(Editor’s Note: This is part of our series on the Biden administration’s Presidential Policy Memorandum on counterterrorism direct action.)

Charlie Savage of the New York Times reports that the Biden administration had issued its long-awaited policy framework for counterterrorism direct action (e.g. airstrikes and raids). The playbook, dubbed the Presidential Policy Memorandum (PPM), succeeds the direct action policy frameworks of the Obama and Trump administrations, the Presidential Policy Guidance (PPG) and Policies Standards and Procedures (PSP), respectively. Perhaps due to competing priorities (e.g. Russia’s war on Ukraine) and an overall deprioritization of counterterrorism by the administration, according to a U.S. official the framework had been completed at the end of 2021 though it took 10 months for President Biden to approve it.

Based on Savage’s reporting (the administration has not publicly released this policy framework), a number of aspects of the playbook’s scope and content are noteworthy.

First, the rules of the PPM apply only outside more traditional war zones, what are referred to as “areas of active hostilities.” (These are policy concepts and not legal terms of art.) For the purposes of the new framework, these war zones are Syria and Iraq. Given that U.S. armed forces in Iraq transitioned to a non-combat role at the end of 2021, the characterization of the country as a war zone for counterterrorism purposes is somewhat incongruous.

Second, this direct action policy framework does not apply to strikes in defense of U.S. armed forces or so-called “collective self-defense” of partner forces. This exception is a significant loophole. During the Obama administration, the Pentagon skirted the policy constraints for direct action by liberally characterizing strikes in Somalia as defensive. According to current and former U.S. officials, it was difficult to assess to what extent those strikes were truly defensive as opposed to AFRICOM acting as Somalia’s air force. A former U.S. official explained: “Collective self-defense is really close air support without authorization.”

Such notionally defensive strikes contributed to the expansion of the scope of the 2001 Authorization for the Use of Military Force (2001 AUMF), the principal statutory basis for the U.S. war on terror. Whereas the Obama administration had initially conducted strikes against a handful of al-Shabaab members who also belonged to al-Qaeda, after the Pentagon began regularly engaging in ostensibly defensive strikes against rank-and-file al-Shabaab fighters, the administration retrospectively deemed the group as a whole covered by the 2001 AUMF.

This exception for defensive strikes could continue to be particularly pertinent in Somalia where a number of such strikes have already been conducted this year. As I have previously written in Just Security, this carveout could also become relevant in the Sahel due to the prominence of a number of jihadi groups and the presence in Niger of around 800 U.S. servicemembers on the ground and a U.S. Air Force base with armed drones.

Third, according to Savage, where the PPM applies the President must approve the addition of named individuals to the target list. Thus, counterterrorism operators may no longer conduct “signature strikes” on the basis of a pattern of suspicious activity. But the universe of groups from which targets might be selected remains unknown to the public, in part because the full list of entities the executive branch deems covered by the 2001 AUMF remains classified. A war against classified enemies stifles public debate over against whom, where, and whether the United States should be fighting at all. The Biden administration should release the full list of groups covered by the 2001 war authorization.

Fourth, the PPM requires that counterterrorism operators have both “near certainty” that the targeted individual is “is a member of a terrorist group approved” for direct action and “near certainty” that no civilian casualties will result from the strike.  As Savage notes, what “near certainty” means in practice is an open question, particularly since the most recent U.S. strike against a high-value target in Somalia taken under this standard reportedly resulted in an unanticipated casualty.

Importantly, because these are policy constraints, the President may override them, potentially without anyone in the public knowing. As Savage explains, “the rules permit seeking Mr. Biden’s permission for other types of strikes in extraordinary circumstances” – which sounds similar to such explicit reservations of presidential authority in the Obama PPG (see Section 5.B “Extraordinary Cases: Variations from the Policy Guidance”) and the Trump PSP (Section 6.B).

Savage does not comment on whether the PPM addresses the allocation of operational responsibilities for direct action between what the Obama administration’s PPG referred to as “operating agencies.” President Obama expressed a preference for the “military to take the lead and provide information to the public.” Yet, in one of the most significant counterterrorism strikes of the Biden administration thus far, the attack on Ayman al-Zawahiri in Kabul, the White House conspicuously did not laud the military as it typically would but instead cryptically referred to the central role of “our counterterrorism professionals and our intelligence professionals.”

This division of responsibility may have implications for transparency as well as the accuracy and precision of counterterrorism strikes and thus civilian casualties. In discussing counterterrorism direct action and civilian casualties former commander of U.S. Central Command and former CIA Director David Petraeus acknowledged a “conundrum” with measures conducted as “covert action…[because] you don’t talk about it.” Petraeus asserted (amidst a number of caveats about not acknowledging anything) that there’s “no organization that actually remotely can do what the CIA can do.” He attributed this competence to the greater expertise of the personnel working in the “counterterrorism center that had been there for a decade or so” as opposed to even “an extraordinary unit within JSOC (Joint Special Operations Command)” due to the rotation of servicemembers within the military. Whether or not Petraeus’s characterization is accurate, if the United States is going to conduct lethal strikes, I hope the Biden administration has thoroughly considered how to reconcile transparency with precision and accuracy.

Based on Savage’s account, the direct action framework appears consistent with the Biden administration’s approach thus far of dialing back the U.S. war on terror as a matter of policy and seems to codify what had been the interim status quo since the White House suspended the Trump administration’s playbook. But these policy constraints may be ephemeral as a subsequent administration can repeal them. Permanently reining in the two-decade long conflict will require legal reform. The White House needs to work with Congress to fundamentally rewrite the expansive and outdated 2001 AUMF. Otherwise, the next administration can continue expanding this war to new enemies and battlefields under the same statute without the rigorous examination that should flow from members of Congress having to publicly debate and vote on the wars the country is fighting.

Image: A Yemeni man looks at graffiti protesting against US drone strikes on September 19, 2018 in Sana’a, Yemen (Photo by Mohammed Hamoud/Getty Images).