President Donald Trump is poised to rescind some of the key rules crafted by the Obama administration that restrain the use of armed drones and other lethal operations outside war zones, the New York Times reported last month. Most significantly, the administration wants to remove the requirement in Obama’s Presidential Policy Guidance, or PPG, that the U.S. will only lethally target individuals off the battlefield if they pose a “continuing, imminent threat to U.S. persons.” Although that policy itself stretched the definition of “imminence” beyond any meaningful boundaries, it at least suggested a nod toward international law.
The new guidance reportedly removes the imminence requirement altogether, allowing the U.S. government to kill “foot-soldier jihadists with no unique skills or leadership roles” and regardless of what threat, if any, they pose. In other words, it doesn’t even pretend to comply with international legal limits. That’s a real problem.
The proposed new policy hasn’t gotten that much attention, perhaps because it’s been drowned out by the latest Trump travel ban and threats to annihilate North Korea. Its significance has also been downplayed by some experts, who apparently expected worse. But it deserves more scrutiny, for several reasons.
First, the rules governing lethal targeting aren’t just legalistic quibbling. They literally are a matter of life and death. President Barack Obama finally announced his internal rules – at least the policy, if not necessarily the practice – after numerous incidents of drone strikes obliterating what turned out to be whole groups of civilians. These attacks killed 14 people attending a wedding, according to the Yemeni government; dozens attending funerals in Pakistan, according to the Bureau of Investigative Journalism; and 18 laborers in a remote village in Pakistan’s North Waziristan, many of whom had simply gathered to share a meal. In 2013, Amnesty International documented this and other examples of drone strikes in North Waziristan between January 2012 and August 2013, based on detailed field research. Amnesty was “seriously concerned that these and other strikes have resulted in unlawful killings that may constitute extrajudicial executions or war crimes.” Some of those strikes occurred after the presidential policy was reportedly approved, in May 2013.
President Obama’s guidance at least ostensibly attempted to rein in strikes on civilians. The proposed Trump plan would do away with even that. Potentially, that’s a big deal.
Not everyone seems to see it that way. Luke Hartig, who served as senior counterterrorism advisor on the National Security Council under Obama, for example, breathed a sigh of relief last week that the policy wasn’t “nearly as bad as we might have feared,” since the Obama rules weren’t scrapped altogether. After all, Trump as a candidate had said he’d “take out” terrorists’ families if elected.
University of Michigan Law School professor Monica Hakimi wrote the changes were “quite problematic,” but added that “the governing international legal standard on lethal operations remains unsettled.”
But is it?
Not really. Obama’s policy guidance was drafted to address when the U.S. government could use lethal force outside an armed conflict because it’s clear that in that situation, the more permissive laws of war do not apply. But even Obama’s policy failed to acknowledge clearly that international human rights law does apply. And it only permits killing when strictly unavoidable to protect against an imminent threat to life. The policy Trump is reportedly considering would completely ignore that.
The new policy would also scrap Obama’s rules requiring high-level vetting before kill operations outside war zones are approved.
The leaked Trump policy guidance does appear to keep in place the Obama requirement of “near certainty” that no civilian bystanders will be killed. That’s a good thing, and suggests military leaders understand the importance of protecting civilians. But since the policy would give license to target individuals that international law considers civilians, it’s not exactly reassuring. It does this by allowing U.S. officials to merely categorize the whole group of people likely to be killed by a missile strike as “militants” – a term which has no legal meaning – and thereby justify their killing.
Will the policy define more carefully what makes a “low-level foot soldier” targetable outside of an armed conflict? Based on the reporting so far, it’s impossible to know. But lots of people carry guns in rural Yemen, Somalia and the tribal areas of Pakistan. That doesn’t necessarily make them “militants” and it certainly doesn’t make them a lawful target for lethal force under any reading of international law.
The United States has been down this road before, whether violating international law by torturing detainees or perhaps by killing scores of civilians outside battlegrounds. U.S. officials have acknowledged that such acts have increased hostility toward the United States and undermined U.S. national security.
At a time when both U.S. allies and enemies seem uncertain what the U.S. government will do next, it’s important for administration officials and lawmakers to make clear they’ll stand up for the rule of law and ensure that U.S. forces do everything they can to prevent unnecessary deaths. That’s not, as some might suggest, being “soft on terrorists.” It’s recognizing that when it comes to killing people, following international human rights law is both legally required, and critical to gaining necessary support for U.S. counterterrorism efforts.