New Drone Rules Ignore Trump Crazy Talk on Terrorism

This article first appeared on Just Security.

After months of continued tough talk and recent assurances that the United States is getting "nasty" in confronting our terrorist threats, Charlie Savage and Eric Schmitt of TheNew York Times report Thursday evening that President Trump may soon approve a new drone strike policy recommended to him by his senior national security team.

And based on initial reports, it's actually not nearly as bad as we might have feared.

The reported new Principles, Standards, and Procedures (PSP) document, which replaces President Obama's Presidential Policy Guidance (PPG) as policy guidelines for use of force outside of hot warzones, seeks to streamline bureaucratic review processes and modify the high threshold for the use of force adopted by Obama.

But in a substantial about face on Trump's tough talk, including promises to kill the civilian family members of terrorists, the new guidance preserves the Obama-era imperative to take the utmost care to prevent civilian casualties.

More details are needed to fully assess the wisdom and efficacy of the new policy. Nonetheless, there are some significant points we can draw out based on what's now publicly available through the Times' reporting.

First, the mere fact that the President is replacing the PPG with another document with a similar architecture is a huge vindication of the Obama approach to overseeing drone operations and the extent to which that approach has been institutionalized by career counterterrorism professionals.

President Trump's team could have just as easily recommended that he cancel the guidance and govern operations through a patchwork of policies that apply different standards to different locations.

But preserving an overarching document and the basic division in standards for operations conducted in conventional battlefields versus those outside areas of active hostilities largely mimics the approach that had not existed before Obama.

The reported new document is also a dramatic affirmation that minimizing civilian casualties is both a moral and strategic imperative.

A centerpiece of President Obama's PPG, released in May 2013, was the stipulation that lethal force could be used only when commanders could assess with "near certainty" that civilians would not be harmed in the operation.

To Obama's critics, this extraordinary care to prevent civilian casualties reflected a liberal weakness and unwillingness to take the tough actions needed to defeat America's enemies.

Yet anybody who has closely followed counterterrorism and counterinsurgency operations evolve over President Bush's second term and throughout the Obama Administration would have noticed a remarkable focus on preventing civilian casualties at all levels of the counterterrorism and intelligence community.

As I commented in January, no lesser authorities on the use of lethal force than former Secretary of Defense Robert Gates, former Joint Special Operations Command (JSOC) Commander Stanley McChrystal, General David Petraeus, and then-General, now Secretary of Defense James Mattis have all prioritized the prevention of civilian casualties in their respective roles combating terrorist and insurgent groups.

In April, our top commander in Africa affirmed that he was sticking to the "near certainty" standard in Somalia, despite a temporary waiver that the White House reportedly issued for that country.

Preventing civilian casualties is a moral imperative, but it is also essential to a range of strategic objectives including shoring up our partner governments, ensuring local support or at least tolerance for our actions, and preventing terrorists from using civilian casualties as a rallying and recruitment cry.

In the PSP, we see that what the counterterrorism community has long known about civilian protection is now poised to be appropriately reaffirmed in presidential policy.

The most notable departure from the Obama policy is doing away with the threat threshold that must be met before lethal action can be taken. Under the old PPG, lethal action can be taken only against terrorist targets that pose a "continuing, imminent threat to U.S. persons."

This requirement is gone under the new guidance, which reportedly allows for strikes against what the Times characterizes as "foot-soldier jihadists with no unique skills or leadership roles" and who are not bound to a threat standard.

The removal of the continuing, imminent threat standard is a loss for those who think that U.S. policy should hew more closely to international human rights law, in which lethal action can be taken only when the threat is imminent and cannot be addressed by other means.

While debate will continue on whether human rights obligations are required in these situations, and even whether the law of armed conflict itself calls for heightened standards when applied to lethal force outside the pressures and conditions of a battlefield, it is important to squarely face the security rationale for doing away with this standard.

The problem with the continuing, imminent threat standard is that it often conflicts with best practices for targeting terrorist networks.

Over 16 years of operations, our counterterrorism professionals have become adept at analyzing the structure of terrorist networks and targeting them based on the understanding that there are particular nodes that, if removed, could have a devastating impact on the entire network.

In many cases, those nodes may be couriers, bodyguards, or propagandists who, while lawful military targets under the laws of war, may not pose a continuing, imminent threat to U.S. persons.

The new policy appears to give operators greater leeway to target according to what will be considerably more effective in disrupting and defeating terrorist networks.

The challenge for the Trump Administration under this new standard will be establishing governing principles that limit the pace of strikes (as the continuing, imminent threat standard did), since there are few countries outside of hot warzones that will give the United States blanket approvals for unfettered drone campaigns.

The final significant revelation in the Times story is that the Trump Administration is throwing out the extensive interagency review process described in the PPG and replacing it with a simpler process in which U.S. operations are governed by a series of country plans — laying out the parameters of U.S. operations against a designated terrorist group(s) in a given nation — that are reviewed and re-approved once a year.

The Times quotes a senior administration official saying the new guidance is "primarily aimed" at removing the Obama era bureaucratic processes. The Times story does not provide details on how the country plans are reviewed and approved or what all goes into them. This modification of the review process is perhaps the most direct rebuff of President Obama's drone strike policy, which critics argued amounted to White House micromanagement of tactical operations.

Although I believe those criticisms were unfair, I have also argued for evolving the policy process so that more authority is delegated to the Secretary of Defense, within parameters agreed to by a broader interagency national security team, and holding the Secretary accountable for implementing the President's overarching policy.

At first blush, the PSP appears to do that, but the details of how it is implemented will determine whether the PSP supports sound policy, appropriate involvement of officials outside of the operating agency, and ultimately informed decisionmaking from the President and his national security team.

Specifically, the country plans described in the Times story should be campaign concepts that provide substantial detail on the terrorist networks to be targeted, the areas where they will be targeted, the process for obtaining host nation consent (or determining that it is unwilling or unable to provide that consent), any appropriate involvement from the country team (i.e., the ambassador, station chief, military attache) prior to conducting operations, and procedures for addressing any mishaps that may occur.

It makes for sound policy that these would be devised on a country-by-country basis, and there is no doubt that Secretary Mattis would feel comfortable being held responsible for implementing the President's policy.

But it will be important that other national security departments and agencies have the opportunity to review and advise the operating agencies on our strike operations on a regular basis, probably far more frequently than once a year.

It will be important for the Trump administration to do a formal public rollout of the new policy, both for transparency's sake and because the news on the PSP raises many questions about the exact nature of the Trump team's pivot, even as they reaffirm some of the core tenets of civilian protection and precision in the use of force.

One of the core questions is whether the new policy changes the definition of what constitutes a hot warzone, or "area of active hostilities," where the elevated targeting rules set forth in the PPG or PSP would not apply.

When Obama's drone policy was established in May 2013, area of active hostilities was understood to be shorthand for Afghanistan or a similar conflict where significant U.S. forces were present on the ground or the conflict was of significant intensity such that placing strictures on lethal action well above what is required under the law of war was both unnecessary and inconsistent with our larger military strategy.

Similarly, when the counter-ISIS campaign began in 2014, President Obama decided that Iraq and Syria were areas of active hostilities where the PPG would not apply.

Operations in countries like Somalia and Yemen — which were characterized by minimal U.S. military presence beyond a few trainers and advisors and a discrete, relatively well-defined cadre of terrorists plotting against U.S. persons — were deemed to be outside areas of active hostilities and therefore governed by the PPG.

Yet in a document released in late 2016, the Obama Administration revealed that a significant portion of Libya, where we reportedly had minimal if any active U.S. military presence on the ground, had been declared an area of active hostilities.

This policy allowed for substantial U.S. air support to a coalition of local security forces and irregular fighters in their campaign against ISIS. It also raised significant questions as to the durability of the PPG if it could be waived in particular parts of countries where the United States was not at full-scale war.

The Trump Administration followed the Obama Administration's example and reportedly declared significant portions of Yemen and Somalia to be areas of active hostilities for 180 days, both to enable action against terrorist groups in those countries and to allow for a review of the PPG. So when the PSP is released, it will be important to understand what specific countries or what types of conflicts will be covered by the new guidance and which will not.

Only by understanding this patchwork will we be able to understand if the new guidance is a meaningful governor on U.S. use of force or an exceptional framework used only in places that are peripheral to the core counterterrorism fight.

Similarly, it will be important to know under what conditions the President or the operating agency might be able to waive the requirements of the PSP, either with regard to constraints on civilian casualties or other restrictions that the PSP might place on U.S. targeting.

Indeed, such a proviso, depending on how it is implemented in practice, can effectively create Swiss cheese out of the standards and procedures. And it would further complicate concerns about transparency for the administration to publicly announce the PSP but then have the President or a senior official waive the rules time and again in secret.

The Times story also provides relatively few details on how the new policy treats the capture of suspected terrorists, which was a core section of the Obama PPG and an area of early concern for the Trump Administration.

The PPG's treatment of capture operations is extensive but rests on a couple of core principles, including that lethal action cannot be taken unless capture is assessed to be infeasible and that under no circumstances will detainees be brought to Guantanamo Bay.

Counterterrorism professionals generally prefer to capture terrorists, which allows for interrogation and the exploitation of electronic media and other items found at the capture site, but it will be important to understand if the new policy still requires an assessment of the feasibility of capture prior to every strike.

And if so, we will need to understand what they mean by "feasibility": just militarily feasible, or also politically feasible, or something else?

As for Guantanamo, President Trump has made statements about taking more terrorists to the detention facility, which would be a departure from more than ten years of presidential policy and could ring alarm bells in Congress and, indeed, among some of our closest allies especially in Europe.

It is also unclear whether Secretary Mattis will want his legacy associated with filling up Guantanamo. How the PSP treats Guantanamo will be our first indication of whether the President's promise on this issue is real or like his empty promise to bring back torture, a case of campaign bravado tempered by professionals.

Detention policy also raises other issues not so acutely faced by the Obama team. Reports have emerged that our Emirati partners have engaged in systematic torture of detainees in Yemen, with U.S. personnel likely aware long before public reports emerged.

And last week, a U.S. citizen fighting for ISIS was captured and is currently being held in U.S. military custody under the law of armed conflict, something that has not happened to an American in more than ten years.

Whether the new guidance explicitly changes any existing policies on disposition of detainees, including how they apply to U.S. persons like the detainee currently held by U.S. forces, or to the circumstances in which we would transfer detainees to foreign nations, will be a bellwether in understanding whether we will continue to leave the ugly days of post-9/11 detention operations firmly behind.

Finally, whether and how the Administration rolls out the new policy will provide early indicators of whether the Trump team intends to continue the moves toward greater transparency for the overarching counterterrorism legal and policy framework, as well as for specific operations.

Thus far, many of the policies that the Obama team began for publicly announcing specific strikes have continued into this administration, but recent reports suggest we could see a decrease in transparency in a range of counterterrorism theaters. What's more, the rollout of the PSP will raise additional questions — including but certainly not limited to those I have raised here — as to the underlying legal and policy basis for U.S. operations.

As I have previously noted, vacancies in key legal positions at the Departments of State and Defense hinder the Administration's ability to continue the important dialogue with outside groups on the framework for U.S. operations, but the rollout of the PSP will indicate whether the new administration even intends to continue this dialogue.

The Times story gives us some hope that counterterrorism professionals, guided by 16 years of experience and a firm commitment to ethical and legal approaches to our security challenges, are carrying the day in the Trump White House.

But the new policy on the use of force raises just as many questions as it answers. Continued scrutiny will be required to understand if our country's progress in this space continues or is undermined by the President's bravado and sense of knowing more than the experts.

Luke Hartig is a fellow in New America's International Security program and executive director of National Journal's Network Science Initiative. He previously served as Senior Director for Counterterrorism at the National Security Council, and deputy director for counterterrorism operations in the Office of the Secretary of Defense.