Editor’s Note: This is the first article in a mini-series on the Biden administration’s new Presidential Policy Memorandum on counterterrorism direct action. The second article, by Luke Hartig, is available here, and the third, by Sarah Harrison, is available here.
President Joe Biden has reportedly signed a new classified policy memorandum for conducting counterterrorism drone strikes outside conventional war zones. While its aim of reducing risks to civilians is admirable, the memorandum contains notable exceptions and loopholes. These topics will be covered by others who are reflecting on the new policy in Just Security today and over the coming week. Here, however, I want to speak to a different concern: the way in which the new counterterrorism policies have been formulated and publicized.
First, the memorandum is classified. According to Charlie Savage, reporting for the New York Times, “it was described by a senior administration official, who spoke on the condition of anonymity to explain its key aspects.” This secrecy undermines democracy by making it impossible for the public to know precisely what the rules are that are guiding the country’s use of lethal force abroad. Even if there are some rules that cannot be fully disclosed for security reasons, surely the essential elements can be (as they have been in the past following successful FOIA requests).
This leak—or what David Pozen might call a “pleak,” neither a plant nor a leak but something in between—is not a substitute for full disclosure by the government of the rules that regulate American war-making. Allowing the public to learn about the policy from the leak and from academics and former government officials like those writing today for Just Security, who are experts at reading the tea leaves it contains, is no substitute for complete public disclosure and debate.
Second, it is notable that Congress seemingly has played no role at all in determining how the United States uses force abroad in this context. These days, we tend to take Congress’ impotence in the area of war powers for granted, but we shouldn’t. Recall that, while the President is “Commander in Chief,” it is Congress that has the Constitutional authority to “declare War.” And it is Congress that has the power to “grant Letters of Marque and Reprisal,” “make Rules concerning Captures on Land and Water,” “raise and support Armies,” and “provide and maintain a Navy.” Congress, in other words, is supposed to not just be consulted in decisions to wage and regulate warfare, it is supposed to be an essential participant. And yet, as in previous iterations of similar policy guidance, Congress appears to have been sidelined, as President Biden adopted these rules solely as a “Presidential Policy Memorandum” (PPM). This further entrenches the idea that it is up to the president, not Congress, to determine the course of the country’s counterterrorism program.
Third, the PPM is a policy, rather than legal, document. It therefore may be disregarded easily at the President’s discretion, and without public notice. President Barack Obama and President Donald Trump made similar choices in previous iterations of the PPM, the Presidential Policy Guidance (PPG) and Principles, Standards, and Procedures (PSP) respectively. Adopting constraints on the use of force as a matter of policy, rather than as a matter of law, has a major downside—they can be easily and quickly reversed, as we learned when President Trump dropped crucial restrictions contained in Obama’s PPG, thus undoing much of the hard-fought progress that had been made in adopting it in the first place.
By contrast, adopting limits on the use of force as a matter of law could lead to real, sustained progress because it could serve to bind successors to abide by those constraints. (Which is, of course, why administrations are allergic to such statements—executive branch lawyers, and their policy clients, hate to give up any future room to maneuver.) President Obama made a small step in this direction when he announced in 2011 that the United States considered Article 75 of Additional Protocol I to be customary international law (or at least, that it would “choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well”). The progress was limited by the lack of clarity as to whether the statement applied to non-international armed conflicts as well, which the U.S. military has engaged in much more frequently than international armed conflicts in recent decades.
These problems are not irremediable. The administration could address these failures. It could follow up the leak to Charlie Savage by disclosing the new PPM with minimal necessary redactions. And it could work with Congress to repeal and replace the 2001 Authorization for Use of Military Force and adopt key limitations on the use of force as a matter of law. It could, moreover, announce that it accepts certain international law obligations on the use of force as obligatory—for example, it could accept clearer legal restrictions, not just policy restrictions, on civilian casualties. Each step would mark real progress. Until then, however, the policy memorandum represents just one more stepping stone in the long path of the forever war.