(Editor’s Note: This is the third article in a series on the Biden administration’s new Presidential Policy Memorandum on counterterrorism direct action. See our other coverage on this issue from Oona Hathaway, Brian Finucane, and Sarah Harrison).
In an anonymously sourced article that has all the markings of an officially sanctioned story, the New York Times’ Charlie Savage reports that President Joe Biden has recently approved a new policy on counterterrorism direct action (i.e., drone strikes and commando raids) that appears to largely roll back the Trump-era policies to the 2013 Obama administration standards. The return to more restrictive standards is welcome and overdue, especially in light of Biden’s campaign commitments to end the Forever War. And in many ways, the Obama-era guidance is better suited to contemporary conflicts than the counterterrorism campaign for which it was written.
Yet the new policy leaves much necessary business undone. How the administration interprets key legal and policy concepts around direct action compared to international allies remains hotly disputed. The faithful execution of the policy by the military – particularly how it seeks to prevent civilian casualties and how it investigates civilian casualty incidents – requires much more work. The transparency agenda is stalled, and much of the “war on terror” remains shrouded in secrecy. And more must be done to actually institutionalize the administration’s policies so as to prevent the next administration from merely rolling back the new standards.
The PPM’s Rules – A Return to the Obama Era?
Unless the Presidential Policy Memorandum (PPM) codifying Biden’s new policy is publicly released, we can’t know all that it contains, but the Times reporting indicates that it largely mirrors the 2013 Presidential Policy Guidance (PPG) that governed operations throughout President Obama’s second term. Like the PPG, it requires that strikes only be conducted against targets that pose a “continuing, imminent threat to U.S. persons” and only when capture is assessed to be infeasible. It reinstates the PPG’s requirements that commanders assess with “near certainty” both that an approved target is present and that civilians will not be harmed. It strongly favors strikes against high-value terrorists (HVTs) while preserving a process for the President to approve lawful strikes against targets other than HVTs. It requires the Ambassador/Chief of Mission for the country in which the operations occur to concur with strikes (an important safeguard for ensuring diplomatic and broader foreign policy considerations are taken into account). And it requires the President’s personal approval of targets, except in cases of unit or collective self-defense where the policy guidance does not apply.
To be fair, the Trump guidelines that replaced the PPG – the Principles, Standards, and Procedures (PSP) – were far better than might have been expected from a president who promised to commit war crimes as part of his counterterrorism policy. Drafted by well-respected career professionals, the PSP affirmed a commitment to standards that exceeded the requirements under the law of armed conflict (LOAC), preserved the “near certainty” of no civilian casualties standard, and stated that capture is “generally preferred over lethal action.” However, the PSP ended the requirement that lethal action only be taken against specific targets that posed a “continuing, imminent threat to U.S. persons,” loosened standards for affirming that an approved target was present, and delegated far more authority to operating agencies to conduct operations without interagency review. Reports also suggested that in Somalia, Trump approved country-specific rules that were looser than the PSP otherwise required.
Rolling back some of the Trump administration’s more permissive targeting standards is a good thing, but is a reinstatement of the PPG a good place to land? I have argued that the Biden administration should not simply snap back to the Obama drone rules, as the world and our operations have evolved since then. In my view, we should adopt stricter standards that reduce the reliance on drones as a weapon of first resort and that move us closer to ending the Forever War.
That said, in reading the Times reporting and reflecting on how the PPG was implemented, it strikes me that the Obama-era rules, faithfully interpreted, may actually be a better fit for today’s world than they were at the time they were adopted. The Obama rules often seemed to envision a world that just wasn’t quite reality. It imagined greatly constrained strikes, conducted only as a last resort, in countries where other means of addressing terrorism existed. The guidance referred to these locations as “outside areas of active hostilities.” Yet the United States faced growing threats across the final years of the Obama administration, and its underdeveloped partners were in ever more intensive combat with several terrorist groups ostensibly operating outside areas of active hostilities. In fact, violence worsened in every theater of operations governed by the PPG in the years after it was approved. Kinetic operations against al-Shabaab in Somalia, al-Qaeda in the Arabian Peninsula in Yemen, and al-Qaeda, then ISIS, in Libya would rise in the years after the document was signed. Just over a year after the guidance was approved, the administration launched a massive campaign against ISIS in Iraq and Syria and determined that the PPG would not apply there. Even in Libya, where the PPG was in effect, the administration decided that certain areas more closely resembled a hot battlefield and those areas were exempted from the PPG.
Rules set forth to constrain the use of force seemed to adapt to these threats. That’s not to say they had no impact. Strikes in key theaters would eventually decline, and non-governmental organizations generally documented declining civilian casualties in theaters where the PPG was in effect. But Obama’s exhortation that we had to come off of a “perpetual wartime footing” did not actualize during his two terms nor Trump’s single term in office.
Fulfilling the Promise of Restrained Counterterrorism
We face a far different counterterrorism landscape today. The United States has withdrawn forces from Afghanistan and is no longer at war with the Taliban, limiting strikes to al-Qaeda, ISIS, and groups deemed to be “associated forces,” such as al-Shabaab.
Meanwhile, U.S. forces have killed the heads of ISIS and al-Qaeda twice over, along with many other top operatives, depriving them of critical leadership and operational expertise. Operations have declined precipitously in Syria and Iraq. Yemen remains locked in conflict, but external threats from al-Qaeda and ISIS elements in the country have declined. French allies have dramatically scaled back their operations in the Sahel. Somalia is the lone theater where the United States has ramped up its operations, yet even there, U.S. strikes and al-Shabaab attacks remain lower than violence we have seen in recent years. By most accounts, terrorist threats are substantially lower than they were a decade ago, and we are far better at defending against threats that cannot be disrupted by strikes.
In this context, a policy that actually does what the 2013 PPG tried to do may be entirely appropriate. The problem is unwinding a decade of interpretations and implementation practices that have often stretched policy principles to more ambitious operational objectives. For one, the United States continues to find itself at odds with Western allies in how it interprets many of the fundamental concepts underpinning its direct action policies. This includes interpretations of imminence, feasibility of capture, presumption of civilian status, and host nation consent, to name just a few. (Brianna Rosen has written about these discrepancies in depth.) In all cases, the United States tends to interpret these concepts more loosely than its allies, ostensibly to make them operationally flexible, but in a way that may also undermine the promises set forth in its ambitious policies. Serious work to reconcile these differences would both bring the United States closer in line with its allies and improve the credibility of its stated policies.
Second, and even more important, is that it’s not clear that the counterterrorism operating agencies have fully institutionalized these policy principles in their operations. The disastrous August 2021 strike in Kabul during the Afghanistan withdrawal that killed 10 civilians and the March 2019 operation in Baghuz that may have killed up to 80 civilians are but two of the most notable and recent examples of significant civilian harm in U.S. operations. Although these operations took place in “areas of active hostilities” where the “near certainty” of no civilian casualties standard did not apply, U.S. officials had frequently touted the discrimination and care for civilian lives U.S. forces employed in both theaters. The Chairman of the Joint Chiefs of Staff went so far as to call the Kabul strike “righteous,” even as early reports suggested civilian casualties. Yet in both cases, the U.S. military’s investigations showed chronic problems with confirmation bias and inadequate resources to assess the civilian status of the targets. They also revealed an investigatory process that immediately discounts information not produced by the U.S. government and that’s quick to exonerate those involved but hesitant to introduce real changes designed to prevent future failures. Pulitzer Prize-winning reporting from the New York Times’ Azmat Khan detailed rampant undercounting of civilian casualties and military efforts to suppress these numbers. A 2022 RAND Corporation report detailed a stunning string of breakdowns in procedures that systematically produce an undercounting of civilian casualties and a failure to learn.
The Biden administration has begun to acknowledge these problems and has taken some action to address them, though much work remains to be done. After the Kabul strike, the Times reporting on Baghuz, and the RAND report, Secretary of Defense Lloyd Austin ordered a comprehensive 90-day review of civilian casualty practices and procedures. The result, a Civilian Harm Mitigation and Response Action Plan (CHMR-AP), released in August 2022, lays out a comprehensive set of new organizational structures, resources, and procedures to mitigate civilian harm. It’s the sort of government directive that could suggest that the department is taking serious, detailed steps to mitigate civilian harm, or that it’s offering a mind-numbing series of bureaucratic responses that appear to address the problem but don’t actually get at the underlying root causes. The CHMR-AP’s directives are welcome reforms, but time will tell whether they alter the mindset of commanders and targeters, enhance civilian and congressional oversight, improve collaboration with non-governmental organizations, and break the tendency of military investigations to paper over systemic problems.
Wither the Transparency Agenda?
Finally, the policy fails to revitalize the transparency agenda, and it seems unlikely to become a priority any time soon. The nature of the PPM, as well as how it was dropped quietly on a Friday before a holiday weekend – a time when administrations often try to bury stories – are consistent with the Biden administration’s larger approach to counterterrorism to date: roll back the war and don’t talk about it. There was no public rollout, no presidential address, no release of the PPM or even a fact sheet on it. Calls to reinstate government-wide requirements on reporting civilian casualties reportedly went unheeded in the final policy. Nearly all of the Times story is anonymously sourced. The administration has yet to release a National Strategy for Counterterrorism (NSCT) and has only offered one major speech outlining its approach to counterterrorism. By the accounting of most non-governmental observers and media, the administration has scaled back operations but has done so with little fanfare. And in Somalia, the one place where it has scaled up operations, it has done this quietly as well, with no effort to address the major questions raised by such deployments.
Despite admirable attempts by the Department of Defense to improve transparency, we still know far too little about the most controversial operations – such as the operation in Baghuz that may have killed scores of civilians – or the results of investigations into them. Outside groups regularly report on operations that the U.S. government has not acknowledged.
Since the withdrawal from Afghanistan, Biden has hardly spoken about counterterrorism at all, except to tout the deaths of major terrorist leaders, like Ayman al-Zawahiri. The righteous campaign trail commitments to end the Forever War have subsided. Instead, the administration seems to be employing a modified version of the “Fight Club rule”: the first rule of ending the Forever War is don’t talk about the Forever War.
This approach certainly has its merits, especially after two decades of hyper-politicized conversations about terrorism in the media. Conducting fewer operations, only when necessary, but otherwise keeping terrorism off the front pages may very well be what a sustainable counterterrorism effort that no longer defines U.S. foreign policy looks like. But stepping away from the transparency agenda has negative consequences, even if it succeeds in lowering the overall temperature on terrorism.
First, secret wars are no way for a democracy to operate. The American people have a right to know more about killing conducted in their name and why it’s still essential after 21 years. It’s also no way to rebuild trust with the Muslim world after two decades of war that has destabilized so many countries and eroded U.S. credibility. The longer U.S. operations remain shrouded in secrecy, the more scrutiny and backlash they invite and the harder it becomes for the United States to defend its actions as legitimate.
Failing to talk about these operations also undermines efforts to build an enduring counterterrorism framework. The administration has shown no appetite to take on the legislative fight necessary to repeal and replace the 2001 Authorization for Use of Military Force, meaning that expansive legislation will continue to authorize future presidents to conduct a wide range of operations against a classified, and ever-expanding, list of terrorist targets. The dialogue necessary to bring U.S. legal and policy principles closer in line with international standards will stagnate in the absence of greater transparency and public engagement. And efforts to increase public resiliency in the face of future attacks that will inevitably occur and minimize the temptation for overreaction will largely stall as well.
It all adds up to a counterterrorism policy that may align with Biden’s promises to end the Forever War but ultimately has no staying power. We could be one terrorist attack in a future administration away from a full return to the Forever War and all it has wrought.