As President Joe Biden made clear in his first major foreign policy speech, the Biden-Harris administration plans to begin restoring America’s place in the world. A key aspect of this initiative that he did not address, however, will be how to responsibly end—or perhaps simply curtail—America’s “forever wars” by repealing and replacing the 2001 and 2002 Authorizations for Use of Military Force (AUMF), closing Guantanamo Bay, and reinstating transparency measures surrounding the drone program. In an encouraging sign, Director of National Intelligence Avril Haines said in her confirmation hearing that she would support a new or revised version of Executive Order 13732, which, among other things, required all U.S. government agencies during the Obama administration to disclose publicly the number of civilians killed in drone strikes.
These reforms are a welcome departure from the Trump administration, which revoked such transparency measures, loosened restrictions on lethal action, and expanded drone operations across the Middle East and Africa. Yet ending endless war will require a comprehensive review of U.S. counterterrorism strategy and the use of armed drones within and outside of active conflicts. Increasing transparency is not a panacea for ending perpetual warfare, and it is important to build on, rather than simply reinstate, Obama-era policies.
What is missing from the debate is a broader assessment of how to align American values with the use of force in a world where the line between war and peace is blurred. In the past two decades since the attacks of Sept. 11, 2001, the reliance on armed drones as a foreign policy tool has further eroded this line, enabling killing in remote places far from traditional battlefields. The problem is not with drone technology per se; the risk is that drones make it easier to resort to force on a continual basis without clear temporal or geographic limits, and without the scrutiny that conventional wars invite. For this reason, it is impossible to truly end the forever wars without reining in the drones.
Ironically, the new administration may end up doing just the opposite. The pressure to draw down conventional military forces from the Middle East—another key aspect of ending the forever wars—could necessitate greater reliance on light footprint operations and drone strikes to fill the void and protect U.S. national security interests. The logic of this approach is compelling and has led to a steady, if not always linear, expansion of drone operations: on average, the Trump administration conducted one strike every four days in office, compared to once every 5.4 days under Obama, which represented a tenfold increase from the Bush years. As the coronavirus pandemic rages on, there are perhaps even more incentives to turn to remote warfighting as the safer, “riskless” option for U.S. forces in a world filled with visible and invisible threats.
But policymakers should resist relying reflexively on drones. Drone strikes are only as precise as the intelligence on which they are based, as discriminating as the targeting thresholds they seek to meet, and as just as the ends for which they are employed.
And all of this requires grappling with the larger question of what it means to be at war in an age where the battle lines are indistinguishable from daily life, if they exist at all. President Obama’s prescient remarks from seven years ago still ring true today, “we must define the nature and scope of this struggle, or else it will define us.”
The Biden-Harris administration has a unique opportunity to define this struggle and chart a new path for U.S. leadership on drone use. In doing so, it should take the following steps to ensure that new standards for lethal action are consistent with American values and serve to strengthen, rather than undermine, the rule of law in an increasingly fractured international system:
- Pause drone strikes pending a comprehensive counterterrorism review
An interagency review is urgently needed to reassess the strategic priorities and goals of U.S. counterterrorism campaigns, the efficacy of counterterrorism tools, and how to ensure individual rights are upheld while protecting national security. The United States should not return to the Obama-era guidance contained in its Presidential Policy Guidance (PPG) on targeting outside so-called “areas of active hostilities,” but it equally should not be complicit in continuing to implement the Trump administration’s Principles, Standards, and Procedures (PSP). A version of the PSP should be declassified so that the public can evaluate the standards for lethal operations that have been conducted in its name for the past four years.
While this review is underway, the United States should pause drone strikes outside of Afghanistan, where drones may be used to reinforce ground combat operations, to ensure that bureaucratic inertia is not permitted to set policy.
- Clarify the legal and moral basis for lethal action
The executive branch should work with Congress to clarify the domestic legal basis for lethal action, including by repealing the 2002 AUMF and repealing and replacing the 2001 AUMF. As Tess Bridgeman, Ryan Goodman, Stephen Pomper, and Steve Vladeck recently argued, a new AUMF should be tailored to specific groups and objectives with the aim of ending, rather than expanding, conflicts. The new administration also should commit to the view that the Law of Armed Conflict, or international humanitarian law (IHL), does not displace or reduce the protections afforded to individuals under international human rights law (IHRL), which holds in times of peace and war, but rather operates alongside those protections. In cases where it is not possible to follow this approach—for instance, in cases of supreme emergency—policymakers should state publicly the reasons for temporarily adopting a less protective stance towards individuals.
Policymakers must ask and answer difficult questions about the ethical standards that should govern targeted killing. For too long, the mantra that drone strikes are “legal, ethical, and wise” has foreclosed serious debate on whether the United States has a right—or even a duty—to use lethal force against targets who do not pose a direct threat to the United States, but may threaten civilians or allies.
- Refine the scope of the policy guidance, rejecting “areas of active hostilities”
At present, the policy guidance for lethal action applies only outside of “areas of active hostilities,” a term that has no meaning in international law. This practice gives the executive branch wide latitude to apply the guidance selectively, inviting public criticism and creating ambiguity about when lethal action should adhere to stricter targeting restrictions.
Prior to any discussion on the rules governing lethal action abroad, it is essential to articulate the scope of the policy guidance and how it relates to the legal notion of an armed conflict. This is not merely an academic exercise; clarifying whether drone strikes occur within or outside of an armed conflict will determine which legal frameworks are relevant and how IHL interacts with IHRL. As part of this debate, the United States should reconsider its position on what constitutes an armed conflict, resisting the notion of open-ended, global conflicts and refocusing on the geographic nexus of specific threats.
- Strengthen reporting requirements on the use of force at the UN Security Council
The United States will assume the presidency of the UN Security Council in March. The Biden-Harris administration should leverage this position to strengthen the reporting requirements for actions taken in self-defense, in accordance with Article 51 of the UN Charter. There are currently no criteria for how to fulfill this requirement; states frequently submit letters concerning lethal action that lack sufficient detail due to the perceived need for secrecy. As a result, the entire process can amount to little more than propaganda or a box-checking exercise.
The United States should propose standards for meeting the reporting requirement and the creation of a new mechanism at the Security Council to review and evaluate Article 51 letters. The aim of this mechanism would be to increase transparency, while protecting sources and methods, in order to ensure that lethal action—whether through drone strikes or other means—does not weaken the bedrock prohibition on the use of force under Article 2(4) of the UN Charter.
- Acknowledge targeting mistakes and insist on accountability
Even with the most rigorous standards for lethal action, the United States will still sometimes get it wrong. Inevitably, mistakes will be made and, when that occurs, policymakers have a moral duty to investigate, put additional guardrails in place, acknowledge wrongful deaths, and consider reparatory measures.
Conducting pre- and post-strike assessments for every operation is an essential part of this process. As part of these assessments, there should be a designated point person on the National Security Council staff who is responsible for liaising with civil society groups and investigating any purported discrepancies between government casualty figures and other data sources. This person also should oversee the completion of a biannual report that identifies strategic issues and trends in drone use.
- Proactively shape international norms concerning the employment and proliferation of drones
Restoring America’s role in the world will require U.S. leadership in convening a group of like-minded states to develop and strengthen a formal international framework for drone use and export policies. The best way to do this would be to revitalize and expand on the “Joint Declaration” process, while ensuring that any new standards do not weaken existing arms control agreements such as the Missile Technology Control Regime and Arms Trade Treaty.
- Institutionalize and codify policy reforms at multiple levels and branches of government
If the past four years have taught us anything, it is that policy reforms must be codified in order to have lasting, meaningful impact. Standards for lethal action should not be enshrined in executive order alone, which may be overridden whenever politically expedient. Additionally, steps should be taken to inculcate within the national security apparatus a culture of reform that incorporates the policy changes into military handbooks, training courses, and professional codes of conduct. Implementing and institutionalizing these reforms will be crucial for ending the forever wars, once and for all.
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