Trump’s Revocation of Reporting on Lethal Strikes: All Eyes on Congress, Now

On Wednesday, President Donald Trump issued an Executive Order revoking a section of President Barack Obama’s Executive Order on civilian casualties that required annual reporting on lethal strikes outside of hot battlefields. Given the congressionally-mandated civilian casualty reporting requirements passed in recent years, President Trump’s Executive Order left even those who closely follow such issues confused about the significance of the change. The administration’s claim that President Trump’s action “eliminates superfluous reporting requirements” that do not improve transparency but instead “distract our intelligence professionals from their primary mission” further confused the issue. This article provides a quick guide to what this action actually changed and what is likely to (and should) happen next.

What President Trump’s Action Does and Does Not Change

First, it’s important to recognize that Wednesday’s action revoked only Section 3 of E.O. 13732 of July 1, 2016 (“United States Policy on Pre- and Post- Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force”). The rest of the July 2016 E.O., which provides important high-level guidance on civilian casualties policy, remains intact. Without a doubt, the rest of the E.O. remains in place in no small part thanks to support from officials within the Department of Defense.  The administration’s statement importantly emphasized that “the United States Government is fully committed to complying with its obligations under the law of armed conflict, minimizing, to the greatest extent possible, civilian casualties, and acknowledging responsibility when they unfortunately occur during military operations.” And, as Dan Mahanty and I recently highlighted, the Defense Department is still making civilian casualties reduction and response a top priority, and development of a comprehensive Department policy on civilian casualties is underway.

The Section that was revoked required the Director of National Intelligence to produce a public report on an annual basis (see reports released in 2016 and 2017) that contained two important pieces of information related to lethal strikes by the United States. First, the annual public report was to include the overall number of strikes conducted by the United States against terrorist targets outside “areas of active hostilities.” In other words, the annual report was to contain the number of strikes the United States was conducting outside traditional battlefield settings where the legality and legitimacy of such strikes were hotly contested by both allies and legal experts.

And second, the annual report was to include the assessed number of combatants and non-combatants (aka civilians) killed in such strikes.

This information is essential for a full understanding of the scope and consequences of counterterrorism strikes conducted by the U.S. government. Notably, the information produced included any and all strikes by the United States, including strikes conducted by intelligence agencies such as the CIA.

Despite the administration’s claims that this reporting requirement was “superfluous,” neither of these categories of information are covered by existing statutory reporting requirements. Under the reporting provisions passed in the National Defense Authorization Acts for Fiscal Years 2018 and 2019, the Department of Defense must provide an annual report on the number of civilians killed in U.S. operations worldwide. So, while geographically broader than the reporting required under the 2016 E.O., the statutory requirements do not cover the number of combatants and non-combatants killed, nor do they cover non-military strikes.

Revocation of the Executive Branch’s annual reporting requirement thus needlessly increases secrecy around the already secretive CIA drone program. What’s more, the statutorily mandated reporting requirements do not include overall strike numbers, let alone the number of operations outside areas of active hostilities specifically. Rolling back these minimal reporting requirements on non-military strikes and strikes outside recognized war zones only further undermines the legitimacy of such operations. As Just Security editor Josh Geltzer explained to the New York Times,

“This is a bad move not just for transparency, but also for those who believe that tools like drone strikes need to remain available to the government for countering terrorism,” he said. “The continued availability of that tool rests in part in confidence in how it is being used, and this was an important step in giving the public some insight into that.”

What Should Happen Next

It is clear from the responses by members of Congress that legislative action to reverse the President’s decision, at least in the House, is likely. Congressman Schiff, chairman of the House intelligence committee, strongly criticized the decision, said that it was a “troubling retreat from transparency” with “no justification,”, and committed to making reporting by the intelligence agencies mandatory through must-pass legislation that is unlikely to be vetoed by the President.  Indeed, while the Trump administration had yet to comply with Section 3 of the civilian casualties E.O. two years in, the President’s official revocation of the requirement this week underscores the need for Congress to close existing gaps in required public reporting involving the use of lethal force.

Beyond transparency and oversight, this provides an opportunity for Congress to reassess whether the intelligence community should be conducting lethal strikes in the first place. If tracking the number of strikes outside traditional warzones and how many civilians are killed as a result is too much of a “distraction” for the intelligence community, as the administration asserted in its notification to Congress, maybe it’s time Congress revisited legislation to consolidate counterterrorism strike authority in the more publicly-accountable Department of Defense.

Lastly, in the more immediate term, the President’s revocation of part of the E.O. on civilian casualties undoubtedly triggers the reporting requirement contained in Section 1264 of the National Defense Authorization Act for Fiscal Year 2018. Under this important provision, this administration and all future administrations must notify the relevant congressional committees of any change to the legal and policy framework governing the United States’ use of military force and related national security operations within 30 days (which the administration has already done) but must also provide Congress with the legal, factual, and policy reasons for the change. It’s unclear whether the administration has been complying with this requirement and Congress should ensure that it does, starting with watching for the explanation for the change that is due by April 5.

  

About the Author(s)

Rita Siemion

International Legal Counsel at Human Rights First. Follow her on Twitter (@ritasiemion).