(Editor’s Note: This is the final article in a series on the Biden administration’s new Presidential Policy Memorandum on counterterrorism direct action. See our other coverage on this issue from Luke Hartig, Oona Hathaway, Sarah Harrison, and Brian Finucane).
Across different cultures and times, people have sought to draw a bright line between war and peace. The ancient Romans opened the Gates of Janus, the god of beginnings and endings, to signal the commencement of hostilities and closed it during times of peace – a rarity that is said to have occurred just three times in over 400 years. The Navajo of the American Southwest adopted a “twisted” dialect when embarking on raids, resuming the common language only once they had physically turned away from the fighting toward home. These spatial, temporal, and linguistic boundaries served the crucial purpose of setting ordinary life apart from what Immanuel Kant referred to as the “barbaric” nature of war.
Contemporary warfare is no longer bound by such distinctions. Successive U.S. administrations have failed to end the “Forever War,” the global armed conflict the United States has waged against terrorist groups continuously since 9/11. Though generally eschewing the phrase “war on terror,” the Obama administration maintained the war footing in the form of indefinite detention at Guantánamo Bay and status-based targeting under the 2001 Authorization for Use of Military Force (AUMF), as did the Trump administration with even fewer safeguards in place.
The Biden presidency has yet to turn the corner. Recent reports suggest Biden is following a similar playbook for direct action (airstrikes and special operations raids) as his predecessors. While the administration has slowed the pace of drone strikes in nearly every theater – with the exception of Somalia, where strikes are ratcheting up again – these trends may be easily reversed in secret at any time and by anyone who occupies the Oval Office.
The war on terror has ebbed, not ended. It is in this context that we must now assess the new presidential policy framework for counterterrorism operations.
Back to the Future
Far from ending perpetual war, the latest counterterrorism guidance appears to further entrench the elaborate rules governing targeted killing constructed during the Obama administration.
Indeed, as described to the New York Times, Biden’s playbook – the Presidential Policy Memorandum (PPM) – is not very dissimilar from its predecessor policy documents, the Principles, Standards, and Procedures (PSP) and Presidential Policy Guidance (PPG) under the Trump and Obama administrations, respectively. Like these documents, the PPM seeks to impose an additional set of policy constraints on direct action – beyond what the laws of war require – in areas “outside of active hostilities” which are neither clearly war nor peace.
On the face of it, the PPM returns to stricter Obama-era standards, prompting some commentators to observe that the “Wild West” days of targeted killing under the Trump administration are “officially done.” The PPM reinstates the requirement to ensure that capture is infeasible before resorting to targeted killing (even though Trump’s PSP did also state that capture is “generally preferred”), requires that targets pose a “continuing, imminent threat” to U.S. persons, and brings back the “near certainty” standard that the approved target has been correctly identified and that civilians will not be harmed. It reportedly favors strikes against identified high value targets – rejecting “signature strikes” against individuals based on patterns of behavior associated with terrorist activity – while preserving the right to conduct such strikes if necessary.
None of these provisions represent a sea change in the way the United States wages its counterterrorism wars. Importantly, the Biden administration will continue to conduct such strikes under the domestic legal authority of the outdated 2001 AUMF – a relic of the days following 9/11 when Congress authorized the use of force against the perpetrators of those attacks. The administration maintains that it is engaged in a global armed conflict with a classified and metastasizing list of terrorist groups, allowing it to target group members continuously and detain them indefinitely until these conflicts have ended (if they ever do, since the United States has never publicly articulated a legal theory for how such conflicts end).
What is more, the policy guidance does not reject, and may implicitly embrace, contested legal theories that have underpinned counterterrorism operations for decades. As a result, direct action operations may be conducted in accordance with the “unwilling or unable” test, where U.S. forces may forgo territorial or host state consent for operations on its territory and need not have U.N. Security Council authorization. Such operations may also rely on expanded notions of imminence that deviate from widely accepted interpretations of international law, allowing individuals to be killed even when they do not pose anything close to an immediate threat. Reinforcing these positions sets dangerous precedents for the rest of the world to follow – and U.S. adversaries are taking note, with Iran recently invoking the unwilling or unable test to justify strikes in Iraq.
In solidifying these positions, the PPM in many ways represents the culmination of years of counterterrorism policy. As Luke Hartig argues, the policy appears to deliver on the original promise of the PPG – the Obama administration’s vision of a “restrained” approach to counterterrorism that sought to balance the necessity of responding to threats with the imperative of respecting civilian life.
But President Obama never got this balance right, and it remains to be seen whether Biden will succeed. Despite recognizing the dangers of remaining on a perpetual war footing, the Obama administration could not deliver on promises to close Guantánamo Bay nor to repeal and replace the 2001 AUMF. Now that terrorism rarely makes the headlines – at least for now – it is doubtful the Biden administration will have either the will or political capital to take on such thorny reforms.
The upshot of all this is that the “Forever War” continues, albeit with less fanfare and at a slower pace. And this is the most dangerous phase of perpetual war, when public attention has shifted, and elected officials no longer speak of a “tipping point” where the United States can declare victory and move to an approach that relies on law enforcement, intelligence, diplomatic, and other instruments of national power to address the residual threat of terrorism. Since the risk of terrorism can never be reduced to zero or near zero, accepting that any terrorist threat necessarily requires a militarized response means there will always be a reason to keep fighting.
The Wild West days are not over – not until individuals are no longer killed in secret outside of recognizable war zones.
Missed Opportunities and Remaining Options
There are steps the Biden administration could have taken to foster public debate, close key loopholes, and ensure the next administration remains bound by higher standards for direct action. It’s still not too late to take those steps.
The first missed opportunity concerns the transparency agenda. While transparency is not a panacea for resolving the problem of perpetual war, it is a crucial step toward doing so. The Biden administration should immediately release a declassified version of the PPM, which will come out eventually through litigation or other means (it was the Biden administration, after all, that released a redacted version of Trump’s PSP, and the prior Obama PPG was also eventually released through FOIA litigation).
Increasing transparency, however, requires more than releasing a redacted version of the policy guidance. Importantly, the American people should be able to weigh the costs of remaining on a permanent war footing. To that end, the White House should release elements of its broader counterterrorism strategy, including key objectives, how the use of force advances these objectives, and plans for “over-the-horizon” operations in the wake of the U.S. withdrawal from Afghanistan. The administration should also articulate a legal theory for how the global armed conflict against terrorist groups ends. Sharing this information publicly would allow the administration to shape the narrative that it is committed to transparency, the rule of law, and the values-based approach it has touted as a key aspect of its foreign policy.
To further bolster this narrative, the administration should reinstate a new version of Executive Order 13732, which, among other things, required all U.S. government agencies during the Obama administration to publicly disclose the number of civilians killed in drone strikes. The new executive order should require the Director of National Intelligence to report the total number of civilians killed in areas outside of active hostilities by intelligence agencies (the military is already subject to this requirement under the National Defense Authorization Act). Doing so would provide the American people with a fuller picture of counterterrorism operations outside of active battlefields, which are more likely to be covert. Indeed, the Biden administration may rely increasingly on intelligence agencies to conduct and support direct action, as indicated by Biden’s public statements praising the U.S. intelligence community for its role in the raid against ISIS leader Abu Ibrahim al-Hashemi al-Qurayshi.
Another missed opportunity concerns key loopholes that persist in the application of the policy guidance. Like its predecessor documents, the PPM applies only outside of “areas of active hostilities,” which for the purposes of this administration means that it currently applies outside of Iraq and Syria. The decision to exempt Iraq, in particular, is noteworthy given that U.S. forces transitioned to a “non-combat role” in the country at the end of 2021, as Brian Finucane has also observed. These exemptions signify that a significant proportion of U.S. strikes – namely, against ISIS – will not be subject to stricter targeting standards, increasing the risk of civilian casualties in those areas and requiring less centralized control by the president. The selective scope of the policy guidance implies that the United States will continue to consider itself bound only by the more permissive laws of war in many circumstances outside of Iraq and Syria, including in places that do not appear to be war zones in the traditional sense.
In theaters where the PPM does apply, even constrained counterterrorism operations are unlikely to have the intended effect. As Oona Hathaway and Luke Hartig have explained in these pages, counterterrorism solutions in places such as Yemen and Somalia ultimately are “less about getting military operations right and more about building stability and good governance.”
Somalia, in particular, represents an area where the PPM is likely to have little effect on current U.S. operations. The vast majority of operations in that theater are taken in collective self-defense of local forces fighting terrorists on the ground, meaning, as Sarah Harrison notes, that strikes often resemble close air support to U.S. partners. Notably, the PPM does not apply to strikes taken in unit or collective self-defense, which tend to produce the most civilian harm. The Biden administration should prioritize closing these loopholes.
Significantly, the policy guidance does not appear to require partner forces to abide by the stricter standards, such as the near certainty requirement that civilians will not be harmed. This oversight is concerning because, as the United States relies more on partner forces to carry out its counterterrorism strategy, there is an increased risk that direct action will be conducted with fewer safeguards in place. To address this problem, the Biden administration should ensure its policy guidance on direct action is incorporated into Department of Defense efforts to train, advise, assist, and equip foreign forces, as well as in the creation of any joint rules of engagement. Although the United States will always face some limits in attempting to constrain partner operations, it ought to at least ensure that any operations that rely directly on U.S. advisory support or the provision of intelligence meet the PPM standards.
Finally, the administration should set legal limits on direct action. As in the past, the PPM is a policy, rather than legal, document. This means that the president – and all future presidents – can disregard the guidance at any time and with no warning. Additionally, the PPM, like its predecessor documents, reportedly includes an internal exemption that allows the president to approve strikes without the PPM’s constraints in extraordinary circumstances, and yet still publicly call it a PPM strike.
While the executive branch is undoubtedly keen to preserve freedom of action, tying its own hands is necessary to prevent future abuses of power that could spark national security crises abroad and lead to further democratic backsliding at home. Working with Congress to repeal the 2001 AUMF, as well as to codify stricter standards for direct action, would help prevent such abuses. But even if these steps prove too difficult, the administration could simply stop invoking the 2001 AUMF as a legal justification for strikes taken overseas (relying instead, for example, on Article II authorities wherever possible). This step would set an important policy precedent, albeit one that could still be reversed.
Beginning of the End?
Some glimmers of hope may be found in the administration’s broader counterterrorism strategy. While that document has not been released, there are indications that it focuses on reducing the risk posed by transnational terrorism, addressing socio-economic root causes, and relying more heavily on local law enforcement. All of these efforts are welcome moves that, if pursued in tandem with the proposals above, could signal the true beginning of the end of perpetual war.
Focusing on risk reduction is the right approach. But reducing risks cannot be the sole objective. Instead, the administration must consider the issue of risk transfer, or the extent to which it is morally acceptable to put foreign civilians at increased risk in order to decrease the risks to American lives. The answer to this question cannot be that the United States will remain permanently at war – with all of the costs that war entails despite attempts to constrain it – to protect against increasingly remote risks to Americans. Such measures undermine our collective security in the long term, and the Biden administration would be wise to start shifting now toward an approach under which targeted strikes are conducted only in extraordinary circumstances, rather than as the cornerstone of counterterrorism policy. It can do this without Congress. It can do this today.
The United States is at a crossroads. Its conventional wars in the Middle East have ended, the threat from terrorism has receded, and it is time to set aside the war paradigm. The Biden administration should recognize the gravity of this historical moment, navigate the legal, moral, and policy challenges that it presents, and ultimately seek to illuminate a path back to peace. Failing to do so raises the Orwellian prospect of further descent into perpetual war, where “by becoming continuous, war has ceased to exist” and therefore can never fully end.
This war, like all wars, must end. If only we have the courage to close the Gates of Janus.