On March 1, 2023, the White House released the annual so-called “1264” report on legal and policy frameworks guiding the United States’ use of military force. The terse, three-page report for 2022 is a congressionally mandated successor to a comprehensive, 61-page document issued in late 2016 by the outgoing Obama administration and referred to within the executive branch as the “transparency report.” Indeed, the importance of transparency was the focus of a fact sheet summarizing the original 2016 report, which asserted that the “sustainability and legitimacy of [the use military force and related national security] operations are best served through the clear and public articulation of the legal and policy frameworks under which such operations are conducted.”
Yet, as one of us has previously discussed, recent editions of this transparency report are more notable for what they conceal and omit than what they reveal. The 2022 report illustrates the limits of congressionally mandated reporting requirements on matters of war and peace and the need for Congress to be more proactive in informing itself and the U.S. public on how the executive branch uses force and conceives of its own authority.
Named after the section of the Fiscal Year 2018 National Defense Authorization Act in which it was originally codified, the 1264 report on “the legal and policy frameworks for the United States’ use of military force and related national security operations” must describe “the legal, factual, and policy justifications” for any changes to the frameworks during the prior year. Specifically, the report is to include, inter alia, a list of groups covered by the 2001 Authorization for Use of Military Force (2001 AUMF) and the criteria for designating foreign forces and individuals as lawfully targetable or as belonging to a group covered by the 2001 AUMF. In addition to the annual report, Congress has also required that changes to these legal and policy frameworks must be notified to relevant congressional committees within 30 days.
A few aspects of the brief 2022 report are noteworthy.
First, and foremost, like previous reports beginning in the Trump administration, the report contains a classified annex. Thus, this latest report does not by itself strive to provide a comprehensive update on use of force frameworks. Instead, much of the relevant “transparency” is classified.
Such secrecy is particularly significant with respect to the list of groups the executive branch deems covered by the 2001 AUMF. As one of us has previously written, the executive branch has a mixed record at best over the last two decades of publicly disclosing who it thinks the United States is at war with under the AUMF. After prodding from the Senate Armed Services Committee, the Obama administration eventually released an unclassified list of the entities it considered covered by the 2001 AUMF. In the Trump administration, the executive branch reverted to classifying the complete catalog of groups. The new 1264 report states there has been “no change” to this still classified list.
One question raised by this “no change” claim is how the executive branch slices and dices various jihadi groups for the purposes of the 2001 war authorization. For example, since 2014, the executive branch has deemed the Islamic State covered by the 2001 AUMF. But it is unclear whether the Biden administration currently conceives of ISIS in Iraq and Syria and all of its affiliates (e.g., ISIS-Khorasan Province, ISIS-West Africa, ISIS-Sahel, ISIS-Libya, ISIS-Somalia, ISIS-Yemen, ISIS-DRC, ISIS-East Asia Province, ISIS-Mozambique etc.) as a single undifferentiated entity or many separate groups for AUMF purposes. Do some of all of them qualify as “part of” ISIS? Does each have to meet the test of a so-called “associated force” used by the Obama and Trump administrations, including having “entered the fight” alongside ISIS and “against” the “United States or its coalition partners”? (More than twenty years into the war on terror, it is unclear who these “coalition partners” currently are.) Given the number and geographic distribution of these ISIS affiliates, how the executive branch understands ISIS for purposes of AUMF coverage could have significant implications for which of the myriad regional conflicts involving ISIS the United States could also become a party to.
Geographic scope and a new legal basis for using force in Afghanistan
The report states that the “calendar-year report for 2021 reflected that the United States used military force in Afghanistan, Iraq, Syria and Somalia. As previously recognized, the United States used force in each of those countries in 2022 as well.” This framing suggests that the list of Afghanistan, Iraq, Syria, and Somalia may not be exhaustive. Whether additional states are listed in the classified annex is, of course, a secret.
With respect to Afghanistan, the report indicates a potentially nuanced change to the international legal basis for using force against al-Qa’ida, ISIS, and other (unspecified) terrorist threats. Prior to the August 2021 withdrawal of U.S. forces from Afghanistan, the consent of the government of Afghanistan had been a basis under international law for the use of force in that country. Discretely alluding to the collapse of the Ashraf Ghani government and the Taliban’s ascent to power accompanying the removal of U.S. forces from the country (“In light of changed circumstances associated with [the US] withdrawal…”), the report states the “United States does not intend to rely on that previously provided consent.” (emphasis added).
This wording makes clear that the United States will not rely on the consent of the now deposed government of Ashraf Ghani for operations within Afghanistan. But it does not preclude the possibility that the United States might seek, or already have, the consent of the Taliban for counterterrorism operations against targets of mutual interest, specifically ISIS.
In addition, the United States reserves, “absent reliance on consent to use force in Afghanistan” the “inherent right to use necessary and proportionate force in self-defense to the extent Afghanistan is unwilling or unable to confront effectively the threat to the United States emanating from the territory of Afghanistan.” (The report does not specify who for these purposes represents Afghanistan, though the United States has not formally recognized the Taliban as the government of Afghanistan.) Self-defense under Article 51 of the UN Charter and in particular, incorporating the controversial “unwilling or unable test” into its self-defense rationale, would thus seem the likely purported international legal basis for potential strikes on targets where U.S. and Taliban interests do not align, namely those taken against al-Qa’ida. For example, the administration was dismissive of the suggestion that it had coordinated with the Taliban on the July 2022 strike on al-Qa’ida leader Ayman al-Zawahiri. (“No, of course, we did not alert the Taliban to the fact that we were going to take this strike.”) As with the “unable or unwilling” test itself, the notion that a state using force in self-defense against a non-state actor on another state’s territory can skip seeking the consent of the territorial states is controversial, though the Biden administration may well argue that requesting Taliban consent for such strikes would be so clearly self-defeating that it is not required under international law.
What else is missing?
A notable absence in this latest report is any mention of the legal basis for reoccurring hostilities between U.S. forces and “Iran-backed militia groups” in Syria. Such hostilities in both the Trump and Biden administrations have repeatedly sparked bipartisan inquiries from members of Congress (see here and here). The low-level conflict with these groups raises a number of legal issues under both domestic and international law, as discussed here and here. The Biden administration’s silence on the matter in this report seemingly implies that the relevant legal and policy frameworks, whatever they may be, are unchanged since these hostilities began during the Trump administration. Like the underlying conflict with these groups, the executive branch’s legal thinking on these hostilities may also be on autopilot or at least classified.
The Biden administration also missed an opportunity to publicly reject the Trump administration’s fraught claim that the 2002 Iraq AUMF and the president’s inherent Article II war powers provided legal justification for the January 2020 strike that killed Iranian general Qassem Soleimani. While the Biden administration has not invoked the Trump administration’s flawed justifications for the Soleimani strike, failing to officially disavow them leaves in place an avenue for a future administration to take advantage of these legal interpretations in order to vastly expand U.S. military operations without prior congressional authorization, should they so choose.
The 2022 report is approximately one page longer than the Biden administration’s past two section 1264 reports (see here and here). This additional page is largely due to the reiteration of two previously announced new policies – the Presidential Policy Memorandum (PPM) concerning “direct action against terrorist targets outside areas of active hostilities” and a Defense Department action plan to improve civilian harm mitigation and response.
The PPM, which is understood to provide rules governing lethal strikes and raids outside of Iraq and Syria, is discussed minimally. While the report notes the PPM’s existence, it says nothing of is contours, which are reserved for the classified annex. News of the PPM first came via an October 2022 Charlie Savage New York Times article, which cited an anonymous “senior administration official” who conveyed “key aspects” of the policy for inclusion in the piece. According this article, the Biden administration envisioned developing “country plans” to provide further guidance on the PPM’s implementation. The anonymous official also discussed with Savage a new memo setting out the administration’s counterterrorism strategy, which was developed alongside the PPM and has also been kept secret.
The Biden administration’s refusal to release the actual PPM is baffling, given both the Obama and Trump administrations were court ordered to release their lethal force policies (here and here) and did so, with appropriate redactions. Both members of Congress and civil society organizations have called on the administration to make its new lethal force policy and counterterrorism strategy memo public. The Biden administration should heed these calls and rather than waiting for the inevitable outcome of litigation on the matter, release the full PPM along with any country plans as well as the counterterrorism strategy memo, with minimal redactions to protect classified information.
Finally, the report includes a summary of the recently released Defense Department Civilian Harm Mitigation and Response Action Plan (CHMR-AP), which was signed by Secretary of Defense Lloyd Austin and released in full in August 2022. The CHMR-AP was designed to improve protections for civilians in armed conflict and ensure appropriate responses when civilians are killed or injured in U.S. operations. It is the culmination of mounting pressure on the Defense Department to improve its civilian harm policies and procedures following a high-profile August 2021 drone strike in Kabul, Afghanistan that killed 10 civilians, including 7 children, and a series of New York Times investigations that uncovered systemic failures in department policy and practice concerning civilian harm.
The CHMR-AP was welcomed by civil society organizations (see, for example, here and here), who praised its comprehensive nature and potential to address longstanding structural flaws within the Defense Department that have led to preventable civilian harm, inadequate investigations, and a lack of proper redress. Commentators have also noted the need for effective implementation to ensure the action plan’s success, while also criticizing its failure to re-open past cases of credible allegations of U.S. harm that the Defense Department has not acknowledged.
Time for Congress to Step Up Again
Overall, the brevity of the Biden administration’s 2022 report is consistent with its general attitude to the war on terror: deemphasize it, discuss it as little as possible, and sometimes even pretend as though it were over. As one of us has written with Luke Hartig, this approach, while understandable, is misguided.
Permanently winding down the war on terror requires greater transparency from the executive branch, including regarding its own legal theories on the use of force. Congressional reporting requirements, such as that mandating the 1264 report, are helpful when the executive branch takes them seriously. Sadly, in this case, its added value appears to be shining a spotlight on just how much the executive branch treats transparency as a box-checking exercise. In the end, reporting requirements by themselves are insufficient in achieving the disclosure needed to enable a full and frank discussion concerning when and where the United States is using military force and conducting related operations in the name of national security. If Congress wants to better inform itself and the U.S. public—as it should—about these matters of war and peace, it will need to be more assertive in extracting relevant information from the executive branch through sustained and disciplined oversight (as discussed here) of how and on what basis the United States is using force.