In an important new development, President Donald Trump has reportedly signed new rules for when lethal force can be used against suspected terrorists outside of active war zones. These rules, which would replace the policy put into place by then-President Barack Obama, portend potentially significant changes in how overseas counterterrorism operations are conducted. The ongoing debate over whether lethal operations, such as drone strikes, are lawful or strategically beneficial in the gray areas between armed conflict and law enforcement is an important conversation to continue. An even broader conversation about the purpose and scope of ongoing U.S. military campaigns is necessary as well, as evidenced by Congress’ shock and dismay over the nature and extent of U.S. operations in Niger following the deaths of four U.S. service members earlier this month. These important debates, however, require transparency to function.
In an important next step, Secretaries Rex Tillerson and Jim Mattis will testify before the Senate Foreign Relations Committee today to offer the administration’s perspective on the scope of U.S. military operations under the 2001 Authorization for Use of Military Force (AUMF). In all likelihood, Tillerson and Mattis will reiterate the position previously articulated by the Trump Administration that the broad authorities under the 2001 AUMF are sufficient for current operations against al-Qaeda and ISIS. The administration will likely also reiterate what it reportedly told Senators in a closed briefing back in August: that a new AUMF would send a message of support to U.S. troops and the White House is not opposed to a new AUMF as long as the administration retains sufficient operational flexibility.
But Monday’s hearing really should be the beginning of a more meaningful inter-branch and public discussion on the use of military force for countering terrorism, including how to narrowly tailor a new authorization to today’s threats without ceding congressional authority to the executive branch, authorizing armed force where other counterterrorism tools are more appropriate, or allowing an amorphous war to continue indefinitely and spread with no exit strategy in sight. As part of this important discussion, Senators should press Secretaries Tillerson and Mattis during Monday’s hearing about their strategy for finally ending the longest war in U.S. history.
But Congress should also be pressing the administration on the changes it has reportedly made to lethal force policy, and its plans for releasing that policy to the public. Robust discussion and debate over Obama’s lethal force policy was only possible because the administration disclosed the key aspects of the policy the day after the president signed it, and ultimately released the policy itself. But despite reports that Trump has already signed the rule changes, no official announcement has been made, civil society organizations have not yet been briefed, and no policy has been released to the public. Congress should raise this important issue in today’s hearing and the Trump Administration should release the new policy.
Until then, this important discussion is limited to conjecture based on reports of what will change under the new policy: that outside of areas of active hostilities there must still be “near certainty” of no civilian harm but only “reasonable certainty” that the target is present. And the important requirement that lethal force only be used against individuals who pose an imminent threat to U.S. persons has been eliminated and replaced with broad authority for conducting strikes on a country-specific basis. Nothing has been reported, however, on another critical requirement during the Obama Administration: to capture rather than kill suspected terrorists whenever feasible outside of areas of active hostilities. But the tea leaves suggest that requirement is gone as well.
These changes appear to have been approved despite the warning from dozens of counterterrorism and national security experts to the Trump Administration that “[c]apture operations offer the best opportunity for collecting vital intelligence needed for disrupting future terrorist plots” and avoiding harm to civilians is necessary for maintaining the legitimacy of U.S. operations, reducing terrorist recruitment and propaganda, and securing cooperation from allied nations and local communities. The strict prohibition on harming bystanders, limit on using lethal force unless the individual posed an imminent threat, and requirement to capture the individual when feasible also brought U.S. practices into closer alignment with human rights law. But Obama’s policy did not go nearly far enough and human rights groups have been urging the Trump Administration to strengthen the standards, not weaken them.
Congress should raise questions about the changes that Trump has reportedly authorized and push the administration to release the new policy to the public that Congress represents. But beyond raising these issues, Congress should also require continued transparency regarding future changes to the legal and policy frameworks governing the use of force for countering terrorism and the harm to civilian caused by U.S. and allied forces. Congress is in the midst of considering important reporting provisions as part of the annual defense authorization bill that would do just that.
Congress should pass these important reporting provisions not only to enable informed discussion and debate, but also because, as national security experts have explained: “public disclosure regarding the legal and policy frameworks pursuant to which the U.S. operates—and the effects of those operations—enables the United States to broadcast successes; restore credibility when mistakes occur; and correct erroneous allegations of civilian casualties or unlawful operations that fuel enemy propaganda and recruitment, and can turn allies, partners, and local populations against the United States.”
As the nation enters the 17th year of what is the longest war in U.S. history, Congress should ensure greater transparency and accountability going forward. Doing so will facilitate an informed and honest discussion about the extent to which current policies are working, the impact of these policies on civilians and human rights more broadly, and how the country will ever be able to extricate itself from seemingly perpetual armed conflict.
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