The Biden Administration’s Secret Drone Policy (Pilot Episode)

New York Times national security correspondent Charlie Savage reported that the Biden administration has issued a still-classified policy on some types of counterterrorism operations, such as drone strikes and commando raids. That policy, the Presidential Policy Memorandum (PPM), follows earlier guidance from the Obama and Trump administrations. 

For reactions to the PPM, Just Security has a written mini-series from our lineup of expert authors. On this week’s episode, Yale Law School professor Oona Hathaway and New America International Security Program Fellow Luke Hartig discuss the Biden plan and what it all means for U.S. counterterrorism efforts and forever war. 

Show Notes:

• Oona A. Hathaway (@oonahathaway)  
• Luke Hartig (@LukeHartig)
• Just Security mini-series on President Biden’s Presidential Policy Memo (PPM)
• 0:23 Charlie Savage’s NYT article on the PPM
• 2:20 President Obama’s Presidential Policy Guidance (PPG)
• 3:12 President Trump’s Principles, Standards, and Procedures (PSP) 
• 16:33  New York Times coverage of Aug. 29, 2021 Kabul drone strike that killed 10 civilians 
• 17:40 New York Times coverage of March 18, 2019 Baghuz drone strike that killed about 70 civilians 
• 18:20 Azmat Khan’s Pulitzer-winning reporting on U.S. drone strikes in Iraq, Syria, and Afghanistan 
• Music: “The Parade” by “Hey Pluto!” from Uppbeat: https://uppbeat.io/t/hey-pluto/the-parade (License code: 36B6ODD7Y6ODZ3BX)

Transcript

Paras Shah: Hey there, I'm Paras, a Fellow here at Just Security. We’re expanding our coverage of rights, law, and security into audio formats. Each week, we’ll have insight and analysis from  our authors.

This is the Just Security podcast.

New York Times National Security correspondent Charlie Savage recently reported that the Biden administration has issued a new policy framework for use of force in some types of counterterrorism operations, including drone strikes and commando raids.

The document, which is still classified, is known as the Presidential Policy Memorandum, the PPM. It follows similar policy guidance from the Obama and Trump administrations.

To break down the acronyms and what it all means, here are Just Security Executive Editors Oona Hathaway and Luke Hartig. Oona is a professor at Yale Law School, and Luke served as Senior Director for Counterterrorism at the National Security Council in the Obama administration. They both contributed pieces to a four-part Just Security series on the PPM. 

Paras: So, Luke, I want to start with you. You’ve seen some of these issues firsthand in the government during the Obama administration at the National Security Council. How did we get to this point?  

Luke Hartig: Yeah, you know, I, I worked in the Pentagon, from 2008 until I went to the White House. And in those early days of, really when the drone technology was building up and becoming more viable and more lethal and more precise, I think in many ways it became a blank check for policy makers.

To conduct operations without a whole lot of restraint other than those that are required by the laws of war. 

So really toward the end of President Obama's first term, they began a process to create a set of policies and frameworks that could guide not only President Obama if he was elected to a second term, but future administrations, in adopting a direct action policy, and direct action is the term that the government uses for drone strikes, other targeted strikes, commando raids. 

So that was kind of the policy that was put in place by President Obama in 2013, in the form of the presidential policy guidance. In his second term, one could argue that that policy guidance was stretched in a lot of ways. We saw a real proliferation of strikes in a number of places. In Libya, they decided that parts of that country just didn't fall under the guidance that President Obama had put forward because it was only supposed to apply to outside areas of active hostilities, and they just determined that parts of Libya were actually areas of active hostilities. We launched a whole new campaign in Iraq, in Syria, and we decided that those would not be covered by the PPG. 

Those would have their own set of rules that were different, and then President Trump came into office and our initial concerns was that he was really going to sort of blow the doors off of the counterterrorism policy because of some of his comments on the campaign trail.

Like, we ought to be killing the family members of terrorists as a way of deterring terrorism. But what he put forward was a document called the Principal Standards and Procedure. And it loosened a number of the standards. It didn't go nearly as far as I think a lot of us feared.

It preserved, for example, the requirement that there be near certainty, that civilians not be harmed in operations. But it otherwise delegated a lot more authority to the operators. And during the Trump presidency, we saw another real explosion in operations, especially in places like Yemen and in Somalia where there were record levels of strikes so that was kinda what brought us up to the Biden presidency. 

Paras: Yeah. Thanks for that history. Can you just walk us through what are some of the key takeaways from the PPM and what President Biden has done with this document, or at least what we know about the document from the public reporting on it?

Luke: Yeah, I mean, my take is that the PPM is in many ways a dusting off and a slight updating of President Obama's PPG. And the, the reason I think that is because, at least based on what we know, and again, what we know is very incomplete, but that said, with that caveat in place, you know, PPG did a few big things, right? So first of all, it said that strikes could only be conducted against a threat that posed a continuing imminent threat to US persons. That was always the standard of the PPG, the PPM reinstates that, it says that, there must be near certainty, not only that civilians will not be harmed, but also that, an approved target is present at the strike site.

The PPM again reaffirms that. There are a number of other things around the, the importance of capture and being able to ensure that capture is infeasible before conducting an operation. And again, the PPM reinforces that particular point as well. The PPG Greatly preferred, operations against identified high value terrorists as opposed to targets other than high value terrorists or signature strikes or things like that. Again, the PPM reaffirms that  It still preserves an option for the president to conduct and to approve lethal strikes,  that don't otherwise fit within that framework.

So, to me it feels like a little bit of back to the future.  

Paras: Oona, I want come over to you. What should we make about the transparency issues here? The fact that this came through what amounts to a sanctioned leak? How concerned should we be about that? What does that mean for the transparency agenda and what the administration is doing? 

Oona Hathaway: Well, it's of course better that we know about it than if we don't.

So in that sense, this is a step forward. But that we should have a lot of concerns about the way in which we learned about this. So, the only reason we know about this is because Charlie Savage, who's a reporter for the New York Times, um, apparently received a call from someone in the administration telling him that this PPM exists, and then kind of walking him through the basic outlines of it. The article specifically says he hasn’t actually seen the document. So he hasn't seen it. We haven’t seen it. 

And yet, you know, the document itself remains classified. It hasn't been disclosed. Which is pretty, I think, problematic given that this is the policy that is guiding the use of lethal force by the US government on behalf of the American people.

And you know, if they can describe this to a journalist, it's not entirely clear why they can't release it. Now, it will eventually come out because now that we all know that it exists, I imagine Charlie Savage in the New York Times has filed a FOIA request for the document. 

And there might be litigation and eventually it will be disclosed. Second, a key point that, to me, really comes out here is that it seems that Congress has had zero role whatsoever to play in this. And, and that’s, that’s, there’s nothing new about that in a sense.

You know, the PPG also didn't have any presidential role or any congressional role was entirely presidentially issued. This one is a presidential memo. You know, but we need to remember that Congress formally is the one that has the power to declare war, and this kind of complete cutting of Congress out of really fundamental decisions about when lethal force is going to be deployed and how it's going to be deployed I think raises real questions about how out of whack our separation of powers has become when it comes to war powers. 

The last concern is that they’ve done this as a policy document, not as a legal document. But the downside of doing that is that it's just so easy to reverse. And as soon as a new president comes in, as President Trump did, and I think Luke's right, he didn't go as far in rolling things back as we all worried he might, but he did roll back some of the kind of most important protections that were in the PPG. 

And, and it was able to do that because it was just a policy document. It wasn't a legal document, it wasn't a statement that these are, you know, that that preference for capture over kill is, a legal requirement, that the protections that were meant to prevent casualties, civilian casualties were legal obligations, not policy obligations. And so it just makes it the sort of thing that kind of can be turned on a dime and can be done secretly, right? So the policy memo is issued secretly and reversals of it can be issued secretly as well. 

Paras: I wanted to ask both of you, what does the current counterterrorism threat landscape look like and what does the PPM do for this notion that we have of forever war? What does forever war mean and how does this entrench that idea further?

Oona: I'll just say one quick word about this and then turn it over to Luke. The fact that this is a presidential policy memorandum, for kind of how we're going to continue to engage in counterterrorism, presumably almost entirely under the 2001 Authorization for Use of Military Force that was issued just days after the 9/11 attacks without any attempt to kind of go back to Congress, just suggests a plan to kind of continue on as we have continued on for now more than twenty years, is counterterrorism policy really headed in the right direction? Is this policy of using drones and killing people really making us much safer? 

Luke: Yeah, I think that the lack of transparency that Oona has been expressing so clearly is a good place to start here. You know, what does the threat landscape look like? I don't know. I don't fully know because the administration hasn't been talking much about it.

I think based on what we can read based off of, you know, regular briefings from intelligence officials to Congress, for example, based on what we can tell from the open source, there's a lot of reason to believe that the threat is significantly less today than it was a few years ago.

We've killed the two top leaders of Al Qaeda in succession. We've killed the two top leaders of ISIS in succession. We've killed many others. And again, I don't mean to undermine some of the challenges with the drone program, but certainly, it's to the extent it has been effective, it's been effective because it's deprived the organizations of really critical leadership and operational expertise. There's also reasons to believe that in other places, you know, the underlying grievances and the such that were feeding terrorist groups, maybe those grievances haven't fully gotten gone away, but, but other groups that have stepped in, and they may be Islamist in nature, but they are less likely to pose a threat to the United States.  

I do think one of the things that we have been hesitant to do, but we ought be doing a lot more of, is just relying on our defenses. And everything from our overseas intelligence to aviation security and border security and law enforcement. These things combine to create a formidable defense against terror. 

Paras: Really, really helpful from both of you. Let's talk about carve-outs and exceptions and how this works with coalition forces. How does the PPM tackle those issues and what are the complexities there?

Oona: Well, I'll just raise one of them that jumped out at me, this PPM has a carve-out for collective self-defense and unit self-defense. And that certainly perked up my ears when I read that because this has been a justification that the US government has been expanding pretty rapidly over the last several years. 

Meaning that we can engage in self defense, not just of our own forces, but of partner forces and not just, and this is the part that strikes me as really, I think actually pretty outrageous, not just partner state forces, but partner non-state forces. And I don't know, again, you know, how much the Biden administration is doing to this but for instance, the idea of collective self-defense has been used to justify using military force in Syria to protect partner non-state forces, not just state forces. And that's a pretty extraordinary expansion of the idea of self-defense.

And that strikes me as a big carve-out, um, and potentially one that has real significant impact in certain places like for instance, Somalia, and so, you know, what exactly that carve out looks like and what they intend to do there, it's a little bit harder, but the downside of that is not only that it carves out collective self defense, but that it's going to drive increasing efforts to describe uses of forces collective self defense because the PPM doesn't apply to it.

So to me, that's one of the sets of blinking red lights in the story. 

Luke: It’s a long-standing issue, and we still haven't had a good, adequate explanation of how collective self-defense applies. Does it mean that actually US forces have to be present with partner forces both under attack or can US forces be, you know, several miles away at an operational center and sending in strikes to protect their partner forces?

I think one of the bigger tensions here from this maybe a strategic perspective is what this means for our partnership strategy. And, you know, I think the sustainable solution to counterterrorism has to rely on more of our partners conducting their own operations  against terrorist groups that pose a threat to those countrie 

But that's complicated, right? So if we are supporting partners, first of all, we become somewhat complicit in things that they do that may not reach the standards that we as a military hold ourselves to. I'm not sure that a lot of countries where we are conducting operations are sophisticated enough in terms of their intelligence build, in terms of their ability to accurately target, that they could fully meet the standards put forward in this PPM. 

And I think when it comes to collective self defense, it's a tough one, right? We ask partners, we train them up, we give them equipment, we advise them, we ask them to go out in the fight. But if they come under attack, then we might say, well, “we can't help you.” I think that's a tough position to be in.

But on the other hand, you don't want this to be just a carve-out for the United States military to be able to conduct strikes that wouldn't otherwise be allowed under policy. 

Paras: We're almost out of time, but I just want to turn and see if either of you have closing thoughts or key takeaways as we wrap up the discussion. 

Oona: Well, I'll just offer one thought, just a return to the point about the fact that this has been done as a policy guidance. On the one hand I think it's admirable that the administration undertook this effort. But I think that we should have learned a lesson from the Trump administration, which is that retaining freedom of motion for the executive branch to be able to do whatever it wants when it comes to military use of force is opening the door to some very dangerous steps down the road and that I would encourage executive branch lawyers and executive branch policy officials to think about whether we really want to always be retaining freedom of motion, whether we always want be retaining every possible future option to shift and get rid of whatever restrictions we've taken on at this moment. 

There doesn't seem to be a real strong push from the administration to try and get legislation from Congress, which would spell out more clearly what the counter-terrorism policy is going to look like in a way that would constrain the Executive branch, because it would actually be legislation. But I would hope in the after the midterms that there might be some room for reopening the door to thinking seriously about what should our counterterrorism policy look like going forward, ideally through cooperative, legislative efforts with Congress to try and actually put our counterterrorism policy on to kind of more stable future path that doesn't rely on a piece of legislation passed in an emergency setting after the most significant terrorist attack on US soil since Pearl Harbor. 

Luke: I couldn't agree more with everything you just said. I might focus on something slightly different, which is how are the operations, how is the military actually interpreting, the guidance put forward in these documents, to prevent civilian harms, and to how to respond when those harms do occur? Some of the events and some of the revelations from last Fall really shook a lot of my confidence and a lot of my belief in how that was going. The first of those being the strike in Kabul kind of as we were evacuating our people and some of our Afghan allies in last August.

That was a strike in which, you know, we ended up killing ten civilians, basically an entire family, none of whom had any connection whatsoever to terrorist groups. And that information that significant numbers of civilians, if not all of them had been civilians, were killed in that strike, was available within a couple days after the strike.

And yet the Chairman of the Joint Chiefs of Staff was out there calling it a righteous strike. And it was really only in that situation because the New York Times did some really incredible reporting, this really incredible piece of journalism that there was no way the US government could deny, and ultimately indeed they conducted their own investigation and determined that all of those killed have been civilians. However, that investigation did not punish anybody so far as we can tell, at least not in a legal sense. It recommended a series of lessons to be learned that frankly those of us who had been watching the program had thought had been learned a long time ago. So it talked about confirmation bias.

We've heard about confirmation bias for a very long time in this program. There was discussion about needing to have better people or people who were better trained on staff watching surveillance footage from drones to determine what appears to be children or other civilians and who might appear to be adult males.

So some pretty significant things there that were really operational and were really, kind of, get to the core question of whether the Department of Defense and its drone strike program is a learning organization. Is it actually looking at the mistakes it's made and making significant changes? 

And then we had the revelations of the strikes that took place in Baghuz in I believe the spring of 2019 that may have killed up to 80 civilians. We're still not sure. That was also investigated, and in that case, you know, the US government allowed some possibility of some civilian casualties, but insisted that the majority of them were not civilians. There were a number of questions there as to how you might count children who are taking up arms as combatants versus non-combatants.

Some of that conflicts with the way that our international allies think of that. A whole raft of issues, again, that I think raise significant questions as to how the US government is actually implementing its pledges to protect civilian lives. 

And then of course, there was the incredible reporting from Azmat Khan from Iraq and Syria documenting the large numbers of civilians who were killed and were never really accounted for, she won a Pulitzer Prize for that, really incredible stuff. And all of that led the Department of Defense to conduct, uh, this 90 day review of its civilian casualty practices. And then ultimately that produced what they're calling the Civilian Harm Mitigation and Response Action Plan. This came out in August.

You know, at first glance, I think it's a really promising document. It's certainly comprehensive. It certainly addresses a lot of the things that were raised in that journalistic reporting as well as a really good report from the RAND Corporation that got into how the Department is addressing civilian casualties. 

I'm encouraged that they put out the plan. I'm encouraged by Secretary Austin seeming commitment to addressing this issue. I'm just withholding my judgment until I see how this is actually implemented in practice.

Paras: Let's wrap it up there, and for all things security, rights and law, stay tuned to Just Security.

Paras: The Just Security Podcast is produced in cooperation with NYU’s American Journalism Online program. This episode was hosted and produced by Paras Shah with editing and mixing by Ben Montoya. Our music is the song, “The Parade” by Hey Pluto. Special thanks to Tess Bridgeman, Oona Hathaway, Luke Hartig, Alex Kapelman, Lydia Paige, Adam Penenberg, and Brianna Rosen.

If you enjoyed this episode, give us a five-star rating on Apple Podcasts and wherever you listen.