With the incoming team of new leaders to head the Department of Defense and Joint Chiefs of Staff, the very top ranks of the Department of Defense will be whole for the first time this year. And while they will have much on their plates, a top priority should be developing and publicly articulating the legal and policy framework governing the evolving uses of military force, especially in ongoing counterterrorism operations. The most recent attempt to lay out such a framework was not even a half step forward, more a backwards one. The new leaders have an opportunity to make a bold and much-needed course correction.

Back in May, Department of Defense General Counsel Paul Ney delivered what promised to be an important speech on the Trump administration’s legal framework underpinning a range of military operations, new challenges, and rapidly evolving technologies. Presented at a major Israeli forum on the law of armed conflict, Ney’s speech did indeed touch on topics like emerging military technologies, such as artificial intelligence, and the challenges of operating against enemies in urban environments. But instead of articulating the pillars of a coherent legal and policy framework — as his predecessors across the previous two administrations have — the speech devolved into a highly defensive address, less a framework and more an exercise in setting up and knocking down a series of straw man criticisms. In so doing, Ney missed an opportunity in which he could have provided some transparency around how the administration sees counterterrorism and use of force issues, articulated how operations and governing frameworks have evolved, and presented part of what the administration’s national security framework looks like in practice.

While the Department of Defense has admirably continued efforts to share more information about the results of U.S. operations, since the President took office no official has seriously addressed how the administration’s legal and policy frameworks for the use of force might have evolved under President Trump. This stands in stark contrast to the previous administration, which deployed various legal and policy officials to articulate President Obama’s approach to counterterrorism, rolled out a new counterterrorism strategy with significant fanfare, and engaged in a robust dialogue with Congress about its new approach. To be sure, the Trump administration has affirmed to Congress that its underlying statutory authorities are sufficient. But as the president has ratcheted up the deployment of special operations forces worldwide, several of whom have been killed in action, and overseen surges in drone strikes in key locations, the administration has not explained why we need to put more people in harm’s way or increase the intensity of our operations against terrorist groups. The administration, according to news reports, adopted a new set of policy guidelines for targeted strikes outside of hot warzones in September 2017, but the administration has not publicly discussed those changes. The White House’s top counterterrorism advisors across the prior two administrations were articulate public voices for each administration’s counterterrorism vision and strategy, but nobody has taken on a similar role in this administration. Former top counterterrorism advisor Tom Bossert’s most notable contribution to public dialogue was defending President Trump’s handling of white supremacist violence in Charlottesville. He departed unceremoniously after National Security Advisor John Bolton arrived, and it appears that Bolton does not intend to backfill the role. And the National Strategy for Counterterrorism, which on balance is actually a good document, was released with little fanfare last fall, right before a holiday weekend, and with none of the rollout speeches that usually contextualize such documents within the President’s larger national security vision. Congressional testimony from the administration’s senior leaders – most notably, Secretary Mattis and General Dunford’s April 2018 appearance – touched on use of force issues but mostly resulted in them defending the current Authorization for Use of Military Force and asking that our military not be inappropriately restricted. This hardly counts as proactive messaging or framework building.

In this void of public explication of the evolving use of force, Ney’s speech is about the only thing we have to go on. It’s interesting that Ney started his speech from a similar place from where then-Department of Defense General Counsel Jeh Johnson began a major speech in 2012 — by arguing that the best way to deal with a range of emerging threats and military capabilities is through a back to basics approach rooted in the law of armed conflict. Indeed, in that speech, Johnson said,

In the conflict against an unconventional enemy such as al Qaeda, we must consistently apply conventional legal principles.  We must apply, and we have applied, the law of armed conflict, including applicable provisions of the Geneva Conventions and customary international law, core principles of distinction and proportionality, historic precedent, and traditional principles of statutory construction. Put another way, we must not make it up to suit the moment.

Ney begins in a similar fashion:

The fundamental principles of the law of war provide a general guide for conduct during war, when no more specific rule applies … Underlying this idea is the premise that the law of war is a coherent and comprehensive body of law governing the conduct of hostilities.  Thus, addressing novel legal issues is less a matter of creating new principles or filling in “gaps” in the law of war, than in explaining and clarifying how the existing principles of the law of war already apply to new situations.

But that’s where the similarities stop. Whereas Johnson went on to articulate the case for why and how the Obama administration was bringing counterterrorism firmly under the rule of law, Ney’s speech instead devolves into a scatter shot rejection of a series of straw man critiques of the military — often put forward by unspecified stakeholders — only to knock them down and avoid tackling the central thorny issues.

Consider how Ney defends the delegation of strike authorities to lower level commanders and argues that civilian protections have not suffered as a result. Ney states that, “This type of delegation of authority was criticized by some who thought it might reduce civilian protections.” Who the “some” are, he never says, but it’s clear that he is repudiating the Obama-era rules that generally required higher level approvals for strikes. He then goes on to argue that empowering lower level commanders delegated authority to those most able to prevent civilian casualties. Ney’s argument is problematic for several reasons. First, while there may have been “some” who argued that delegation would result in elevated civilian casualties, most informed commentators (myself included) were more concerned that further delegation would increase the pace of operations and result in strikes against lower level or insignificant targets. This would be a real shift away from a highly focused approach to operations that had prevailed in previous years. Second, Ney fails to grapple with some of the challenges that have come from delegating authority further down, like the death of four special operators in Niger in 2017. In that case, the military’s own investigation suggested it was partly the result of a poor decision by a lower level commander, and one of the reforms taken in response was to better clarify the approval thresholds for certain operations. Nor does he grapple with the recent report that a civilian casualty caused by one of Africa Command’s subordinate task forces never reported it to the higher command. Further, Ney’s argument — and his implicit rejection of Obama-era policies — is disingenuous in that even if a strike is approved at a higher level, the commanders on the ground still have the final authority to conduct a strike and it’s their obligation to conduct a strike only when conditions are right, including when there is minimal risk of civilian harm. Finally, it’s not clear that civilian casualties have actually gone down as a result of new delegations of targeting authorities. Recent reporting on strikes in Somalia, for example, suggests a surge of civilian casualties over the past year. Strikes in Iraq and Syria continue to produce civilian casualties, with no indication that they have markedly declined over the past couple years. Of course there is a difficulty in comparing against a settled baseline, but that’s part of the point. It’s a doubtful exercise and so are claims that civilian protections have not been compromised without presenting the evidence to back up such an assessment.

Whereas Johnson went on to articulate the case for why and how the Obama administration was bringing counterterrorism firmly under the rule of law, Ney’s speech instead devolves into a scatter shot rejection of a series of straw man critiques of the military — often put forward by unspecified stakeholders

Ney is also bothered by recent discussions by the International Committee of the Red Cross (ICRC) and “a few States to ban or restrict the use of explosive weapons in populated areas, or ‘EWIPA.’” Ney points out (rightly, in my view) that such restrictions could lead to unintended consequences that actually increase the civilian cost of war: “We believe giving our commanders more options and more capabilities can allow them to choose the right weapon and mix of tactics for the situation that minimizes the risk of civilian casualties.” Ney also notes that such a ban could provoke our enemies to hide in populated areas, knowing that a wide class of weapons will not be used against them there. But while Ney is not wrong in rejecting the ICRC argument (though read Adil Haque’s analysis on how Ney frames the ICRC position), he completely sidesteps the hard questions about urban operations that have emerged in recent years, particularly after the bloody battles of Mosul and Raqqa in the counter-ISIS campaign. How effective have airstrikes in support of local partners been? Is Ney confident that our strikes have been as discriminate and precise as they would be if greater numbers of U.S. forces were on the ground? What is the tradeoff that DOD leaders, and ultimately the president, must make between more intensive U.S. ground operations that may reduce civilian casualties and deploying forces to another U.S.-led ground war that neither the American public nor local populations want? These are just some of the thorny questions raised by current urban warfare, and by just knocking down a proposal that has limited support among the American national security community in the first place, he leaves the hard issues untouched.

Ney then sets up another scarecrow argument: “we have noticed a tendency to argue that reports of civilian casualties constitute evidence of violations of the law of war by U.S. or Coalition forces.” Again, he doesn’t specify who is making these arguments, which would allow his audience to assess whether they are credible commentators or part of the more extreme set of activists who question everything the U.S. military does. And he would also be correct to say that civilian casualties do not necessarily point to law of war violations or misdeeds. As retired General Charles Dunlap and I recently debated on this site, the determination of whether civilian casualties point to a larger misdeed or even a war crime depends on a range of factors — such as the specifics of the operations or the intent of commanders at the time of a strike — many of which are beyond the ability of the outside observer to assess. But just because civilian casualty reports do not tell us much about whether war crimes were committed, that doesn’t mean they are not valuable indicators for the public to understand our military operations. Trends over time provide some indicator as to whether the government is living up to pledges to dramatically reduce civilian casualties, for instance. When accompanied by a more thoroughgoing discourse on the legal and policy frameworks underpinning the use of force, the public can actually piece together a good understanding of how the U.S. military operates. This, in turn, can inoculate the public against knee jerk claims of war crimes.

Finally, Ney concludes with registering an annoyance, noting that now that the military often goes above and beyond the legal requirements for preventing civilian casualties, outsiders argue that the new normal ought to be that higher standard: “some have argued that the obligation to take ‘feasible’ precautions for the protection of civilians means that any precaution that was taken was ‘feasible’ and therefore legally required.” As with so many other arguments in his speech, he declines to name the “some” who have argued, making it impossible for his audience to fully assess their arguments. But to the bigger point, he seems to be complaining that the U.S. doesn’t get credit for all of the good things it does, only an expectation that it subsequently operate at a new higher standard. First of all, some of this is just the nature of technology and warfare. As technology and targeting methodology evolves, we do demand more. What was a precise and discriminate strike during Vietnam may not be today. But we’re a long way from demanding that the most precise drone strike against a single al-Qaeda high-value target should be the norm for operations around the work. Both the Obama administration and the Trump administration (at least according to news reports) have made clear that the United States operates according to a higher set of standards and more rigorous rules outside of hot warzones like Iraq, Syria, and Afghanistan. Operations in other zones may require a higher threshold for conducting strikes, greater precision, and greater attention to preventing civilian casualties. There may be “some” who believe this should be the standard around the world, but the consensus across multiple administrations accepts a bifurcated set of rules for two types of warzones, a far cry from an unfair new legal standard that Ney seems to fear.

Two and a half years into the Trump administration, we find ourselves in a complicated environment – both on the ground and at home – with regard to use of force issues. ISIS is on the wane but we face increasingly complicated conflicts in Yemen, Somalia, and elsewhere, and we remain unable to extricate ourselves from Afghanistan. New technologies raise hard questions about the future of warfare. And the American public is growing weary of overseas conflict, with prominent voices on the left and right calling for an end to the “forever war,” and the President pursuing perhaps the most isolationist foreign policy we have seen since the end of WWII. With these considerations in mind, we are sorely in need of an evolved legal and policy framework governing U.S. operations, one that allows us to effectively pursue threats to the United States but that is also sustainable for years to come. General Counsel Ney had the opportunity to shape that dialogue but instead chose to attack a series of scarecrows put forward by his most extreme critics or in some cases, when it boils down to it, potentially put forward by no one. That’s a real miss for the administration, and for our understanding of these critical operations. But it is not too late for Ney himself to help correct for these errors.

The Pentagon’s new leadership team arrives at a timely moment. Secretary Mark Esper and General Mark Milley in particular are uniquely situated to define our evolving approach to warfare and lay out to a war-weary public a sustainable framework for the use of force. They can work with Ney to provide a nuanced public articulation of the administration’s legal and policy frameworks and engage in a constructive dialogue that would benefit the Department and the American public more broadly.


[Editor’s note: Readers may also be interested in Adil Haque’s “A Critique of Defense Dept General Counsel Ney’s Remarks on the Law of War”]