Assessing Biden’s New Policy Framework for Direct Action Against Terrorism

Charlie Savage of The New York Times reports that the Biden administration has released its long-awaited policy framework for direct action against terrorism (e.g. airstrikes and raids). The playbook, dubbed the Presidential Policy Memorandum (PPM), succeeds the direct action policy frameworks of the Obama and Trump administrations, the Presidential Policy Guidance (PPG) and the Policies Standards and Procedures (PSP), respectively. Perhaps due to competing priorities (e.g., Russia’s war on Ukraine) and an overall deprioritization of counterterrorism by the administration, according to one U.S. official, the framework had was completed in late 2021 although it took President Biden 10 months to approve it.

Based on Savage’s reports (the administration has not made this policy framework public), a number of aspects of the playbook’s scope and content are noteworthy.

First, the rules of the PPM only apply outside of more traditional war zones, known as “zones of active hostilities”. (These are political concepts, not legal terms of art.) For the purposes of the new framework, these war zones are Syria and Iraq. Since the US armed forces in Iraq have moved to a non-combatant role at the end of 2021, the characterization of the country as a war zone for counter-terrorism purposes is somewhat incongruous.

Second, this direct action policy framework does not apply to strikes in defense of US armed forces or so-called “collective self-defense” of partner forces. This exception is a significant gap. Under the Obama administration, the Pentagon circumvented political constraints for direct action generously calling the strikes in Somalia defensive. According to current and former US officials, it was difficult to assess how truly defensive these strikes were as opposed to AFRICOM acting as the Somali Air Force. A former US official Explain: “Collective self-defense is really close air support without authorization.”

These theoretically defensive strikes contributed to the expansion the scope of the Authorization to Use Military Force 2001 (AUMF 2001), the main legal basis of the American war against terrorism. While the Obama administration initially carried out strikes against a handful of al-Shabaab members who also belonged to al-Qaeda, after the Pentagon began to regularly engage in ostensibly defensive strikes against rank-and-file fighters of al-Shabaab, the administration retrospectively estimated that the set covered by the AUMF 2001.

This exception for defensive strikes could continue to be particularly relevant in Somalia where a number of strikes have already been completed this year. As I have already written in just securitythis exclusion could also become relevant in the Sahel due to the importance of a number of jihadist groups and the presence in Niger of approximately 800 American soldiers on the ground and a US Air Force base with armed drones.

Third, according to Savage, when the PPM applies, the president must approve the addition of named individuals to the target list. Thus, counterterrorism operators can no longer conduct “signature strikes” based on a pattern of suspicious activity. But the universe of groups from which targets could be selected remains unknown to the public, in part because the full list of entities the executive deems covered by the 2001 AUMF remains classified.. A war against classified enemies stifles public debate about who, where and if the United States should fight. The Biden administration is expected to release the full list of groups covered by the 2001 war authorization.

Fourth, the PPM requires that counterterrorism operators have both the “virtual certainty” that the targeted individual is “a member of an approved terrorist group” for direct action and the “virtual certainty” that no victim civil will result from the strike. As Savage notes, what “virtual certainty” means in practice is an open question, especially since the latest US strike against a high-value target in Somalia taken by that standard would have resulted in an unintended casualty.

Mainly because they are Politics constraints, the president can override them, potentially without the knowledge of anyone in the audience. As Savage explains, “the rules allow seeking Mr. Biden’s authorization for other types of strikes in extraordinary circumstances” — which sounds like such explicit reservations of presidential authority in the PPG of Obama (see Section 5.B “Extraordinary Cases: Variations from Policy Guidance”) and the Trump PSP (Section 6.B).

Savage does not comment on whether the PPM addresses the assignment of operational responsibilities for direct action between what the Obama administration’s PPG calls “operating agencies.” president obama Express a preference for the “military to take the lead and provide information to the public”. Yet in one of the Biden administration’s most significant counterterrorism strikes to date, the attack on Ayman al-Zawahiri in Kabul, the White House clearly did not praise the military because it would typically but rather cryptically referred the central role of “our counter-terrorism professionals and our intelligence professionals”.

This distribution of responsibilities may have implications for transparency as well as the accuracy and precision of counterterrorism strikes and therefore civilian casualties. In discussing direct action against terrorism and civilian casualties, former commander of U.S. Central Command and former director of the CIA David Petraeus recognized an “enigma” with measures carried out as “a covert action…[because] you don’t talk about it. Petraeus affirmed (amid a number of caveats about not acknowledging anything) that there is “no organization that can actually do remotely what the CIA can do”. He attributed this skill to the greater expertise of personnel working in the “counter-terrorism center that had been there for about a decade” as opposed to even “an extraordinary unit within the JSOC (Joint Special Operations Command) “due to the rotation of the military. within the army. Whether or not Petraeus’ characterization is accurate, if the United States is going to carry out deadly strikes, I hope the Biden administration has thought carefully about how to balance transparency with precision and accuracy.

Based on Savage’s account, the direct action framework seems consistent with the Biden administration’s approach so far of recalling America’s war on terror as a matter of Politics and appears to codify what had been the interim status quo since the White House suspended trump administration playbook. But these political constraints may be ephemeral as a subsequent administration may repeal them. Permanent control of the two-decade conflict will require legal reform. The White House must work with Congress to fundamentally rewrite the expansive and outdated 2001 AUMF. Otherwise, the next administration can continue to expand this war to new enemies and battlefields under the same statute without the rigorous scrutiny that should come from members of Congress having to debate and vote publicly on the wars the country is waging.

Image: A Yemeni looks at graffiti protesting against US drone strikes on September 19, 2018 in Sanaa, Yemen (Photo by Mohammed Hamoud/Getty Images).

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