I Helped Write the Exec Order on Public Reporting of Lethal Operations. Here’s What Trump Has Undone.

On Wednesday, in a breathtaking move, President Donald Trump issued an Executive Order (E.O.) rescinding a section of an Obama-era E.O. that required the Director of National Intelligence (DNI) to submit an annual public accounting of the toll of U.S. counterterrorism strikes. In justifying the termination of this report, the Trump E.O. cites an ostensibly similar reporting requirement in the National Defense Authorization Act (NDAA), as amended, requiring the Department of Defense to account for the results of military operations worldwide. Statements from the State Department and National Security Council (NSC) characterized the E.O. requirement as “superfluous,” and the NSC argued that it “distract[ed] our intelligence professionals from their primary mission.” Multiple press accounts have cited some of the key problems with the rescission, the backlash from transparency advocates, and why, unsurprisingly, the Trump administration has not characterized the E.O. and NDAA requirements in good faith. But it’s worth further unpacking a move that is disingenuous at best, willfully deceptive at worst.

I was involved in developing the reporting requirement and associated policies, which reflected President Barack Obama’s larger desire to both continue the significant gains in reducing civilian casualties and hold the government publicly accountable for the civilian casualties that inevitably occur in war. The spirit that led to the passage of the 2018 NDAA was similarly laudable. Lawmakers of both parties have seen the value of increased transparency, both as a general matter, and as a strategic effort to build support at home and abroad for counterterrorism operations that have come under increasing scrutiny. No doubt some members of Congress must have feared that Trump would rescind the E.O. and wanted to be sure that a statutory requirement was on the books. The resulting NDAA requirement accounts for military operations worldwide, allowing for additional scrutiny of operations everywhere, not just in specific theaters. But the value of the NDAA requirement should not obscure the distinct benefits from the E.O., now largely forsaken by the administration.

First, the E.O. covered all counterterrorism “strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities.” By contrast, the NDAA report covers all U.S. “military operations” in a given year. As noted above, the Armed Services Committees’ desire to understand worldwide counterterrorism operations, as well as a range of operations including both drone strikes and ground raids, is laudable and a sign of the committees effectively doing their oversight work. But for a public report, this much broader focus obscures the E.O.’s important emphasis on covering the U.S. government’s most controversial counterterrorism operations: drone strikes outside of hot warzones like Syria, Iraq, and Afghanistan. It is particularly important to keep close tabs on drone strikes in places like Yemen, Somalia, and Libya, because they have generated significant backlash from local populations and a steady drumbeat of criticism at home. These operations are also inherently different than operations in areas of active hostilities in that strikes tend to be far less frequent, conducted with smaller and fewer munitions, and executed with a higher level of precision, discrimination, and precaution for protecting civilian lives than operations in hot warzones. Isolating these strikes allows the public to analyze trends over time, differentiate them from the far more intense and violent strikes conducted in other areas, and evaluate whether the U.S. government is living up to its stated high standards for these operations. By bundling a report on these operations with worldwide operations, that special treatment is lost and the U.S. government backslides on its efforts to earn trust and further political sustainability for these important operations.

The E.O. was also helpful in that it required the government to report on the total number of strikes and combatant deaths alongside civilian casualties. Although the motivating spirit of this report, and the E.O. in which it was captured, was preventing civilian casualties, providing numbers on total strikes and combatants killed in strikes helped put the civilian toll in context. The public could consider important information like what percentage of those killed in operations were civilians versus militants and could infer how often our strikes resulted in civilian deaths and how many of our strikes were truly focused on individuals or small groups of terrorists rather than large groupings. These were important metrics in assessing whether the U.S. government was living up to its stated principles of discrimination, precision, and restraint in using force outside of hot warzones.

One of the most important benefits of the E.O. involved the effect it had on bringing together different perspectives within the executive branch. The E.O. required the DNI, rather than the operating agency that conducted the strikes, to produce the assessment. This was particularly helpful in that, consistent with the DNI’s role in coordinating the 16 intelligence agencies, it forced the intelligence community to come together in assessing the impact of our operations and allowed for experts to consult a wide range of intelligence sources in reaching an analytic conclusion on some of our most controversial strikes. Notwithstanding the Trump NSC’s glib comment, producing these kinds of community-wide assessments on issues of national importance is one of the primary missions of the intelligence community. And if there’s one place that departments and agencies should be checking each other’s homework, it’s the use of lethal force outside of conventional battlefields.

Consider, for example, specific benefits to the Pentagon’s decision-making. In some instances, it’s not clear that the Pentagon is consulting the broader intelligence community, outside of the Department, in reporting on its operations. For example, the December report to Congress in which the Defense Department denied having any knowledge of its United Arab Emirates (UAE) partners torturing terrorist detainees in Yemen did not appear to include any consultation with the wider intelligence community. The result was an incomplete and highly deceptive report that undercut the U.S. military’s credibility and only produced further questions about our conduct in Yemen. Bringing in the intelligence community and other departments helps reduce the risk of putting out false or misleading information and gives the public a view of the considered assessment of our intelligence professionals, something that we have come to consistently value in the Trump era.

If there’s any upside, it’s that President Trump did not rescind the entire E.O., which still stands and affirms the importance of preventing civilian casualties, on both moral and strategic grounds. This is a far cry from Trump’s campaign promise to “take out” the civilian family members of terrorists. And the remaining sections of the E.O. still contain important mandates like directing the Defense Department to take a range of actions to prevent civilian casualties, urging cooperation with international partners to improve their ability to protect civilians, acknowledging our responsibility to make ex gratia payments for the families of non-combatants killed in strikes, calling for consultation with non-governmental organizations and other experts outside of the U.S. government in assessing civilian impact, and directing senior officials to convene periodically to review trends and policies pertaining to civilian casualties.

 But it’s wholly inaccurate to say that the report was superfluous. And even if some in the Trump administration truly believe that, there would have been little downside to doing one report that addresses both the E.O. and NDAA requirements and explains the nuances of each.

Instead, the administration has continued its dangerous slide away from transparency. To be sure, the Obama administration made only fitful progress toward transparency. Even the E.O.’s requirement is a far cry from a thorough accounting, broken down by specific strike, or at least each theater, that would allow the public to draw more informed conclusions about our operations. And to be fair, the Defense Department has continued, even under the Trump administration, to increase transparency around specific operations, as well as its attempts to get an accurate account of civilian casualties in Iraq and Syria. But there seems to be a concerted effort from the Trump administration to roll back the transparency agenda that both President Obama’s team and many career staff across the U.S. government deemed important to our counterterrorism operations. In contrast to the previous administrations, there have essentially been no major speeches by senior counterterrorism officials and national security lawyers in this administration articulating the legal and policy framework for U.S. counterterrorism operations, and the Trump team’s response to a statutory requirement to report on any changes to these frameworks was thin to the point of being almost contemptuous of the requirement. There has also been virtually no communication from the President or his top officials explaining why more of our people are deployed into harm’s way and losing their lives in places like Yemen, Somalia, and the Sahel than in the previous eight years. Our partnership with the UAE in Yemen has come under increasing scrutiny, but the administration has offered no explanation for the most serious allegations. And despite the Defense Department’s disclosures of specific strikes, there has been no explanation of the reported dramatic surges and slowdowns in the pace of U.S. strikes in Yemen and Somalia.

This stands in contrast to the Obama administration’s careful development of frameworks for governing the targeted killing program, produced in close consultation with career counterterrorism professionals across the government, and a willingness to discuss those frameworks with outside experts and media who could critique them. That process reflected a sense that transparency was very important but that moves toward transparency should carefully consider the tradeoffs and potential risks to U.S. operations. This dialogue seems to have ceased, either because of a desire to undo the Obama agenda or out of a misplaced sense that sharing any information jeopardizes U.S. operations. That’s short sighted. In the absence of such a commitment to transparency, it’s far easier for our terrorist adversaries to propagate misinformation about our operations both here and among foreign audiences. It’s also harder for the American people to both understand the operations taken in their name and trust that these operations are conducted with the great level of precision and discrimination that has rightly become a point of pride for our fighting forces.

In any other administration, not beset by a major counterintelligence investigation or gripped by the daily inflammatory statements from its chief executive, this purposeful obfuscation of controversial military operations would be a reason for widespread outrage. Instead, it fades into the noise. But we should be deeply concerned, and recommitted to continuing a steady march toward transparency and accountability, both for their inherent worth, and so we can sustain this important tool for the threats we continue to face as a nation.

 

About the Author(s)

Luke Hartig

Executive Director of National Journal's Network Science Initiative and Fellow, International Security Program at New America. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Director for Counterterrorism Operations in the Office of the Secretary of Defense. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow him on Twitter (@LukeHartig).