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Are There Any Limits on Obama’s Drone War, Really?

A newly released document reveals that the administration’s rules for drone warfare are full of workarounds and loopholes.

Tobias Schwarz/AFP/Getty Images

Early in his second term, President Obama set out to create a Rule Book that would provide some semblance of legal oversight over his administration’s drone program, which in the previous four years had become the administration’s preferred method of targeting suspected terrorists in remote regions of Pakistan, Yemen, and elsewhere. Sometimes dubbed the “Disposition Matrix,” news articles about the Rule Book offered tidy flow charts of how a suspected terrorist would go from “suspect” to “dead”—or, less realistically, “captured.” The book was intended to bring new order to the war on terror, there being “a broad consensus that such operations are likely to be extended at least another decade,” as The Washington Post reported in the fall of 2012.

Obama announced the formalization of the Rule Book—now dubbed the Presidential Policy Guidance (PPG)—in May 2013. It was partly a response to critics who said the administration was essentially conducting extrajudicial killings, with no rubric by which to judge whether it was staying within the bounds of international law. Obama explained that after four years of drone war without such formal rules, he was now “insisting upon clear guidelines, oversight, and accountability that is now codified in Presidential Policy Guidance.”

It took three more years and a lawsuit before, on Friday, the administration finally released a copy of the PPG to the ACLU in response to a Freedom of Information Act request. While some of the policy promises in the document are laudable, the document, in a structural sense, doesn’t seem to add the oversight to the war on terror that Obama promised back in 2013. Indeed, it seems designed not to.

As Obama did in his 2013 speech, the PPG lays out certain standards for dealing with terrorist targets overseas. It applies to capture operations and lethal strikes—presumably including those done without a drone or other airstrike—outside areas of active hostility, like Afghanistan and Iraq. Most of these standards stem from legal requirements; for example, that “direct action will be taken only if there is near certainty that the action can be taken without injuring or killing non-combatants.” (Though even in this instance, there’s nothing unredacted in the PPG that answers all the questions about who gets counted as a non-combatant.) At that level, the PPG simply says: Follow the law.

The PPG makes two important additions to rules otherwise mandated by international law. It presumes the U.S. will capture, rather than kill, terrorist targets. And it lays out an interagency process to review nominations to the so-called “kill list,” a process that also usually requires consensus to approve any lethal operations.

Formalizing that interagency process is all well and good. But there are some very peculiar aspects to this document that raise more questions than answers.

Start with the fact that a “Presidential Policy Guidance” is a previously unknown type of presidential order. Indeed, an administration official confirms it is still the only document of its type. “We have not issued any other PPGs,” the official told me. Obama’s normal practice when issuing national security orders has been to release “Presidential Policy Directives,” a set of numbered directives that occasionally get released publicly. The word “Guidance” would suggest this is a weaker kind of order than a “Directive.”

The PPG does mandate some actions, requiring that agencies “shall” develop certain assessments and so on. But in other instances, the PPG appears designed to give agencies leeway. It states that agencies “may develop a detailed operational plan” to govern their direct action. It says a top White House aide could make final decisions about who will attend an interagency meeting to approve the kill list.

Without offering an explanation for the difference between a PPG and a PPD, the same White House official nevertheless dismissed concerns about the discrepancy. “The PPG carries the same requirement of compliance, as it’s presidential guidance,” the official explained.

Nevertheless, as Steven Aftergood of the Federation of American Scientists Project on Government Secrecy points out, this document lacks some of the formal features you would expect from a presidential order: “As released, the Guidance is neither addressed to anyone in particular, nor signed by anyone.” Unlike PPDs, the Guidance as released to the ACLU was not printed on White House stationery (compare the PPG with this closely related PPD on the military or civilian custody of terror detainees in U.S. custody). Aftergood also noted, “It refers to the president in the third person, as if he is also subject to its requirements (‘The President will adjudicate any disagreement among or between Principals’) rather than its author.”

The administration official dismissed questions about the document’s authority and its lasting value. “The document has not changed since it was completed in 2013. The redacted document that was released last week remains the operative guidance,” the official said.

From the very first line, the document seems unclear about its objective. “This Presidential Policy Guidance (PPG) establishes the standard operating procedures for when the United States takes direct action,” it starts, effectively asserting that it is both a document about policy—laying out what rules have to be followed—and a document about the procedures needed to implement that policy. That’s not the way policies and procedures are supposed to work: one is a high-level document, the other a more granular implementing one. Here they mix.

After a page and a half laying out “principles and priorities” for direct action, eight sections lay out procedures associated with those principles. In the sections pertaining to lethal targeting of high-value and other targets, additional policies are embedded. And right in the middle of it all, Section 5 “sets forth the procedures for approving proposals that vary from the policy guidance otherwise set forth in this PPG.” In other words, the exceptions to the rules that have just been laid out.

The sections that deal with lethal targeting are problematic in themselves, reversing the logic of consideration. If your goal is truly to prioritize capturing a suspected terrorist, rather than killing him, a procedure should start by asking whether someone can be captured. If so, it should move on to the process of deciding what to do with him once the U.S. gets him. Here, the PPG process starts when an agency decides to use lethal force against the target.

At that point, intelligence agencies get involved to “address issues” and commission intelligence collection plans, a practice that in other circumstances—such as with the justification for the Stellar Wind warrantless wiretapping program—has actually meant filling in any gaps to make sure the case for action is strong enough to back the conclusion already made. Only after the agency has decided the target should be killed, for example, is the agency required to assess whether capture is feasible at the time of the operation. Once the nomination has been submitted, the interagency committee assesses anew “[w]hether the individual, if captured, would likely result in the collection of valuable intelligence, notwithstanding an assessment that capture is not currently feasible.” This seems to admit that capture feasibility can change.

Moreover, an assessment of whether capture is feasible is not among the few “harmonized policies and procedures” mandated by the PPG. The Rule Book requires procedures to assess with certainty whether the target is who the agency thinks he is, and is present at the target. It also requires a procedure to make sure that no civilians will be injured. The policies and underlying procedures that receive emphasis here focus primarily on killing the right person, not capturing him if possible.

That’s all before you consider the other exceptions that eat up the rules presented in this guidance. There are several exceptions for different kinds of proxy capture, including operations in which the U.S. provides “training, funds, or equipment to enable a foreign government to capture a suspect.” The agency that wants to kill a target, whether it’s the CIA or the Pentagon, can appeal to the president directly to get her approval. Section 5 even explicitly permits lethal targeting to protect another country’s people, in what amounts to a big reservation for presidential discretion. (The U.S. has engaged in “side payment” strikes to convince foreign countries to let the U.S. to conduct its own drone strikes there.)

As the PPG states: “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 from operating agencies that he authorize direct action that would fall outside of the policy guidance contained herein.”

Finally, one of the best parts of these guidelines—after-action reports that collect information on what really happened in a strike—may operate on too short a timeline, 48 hours, to be useful. Ask an intelligence officer in October 2011 whether the operation to kill Anwar al-Awlaki was successful and she would surely say it was. But from our vantage point five years out, that may no longer be the case. Given that Awlaki’s videos continue to inspire terrorist attacks, did killing him in a drone strike really neutralize his influence? And what leads did intelligence services lose when Awlaki stopped publishing easily tracked magazines? Those are the kinds of lessons learned that might really inform policymakers whether targeted killing serves our strategic interests. But they are not explicitly required by this PPG.

The PPG lays out certain principles, but doesn’t match them with the procedures that would actually accomplish the stated policies. There are many ways to bypass the letter and, even more so, the intent of the guidelines. At least as structured, the PPG doesn’t appear to provide the kind of benefits Obama envisioned. While there have been fewer drone strikes since the PPG was issued, there continue to be some catastrophic mistakes in targeted killing. And who’s to say how the Guidance would be used in the hands of another president—say, Donald Trump?

That’s not to say the exercise is useless. Having agencies like the Department of Justice and State Department weigh in on most targeted killings may mean the White House has more contextual information before it approves a lethal strike. But that’s different from claiming that it conducts a process that imposes significant legal constraints on its ability to kill someone.