On Monday, President Trump is required to submit a report to Congress setting out changes he’s made to US policy governing the use of military force in counterterrorism operations. Will he do it, and if so, will it be public?
Although the 2018 National Defense Authorization Act doesn’t require full public disclosure, the administration should reveal its policy anyway, as Tess Bridgeman has argued, following the important precedent set by President Obama, who in December 2016 issued a formal report on the legal and policy framework his administration was supposedly following.
The Trump administration has reportedly made significant changes to that framework, expanding the circumstances where lethal force is used, but despite repeated requests from human rights groups, administration officials have refused to reveal or discuss them.
So on Wednesday, more than a dozen U.S.-based non-government organizations – including my employer Amnesty International, as well as the ACLU and Human Rights Watch — published a joint statement laying out why that public disclosure is so important, and why we’re so concerned about the reported new policy.
First, the failure to be clear on when the United States is using lethal force and against whom is a dangerous step backward. As the statement notes: “Transparency around the use of lethal force is critical to allowing independent scrutiny of the lawfulness of operations and to providing accountability and redress for victims of violations of international law.”
We’re also concerned that the reported changes, combined with the dramatic increase in drone and air strikes in Yemen and Somalia over the past year, will lead to a growing number of civilian casualties and unlawful killings.
According to news reports, the new policy:
- Permits the U.S. government to kill individuals outside war zones who do not pose an imminent threat;
- eliminates the high-level reviews of such strikes that were previously required; and
- relaxes Obama’s “near certainty” standard that the target is present at the time of the strike to a mere “reasonable certainty,” increasing the risk to civilians.
Meanwhile, the administration has also reportedly given the CIA more leeway to carry out secret lethal operations. And it’s not clear if the new policy retains the requirement that outside a war zone, the government capture individuals whenever feasible, rather than using lethal force.
These secret policy changes are alarming. The US has no right to lethally target anyone outside a war zone unless that person poses an imminent threat to life. Even within an armed conflict, the U.S. may only lawfully target a member of the enemy’s armed forces, or civilians directly participating in hostilities. Yet the U.S. government seems to define “membership” in enemy armed forces far more broadly than the law allows.
This isn’t a partisan matter. Human Rights groups repeatedly criticized President Obama’s policy governing the use of armed drones as well. That ultimately led to at least some sunlight being cast on the matter, and some additional civilian protections.
Congress wisely required the administration to report on any changes it made with its new reporting requirement in the 2018 NDAA. It should make sure the Trump administration provides a meaningful public response.