Two years after an election in which he promised to shift U.S. national security away from the counterterrorism fight that consumed the previous two decades, President Joe Biden has seemingly made good on his pledge. Terrorism hardly merits a mention in media coverage that fixates on Ukraine, Russia, China, Europe, and Iran. In many ways, this is a good thing – America must manage terrorism while shifting its focus to address vital national interests. Yet a major reason for this shift is that the administration has apparently decided it’s not going to talk about terrorism, neither the big strategic questions nor the most controversial aspects of counterterrorism – strikes, raids and detention operations. That’s a problem, because U.S. armed forces are still actively engaged in the counterterrorism fight, as evidenced by ongoing air strikes and Guantanamo Bay’s continued operation. Proactive transparency is needed both to enable public and legislative debate regarding these counterterrorism activities and to ensure that a future administration doesn’t decide to ramp up again the so-called war on terror, perhaps even in secret.
The administration’s instinct toward silence on terrorism is understandable. Successive administrations since 9/11 have found themselves stuck in a constant political-media firestorm around terrorism. President Barack Obama pledged to take the United States off of a perpetual war footing and publicly introduced exacting standards for the use of force outside “areas of active hostilities,” yet his foreign policy legacy is inextricably tied to controversies around drone warfare and failure to close the detention facility at Guantanamo. President Trump’s erratic policies on Afghanistan and ISIS were widely reported, dissected, and used to argue against his foreign policy competence. His Secretary of Defense resigned over Trump’s announcement of a precipitous withdrawal from Syria. As a presidential candidate, Biden pledged to end the Forever Wars and his administration heralded the withdrawal from Afghanistan as a major step in that direction. But a disastrously fumbled withdrawal created the most devastating media and political fallout of his presidency. The political lesson seems to be: whatever you do on terrorism, do it quietly and hope nobody notices.
Indeed, this seems to be the Biden team’s approach – and not many have noticed. The Biden administration has deprioritized counterterrorism in both word and deed. The United States is conducting fewer airstrikes in fewer countries than during the height of the war on terror, due to both affirmative decisions by the administration, including withdrawing from Afghanistan, and pre-existing trends, such as the destruction of ISIS’s territorial “caliphate” in Iraq and Syria. With the exception of Somalia – where hundreds of U.S. forces were deployed to advise, assist, and conduct regular “collective self-defense” strikes against al-Shabaab – U.S. counterterrorism forces appear to be operating in fewer numbers and at a lower tempo than during previous administrations. And Russia’s war on Ukraine and competition with China consume the national security policy bandwidth that might previously have been dedicated to counterterrorism.
This pivot from the counterterrorism wars has in many respects been conducted with little fanfare from the White House. Although President Biden has publicly touted major wins, such as the killing of al Qaeda leader Ayman al Zawahiri in Kabul, the president has not delivered a major policy speech on international terrorism – and aside from a speech from the president’s counterterrorism advisor in 2021, his top officials have done minimal significant public engagement. Two years into the administration, there is still no public national strategy for international counterterrorism.
Although quietly winding down the war on terror has its merits—including in minimizing partisan backlash—the Biden administration has not struck the right balance on public disclosure if the goal is to have an enduring impact. Greater transparency is needed to permanently rein in this more than two-decade conflict. The policy-based restrictions and restraint exercised by the administration are mutable and can be waived away by a new president. Durable restraint requires legislative reform, particularly overhauling the 2001 Authorization for the Use of Military Force (2001 AUMF) and the 1973 War Powers Resolution. But any new legislation should be informed by the United States’ past and present conduct of the war on terror and the executive branch’s own legal theories on the president’s authority to use force. That requires an appropriate public dialogue to inform legislation, which is possible only if we have greater transparency.
On a more fundamental level, it is simply poor governance for the United States to continue waging a war in the name of the American people without telling either the American people or the citizens of the nations where it conducts operations what it is doing. This is not how democracies are supposed to operate, and we should expect more.
To this end, the Biden administration should improve transparency, especially along two key parameters: (1) over classification and (2) failing to adequately explain its legal theories for using force or in proposals for reform.
The U.S. public doesn’t know the full extent of the war on terror, because Americans do not even know precisely who the United States is still fighting. As one of us has previously written, the full list of groups and individuals covered by the 2001 AUMF remains classified. Following a brief period at the end of the Obama administration when the executive branch publicly disclosed this list, the Trump administration reverted to secrecy. In an April 2018 report provided to Congress consistent with Section 1264 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018, the Trump administration explained that the report’s classified annex contained information about the application of the 2001 AUMF to particular groups and individuals. This secrecy persists in the Biden administration.
Nor does the public know the policies, principles, and procedures which govern direct action. Like both the Obama and Trump administrations, the Biden administration has recently issued its policy framework for direct action, in the form of a Presidential Policy Memorandum (PPM). Although an administration official speaking on background provided a description of the PPM to the New York Times’ Charlie Savage, the PPM itself remains classified. Not only has the administration failed to release a redacted version of this policy framework, it has not even released a fact-sheet summarizing its drone-strike playbook, as the Obama administration did from the outset.
Charlie Savage and The New York Times have since sued the Pentagon under the Freedom of Information Act (FOIA) seeking the release of the PPM. Twice before, FOIA lawsuits have successfully compelled the release of the same policy framework issued by Obama and by Trump. It is unsettling that the Biden administration is compelling another FOIA lawsuit rather than release the information proactively. Among other things, it is a missed opportunity to release a properly redacted version and to demonstrate a commitment to increased transparency.
Failures to Explain
Yale Law Professor and former Legal Adviser to the Department of State Harold Hongju Koh has argued that government legal advisers have a “duty to explain” their government’s actions, including to the public. Thus far, the Biden administration has not fulfilled this duty regarding the use of force by the United States, including with respect to reoccurring hostilities with what it terms “Iran-back militia groups.”
One reason for the administration’s failure to more proactively explain its legal theories for using force may be the absence of an official who has often played the role of “explainer-in-chief”: a Senate confirmed State Department Legal Adviser. Koh and his Senate-confirmed successors as State Legal Advisers, such as Brian Egan, articulated the executive branch’s theories for using force, often in public speeches. Although the administration nominated Columbia law professor Sarah Cleveland for this position, her nomination to the State Department was quietly dropped and she was instead named to a seat on the International Court of Justice. Without a political appointee filling this role, the administration is left with a void, with no high-ranking official acting as a U.S. spokesperson on legal issues relating to the use of force. The DOD General Counsel, Caroline Krass, (also a former CIA General Counsel and long-time DOJ Office of Legal Counsel official before that) has also been publicly silent on counterterrorism, in contrast to some of her predecessors (see here, here, and here).
The administration also lacks initiative in reforming the 2001 AUMF, the principal statutory basis for the U.S. war on terror. Although the administration has expressed a vague willingness “to explore with Congress the contours of a new or updated AUMF,” the executive branch has not put forward any concrete proposal for revising this outdated and capaciously interpreted war authorization, or any specific parameters within which it would be willing to negotiate with the foreign relations committees. Without leadership from the administration, Congress has neither prioritized reforming the 2001 AUMF nor coalesced around any particular parameters, much less a specific legislative proposal.
In addition to failing to proactively and publicly share its legal reasoning or offer proposals for reform, the Biden administration has also declined to respond to inquiries from Congress regarding its theories for using force. For example, in Syria and Iraq, U.S. armed forces remained deployed ostensibly to ensure the “enduring defeat” of ISIS. Yet during the Biden administration, the United States has also repeatedly used force against unspecified “Iran-backed militia groups.” Most recently, on January 20, 2023, U.S. forces and their Syrian partners at Tanf garrison again came under attack from drones launched by unidentified (though likely non-ISIS) attackers. U.S. hostilities with these groups, at Tanf and elsewhere, raise a number of legal questions. Indeed, in a November 2021 letter to President Biden, a bipartisan group of members of the House of Representatives posed questions about the legal basis for hostilities in Syria, particularly those involving non-ISIS forces. To date, the White House has not responded. Similarly, the White House did not reply to a July 2021 letter from Rep. Ilhan Omar (D-MN) raising questions about U.S. airstrikes in Somalia, including regarding the legal basis for the strikes. The administration’s May 2022 decision to deploy hundreds of troops to Somalia was done with virtually no public explanation of the threat or the broader strategy.
When it comes to accounting for civilian casualties, the Biden administration is complying with pre-existing legal and policy requirements to disclose the total number of strikes it conducts, but it continues to avoid or minimize discussing the most controversial strikes. These are the operations where official U.S. reports and accounts by non-governmental organizations diverge. U.S. officials met a string of damning New York Times reports over the past 18 months, particularly around civilian casualties from U.S. operations in Syria, Iraq, and Afghanistan, with solemn appreciation for the role of the free press but little in the way of disclosures that would help us understand what went wrong or why the U.S. government reached a different conclusion.
A Way Forward
The Biden administration should be commended for curtailing elements of the U.S. war on terror. Yet permanently reining in this conflict requires public deliberation that the administration’s lack of transparency inhibits. The current approach also runs the risk of masking the true costs of the counterterrorism fight. More than 20 years into this set of conflicts, the administration should be engaging in a dialogue with Congress and the American people about the nature of the threats to the United States, the range of ways to mitigate those threats, the pitfalls and risks of U.S. responses, and the appropriate legal authorities needed to keep us safe while avoiding endless war.
To promote lasting reform, the Biden administration should take a number of steps both to pull back the curtain on the counterterrorism wars and to enable appropriate legislative reform. At a minimum, this would include:
- Releasing a public National Strategy for Countering International Terrorism, accompanied by speeches and public dialogue from top administration officials to explain it.
- Releasing more information about who the United States is at war with and how it intends to fight them, including by declassifying the list of groups the executive believes to be covered by the 2001 AUMF.
- Disclosing the text of the PPM, with minimal redactions, to better explain the standards under which the United States uses force.
- Nominating a legal adviser to the State Department and empowering this official to negotiate reforms to the legal frameworks for counterterrorism and serve as “explainer-in-chief” on legal issues relating to the use of force.
- Thoroughly answering congressional questions about ongoing campaigns in countries such as Syria and Somalia.
- Disclosing more details about some of the most controversial strikes and developing a process for greater dialogue with civil society about assessments of civilian casualties and resolving analytic differences.
- Putting forward a proposal for reforming the 2001 AUMF that explicitly specifies against whom force may be used, specifies where force may be used, and contains a sunset provision. (For example, see this framework from Tess Bridgeman, Ryan Goodman, Stephen Pomper, and Steve Vladeck.)
The process of increasing transparency won’t be easy. There will be institutional resistance from elements within the government that default to secrecy, as well as from those who are simply risk averse. The administration also risks political blowback and the return of the hyper-politicized terrorism discussions that have defined the debate for more than two decades. But a democracy should not indefinitely wage war in the shadows, and the administration needs to be ready to work through tricky politics in favor of a better and sustainable future. By being more transparent, the Biden administration could put in place the legislative boundaries and policies necessary to ensure that America makes a definitive turn away from endless war.