This is not the first time U.S. drones or other airstrikes have missed the mark. It is the continuation of policies that have resulted in decades of civilian harm, as meticulously documented by a series of award-winning New York Times reports. The strike that killed ten civilians, including seven children, during the U.S. withdrawal from Afghanistan in August 2021 is one prominent example, but there are countless other strikes that have claimed innocent lives that never make the headlines.

These incidents are tragic, but they are not merely “tragic mistakes.” Civilian harm resulting from U.S. strikes is the result of systemic problems that have plagued the program for decades, a continuous failure to learn from the past, and a growing military culture of impunity.

What is concerning about this latest incident is how the Department of Defense (DOD) did not seem to know much about who it killed with a drone in a highly important strike trumpeted by the Pentagon and despite a series of proposed reforms within the Department to address civilian harm and stricter policy guidance from the White House. U.S. military officials speaking on condition of anonymity to the Washington Post offered mixed assessments of the latest strike, with one official acknowledging the Pentagon was “no longer confident” it had killed a senior al-Qaeda member and another official stating that “though we believe the strike did not kill the original target, we believe the person to be al-Qaeda.”

The evidence for the belief that Misto was a member of al-Qaeda is classified, making it impossible to verify claims of what the DOD knew or thought it knew at the time. But al-Qaeda has not claimed any of its members were recently martyred, as is typical after such strikes. Counterterrorism experts also say it would be highly unusual for al-Qaeda to operate in the area where the strike occurred, which is controlled by rival group Hayat Tahrir al-Sham. Video footage from the civil defense “White Helmets” immediately following the strike also corroborates that the U.S. missile killed the 56-year-old farmer.

What is more, the U.S. military has a history of misidentifying targets due to confirmation bias and relying on outdated or unsubstantiated intelligence reporting. DOD previously has also misclassified civilians as combatants based on flimsy evidence, including a combination of factors such as gender, the presence of weapons, and physical proximity to fighting or known terrorist locations.

Congress, for its part, should ensure that there is an independent investigation into this incident and accountability for any wrongful harm. In the wake of the strike, Congresswoman Sara Jacobs (D-CA) urged the Pentagon to “conduct a full investigation into what happened, make potential plans for amends, and report to Congress.” Rep. Ilhan Omar (D-MN) similarly called for DOD to find out the “truth of what happened, provide the compensation that Congress has repeatedly authorized, and allow independent investigations.”

As U.S. officials grapple with the fallout from the latest drone strike, Congress and senior administration officials should demand answers to the following questions:

1. Who was the original target of the strike? On what basis was the target selected and how was it approved?
2. Why do some U.S. officials reportedly believe that even though Misto was not the original target, he was nevertheless an al-Qaeda member?
3. What evidence was there linking Misto to al-Qaeda pre-strike and post-strike? Does DOD assess that individuals are members of al-Qaeda based on their physical proximity to known terrorist locations, or other signatures associated with terrorist activity? What factors alone suffice to make such a determination both pre-strike and post-strike?
4. What were the assessments of other agencies pre- and post-strike of the intended target and resulting casualty? At what level of confidence were any such determinations made?
5. How have targeting procedures within DOD changed since the implementation of the Civilian Harm Mitigation and Response Action Plan? Were such safeguards adequate in this case and, if not, why not?
6. Why did it take DOD nearly a month to review its initial assertion that it had killed a senior member of al-Qaeda? What triggered this review?
7. How is DOD investigating claims that Misto was a civilian? When will the post-strike review be completed and is DOD considering information from external sources, such as media and civil society organizations, in its review?
8. Does DOD include the same methods of verification as the outside experts referenced in the Washington Post report?
9. If the review concludes Misto was a civilian, what steps will DOD take in terms of reparations? Will reparations include a formal apology and condolence payments, and what is the timeline for such actions?
10. What will DOD do differently next time? What lessons have been learned from this incident that will inform future operations? What lessons have been learned that might bring into question the accuracy of past U.S. airstrikes in which external reporting may not have been available?

Image: Military unmanned aerial vehicle at sunset (via GettyImages). 

The post Death by Drones: Does the Pentagon Always Know Who it is Killing? appeared first on Just Security.

For years DOJ has withheld the information necessary to see behind the domestic terrorism convictions it claims. Data on prosecutions from U.S. Attorneys is compiled in a government database, which includes several categories relevant to domestic terrorism, but identifying information (e.g., docket numbers) about the cases is redacted. Seeking to understand which political leanings were targeted in domestic terrorism cases and the type of conduct that rose to the level of terrorism in the eyes of prosecutors, we filed a Freedom of Information Act request for this data. When our request was denied, we sued the department to obtain identifying information about the roughly 4,000 cases that were tagged as relating to terrorism for the period from January 2006 to September 2020. 

Initially, we won the right to see this information for cases that had resulted in convictions. District court Judge Randolph Moss found that information about “how and when the Department categorizes cases as terrorism cases and following trends relating to these prosecutions” would inform policy debates on immigration, national security, and prosecutorial priorities. This benefit, the judge ruled, overrode defendants’ interest in keeping their criminal convictions private. DOJ re-opened the matter, arguing that while an individual’s criminal conviction was no secret, the fact that they were suspected of engaging in terrorist activity was not necessarily public, and the stigma associated with such an allegation raised privacy stakes.

Judge Moss agreed. He ordered the department to review case files tagged as terrorism and release identifying information on those that had been publicly linked to terrorism or met the statutory definition of domestic terrorism. The department has thus far reviewed some 1,140 dockets. According to its monthly releases of docket numbers, in only 71 (roughly 6 percent) did the DOJ make a clear connection to domestic terrorism (e.g., in charging documents, sentencing memoranda, requests for sentence enhancement, and press releases). Information on the vast number withheld is sparse. It appears that over a quarter of the cases were included in the National Security Division’s list of international terrorism cases. Of the remaining cases, around 70 percent began as terrorism investigations but may have turned into something else, although the DOJ continued classifying them as terrorism related. The DOJ claimed there was insufficient information about 100 or so outstanding cases to come to any conclusion. 

Surprised by the low number of cases that met the criteria for disclosure, we asked Judge Moss to conduct an in camera review of documents relating to a sample tranche of 20 cases withheld by the DOJ. He found that 19 out of 20 cases he reviewed did not involve terrorism but were mostly personal disputes, concluding that the government’s representation of its counterterrorism efforts is “vastly overstated.” 

While some inaccuracies and changes in direction are to be expected, this level of error is striking, especially since the DOJ claims the full number as terrorism-related in its annual statistical reports. Unfortunately, it is a problem of long standing. The need to update the government’s terrorism databases to reflect changes was first flagged in 2003 by the Government Accountability Office and by the DOJ inspector general in 2007 and again in 2012 and 2013. The last report recommended that the department implement a system for promptly re-coding any case that “began as a terrorism or national security investigation” but turned out to be a different type of case. But extreme inaccuracies in the government’s data persist.

Congress has repeatedly sought information from DOJ and the Department of Homeland Security on their domestic terrorism efforts, most recently by adding an extensive reporting requirement in the 2020 National Defense Authorization Act (NDAA). But recent reports from the GAO and from the Senate Committee on Homeland Security and Governmental Affairs found that the agencies have failed to fulfill this mandate. Instead of providing reliable and comprehensive information, the agencies’ NDAA report offered information on handpicked cases. For example, while the FBI’s open domestic terrorism investigations have more than quadrupled to 9,049 since 2013, the list of “FBI-Designated Significant Domestic Terrorism Incidents” appended to the 2021 report contains only 85 examples of cases in the period 2015-2019, of which almost 90 percent involve militias, sovereign citizens and other anti-government groups, and attacks motivated by racial animus. Only seven are tagged as “Animal Rights/Environmental Extremism.” 

This contrasts with the historical record exposed in our litigation. Out of the 71 domestic terrorism cases for which the department has released information, under 40 percent involve the types of actors and ideologies that make up the bulk of the FBI’s list, while most of the remaining cases involve environmental activism. While differences between different data sets prevent an apples-to-apples comparison, these discrepancies show how easily incomplete information can create an impression that may not be supported by more fulsome reporting.

This level of obfuscation and confusion undermines confidence in the Justice Department’s domestic terrorism efforts. As Judge Moss put it, “many millions of dollars… are being appropriated to fight this thing, whatever it might be. It would really be good to know what the Government thinks it is.” We agree.

IMAGE: The Department of Justice building in Washington, DC (via Getty Images)

The post U.S. Domestic Terrorism Prosecutions: The Reality Behind the Government’s Inflated Numbers appeared first on Just Security.

In advocating for an expansion of section 1202, Department officials have reportedly promised that the authority would be “limited to noncombat operations.” Congress, however, should cast a wary eye on this promise and on the Department’s overarching request for broader authority.

Section 1202 is a provisional authority, in effect through 2025, that permits the Department of Defense to recruit, train, equip, and pay salaries to foreign militaries, paramilitaries, and even private individuals who are supporting U.S. “irregular warfare” operations — defined as “competition . . . short of traditional armed conflict” — against supposed malign state actors. By putting section 1202 partners on payroll, U.S. forces gain the ability to command them, directing them to achieve U.S. military objectives either alongside U.S. forces or in U.S. forces’ stead. As a result, the Department describes its relationship with section 1202 partners as one of “operational control,” and it refers to these partners as “surrogate forces.”

Surrogate forces can be a powerful tool: They are a force multiplier and can afford the Department of Defense access or credibility that American troops may not have in a foreign context. But working by, with, and through foreign partners carries serious risks, both of escalation and of unlawful combat.

In the past, security cooperation programs have pulled U.S. forces into combat with adversaries who are not clearly covered by any congressionally enacted authorization for use of military force (“AUMF”). This is especially true of surrogate force programs run under 10 U.S.C. § 127e, an established counterterrorism authority on which section 1202 is based. According to investigative reporting, the Department has used section 127e surrogate forces to pursue Boko Haram and various Islamic State affiliates in countries ranging from Cameroon to Egypt. Neither Boko Haram nor any Islamic State affiliate has been publicly disclosed as one of al-Qaeda’s “associated forces” or “successor forces” who can be targeted under the 2001 AUMF, per the executive branch’s interpretation of that authority. This raises questions about whether the Department has worked by, with, and through surrogates to target these or other organizations under yet‑undisclosed interpretations of the 2001 AUMF or the president’s constitutional authority — or worse, whether the Department has treated section 127e as a de facto AUMF.

Department of Defense officials have taken pains to distinguish section 1202 from its progenitor, section 127e. In a conversation in mid-2022, a current Department official assured me that section 1202 surrogate forces were not being commanded into combat like their section 127e peers. That same official, however, was unaware of any written Department policy that would prevent section 1202 programs from being used for combat. Other former and current Department officials with whom I spoke were similarly unaware of such a policy, and a public memorandum outlining the Department’s original procedures for implementing section 1202 contained no language prohibiting kinetic programs. (The memorandum was set to expire on August 3, 2022. The Department has not published a replacement policy, and the New York Times is now suing the Department under the Freedom of Information Act to obtain any such policy.) One current official with experience working on section 1202 programs said he would be “surprised” if the Department decided to promulgate a policy foreclosing combat because “you want to be flexible, in case you’re asked by [a lawmaker] or the president” to have surrogate forces undertake kinetic operations.

Nor are the weak limits in section 1202 itself — its definition of “irregular warfare” and its rules of construction — sufficient to prevent combat through surrogate forces. Although “irregular warfare” is defined as conduct “short of traditional armed conflict,” the Department of Defense views nontraditional or gray-zone conflict as encompassing “the full range of military and other capabilities,” including proxy and guerilla operations. As recently as last summer, a group of Department lawyers, writing in their personal capacity, assessed that the Department could run section 1202 programs in Ukraine to assist war efforts against Russia, so long as the United States did not itself “become embroiled in the ongoing conflict.”

The rules of construction similarly fail to guard against the use of section 1202 to engage in combat. Although one rule specifies that section 1202 is not itself an AUMF, it does not prevent the Department of Defense from using surrogate forces in furtherance of the president’s claimed authority to use force under Article II of the Constitution. The rule prohibiting the use of surrogates for operations that U.S. forces “are not . . . legally authorized to conduct themselves” suffers from the same defect, according to multiple Department of Defense officials with whom I have spoken. This is worrying because the Department of Justice’s Office of Legal Counsel (“OLC”) has interpreted Article II of the Constitution to allow the president to use force, without congressional authorization, whenever it is in the “national interest” and unlikely to produce a conflict of sufficient nature, scope, and duration to constitute “war in the constitutional sense.” Leading experts have criticized that OLC’s interpretation “provides no meaningful constraint” on the president’s authority to launch airstrikes or direct U.S. forces into low‑intensity combat. Indeed, recent presidents have relied on this interpretation of Article II to intervene in Muammar Gaddafi’s Libya and attack Bashar al-Assad’s military installations in Syria — without Congress’s prior approval.

If Department of Defense officials are telling Congress that section 1202 programs will not involve combat, they may be making a promise they cannot keep. Without real guardrails, mission creep or personnel turnover (including in the White House) could easily result in section 1202 surrogate forces being commanded into combat. There’s certainly an appetite to push the present boundaries: Just last week, a former Marine Corps official proposed using kinetic section 1202 programs to “target[] Chinese military assets” in the South China Sea.

To the extent that Congress wants to prevent section 1202 surrogate forces from being used like their section 127e counterparts, Congress needs to limit the authority, not expand it. Congress should add language to section 1202 that would prevent the authority from being used to implement expansive interpretations of the president’s authority to use force without congressional authorization. This could be a simple fix, accomplished by requiring section 1202 programs to support “ongoing and statutorily authorized” U.S. irregular warfare operations. Congress should also improve its capacity to oversee section 1202 programs, which are poorly understood by most members of the defense committees and largely concealed from members of the foreign affairs committees.

Our Constitution gives Congress, not the president, the constitutional power to declare war.  It gives Congress the authority to create, fund, and regulate the military. As it stands, section 1202 is an overbroad authority that already risks degrading these constitutional prerogatives and removing decisions of war and peace from democratic debate and accountability. Contrary to the Department of Defense’s assertions and asks, expanding section 1202 would deepen these risks, widening the aperture for U.S. forces to engage in and direct combat in unauthorized, foreign wars.

IMAGE: (L-R) U.S. Special Operations Commander Gen. Bryan Fenton, Assistant Defense Secretary for Special Operations Christopher Maier and Gen. Paul Nakasone, commander of U.S. Cyber Command and director of the National Security Agency, testify before the Senate Armed Services Committee in the Dirksen Senate Office Building on Capitol Hill on March 07, 2023 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

The post Congress Should Limit, Not Expand, Irregular Warfare Authority appeared first on Just Security.

Yet, as one of us has previously discussed, recent editions of this transparency report are more notable for what they conceal and omit than what they reveal. The 2022 report illustrates the limits of congressionally mandated reporting requirements on matters of war and peace and the need for Congress to be more proactive in informing itself and the U.S. public on how the executive branch uses force and conceives of its own authority.

Named after the section of the Fiscal Year 2018 National Defense Authorization Act in which it was originally codified, the 1264 report on “the legal and policy frameworks for the United States’ use of military force and related national security operations” must describe “the legal, factual, and policy justifications” for any changes to the frameworks during the prior year. Specifically, the report is to include, inter alia, a list of groups covered by the 2001 Authorization for Use of Military Force (2001 AUMF) and the criteria for designating foreign forces and individuals as lawfully targetable or as belonging to a group covered by the 2001 AUMF. In addition to the annual report, Congress has also required that changes to these legal and policy frameworks must be notified to relevant congressional committees within 30 days.

A few aspects of the brief 2022 report are noteworthy.

Classified transparency

First, and foremost, like previous reports beginning in the Trump administration, the report contains a classified annex. Thus, this latest report does not by itself strive to provide a comprehensive update on use of force frameworks. Instead, much of the relevant “transparency” is classified.

Such secrecy is particularly significant with respect to the list of groups the executive branch deems covered by the 2001 AUMF. As one of us has previously written, the executive branch has a mixed record at best over the last two decades of publicly disclosing who it thinks the United States is at war with under the AUMF. After prodding from the Senate Armed Services Committee, the Obama administration eventually released an unclassified list of the entities it considered covered by the 2001 AUMF. In the Trump administration, the executive branch reverted to classifying the complete catalog of groups. The new 1264 report states there has been “no change” to this still classified list.

One question raised by this “no change” claim is how the executive branch slices and dices various jihadi groups for the purposes of the 2001 war authorization. For example, since 2014, the executive branch has deemed the Islamic State covered by the 2001 AUMF. But it is unclear whether the Biden administration currently conceives of ISIS in Iraq and Syria and all of its affiliates (e.g., ISIS-Khorasan Province, ISIS-West Africa, ISIS-Sahel, ISIS-Libya, ISIS-Somalia, ISIS-Yemen, ISIS-DRC, ISIS-East Asia Province, ISIS-Mozambique etc.) as a single undifferentiated entity or many separate groups for AUMF purposes. Do some of all of them qualify as “part of” ISIS? Does each have to meet the test of a so-called “associated force” used by the Obama and Trump administrations, including having “entered the fight” alongside ISIS and “against” the “United States or its coalition partners”? (More than twenty years into the war on terror, it is unclear who these “coalition partners” currently are.) Given the number and geographic distribution of these ISIS affiliates, how the executive branch understands ISIS for purposes of AUMF coverage could have significant implications for which of the myriad regional conflicts involving ISIS the United States could also become a party to.

Geographic scope and a new legal basis for using force in Afghanistan

The report states that the “calendar-year report for 2021 reflected that the United States used military force in Afghanistan, Iraq, Syria and Somalia. As previously recognized, the United States used force in each of those countries in 2022 as well.” This framing suggests that the list of Afghanistan, Iraq, Syria, and Somalia may not be exhaustive. Whether additional states are listed in the classified annex is, of course, a secret.

With respect to Afghanistan, the report indicates a potentially nuanced change to the international legal basis for using force against al-Qa’ida, ISIS, and other (unspecified) terrorist threats. Prior to the August 2021 withdrawal of U.S. forces from Afghanistan, the consent of the government of Afghanistan had been a basis under international law for the use of force in that country. Discretely alluding to the collapse of the Ashraf Ghani government and the Taliban’s ascent to power accompanying the removal of U.S. forces from the country (“In light of changed circumstances associated with [the US] withdrawal…”), the report states the “United States does not intend to rely on that previously provided consent.” (emphasis added).

This wording makes clear that the United States will not rely on the consent of the now deposed government of Ashraf Ghani for operations within Afghanistan. But it does not preclude the possibility that the United States might seek, or already have, the consent of the Taliban for counterterrorism operations against targets of mutual interest, specifically ISIS.

In addition, the United States reserves, “absent reliance on consent to use force in Afghanistan” the “inherent right to use necessary and proportionate force in self-defense to the extent Afghanistan is unwilling or unable to confront effectively the threat to the United States emanating from the territory of Afghanistan.” (The report does not specify who for these purposes represents Afghanistan, though the United States has not formally recognized the Taliban as the government of Afghanistan.) Self-defense under Article 51 of the UN Charter and in particular, incorporating the controversial “unwilling or unable test” into its self-defense rationale, would thus seem the likely purported international legal basis for potential strikes on targets where U.S. and Taliban interests do not align, namely those taken against al-Qa’ida. For example, the administration was dismissive of the suggestion that it had coordinated with the Taliban on the July 2022 strike on al-Qa’ida leader Ayman al-Zawahiri. (“No, of course, we did not alert the Taliban to the fact that we were going to take this strike.”) As with the “unable or unwilling” test itself, the notion that a state using force in self-defense against a non-state actor on another state’s territory can skip seeking the consent of the territorial states is controversial, though the Biden administration may well argue that requesting Taliban consent for such strikes would be so clearly self-defeating that it is not required under international law.

What else is missing?

A notable absence in this latest report is any mention of the legal basis for reoccurring hostilities between U.S. forces and “Iran-backed militia groups” in Syria. Such hostilities in both the Trump and Biden administrations have repeatedly sparked bipartisan inquiries from members of Congress (see here and here). The low-level conflict with these groups raises a number of legal issues under both domestic and international law, as discussed here and here.  The Biden administration’s silence on the matter in this report seemingly implies that the relevant legal and policy frameworks, whatever they may be, are unchanged since these hostilities began during the Trump administration. Like the underlying conflict with these groups, the executive branch’s legal thinking on these hostilities may also be on autopilot or at least classified.

The Biden administration also missed an opportunity to publicly reject the Trump administration’s fraught claim that the 2002 Iraq AUMF and the president’s inherent Article II war powers provided legal justification for the January 2020 strike that killed Iranian general Qassem Soleimani. While the Biden administration has not invoked the Trump administration’s flawed justifications for the Soleimani strike, failing to officially disavow them leaves in place an avenue for a future administration to take advantage of these legal interpretations in order to vastly expand U.S. military operations without prior congressional authorization, should they so choose.

What’s new?

The 2022 report is approximately one page longer than the Biden administration’s past two section 1264 reports (see here and here). This additional page is largely due to the reiteration of two previously announced new policies – the Presidential Policy Memorandum (PPM) concerning “direct action against terrorist targets outside areas of active hostilities” and a Defense Department action plan to improve civilian harm mitigation and response.

The PPM, which is understood to provide rules governing lethal strikes and raids outside of Iraq and Syria, is discussed minimally. While the report notes the PPM’s existence, it says nothing of is contours, which are reserved for the classified annex. News of the PPM first came via an October 2022 Charlie Savage New York Times article, which cited an anonymous “senior administration official” who conveyed “key aspects” of the policy for inclusion in the piece. According this article, the Biden administration envisioned developing “country plans” to provide further guidance on the PPM’s implementation. The anonymous official also discussed with Savage a new memo setting out the administration’s counterterrorism strategy, which was developed alongside the PPM and has also been kept secret.

The Biden administration’s refusal to release the actual PPM is baffling, given both the Obama and Trump administrations were court ordered to release their lethal force policies (here and here) and did so, with appropriate redactions. Both members of Congress and civil society organizations have called on the administration to make its new lethal force policy and counterterrorism strategy memo public. The Biden administration should heed these calls and rather than waiting for the inevitable outcome of litigation on the matter, release the full PPM along with any country plans as well as the counterterrorism strategy memo, with minimal redactions to protect classified information.

Finally, the report includes a summary of the recently released Defense Department Civilian Harm Mitigation and Response Action Plan (CHMR-AP), which was signed by Secretary of Defense Lloyd Austin and released in full in August 2022. The CHMR-AP was designed to improve protections for civilians in armed conflict and ensure appropriate responses when civilians are killed or injured in U.S. operations. It is the culmination of mounting pressure on the Defense Department to improve its civilian harm policies and procedures following a high-profile August 2021 drone strike in Kabul, Afghanistan that killed 10 civilians, including 7 children, and a series of New York Times investigations that uncovered systemic failures in department policy and practice concerning civilian harm.

The CHMR-AP was welcomed by civil society organizations (see, for example, here and here), who praised its comprehensive nature and potential to address longstanding structural flaws within the Defense Department that have led to preventable civilian harm, inadequate investigations, and a lack of proper redress. Commentators have also noted the need for effective implementation to ensure the action plan’s success, while also criticizing its failure to re-open past cases of credible allegations of U.S. harm that the Defense Department has not acknowledged.

Time for Congress to Step Up Again

Overall, the brevity of the Biden administration’s 2022 report is consistent with its general attitude to the war on terror: deemphasize it, discuss it as little as possible, and sometimes even pretend as though it were over. As one of us has written with Luke Hartig, this approach, while understandable, is misguided.

Permanently winding down the war on terror requires greater transparency from the executive branch, including regarding its own legal theories on the use of force. Congressional reporting requirements, such as that mandating the 1264 report, are helpful when the executive branch takes them seriously. Sadly, in this case, its added value appears to be shining a spotlight on just how much the executive branch treats transparency as a box-checking exercise. In the end, reporting requirements by themselves are insufficient in achieving the disclosure needed to enable a full and frank discussion concerning when and where the United States is using military force and conducting related operations in the name of national security. If Congress wants to better inform itself and the U.S. public—as it should—about these matters of war and peace, it will need to be more assertive in extracting relevant information from the executive branch through sustained and disciplined oversight (as discussed here) of how and on what basis the United States is using force.

IMAGE: A U.S. Army helicopter flies outside of Camp Shorab on a flight to Camp Post on September 11, 2017 in Helmand Province, Afghanistan. (Photo by Andrew Renneisen/Getty Images)

The post Opaque Transparency on the Use of Force: Observations on the 2022 “1264” Report appeared first on Just Security.

Section 702 was added to the Foreign Intelligence Surveillance Act in 2008 to allow the U.S. government to acquire critically important intelligence from foreign targets that use U.S. communications services. As the Director of the National Security Agency (NSA), General Paul Nakasone, recently explained at a public forum sponsored by the Privacy and Civil Liberties Oversight Board (PCLOB), “FISA Section 702 is irreplaceable” and plays an “outsized role in protecting the nation” by “providing some of the most valuable intelligence on some of our most challenging targets.” From its statutory construct to its practical application to its expansive compliance regimen, the Section 702 surveillance program represents a carefully configured national intelligence undertaking of “irreplaceable” value to the national security. However, Section 702 is not a permanent surveillance authority; it requires periodic reauthorization by Congress and is currently scheduled to expire on December 31, 2023. The most important foreign intelligence “reform” question of this year is what this indispensable authority will look like by the end of the 2023 congressional reauthorization debate.

In a recent Just Security article (the first in a series on foreign intelligence reform) Elizabeth Goitein from the Brennan Center for Justice described Section 702 of the Foreign Intelligence Surveillance Act (FISA) as “a go-to domestic spying tool for the FBI” and predicted that this intelligence collection authority, ”will not be renewed without a major overhaul” while describing General Nakasone’s comments as “tone deaf” “boilerplate.” Some background, and a differing perspective, on the debate over Section 702 is merited.

On the day it became law in 2008, the ACLU and other privacy and civil liberties organizations sued to have Section 702 declared unconstitutional. That challenge was rejected by the Supreme Court on standing grounds and, since then, Congress has reauthorized Section 702 twice (2012 and 2017) despite intense opposition from many of these same critics. In recent weeks, the Supreme Court turned aside yet another ACLU challenge to Section 702, and every court to have considered the question has affirmed the program’s constitutionality. Indeed, the “back door” search issue and the other challenges raised by Section 702’s opponents are not new.

This is, most assuredly, a very critical year for Section 702. The usual consortium of conservative libertarians and civil liberties advocates who have historically opposed Section 702 is now joined by those in the House of Representatives who have expressed concerns regarding the “weaponization” of the federal government.

Among the alleged flaws that may have prompted some defenders of Section 702 to remain silent or accept that Section 702 will not exit the reauthorization process in a form resembling its present configuration is the contention that the FBI is employing Section 702 as a “domestic spying tool” through its massive use of “warrantless” “back door” searches. In any reform discussion, however, it is imperative that the NSA and other agencies that do not have a law enforcement mission be addressed separately from the FBI, and with respect to the latter, there are targeted, sensible reforms regarding use of Section 702-acquired information for non-national security investigations that would avoid throwing the baby out with the bathwater.

How Section 702 Works

Understanding how the term “warrantless” – often used by Section 702 opponents – applies in this context first requires understanding the underlying design of Section 702, which permits the government to acquire foreign intelligence information by targeting the communications of non-U.S. persons reasonably believed to be located outside the United States. These non-U.S. person targets have no rights under the Fourth Amendment so no warrant is needed to collect communications obtained pursuant to an authorized Section 702 acquisition. The targeting of any U.S. person, anywhere, at any time is specifically prohibited by Section 702. However, as Congress recognized, Section 702 acquisitions of foreign communications would also “incidentally” acquire the communications of those U.S. persons who happen to communicate with foreign targets, and these communications, like those of the foreigners actually targeted, are stored in the Section 702 database retained by NSA which is the “lead” agency for Section 702 collection.

The scope of this “incidental” collection is significant because Section 702 is a large, programmatic surveillance program collecting hundreds of millions of communications from its foreign targets (232,432 in 2021, for example), so the number of “incidentally” acquired U.S. person communications is also sizeable. These aggregate numbers for Section 702 collection are largely irrelevant to the “back door” search issue because the FBI receives access only to the communications generated by the particular targets that the FBI has nominated for collection. In 2021, for example, this afforded the FBI access to only 4.4% of those Section 702 targets – or roughly 10,000 of the 232,432 foreigners targeted. FBI practice is to target those foreigners considered relevant to its fully predicated national security investigations – and the incidental U.S. person communications included in the FBI’s access to this limited part of the Section 702 database are those of American “friends, relatives, and colleagues” communicating with these FBI-nominated foreign targets.

Congress predicated its construct of Section 702 upon accepted doctrine that a reasonable search or seizure meets the requirements of the Fourth Amendment, and then created a statutory and compliance architecture to satisfy that standard under which the Section 702 program operates. This includes targeting, minimization, and querying procedures that afford U.S. person communications privacy protections consistent with the government’s need to obtain, produce and disseminate foreign intelligence. Those procedures must be approved by the Foreign Intelligence Surveillance Court’s (FISC) as meeting the requirements of the Fourth Amendment before they are implemented. This structure for Section 702 collection has repeatedly been confirmed as fulfilling the Fourth Amendment’s standard of “reasonableness” even in the context of the scope of incidental collection that Congress understood to be an acknowledged feature of programmatic Section 702 collection.

Section 702 opponents, however, generally dismiss both the FISC and what they insist is the truncated, constitutionally deficient judicial review process that Congress provided for Section 702 certifications, which “detail[] the type of information to be collected.” Notably, however, while Section 702 limits the matters subject to review by the FISC to the certification and targeting, minimization, and querying procedures used with a Section 702 acquisition, it imposes no strictures on the latitude afforded the FISC in conducting its review. The language used by Congress in Section 702 directs the FISC to satisfy itself that these targeting, minimization, and querying procedures are “consistent with [Section 702] and with the fourth amendment to the Constitution of the United States.” The FISC is statutorily unfettered with regard to the process it pursues to reach its conclusion and, consequently, it does not limit its review to the statutory procedures as written but extends that review to include an examination of how those procedures have been and will be implemented in practice.

To be clear, this Fourth Amendment review is not undertaken by administrative functionaries beholden to the Intelligence Community or broader executive branch; the FISC is populated by life-tenured federal district judges who are appointed to the FISC by the Chief Justice of the U.S. Supreme Court for seven-year terms. In examining every Section 702 certification, these judges consider “every identified compliance incident reported by the government through notices and reports, other reports concerning implementation and compliance information such as the number of targets and other statistical information, the results of oversight reviews, and assessment of compliance trends.”

Once communications are obtained pursuant to an authorized Section 702 acquisition, those communications are stored in the Section 702 database. That database represents a sort of primordial “stew” the contents of which are accessed by “querying,” which NSA’s Querying Procedures (approved by the FISC) describe as “the use of one or more terms to retrieve the unminimized contents … of Section 702-acquired information from an NSA system.” In other words, the content of any particular communication in the Section 702 database, including the incidentally collected communications of U.S. persons, is unknown until a query is initiated that extracts that communication from the database.

No court order is needed to search the Section 702 Database using U.S. person query terms to find foreign intelligence information

It is the querying of the Section 702 database using a “U.S. person” query term (meaning terms that are “reasonably likely to identify one or more specific U.S. persons”) that is of most concern to Section 702’s critics. There is no dispute regarding the government’s legal authority using Section 702 to acquire the communications of targeted non-U.S. persons located outside the United States. If one’s view of querying is that only the initial Section 702 acquisition is a Fourth Amendment search or seizure (this Fourth Amendment interpretation to the querying of the database was clearly expressed in U.S. v. Mohamud (D. Or. June 24, 2014), aff’d, 843 F.3d 420 (9th Cir. 2016) (“subsequent querying of a § 702 collection, even if U.S. person identifiers are used, is not a separate search and does not make a § 702 search unreasonable under the fourth Amendment”)), any subsequent querying of those lawfully acquired communications requires no separate Fourth Amendment justification.

But some courts (such as the Second Circuit in 2019) and commentators say that the querying of the Section 702 database using U.S. person identifiers is a separate search that implicates the Fourth Amendment, and Section 702’s critics insist that the FBI’s querying of that part of the Section 702 Database to which it has access using a U.S. person query term to obtain “evidence of a crime” in pursuit of its law enforcement functions does require separate Fourth Amendment justification. Goitein goes even further, based on past NSA compliance issues (her examples date from 2017 and 2011), to argue that the querying of the Section 702 database using U.S. person query terms by any of the four agencies having access to all or, in the FBI’s case, some part of that database “requires the government to obtain a probable cause court order before performing U.S. person queries.” In her view, where a U.S. person query term is used to query the Section 702 database in a “foreign intelligence investigation,” the government must obtain a FISA Title I order from the FISC. Alternatively, where the U.S. person query is used for a law enforcement purpose, a warrant based upon probable cause must be secured from a federal magistrate judge.

Even accepting the premise that searching the Section 702 database of communications already lawfully acquired under the authority of a FISC-approved Section 702 certification constitutes yet another search, the Fourth Amendment’s “reasonableness” standard simply does not require a FISA Title I order to use a U.S. person query term to find and extract foreign intelligence information.

NSA, the focal point for Section 702 collection, is a foreign intelligence agency with no law enforcement mission. Congress specifically provided that Section 702 acquisitions targeted at non-U.S. persons reasonably believed to be located outside the United do not require a Title I court order. Equally significantly in terms of the Fourth Amendment analysis, as noted earlier, the NSA Querying Procedures, approved by the FISC as meeting the requirements of the Fourth Amendment, provide that the only purpose for which NSA analysts can query the Section 702 database is to retrieve foreign intelligence information.

Courts have recognized that this foreign intelligence focus triggers an entirely different “reasonableness” assessment under the Fourth Amendment than that used either for law enforcement purposes or to assess whether a U.S. person can be targeted as an “agent of a foreign power” under FISA Title I. This analysis recognizes both the existence of a foreign intelligence exception that exempts the query from the law enforcement-based warrant requirement, and that the application of the court-approved minimization and querying procedures serves to make the query’s intrusion into individual privacy interests “reasonable” when balanced against the government’s interest in national security – an interest repeatedly recognized by the courts as being of the “highest order.”

There also are serious adverse practical consequences to obtaining a FISA Title I order whenever a U.S. person query term is used in “foreign intelligence investigations.” The Fourth Amendment reasonableness analysis that accepts the compliance architecture as a proxy furnishing acceptable privacy protections in connection with querying the Section 702 database also recognizes as reasonable the government’s need for flexibility to act with dispatch in serving the government’s paramount interest in protecting the national security. The debilitating impact of obtaining a FISA Title I order whenever a U.S. person query term is used to find and extract foreign intelligence from the Section 702 database is starkly demonstrated by these numbers: in 2021, the FISC issued a total of 430 orders authorizing FISA Title I surveillance while the NSA, CIA and NCTC conducted 12,748 queries of the Section 702 database using U.S. person query terms designed to find and extract foreign intelligence. Requiring the government to seek a FISA Title I court order for these 12,748 queries would overwhelm the 10 current members of the FISC and cripple the Intelligence Community’s ability to provide crucial intelligence to policy makers on a timely basis – a practical reality of which Section 702 opponents are assuredly aware.

Any reforms Congress addresses to FBI querying issues should be limited only to FBI queries not designed to retrieve foreign intelligence information

The ”back door” search issue, a term coined by Section 702 critics, was at issue during the last reauthorization of Section 702 in 2017, and Congress responded by adding additional querying procedures to the panoply of statutory requirements governing Section 702 acquisitions. Those querying procedures include the requirement that, in connection with a predicated criminal investigation opened by the FBI unrelated to the national security, the FBI may not access the content of communications in the Section 702 database using a U.S. person query term that is not designed to find and extract foreign intelligence information without first procuring an order from the FISC demonstrating probable cause that the USP query term will produce (1) evidence of criminal activity, (2) contraband or the fruits or instrumentalities of crime, or (3) property designed for use or intended for use in committing a crime.

While appearing to address the “back door” search issue on paper, these new querying mandates have not allayed the objections of Section 702 critics because, in practice, since 2017, the FBI has yet to seek a single order under the “F(2)” querying requirement and, in April 2022, the Office of the Director of National Intelligence reported that there had been four “identified instances” in 2021 where a FISC order “was required pursuant to Section 702(F)(2) but not obtained” prior to reviewing the results of a U.S. person query.

For the first time, the 2022 DNI Statistical Transparency Report also provided statistics about the scope of the FBI’s querying of that part of the Section 702 database to which it has access. While the methodology and parameters used to produce these FBI querying statistics are somewhat arcane — the Report devotes four pages to explaining them – it is apparent that, by any standard of measurement, the FBI’s querying of unminimized Section 702 content dwarfs the cumulative querying totals of the NSA, CIA and NCTC. This reflects, in significant part, the FBI’s unique role in both foreign counterintelligence and law enforcement, but it would be obtuse to ignore the statistics in the 2022 DNI Statistical Transparency Report reflecting a challenging compliance environment at the FBI.

Only a measured response, limited to identified problems, can avoid significant harm to this valuable national security intelligence program

Given the continuing nature of the FBI’s querying problems, it will not be a surprise to see Congress entertain some measure of reform to address these FBI querying issues. But prudence dictates that, with additional reporting on Section 702 forthcoming (e.g., the 2023 DNI Statistical Transparency Report, the Director of the Administrative Office of U.S. Courts Report on Foreign Intelligence Surveillance Courts’ Activities, and other compliance reports required by law), serious consideration of any substantive legislative change should await receipt and analysis of this additional information.

Most important, if legislative revisions of Section 702 follow, they should be directed solely to addressing known FBI compliance problems and focused exclusively on the FBI’s use of U.S. person query terms that are not designed to find and extract foreign intelligence information. By way of example only, and similarly to the crimes limitations for which electronic surveillance can be used for law enforcement purposes, Congress could (1) specifically limit the FBI’s use of information derived from Section 702 to “foreign intelligence crimes” to ensure a tighter nexus between Section 702’s foreign intelligence purpose and any prosecutions based, in whole or in part, on Section 702-derived information; (2) reexamine the “Rule of Construction” found in Section 702(f)(2)(F) with a view towards allowing access to the Section 702 Database only in connection with predicated FBI investigations, but not with assessments; and (3) analogous to current NSA standards, require that the FBI’s use of any USP query term used to find and extract foreign intelligence receive prior review and approval by the FBI Office of General Counsel and require periodic reapprovals. Such measures could be combined with statutory restrictions on Section 702 access within the FBI, and increased reporting and compliance mandates, to protect the privacy interests implicated by Section 702’s incidental collection of U.S. person communications.

To quote Susan Hennessy and Ben Wittes during the last Section 702 reauthorization cycle in 2017 that seems equally apt here, “start with panicky civil libertarians, sprinkle in some right-wing conspiracy theories about [the “weaponization” of the Intelligence Community], and polish it off with a healthy dose of congressional dysfunction and the result is bad surveillance policy in the name of reform.” But misdirected legislating is far too dangerous for a world menaced by Chinese belligerence, North Korean missiles, Iranian-sponsored terrorism and Russian aggression. Congress must proceed with caution, using a scalpel not a truncheon, and carefully tailor any reform to ensure that the indispensable value of Section 702 as the nation’s most important foreign intelligence collection authority is preserved.

IMAGE: The National Security Agency (NSA) headquarters at Fort Meade, Maryland, as seen from the air, January 29, 2010. (Photo by SAUL LOEB/AFP/Getty Images)

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An updated set of policy responses to transnational terrorism is long overdue. But the report is also crucial for ensuring that the United Nations’ practices are not contributing to growing counterterrorism abuses. Ultimately, bad counterterrorism practices at the United Nations contribute to bad practices and outcomes at the national level, compounding civilian harm.

But while the report touches on the right issues, it does not fully address important questions concerning oversight, impact and effectiveness, and the role of technology in U.N. counterterrorism operations.

Strengthening Oversight

Chief among these unanswered questions is how to address the issue of oversight of U.N. counterterrorism systems and programming. The previous GCTS asked the Secretary-General to assess the need for an internal advisory or monitoring and evaluation capacity to further integrate the rule of law, human rights, and gender across the counterterrorism system. This represented a step back from an earlier, more ambitious proposal – supported by the U.N. Special Rapporteur on Human Rights and Counter-Terrorism and many civil society groups – for an independent and impartial Human Rights Ombudsperson with a mandate to review the activities of U.N. entities implementing the GCTS.

This call for independent oversight emerged for two reasons. First, Member States, civil society, and even some U.N. entities perceived there was a lack of transparency within the U.N. counterterrorism architecture. This was a particular concern for states that were unable to assess the effectiveness of their financial contributions to counterterrorism programs. Second, and perhaps most importantly, the lack of effective oversight generated significant reputational risks for the United Nations itself. The risk of potential human rights violations and civilian harm resulting from counterterrorism operations is high; the United Nations’ failure to establish a mechanism to guard against such abuses is a serious oversight.

The report, to its credit, notes the support of the Special Rapporteur and other stakeholders for an independent oversight body (para 38, Annex II), but beyond that makes no effort to offer states a reasonable option to implement this recommendation. On the contrary, much of its analysis focuses on existing (and fairly dated) approaches to oversight across a range of U.N. entities. There is no mention at all of the reputational risk to the United Nations. The report unsurprisingly concludes with a proposal for the U.N. Office of Counter-Terrorism (OCT) to “strengthen existing internal accountability frameworks” (para 38, Annex II) to deliver effective oversight – frameworks that have failed to deliver meaningful accountability for nearly two decades. For Member States and others desiring a more effective and accountable U.N. counterterrorism system, this recommendation falls short.

A Results-Based Culture?

In the current political climate, many Member States are no longer willing to allow the U.N. counterterrorism architecture to consume increasing resources without metrics or evidence-based results. While the report’s section on results goes to great lengths to outline the approach the U.N. OCT has taken to develop a “results-based culture,” it falls short of providing concrete evidence that there has been meaningful improvement. The report references a new “Results Framework,” but provides no information on what the framework entails or how it has been used. Despite the recent approval of a three-fold budget increase for U.N. OCT, the report maintains that “substantial investments may be required to address a lack of dedicated resources for monitoring and evaluation” (para 18, Annex III).

The omissions, meanwhile, are more glaring than the text itself. The report usefully highlights the 2021 ‘Learn Better, Together’ meta-synthesis of evaluation and other oversight reports from U.N. OCT and the U.N. Office on Crime and Drugs (UNODC). Yet it falls to mention the meta-synthesis’ most crucial finding, which is that most of the available evidence to the United Nations Global Counter-Terrorism Coordination Compact was “inadequate to assess (not to mention quantify) the extent to which…outcomes were being achieved” (page XVI). The meta-synthesis notes this as not concerning just “second-order outcomes with complex causal chains such as behavioural changes, but even with respect to the first-order outcomes such as change in knowledge and awareness” (page XVI).

Adapting to Technological Change

The nexus between technology and terrorism is an area of increasing focus for the United Nations and Member States, but to date the United Nations has embraced a “human rights-lite” approach to the use of technology in counterterrorism efforts. Human rights standards that exist elsewhere are referenced, yet insufficient care is taken to articulate how these obligations apply to use of technology in counterterrorism. The Secretary-General’s report continues this trend. The human rights risks of this approach, as well as the reputational risk to the United Nations, are significant.

The report devotes three paragraphs to the “challenges and opportunities of new technologies.” The first two paragraphs (paras 74-5), after a brief nod to the rule of law and human rights, present a variety of ways that technology might be used by terror groups. Not all of the technologies mentioned are new (i.e., the internet and social media), nor are all widely available (i.e., self-driving cars). More troubling, while there is no doubt that the technologies mentioned might be used in such a manner, no analysis is done of the precise nature or scale of the risk. The implicit argument is that listing technologies that could be misused alone is enough to justify new or expanded counterterrorism efforts.

Does it? The final paragraph of the report’s section on technology demonstrates why the answer to that question is not as obvious as the report seems to imply. This paragraph contains another list: in this case, it is an accurate but incomplete list of the documented human rights harms associated with states’ use of technology for counterterrorism purposes. These include violations of the rights to privacy and fair trial; undue restrictions on the freedoms of association, expression, religion or belief, and non-discrimination; internet shutdowns; and mass surveillance.

To its credit, the report concludes that “[i]ncreased transparency and oversight of measures taken by both Member States and private service providers should…be prioritized” (para 73). Unfortunately, it goes no further. This is consistent with past U.N. statements on the need to respect human rights when employing technology to counter terrorism, including in the 7th GCTS and, notably, in the “Delhi Declaration on countering the use of new and emerging technologies for terrorist purposes,” adopted by the U.N. Security Council Counter-terrorism Committee in December 2022. But like those references, this reference is cursory and general. There are real costs to the lack of deeper consideration of how to prioritize transparency and oversight. States are rapidly expanding their use of technology to counterterrorism and failing to provide meaningful human rights guidance will lead to real human rights harms. What is lacking in the report and is needed, if not here, then in the 8th GCTS itself, is a fulsome articulation of the human rights responsibilities of counterterrorism actors – Member States, the U.N., and private – when employing technology to counter terrorism. The Secretary-General’s report could have contributed to this, but did not.

Human Rights, Civic Space, and Gender

While the Secretary General’s report fails to satisfactorily answer the above questions, it does reiterate and strengthen existing precedent on human rights, civic space, gender, and civil society inclusion. The report acknowledges both the intentional misapplication of overly-broad definitions of terrorism and laws against human rights defenders, and the need for justice for victims of misapplied counterterrorism measures. It references the risk of reprisal measures against civil society actors for their engagement with the United Nations and criticizes countering the financing of terrorism (CFT) measures that restrict civil society’s access to funding and financial services.

There is an explicit call for the protection and preservation of open civic space, while the need to create a safe and enabling environment for civil society to engage in public affairs is noted as a necessary condition for transparent, effective, and accountable civil society participation. A study on counterterrorism’s effects on civil society, to be released by the U.N. Special Rapporteur on Human Rights later this year, should further elaborate on this point. On gender, the report repeats previous calls for the integration of specific and contextualized gender-analysis across counterterrorism measures, including on the roles of conceptualizations of masculinities, structural inequalities, and gendered stereotypes.

While clear language on human rights and civil society participation is welcome, the continued gap between exhortation and implementation has only grown more stark. Without oversight, accountability, and transparency, there is unlikely to be meaningful improvements in these areas.

Ultimately, while the Secretary-General’s implementation reports inform GCTS reviews, they do not – and should not – set the boundaries for what is possible. Those who wished to see a clearer presentation of options for how the United Nations can respond to pressing challenges, prevent the proliferation of future bad counterterrorism practices, and protect the United Nations against reputational risk will be disappointed. Yet this should not deter Member States from thinking about solutions beyond those in the report. The starting bell may have rung, but we still have a long way to go yet.

IMAGE: UN Secretary-General Antonio Guterres delivers a speech during the 52nd UN Human Rights Council session, in Geneva, on February 27, 2023. (Photo by FABRICE COFFRINI/AFP via Getty Images)

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In foreign policy debates, values and interests are usually counterposed. International Relations scholars make a distinction between realism and idealism. Realism is about the pursuit of national interest by military force, if necessary, through “blood and iron” to quote German Chancellor Otto von Bismarck. Idealism, by contrast, is about the construction of a peaceful, rights-based international system.

These terms are misleading. It is no longer realistic to pursue national interests through military force, as the United States discovered in Vietnam, Afghanistan, and Iraq, and as Russia is discovering in Ukraine. All forms of military force have become so destructive that it has become almost impossible to achieve military superiority, to use military force for what Thomas Schelling called “compellence,” except against unarmed civilians. Moreover, in a globally interconnected world, it is increasingly difficult to preserve peace and security unilaterally, something small states have long understood. National security, nowadays, can be achieved only through international security; we are only as safe as the world in which we live. What is known as an interest-based or realist approach is usually associated with an old-fashioned conception of military power. What used to be called idealism is the only realistic option for humankind in the face of multifaceted threats – from war to climate change to infectious disease, and so on.

U.S. President Joe Biden talks about a values-based approach to foreign policy. Yet this is true of all American presidents—even George W. Bush claimed he was promoting democracy and American values when he invaded Iraq. The most recent U.S. National Security Strategy contains an odd and contradictory mixture of language about both interests and values. There is a lot of emphasis on pursuing and defending America’s interests and the importance of military strength, which has also been the staple of past U.S. administrations. At the same time, the strategy is peppered with statements about values. Perhaps what is new is the way those values have been spelled out – the need for a rules-based international system that respects universal rights and the need to address shared global challenges such as climate change, disease, energy shortages, and transnational terrorism.

There is also an uncomfortable conflation of the values-based conflict between democracy and authoritarianism and the geopolitical competition between the United States, on the one hand, and Russia and China on the other. While Biden insists he does not want to start a new Cold War, it was precisely the military framing of the contest between democracy and totalitarianism that defined the Cold War period and prompted the West to deem military partners such as Turkey or Brazil as “democratic,” even when that was far from true. There is indeed a struggle between democracy and authoritarianism that is much broader than U.S. competition with Russia and China and cannot be captured purely in military terms, even if it is currently being fought out in Ukraine through military means. The ideological struggle against authoritarianism is playing out in Hungary, India, Iran, Israel, and even within the United States with the rise of Trumpism.

By insisting on the salience of geopolitical competition, however, the United States is failing to uphold a key pillar of a values-based approach to foreign policy—the salience of human rights. A genuine values-based approach needs to be able to integrate and prioritize human rights at every level, including in military planning. Military strength is the central component of geopolitics. A human rights-based foreign policy might require the use of force in some circumstances but instead of a military posture primarily designed for geopolitical competition with Russia and China, such an approach requires developing civilian and military capabilities for certain limited tasks: to defend against aggression, to manage emerging crises, or to contribute to peacekeeping missions. A change in the role and nature of military force should be central to any shift towards value-based foreign policy.

Importantly, defending against aggression is distinct from engaging in geopolitical military competition. During the 1980s, amid concerns about the offensive posture of NATO and the dangers of weapons of mass destruction, proposals were put forward for “defensive deterrence”— deterring foreign attacks through a credible conventional defensive posture rather than through the threat of nuclear or conventional retaliation. Defensive deterrence, or deterrence by denial, aims to avoid the kind of competitive armament that characterizes geopolitical competition. It also eschews the kind of nuclear modernization being undertaken at present in a misguided effort to compete with both China and Russia, with potentially catastrophic results.

Crisis management and peacekeeping missions, moreover, aim to reduce incentives for violence, rather than seeking to achieve conventional military victories or negotiated, top-down agreements. Central to this goal is the establishment of legitimate and inclusive political authority and the rule of law. Such interventions should be civilian-led and involve a combination of civilian and military actors. The tasks of the military in these circumstances should include protecting civilians from attack and creating a safe environment in which a legitimate political authority can be established; monitoring and upholding local peace agreements and ceasefires as part of multi-level peace building involving civil society, especially women; establishing humanitarian space through corridors and safe havens that allow for the delivery of humanitarian assistance; and arresting war criminals.

A human rights-based approach to terrorism, meanwhile, would look very different from the current iteration of the “war on terror.” In Afghanistan, for example, the United States has long relied on military force, rather than other tools of statecraft, to counter perceived threats to Americans. This approach did not work – it fueled the insurgency and empowered corrupt commanders who ultimately undermined the legitimacy of the Afghan government. The U.S. strategy in Afghanistan also failed to consider the security of ordinary Afghans. It would be unthinkable to conduct air strikes inside the United States, for example, in a hunt for suspected terrorists, not just because of the potential for civilian harm but also because of the importance of due process and the provocative and escalatory nature of any air strike. The United States’ continued reliance on “over-the-horizon” strikes in Afghanistan and elsewhere is not only contrary to a values-based approach to security, but it may also be counter-productive from a more traditional conception of national security, particularly since such strikes have often fueled local grievances and terrorist recruitment efforts.

More than two years into the administration, what can we say about Biden’s values-based approach to foreign policy? The withdrawal from Afghanistan, without inclusive peace talks and agreed security arrangements, was a tragedy that failed to consider the security of Afghans, especially women and girls. And the campaign of “over-the-horizon” targeting of suspected terrorists is completely contrary to a rights-based international rule of law. On the other hand, the policy towards Ukraine has been exemplary. The Biden administration has been the largest provider of military and economic aid and has encouraged allies to provide support. At the same time, it has been careful not to risk escalation by refusing direct NATO intervention and imposing clear restraints on possible violations of Russian territory. When the Russian regime dropped hints about using nuclear weapons, the discussion about responses focused on conventional and political responses. It is, of course, a tightrope between helping Ukraine to win and preventing a world war – a tight rope made harder by the presence of large numbers of weapons mass destruction in both Russia and the United States.

NATO’s new Strategic Concept, the outcome of the June 2022 Summit in Madrid, emphasizes the need to integrate human security “across all our core tasks.” And several NATO members, notably the United Kingdom, are mainstreaming human security throughout the armed forces. The same needs to happen in the United States. Human security, or a human rights-based approach to security, offers an alternative to both geopolitics and muscular counterterrorism. It would involve far-reaching changes in the composition and type of military forces, and it would give substance to the idea of a values-based approach to foreign policy.

IMAGE: Helicopter hovering above an American flag (via Getty Images)

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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.

Over Classification

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.

IMAGE: In this photograph taken on July 31, 2022, smoke rises from a house following a US drone strike in the Sherpur area of Kabul. US President Joe Biden announced on August 1 that Al-Qaeda chief Ayman al-Zawahiri had been killed by a drone strike in the Afghan capital. (Photo by AFP via Getty Images)

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The “carveouts” in the new GLs include authorizations for U.S. business, certain international organizations such as the United Nations, and NGO activities related to disaster relief, health services, democracy support, education, environmental protection, and peacebuilding, among others. The issuance of these GLs is an acknowledgment of the unintended consequences of sanctions that prevent much needed peacebuilding and humanitarian assistance and will begin to untie NGOs’ hands by reducing the threat of criminal sanctions and allow U.S. foreign assistance – through the life-saving work of NGOs – to better address the drivers of violent conflict and extremism. However, Congress needs to pass legislation that codifies and expands these vital protections. Without this critical step, NGOs will continue to face the uncertainty that U.S. policy may shift with a change in administrations and that banks will be disincentivized from assisting NGOs conduct their work.

Material Support Laws Criminalize Vital Peacebuilding and Humanitarian Programs

After 9/11, Congress adopted broad legal restrictions on providing “material support” to FTOs. While it did not design these well-intentioned laws to limit programs working to end conflicts, reduce violence, and build sustainable peace, the effect has chilled NGO activity, despite the robust safeguards peacebuilding and humanitarian organizations use to prevent the diversion of funds to FTOs. The potential criminal and civil consequences can prove too risky for NGOs, often resulting in their decision to withhold the delivery of vital services and programs, a trend which ultimately deprives vulnerable populations of the critical aid and programs they needed to build sustainable peace and security. Although the Secretary of State, with concurrence of the Attorney General, has the authority to create exceptions for providing “personnel,” “training,” or “expert advice or assistance,” the State Department has been reluctant to exercise this waiver under both Democratic and Republican administrations.

The Antiterrorism and Effective Death Penalty Act (AEDPA), which created the criminal prohibition on providing material support to designated FTOs, has been broadly interpreted by the courts and bipartisan administrations. Under AEDPA, NGOs face criminal repercussions for providing assistance that advances peacebuilding, conflict prevention, and disarmament, demobilization, and reintegration (DDR) of violent extremists. For instance, NGOs are prohibited from providing training for FTO members on how to participate in peace negotiations or implement demobilization and reintegration processes. More alarmingly, the laws prohibit even incidental transactions with the FTOs, such as paying road tolls or utility bills in areas controlled by FTOs, which further reduces an NGO’s ability to operate under such risks, even to provide basic humanitarian assistance.

In Holder v. Humanitarian Law Project, the Supreme Court said that while Congress has broad discretion to determine the definition of “material support,” it has failed to do so. The Court then considered the particular facts of the case and found that organizations could not provide conflict resolution training to the Kurdistan Workers’ Party in Turkey and the Liberation Tigers of Tamil Eelam in Sri Lanka because doing so would qualify as material support in the absence of a Congressional definition.

In addition, under the International Emergency Economic Powers Act (IEEPA), the executive branch may impose sanctions on FTOs through executive orders (EOs), a tool it has used to create civil liability for violating the material support prohibition and to impose substantial fines. The EOs do not define “material support,” but generally incorporate the broad AEDPA definition, and as a result, further deter peacebuilding and humanitarian NGOs because that assistance could be construed as “material support” to an FTO.

Notably, OFAC can and does provide “specific licenses” (SLs) to NGOs and other entities that permit otherwise prohibited transactions with sanctioned individuals and organizations. However, the application review process is slow,burdensome, and often unsuccessful and, based on NGO experience, inhibits the timely delivery of life-saving and life-changing assistance to crisis and conflict affected communities. In conflicts such as those in Syria and Iraq, NGOs and U.S. government agencies faced significant obstacles in obtaining SLs for peacebuilding and humanitarian activities. Even when SLs are issued, risk-averse banks often refuse to transfer funds to NGOs operating in these contexts. Concerns remain that the GLs provided in December may not provide enough cover to financial institutions to facilitate behavior change and transfer funds to NGOs operating in sanctioned contexts.

In 2011, Senator Patrick Leahy criticized the material support prohibition during the Somalia famine:

The current law is so broad as to be unworkable…. It also limits the actions of individuals and NGOs engaged in unofficial diplomacy and peacebuilding. These actors often engage in informal negotiations that serve United States interests and have no intent to support terrorist movements.

There are numerous examples that demonstrate how these prohibitions prevent the U.S. government and U.S.-based and funded NGOs from providing vital assistance to prevent and reduce violent extremism. In Nigeria, NGOs could not provide assistance to the kidnapped Chibok girls released from Boko Haram captivity because of their affiliation to group, which the U.S. government designated as an FTO. Similarly, in Nepal and Colombia, NGOs were prohibited from providing key assistance because the Maoists and FARC were still designated as FTOs even though there were elections in Nepal and a peace process in Colombia and both countries were in the process of demobilization, disarmament, and reintegration.

The FTO material support provisions also impact the successful implementation of other federal laws. The Global Fragility Act (GFA) is a game-changing law that puts conflict prevention and peacebuilding at the center of the U.S. government’s diplomacy, assistance, and security strategies in four priority countries and one region over 10 years. The GFA was born out of the challenges and shortcomings of U.S. foreign aid and diplomacy in conflict-affected and fragile States, but success will require a fundamental shift in how the U.S. government does business. Failure to provide long-term exemptions for the material support prohibition for peacebuilding and humanitarian NGOs will undermine GFA efforts to address the drivers of radicalization and promote community and country resilience to violent extremism.

The GFA Coalition, which is comprised of more than 100 NGOs and co-led by AfP and Mercy Corps, has argued that material support prohibitions would inhibit successful GFA implementation, particularly in Libya, Mozambique, and Coastal West Africa. Libya continues to grapple with the presence of the Islamic State and al-Qaeda affiliates, while the ISIS-M is destabilizing the north of Mozambique, and violent extremism continues to spread from the Sahel and Lake Chad Basin throughout Coastal West Africa. Clear protections for NGOs are essential to ensure their unimpeded assistance to GFA governments, civil society, and communities to reverse fragility trends and stem the influence and impacts of violent extremists.

The Need for an Expanded Legislative Solution to the Material Support Problem

In the wake of the Taliban takeover in Afghanistan, OFAC issued a series of general licenses for which NGOs had strongly advocated, signaling a significant pivot in the Biden administration’s approach to sanctions. In October 2021, the Treasury Department published a comprehensive review of U.S. sanctions policy, which found that sanctions remain effective as a coercive policy tool, but require careful calibration. These efforts, and substantial consultation between OFAC and civil society throughout 2022, set the stage for the historic Dec. 20 decision to expand broader protections.

While the OFAC licenses for NGOs engaged in legitimate activities are a positive step toward creating an enabling environment that allows NGOs to deliver vital services in conflict-affected and fragile States, they are far from a long-term guarantee to remove the legal risk to NGOs operating in these settings. They do, however, provide an opportunity for NGOs to deepen confidence among lawmakers that U.S.-funded organizations can implement these vital programs without resources ending up in the hands of bad actors. Congress should now pass a law that codifies and expands these protections with a comprehensive list of covered activities that would protect NGOs from civil and criminal liability and provide financial institutions the necessary cover to fund these activities. NGOs play a vital role in advancing U.S. assistance and policy, but only if they can operate freely and do their jobs of preventing and reducing violent conflict and extremism and building sustainable global peace.

IMAGE: The seal of the Treasury Department is seen on the Treasury Department Building in Washington, D.C. on Jan. 18, 2023.  (Photo by Mandel Ngan/AFP via Getty Images)

The post The Treasury Department’s Material Support Carveouts are a Welcomed First Step – But Congress Must Act to Create a Sustainable Fix appeared first on Just Security.

“American values,” claimed former U.S. President Jimmy Carter, “are not luxuries but necessities, not the salt in our bread, but the bread itself.” If values in foreign policy are the bread – something essential – then ambition is the salt. Small portions enhance, excessive portions spoil, and large enough portions kill. This lesson applies to a range of foreign policy issues, including U.S. remote warfare. Going forward, the Biden administration should be more circumspect in its reliance on lethal force as a foreign policy tool and more ambitious in expanding protections for civilians in and outside of traditional war zones.

A Morally-Directed Approach to Targeted Killing?

The Biden administration has made its commitment to a values-based foreign policy explicit, most recently in its October 2022 National Security Strategy. The document contains familiar references to democracy, freedom, human rights, and the need to counter autocracy, all framed around an assumption of the indispensability of American global leadership. The section on the Middle East, in contrast, contains a franker admission of limits: 

We have too often defaulted to military-centric policies underpinned by an unrealistic faith in force and regime change to deliver sustainable outcomes, while failing to adequately account for opportunity costs to competing global priorities or unintended consequences.

These types of statements, coupled with Biden’s decision to fully withdraw U.S. ground forces from Afghanistan, reveal the administration’s reluctance to rely on force alone, and willingness to curb its military ambition accordingly. 

Yet while Biden has dramatically decreased the tempo of drone strikes, his drone playbook remains largely the same as that of his predecessors. In the wake of the Afghanistan withdrawal, Biden pledged to continue to eliminate terrorist threats through “over-the-horizon” operations, avoiding the political, financial, and human costs of large-scale troop deployments.

This “lighter footprint” approach is favored not only for its lower political cost, but also as a way for the United States to better align its values with its interests. The U.S. occupation of Afghanistan did improve the lives of many Afghans, particularly girls and women in cities. These benefits, however, generated at a cost of over $2 trillion, were only ever partial and never truly durable. The United States lost its war against the Taliban; failing to recognize this and risking more lives in service of an unachievable goal would have been not only imprudent but immoral. “Over-the-horizon” operations, it is hoped, will eliminate terrorist threats to the United States and innocent civilians abroad, while shielding American forces from unnecessary combat risks. 

This targeted killing approach to conflict management assumes an efficacy not borne out by the evidence. As we have seen in Libya, Syria, and elsewhere, remote warfare does not necessarily make the United States – nor the civilians who occupy affected areas – safer. These legally contested strikes also do little to address the political and economic conditions on the ground that create and sustain terrorism and militancy in the long term. In the absence of a coherent strategy and clearly delineated benchmarks for success, it is difficult to see how, from a moral perspective, the administration can justify the civilian harm resulting from such strikes. 

Remote warfare is no panacea, and the belief that it is or will eventually be has led to harms and injustices at odds with the “values-based” foreign policy the Biden administration espouses. U.S. policy toward the Middle East going forward should be rooted in humility – a stronger presumption against violence; a rejection of ambition unmoored from prudence; a greater willingness to uphold domestic and international law; and an understanding that not all risks warrant a response and not all responses should be kinetic. 

Moral Ambition and Civilian Harm

Not every airstrike, of course, is immoral and not every target is a victim. There will be times when it is both strategically wise and moral for the United States to strike those who represent a significant and temporally imminent threat. In cases where the use of force is justified, however, the United States should take seriously its moral (as well as legal) responsibilities to develop more ambitious policies to prevent and make amends for civilian harm. 

Civilian harm is a tragic and unavoidable feature of war, an important reason to uphold the prohibition on the use of force that forms the bedrock of international law. But not all civilian harm is equally unavoidable. Far too many deaths result from recklessness and gross negligence – harms that while not intended were foreseen, or harms that were not foreseen but entirely foreseeable. Counterterrorism strategies that rely heavily on remoteness are not a form of “riskless” war—these strikes all too often increase risks to civilians on the ground, particularly when the available intelligence on which targeting decisions are based is outdated, incorrect, or misinterpreted. 

The civilian consequences of remote warfare, and the longstanding moral inadequacy of U.S. responses to this harm, were underscored by the August 2021 drone strike in Kabul which killed ten civilians, including seven children. After initially prevaricating about the outcome of the strike, the Pentagon promised to reduce the risks of collateral civilian harm via broad changes to military planning, doctrine, and training. The Civilian Harm Mitigation and Response Action Plan (CHMR-AP) released a year later is an important, but insufficiently ambitious, first step.  

Arguably the biggest failure of the CHMR-AP is the refusal to review credible past cases of civilian harm, a morally indefensible stance given that civilian deaths from U.S. actions over the past twenty years may be as high as 50,000. A values-based foreign policy that takes military violence—and its too often ruinous consequences—seriously must look back as well as forward. Without this, commitments to improve ring hollow, particularly when reports show that the U.S. military has systematically and repeatedly failed to learn past lessons on civilian harm. 

Virtually all the problems associated with U.S. remote warfare were known, or at least knowable, far earlier than they were addressed. What was absent was not available facts but the ambition to reconceptualize civilian protection as a positive duty – as something more than the intention not to kill. Going forward, civilian harm issues should be prioritized at every level of government, and the organization, structure, and application of the use of force modified accordingly. In some cases, this will necessitate a relaxation of force protection or a ruling out of strikes altogether. Future reforms should also be implemented proactively to forestall civilian harm, not resisted until a particularly well publicized case of misconduct forces change. 

Civilians will never be entirely safe in war and no change in policy, no matter how ambitious, should delude us into thinking otherwise. But measures can be taken to further reduce civilian harm and more closely align U.S. strategic interests with its values. The Biden administration must have the ambition to make these policy changes and reshape the future of remote warfare.

IMAGE: A U.S. Army CH-47 Chinook helicopter takes off at sunset while transporting American troops out of a remote combat outpost known as RLZ on May 25, 2021 near the Turkish border in northeastern Syria. (Photo by John Moore/Getty Images)

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