.

The second major challenge with the threat standard involves the second half of it — the requirement that threats be focused on U.S. persons.  Since the second term of the Bush Administration and throughout the Obama Administration, our counterterrorism strategy has increasingly relied on our partners.  Just a year after the 2013 speech in which President Obama rolled out his elevated targeting standards, he delivered another speech in which he made the case for a concerted commitment to empowering and enabling partners to combat terrorism.  Such an approach is ultimately more sustainable, better leverages local knowledge, and eases the transition to civilian counterterrorism tools.  But when our partner-focused efforts take place alongside a U.S.-led targeted strike campaign, it can raise hard questions as to why the United States will take action to disrupt plots against our people but not the people, or even just the senior leadership, of the partner nation that is carrying the heaviest burden of the fight.  In other cases, we may ask a partner nation to launch a major offensive against a terrorist group, one in which the partner may incur significant casualties, and we may even provide intelligence, advisory, and logistical support to their campaign, but by the letter of our policy, we would have to stop short of providing air support or other forms of direct combat power.

As noted above, according to public reports, the Obama Administration took steps that allowed it to address this tension. For example, the Obama Administration designated parts of  Libya as an area of active hostilities, which in turn allowed the U.S. military to take more expansive lethal action against ISIS, including in support of Libyan forces.  (The U.S. military has also conducted strikes in Somalia in self-defense of U.S. forces and collective self-defense of the partners they are advising and assisting.)  Under the Obama guidance, there is also a provision allowing the President to approve in extraordinary circumstances lawful strikes, such as action to disrupt a threat against a partner, which would not otherwise be authorized under the policy guidance.  But options such as these are not a sufficient basis for a sustainable set of principles for using force in support of our partners.  Nor is it difficult to imagine the way that these boundaries might be stretched, for example, to claim large swaths of places like Yemen and Somalia as areas of active hostilities. It’s clear, however, that Libya, Somalia, and Yemen all present the need and opportunity to provide kinetic support to partner ground operations against our shared threats that wasn’t present at the time the PPG was developed and approved.  A new framework that captures the important role that limited U.S. air support can play in empowering and enabling partner ground action would better reflect both our strategy and the current operational reality.

Moving from the continuing, imminent threat standard to an alternative framework is no easy task.  The policy challenge is designing a governor that balances constraining the use of force with the need to give operators appropriate leeway to both disrupt plotting and inflict strategic damage on terrorist networks.  If interpreted too liberally, the network and partner targeting imperatives described above can turn into massive loopholes that render meaningless attempts to regulate the use of force.  “Network-based targeting” could be used as justification for a wide range of targeting proposals focusing on a vast set of terrorist operatives, rather than honing in on those who play critical roles in the enemy network.  And given the intricacies of terrorist networks and the specialized knowledge required to understand them, it can be difficult for anybody above the operational level to independently verify those assessments.  A broad interpretation of supporting our partners through targeting might create similar challenges.  Virtually any terrorist plotting that is not externally focused might be said to pose a threat to our partners.  And providing support to partner militaries could morph from defending them from terrorist attacks to providing an extensive set of strikes such that the United States becomes a primary force in a conflict that should ultimately be led by our partners.

One way to address these concerns is to move from a substantive governor to a procedural check.  In other words, an alternative framework that does not rely on “continuing, imminent threat to U.S. persons” or another threat-based standard could be replaced with a requirement that the counterterrorism operating agencies bring forward detailed plans that describe proposed targeting campaigns and the criteria that must be met prior to action.  Under such a framework, the operating agencies may describe, for example, their top targets and rationale for targeting them, the anticipated tempo of operations, and the areas where targeting might take place and the risks entailed in each location. These operational plans might also explain the criteria that must be met before action can be taken, the procedures for obtaining host nation consent, and how the relevant commander will ensure appropriate input from the country team.  Such plans would then need to be subjected to review, both prior to execution and on a periodic basis, by other relevant national security departments and agencies.  As I have previously argued, this interagency review of operations is essential to ensuring that the operating agencies receive critical perspectives — geopolitical, diplomatic, legal, intelligence, and others — that fall outside of the purview of the operating agencies and ensuring that proposed operations serve our larger strategic and policy objectives.

Getting interagency review right is a perpetual challenge.  If the proposals for action are too detailed or if the senior interagency officials get too far into the weeds, we risk micromanaging operations via officials who have no particular expertise or business in overseeing operations.  If the proposals are too generic or if operations are not regularly reviewed, then interagency policy advice becomes symbolic and not a true governor that ensures lethal action meets a broader set of U.S. policy imperatives.  The key is a commitment from the President, National Security Advisor, and relevant cabinet secretaries to get this right and to iterate until the administration lands on a model that effectively constrains action, ensures it is lawful and ethical, but still allows operators to take decisive action against terrorist groups.  H.R. McMaster has stated that the National Security Council is “getting out of the tactical business.” How the Trump Administration oversees drone operations and other lethal actions will be a critical test of whether a White House with less focus on operational matters can effectively manage the strategic risks those operations carry.

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About the Author

Fellow - International Security Program at New America, Executive Director of National Journal's Network Science Initiative, Former Senior Director for Counterterrorism at the National Security Council, Former Deputy Director for Counterterrorism Operations in the Office of the Secretary of Defense Follow him on Twitter (@LukeHartig).