Document sheds light on how president approves drone strikes
The Washington Post | .
published: August 08, 2016
WASHINGTON — President Barack Obama must approve operational plans to target overseas terror suspects with drones or other weapons outside war zones, but in some cases does not sign off on specific strikes, according to newly-declassified administration guidelines.
In addition to setting out the role of the president, the guidelines emphasize the importance of "verifying" the identity of high value targets, even as they outline the criteria and legality of striking unidentified others when "necessary to achieve U.S. policy objectives."
The guidelines provide rules for targeting U.S. citizens abroad, and include lengthy guidance on what to do with captured terror suspects. "In no event," the document says, "will additional detainees be brought to the detention facilities at the Guantanamo Bay Naval Base."
The 18-page top secret document was declassified and released late Friday, with relatively minor redactions, in response to a federal court order. At the time Obama signed the guidelines, in May 2013, the administration released a brief "fact sheet" on procedures and criteria for such operations that were drawn from the classified version.
Those rules included "near certainty" that the terrorist target was present, and that no civilians would be injured or killed; that the target posed a "continuing and imminent" threat to U.S. persons; that capture was not feasible; and all relevant domestic and international laws were obeyed.
Since then, the president has made clear that he anticipates the more detailed, newly-declassified procedures will govern future administrations. "My hope is, is that by the time I leave office, there is not only an internal structure in place that governs these standards that we've set, but there is also an institutionalized process" to increase transparency and oversight of lethal action outside war zones abroad.
There is no legal requirement that Obama's successors adhere to the same rules. But administration officials, speaking on condition of anonymity about internal discussions, have said that compilation of the guidelines, and making them public, will restrain other presidents.
"The president has emphasized that the U.S. government should be as transparent as possible with the American people about our counterterrorism operations, the manner in which they are conducted, and their results," National Security Council spokesman Ned Price said of the new release.
"Our counterterrorism actions are effective and legal, and their legitimacy is best demonstrated by making public more information about these actions, as well as setting clear standards for other nations to follow" he said.
But despite its pledges of transparency, the administration has waited until Obama's waning months in office to release detailed information on drone and other lethal air strikes. Last month, it published aggregate numbers on how many civilians have been killed by CIA and military strikes in Yemen, Pakistan, Somalia and Libya.
The numbers — 64 to 116 civilians and 2,372 and 2,581 "combatants" in 473 strikes taken in countries where the United States is not at war — were challenged by non-government groups as discounting many more civilian deaths. The figures do not include actions in the war zones of Afghanistan, Iraq and Syria.
The newly-released document was the subject of a lawsuit filed by the American Civil Liberties Union in the fall of 2013. The administration, on the basis of "presidential communications" privilege, had denied the ACLU's petition for its release under the Freedom of Information Act.
Early this year, after Judge Colleen McMahon, in the Southern District of New York, questioned that privilege, the government said it would publicly release a redacted version.
After extended back and forth with the court over proposed redactions, McMahon last month ordered that the document be turned over to the ACLU no later than Aug. 5. It was posted without announcement Friday evening on the Justice Department website.
"The PPG should have been released three years ago, but its release now will inform an ongoing debate about the lawfulness and wisdom of the government's counterterrorism policies," said ACLU Deputy Legal Director Jameel Jaffer. "PPG," as the government refers to the document internally, is for Presidential Policy Guidance.
"The release of the PPG and related documents is also a timely reminder of the breadth of the powers that will soon be in the hands of another president," Jaffer said.
The document's dry, bureaucratic language seems in stark contrast to the presumably dire consequences of the actions it outlines, and it leaves a number of questions unanswered. What appears to be a description of information to be included in the profile of an individual target is blacked out.
It provides no details of how high value targets are chosen or any geographic limitations, and includes several presidential waivers of its criteria in the event of "fleeting opportunity" to take action.
"Nothing in this PPG shall be construed to prevent the President from exercising his constitutional authority as Commander in Chief and Chief Executive, as well as his statutory authority to consider a lawful proposal" that falls outside the guidelines, including a possible strike against "an individual who poses a continuing, imminent threat to another country's persons," it says.
Numerous international law experts have said that the administration's overall terminology and justification for lethal strikes are novel and without precedent. "The government has essentially invented its own set of standards ...somewhere in between" international law covering war zones and outside areas," Jaffer said. "This doesn't provide any more clarity about the substantive standards the government is using."
The policy document does provide new details on the president's role in deciding when a strike will be taken. "Operating agencies" — the CIA and the Defense Department — are to provide overall plans for detaining and/or targeting both named high value targets or other "lawful" targets. The plans, to be authorized by the president, must "indicate with precision" the counterterrorism objective and duration of time the authority is to remain in force; the international legal basis for taking action; and assets that may be deployed.
Decisions by operating agencies to take strikes against high-value targets require no additional presidential approval, unless U.S. citizens are involved, although "operational disagreements" among top national security officials are to be brought to the president for adjudication.
"Verifying a target's identity before taking lethal action ensures greater certainty of outcome" and the ability to "satisfy the policy standard," the guidelines say. Proposals to strike other targets — presumably the so-called "signature strikes" against groups of unidentified terror suspects, massed outside or in buildings or vehicles — are to be submitted for approval and require written presidential authorization.
While they are vastly outnumbered by kills, the document devotes several pages to captures and detentions of terror suspects, which require proposals for "long-term disposition for such individual," and include a "screening process" that includes any differences of opinion among departments.
An Interagency Disposition Planning Group assesses "the availability, including the strengths and weaknesses, of potential disposition options." Captures of terror suspects have long been complicated by decisions on what to do with them. Some have been transferred to third countries, while others have been held aboard U.S. naval vessels for interrogation before being brought here for prosecution.