Can Trump Unravel Obama’s Rules of War?
The codification of the use of legal force against terrorist targets has been a pillar of the Obama administration. Walking a new tough line might not be so easy.
For eight years, the Obama administration has pursued a tough-minded war against al Qaeda and affiliated terrorist groups that has eliminated their leaders from Somalia to Afghanistan to Yemen. Though many critics have argued for more transparency and greater legal constraints, the policy has been anchored in what President Barack Obama considers to be a principled and pragmatic framework for regulating the use of lethal drone strikes outside hot war zones. Many observers think Donald Trump will completely abandon that framework. Perhaps he’ll try — but that will be easier said than done.
In early December, Obama delivered a speech on counterterrorism in which he discussed the principled but pragmatic policies he and his team have developed over the past eight years for some of the most contentious issues of his administration — drone strikes, capture raids, interrogation, Guantánamo. The speech was accompanied by a public document that provided for the first time a comprehensive accounting of the legal and policy framework underlying Obama’s approach to counterterrorism.
Delivered in the twilight hours of the Obama administration and before the transfer of power to a man who has called for, among other things, targeting the civilian family members of terrorists, the speech was a forceful closing argument for Obama’s approach. The president was, as always, high-minded and sought to appeal to Americans’ reason and morality. But among the circles of people who helped Obama develop these policies, the election of Trump and the publicly stated views of his top campaign advisors have led to a deep sense of unease, a feeling that everything we helped build over the past eight years is up for grabs.
Based on my personal views developed during six years of working on our lethal strike policies at the Pentagon and White House, I wrote an article last summer calling for further reforms to U.S. policies on drone strikes outside of “hot” war zones (i.e., Iraq, Syria, and Afghanistan) and to the seminal document — the Presidential Policy Guidance (PPG) — in which they are enshrined. Wise friends counseled me that the piece should be agnostic on who might win the presidency, and so I removed some of the early jabs at Trump and his more offensive campaign rhetoric. But, truthfully, I wrote assuming a Hillary Clinton presidency and that people I know and trust would take on senior positions overseeing the use of force.
It was hard even to imagine how Trump would approach the PPG, because the document seems to embody so much of what Trump, his team, and his supporters have criticized — specifically, the current president’s supposed attention to high-minded principles and legalistic process over effectiveness. But while the PPG certainly bears the imprint of Obama’s particular views on the use of force (a thread that in many ways goes all the way back to his Nobel Peace Prize acceptance speech) and attention to process, it also reflects the codification of certain pragmatic considerations for the use of force — factors that the Trump team will have to grapple with just as Obama did. How Trump addresses these points, outlined below, will shape the contours of his counterterrorism policies on the use of force.
Civilian harm. One of the core precepts of the PPG is that lethal action can be taken only if the relevant operational commander can assess with “near certainty” that civilians will not be harmed in the action. This is a remarkably high standard, almost unknown in the history of warfare. The first instinct is to say that Trump will quickly scrap this standard, consistent with his campaign rhetoric and statements from incoming National Security Advisor Mike Flynn, in the name of providing more leeway to operators to pursue terrorist networks aggressively, even if their actions result in civilian casualties. But protection of civilians is deeply ingrained in our career military and intelligence professionals, who not only see it as a moral obligation but also understand its strategic benefits. Through 15 years of counterterrorism and counterinsurgency operations, they have seen firsthand how even a few civilian casualties can undermine a broader military campaign, decrease the willingness of host-nation governments to consent to future strikes, turn local populations against the United States and its partners, and serve as a recruiting cry for terrorist groups.
Consider just a few of the senior officials who have prioritized the prevention of civilian casualties. Retired Gen. Stanley McChrystal (Flynn’s former boss) knows more about targeting terrorists than just about any officer of his generation and yet he made prevention of civilian casualties a central focus of his time in command in Afghanistan. He warned, “The Taliban cannot militarily defeat us — but we can defeat ourselves.” Secretary of Defense nominee Gen. Jim Mattis is known for his relentless pursuit of insurgents and terrorists (How else do you get the nickname “Mad Dog”?), yet the counterinsurgency field manual that he co-wrote with Gen. David Petraeus places a premium on protecting civilian lives. In discussing the use of air power, the manual pointedly notes, “An air strike can cause collateral damage that turns people against the host-nation (HN) government and provides insurgents with a major propaganda victory. Even when justified under the law of war, bombings that result in civilian casualties can bring media coverage that works to the insurgents’ benefit.” And former Secretary of Defense Robert Gates, who served under Presidents George W. Bush and Obama and reportedly advised Trump on his secretary of state selection, wrote in his most recent memoir about efforts to reduce civilian casualties in Afghanistan: “I was also concerned that we were not moving fast enough or decisively enough to deal with the problem of civilian casualties. I don’t believe any military force ever worked harder to avoid innocent victims, but it seemed like every incident was a strategic defeat, and we needed to take dramatic action.”
Threat standard. It is also foreseeable that Trump will discard the PPG’s requirement that lethal force be used only when the target poses a “continuing, imminent threat to U.S. persons.” Trump’s campaign rhetoric, and the views of the senior leaders on his team, suggests he will seek a more aggressive approach to combating jihadi groups, which could lead to doing away with a standard that his team may perceive as excessively constraining. The Trump team will also find — as Flynn and other top intelligence officials have testified — that Edward Snowden’s disclosures and the recent proliferation of encrypted communications technologies have made it more difficult to detect and disrupt terrorist attacks before they happen. Given this reality, the risk of waiting to take action until a threat is considered imminent may not be palatable to the next president.
However, the continuing, imminent threat standard is not just about ensuring that we strike only targets that truly threaten the United States — it also helps to moderate the pace of strikes. The reality is that our ability to conduct operations usually depends on host-nation consent, and few of our partners are likely to allow the United States to launch an unconstrained series of drone strikes. The Trump administration will have to develop some governing principle to ensure that the pace of strikes does not overwhelm partner-nation tolerance. It does not need to be a threat-based standard. It could instead be, for example, a decision to focus only on certain components of the enemy network or to attack perceived vulnerabilities in terrorist networks with a bounded series of targeted strikes. Regardless, there will be diplomatic constraints, and they will require a judicious and strategic use of force.
Process. We might also expect the new president to cut back on the intensive interagency process articulated in the PPG. The White House-centric process feeds into congressional concerns about micromanagement of foreign policy, and it is hard to imagine Mattis and Flynn — both of whom have extensive experience targeting terrorist networks but limited experience serving in the bureaucracy — lobbying to keep the framework in place. However, much of the bureaucratic process set forth in the PPG is intended to ensure that the full range of foreign-policy, legal, and intelligence equities are considered before lethal action is taken. These considerations will not go away in a Trump administration.
Secretary of State nominee Rex Tillerson is a seasoned and assertive executive who is unlikely to cede to the military the State Department’s role in navigating the foreign policy and diplomatic complexities associated with the use of force. Leading intelligence officials are also likely to seek a role in validating the intelligence underpinning the use of force. So the new administration will have to build some framework for ensuring that all equities are considered before action is taken. One possible approach could be a much more senior-level strategic discussion before taking action in a particular region followed by lower-level coordination before a specific strike. Another approach would be for civilian departments and agencies to review and endorse campaign plans comprising a set of potential targets and then delegate execution to the operational entities. There are many possible permutations, of course, but there will need to be some sort of a process, and it might ultimately be closer to the existing PPG than one might expect.
Capture vs. kill. Finally, there is the question of capture vs. kill and the PPG’s provision that lethal force be used only when capture is assessed to be infeasible. This one is more complicated. Obama has been criticized from the center-left for allegedly failing to follow his own guidance, with venerable commentators like Steve Coll writing that the administration seems overwhelmingly inclined toward lethal action. Human rights advocacy groups have investigated cases in which capture seemed feasible but lethal action was taken anyway and have pointedly asked Obama for a more thorough explanation of what “feasibility of capture” truly means. The numbers the administration itself released on lethal strikes last year add fuel to these criticisms: The U.S. government acknowledged conducting 473 strikes outside areas of active hostilities from 2009-15, while it conducted only a handful of capture raids in these same regions during this period.
If Trump is influenced by the operational professionals on his team, we may well see an increased desire to conduct capture missions. Our most experienced intelligence and military officials are often the most aggressive advocates of capture missions, because they can result in the detention of individuals and capture of enemy intelligence that allow for better understanding the enemy and the support of future counterterrorism efforts, including targeting. In May 2015, the U.S. military conducted a mission in Syria to capture Islamic State senior leader Abu Sayyaf. Although Sayyaf was killed during the raid, his wife was captured and debriefed and a substantial amount of media were seized during the raid. Retired Gen. John Allen, who was leading U.S. diplomatic efforts against the Islamic State at that time, highlighted the intelligence gain. “In the recent raid on Abu Sayyaf, we collected substantial information on Daesh financial operations,” Allen told a conference in Qatar (as reported in the New York Times) using the pejorative Arabic acronym for the Islamist group, “and we’re gaining a much clearer understanding of Daesh’s organization and business enterprise.” Trump himself seems to have gotten the message, stating in his August speech on counterterrorism, “Drone strikes will remain part of our strategy, but we will also seek to capture high-value targets to gain needed information to dismantle their organizations.”
But here, too, the Trump administration will have to proceed carefully. When considering a capture operation, relevant commanders and decision-makers pore over intelligence, operational plans, and legal analyses, but at the end of the day most of these decisions hinge on two factors — the likely diplomatic or geopolitical fallout from the operation and the risks to U.S. forces in conducting it. And for all of the criticism of Obama for supposedly being too quick to use lethal force, examining the specific operations he has considered and ultimately authorized paints a different picture. Indeed, Obama’s record on capture missions shows a willingness to take on substantial diplomatic risk (ordering two capture operations in Libya) and risk to U.S forces (authorizing the Abu Sayyaf capture raid deep inside Syria). Whether Trump will show the same or greater willingness to incur such risks when considering specific operational proposals remains to be seen.
Transparency. Beyond the PPG itself, there is the question of transparency. How this will break is unclear, as Trump and his senior national security team have said little about how much should be disclosed regarding justification for specific strikes or the assessed results of those operations. Trump could embrace secrecy, consistent with his statements that we should not reveal our plans to our enemies, or the publicity-minded president-elect could be more transparent in an effort to broadcast our wins and discredit allegations of civilian casualties. What we do know is that the actual work of increasing transparency is a hard bureaucratic slog requiring senior officials to work through the specific factors driving classification, consider the risks to factors such as diplomatic relations and ongoing litigation, and push back on the culture of counterterrorism professionals that errs — often for good reason — on the side of secrecy. The transparency initiatives of the Obama administration were hard-fought and usually driven at the most senior levels of the government. If Trump and his top advisors don’t similarly value transparency and the way it helps with legitimacy and accountability, it is hard to imagine the continuation of the transparency agenda.
Absent any action from Trump, however, his administration will be bound by the executive order that Obama issued last year that requires, among other things, an annual accounting of the number of lethal strikes conducted outside areas of active hostilities and the assessed combatant and non-combatant casualties resulting from those actions. It is certainly within Trump’s power to rescind this order, perhaps as part of a larger sweep of Obama’s executive actions, but only if he is willing to ignore significant public blowback from human rights groups, journalists, and others who have praised the steady increase in transparency in Obama’s second term.
None of this is to say that I am not worried about Trump’s lethal strike policy. I fully expect to see significant changes implemented early on. But the Trump team will find a set of constraints and considerations that they will have to wrestle with just as much as the Obama team did. Although Trump himself has chosen his senior national security leadership, those officials will inherit a cadre of career operators, intelligence officials, lawyers, and policy analysts who hold themselves to very high standards not only because Obama directed them to do so, but because they are professionals who have struggled with the ethical and strategic implications of American policies for 15 years. It will take more than an election and tough campaign talk to change all that.
This article was co-published with Just Security.
Photo credit: JOHN MOORE/Getty Images
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