Jim’s mother, Diane Foley, has pushed through the horror of those years by establishing the James W. Foley Legacy Foundation in her son’s memory and pressing the U.S. government persistently over a decade to reform its approach to cases of American hostages held abroad. At the time, its policy, as she explains in a recent article published by Just Security, consisted of little more than a slogan: “The United States does not negotiate with terrorists.”

Co-hosting this episode is Just Security’s Washington Senior Editor, Viola Gienger.

On this episode, we’re privileged to have Jim Foley’s mother, Diane Foley, and Luke Hartig, a member of Just Security’s editorial board, who first met Diane when he was a senior director at the National Security Council working on hostage policy and she was advocating for changes in hostage policy. He serves on the Foley Foundation’s advisory board.

Diane has been a driving force in reforming U.S. policy and practices on the handling of American hostages held abroad. Part of that campaign has been an annual research report that the foundation produces, entitled Bringing Americans Home. It collects and analyzes evidence-based data on hostages currently held in 16 countries to inform the American public, government officials, and lawmakers about how the U.S. government is doing and what else is needed to secure the release of U.S. hostages abroad and reduce the risks of capture in the first place. The latest edition was just released.

Listen to the episode by clicking below.

The post The Just Security Podcast: The Evolution of U.S. Hostage Policy appeared first on Just Security.

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)

The post Permanently Winding Down the War on Terror Requires Greater Transparency appeared first on Just Security.

In an anonymously sourced article that has all the markings of an officially sanctioned story, the New York Times’ Charlie Savage reports that President Joe Biden has recently approved a new policy on counterterrorism direct action (i.e., drone strikes and commando raids) that appears to largely roll back the Trump-era policies to the 2013 Obama administration standards. The return to more restrictive standards is welcome and overdue, especially in light of Biden’s campaign commitments to end the Forever War. And in many ways, the Obama-era guidance is better suited to contemporary conflicts than the counterterrorism campaign for which it was written.

Yet the new policy leaves much necessary business undone. How the administration interprets key legal and policy concepts around direct action compared to international allies remains hotly disputed. The faithful execution of the policy by the military – particularly how it seeks to prevent civilian casualties and how it investigates civilian casualty incidents – requires much more work. The transparency agenda is stalled, and much of the “war on terror” remains shrouded in secrecy. And more must be done to actually institutionalize the administration’s policies so as to prevent the next administration from merely rolling back the new standards.

The PPM’s Rules – A Return to the Obama Era?

Unless the Presidential Policy Memorandum (PPM) codifying Biden’s new policy is publicly released, we can’t know all that it contains, but the Times reporting indicates that it largely mirrors the 2013 Presidential Policy Guidance (PPG) that governed operations throughout President Obama’s second term. Like the PPG, it requires that strikes only be conducted against targets that pose a “continuing, imminent threat to U.S. persons” and only when capture is assessed to be infeasible. It reinstates the PPG’s requirements that commanders assess with “near certainty” both that an approved target is present and that civilians will not be harmed. It strongly favors strikes against high-value terrorists (HVTs) while preserving a process for the President to approve lawful strikes against targets other than HVTs. It requires the Ambassador/Chief of Mission for the country in which the operations occur to concur with strikes (an important safeguard for ensuring diplomatic and broader foreign policy considerations are taken into account). And it requires the President’s personal approval of targets, except in cases of unit or collective self-defense where the policy guidance does not apply.

To be fair, the Trump guidelines that replaced the PPG – the Principles, Standards, and Procedures (PSP) – were far better than might have been expected from a president who promised to commit war crimes as part of his counterterrorism policy. Drafted by well-respected career professionals, the PSP affirmed a commitment to standards that exceeded the requirements under the law of armed conflict (LOAC), preserved the “near certainty” of no civilian casualties standard, and stated that capture is “generally preferred over lethal action.” However, the PSP ended the requirement that lethal action only be taken against specific targets that posed a “continuing, imminent threat to U.S. persons,” loosened standards for affirming that an approved target was present, and delegated far more authority to operating agencies to conduct operations without interagency review. Reports also suggested that in Somalia, Trump approved country-specific rules that were looser than the PSP otherwise required.

Rolling back some of the Trump administration’s more permissive targeting standards is a good thing, but is a reinstatement of the PPG a good place to land? I have argued that the Biden administration should not simply snap back to the Obama drone rules, as the world and our operations have evolved since then. In my view, we should adopt stricter standards that reduce the reliance on drones as a weapon of first resort and that move us closer to ending the Forever War.

That said, in reading the Times reporting and reflecting on how the PPG was implemented, it strikes me that the Obama-era rules, faithfully interpreted, may actually be a better fit for today’s world than they were at the time they were adopted. The Obama rules often seemed to envision a world that just wasn’t quite reality. It imagined greatly constrained strikes, conducted only as a last resort, in countries where other means of addressing terrorism existed. The guidance referred to these locations as “outside areas of active hostilities.” Yet the United States faced growing threats across the final years of the Obama administration, and its underdeveloped partners were in ever more intensive combat with several terrorist groups ostensibly operating outside areas of active hostilities. In fact, violence worsened in every theater of operations governed by the PPG in the years after it was approved. Kinetic operations against al-Shabaab in Somalia, al-Qaeda in the Arabian Peninsula in Yemen, and al-Qaeda, then ISIS, in Libya would rise in the years after the document was signed. Just over a year after the guidance was approved, the administration launched a massive campaign against ISIS in Iraq and Syria and determined that the PPG would not apply there. Even in Libya, where the PPG was in effect, the administration decided that certain areas more closely resembled a hot battlefield and those areas were exempted from the PPG.

Rules set forth to constrain the use of force seemed to adapt to these threats. That’s not to say they had no impact. Strikes in key theaters would eventually decline, and non-governmental organizations generally documented declining civilian casualties in theaters where the PPG was in effect. But Obama’s exhortation that we had to come off of a “perpetual wartime footing” did not actualize during his two terms nor Trump’s single term in office.

Fulfilling the Promise of Restrained Counterterrorism

We face a far different counterterrorism landscape today. The United States has withdrawn forces from Afghanistan and is no longer at war with the Taliban, limiting strikes to al-Qaeda, ISIS, and groups deemed to be “associated forces,” such as al-Shabaab.

Meanwhile, U.S. forces have killed the heads of ISIS and al-Qaeda twice over, along with many other top operatives, depriving them of critical leadership and operational expertise. Operations have declined precipitously in Syria and Iraq. Yemen remains locked in conflict, but external threats from al-Qaeda and ISIS elements in the country have declined. French allies have dramatically scaled back their operations in the Sahel. Somalia is the lone theater where the United States has ramped up its operations, yet even there, U.S. strikes and al-Shabaab attacks remain lower than violence we have seen in recent years. By most accounts, terrorist threats are substantially lower than they were a decade ago, and we are far better at defending against threats that cannot be disrupted by strikes.

In this context, a policy that actually does what the 2013 PPG tried to do may be entirely appropriate. The problem is unwinding a decade of interpretations and implementation practices that have often stretched policy principles to more ambitious operational objectives. For one, the United States continues to find itself at odds with Western allies in how it interprets many of the fundamental concepts underpinning its direct action policies. This includes interpretations of imminence, feasibility of capture, presumption of civilian status, and host nation consent, to name just a few. (Brianna Rosen has written about these discrepancies in depth.) In all cases, the United States tends to interpret these concepts more loosely than its allies, ostensibly to make them operationally flexible, but in a way that may also undermine the promises set forth in its ambitious policies. Serious work to reconcile these differences would both bring the United States closer in line with its allies and improve the credibility of its stated policies.

Second, and even more important, is that it’s not clear that the counterterrorism operating agencies have fully institutionalized these policy principles in their operations. The disastrous August 2021 strike in Kabul during the Afghanistan withdrawal that killed 10 civilians and the March 2019 operation in Baghuz that may have killed up to 80 civilians are but two of the most notable and recent examples of significant civilian harm in U.S. operations. Although these operations took place in “areas of active hostilities” where the “near certainty” of no civilian casualties standard did not apply, U.S. officials had frequently touted the discrimination and care for civilian lives U.S. forces employed in both theaters. The Chairman of the Joint Chiefs of Staff went so far as to call the Kabul strike “righteous,” even as early reports suggested civilian casualties. Yet in both cases, the U.S. military’s investigations showed chronic problems with confirmation bias and inadequate resources to assess the civilian status of the targets. They also revealed an investigatory process that immediately discounts information not produced by the U.S. government and that’s quick to exonerate those involved but hesitant to introduce real changes designed to prevent future failures. Pulitzer Prize-winning reporting from the New York Times’ Azmat Khan detailed rampant undercounting of civilian casualties and military efforts to suppress these numbers. A 2022 RAND Corporation report detailed a stunning string of breakdowns in procedures that systematically produce an undercounting of civilian casualties and a failure to learn.

The Biden administration has begun to acknowledge these problems and has taken some action to address them, though much work remains to be done. After the Kabul strike, the Times reporting on Baghuz, and the RAND report, Secretary of Defense Lloyd Austin ordered a comprehensive 90-day review of civilian casualty practices and procedures. The result, a Civilian Harm Mitigation and Response Action Plan (CHMR-AP), released in August 2022, lays out a comprehensive set of new organizational structures, resources, and procedures to mitigate civilian harm. It’s the sort of government directive that could suggest that the department is taking serious, detailed steps to mitigate civilian harm, or that it’s offering a mind-numbing series of bureaucratic responses that appear to address the problem but don’t actually get at the underlying root causes. The CHMR-AP’s directives are welcome reforms, but time will tell whether they alter the mindset of commanders and targeters, enhance civilian and congressional oversight, improve collaboration with non-governmental organizations, and break the tendency of military investigations to paper over systemic problems.

Wither the Transparency Agenda?

Finally, the policy fails to revitalize the transparency agenda, and it seems unlikely to become a priority any time soon. The nature of the PPM, as well as how it was dropped quietly on a Friday before a holiday weekend – a time when administrations often try to bury stories – are consistent with the Biden administration’s larger approach to counterterrorism to date: roll back the war and don’t talk about it. There was no public rollout, no presidential address, no release of the PPM or even a fact sheet on it. Calls to reinstate government-wide requirements on reporting civilian casualties reportedly went unheeded in the final policy. Nearly all of the Times story is anonymously sourced. The administration has yet to release a National Strategy for Counterterrorism (NSCT) and has only offered one major speech outlining its approach to counterterrorism. By the accounting of most non-governmental observers and media, the administration has scaled back operations but has done so with little fanfare. And in Somalia, the one place where it has scaled up operations, it has done this quietly as well, with no effort to address the major questions raised by such deployments.

Despite admirable attempts by the Department of Defense to improve transparency, we still know far too little about the most controversial operations – such as the operation in Baghuz that may have killed scores of civilians – or the results of investigations into them. Outside groups regularly report on operations that the U.S. government has not acknowledged.

Since the withdrawal from Afghanistan, Biden has hardly spoken about counterterrorism at all, except to tout the deaths of major terrorist leaders, like Ayman al-Zawahiri. The righteous campaign trail commitments to end the Forever War have subsided. Instead, the administration seems to be employing a modified version of the “Fight Club rule”: the first rule of ending the Forever War is don’t talk about the Forever War.

This approach certainly has its merits, especially after two decades of hyper-politicized conversations about terrorism in the media. Conducting fewer operations, only when necessary, but otherwise keeping terrorism off the front pages may very well be what a sustainable counterterrorism effort that no longer defines U.S. foreign policy looks like. But stepping away from the transparency agenda has negative consequences, even if it succeeds in lowering the overall temperature on terrorism.

First, secret wars are no way for a democracy to operate. The American people have a right to know more about killing conducted in their name and why it’s still essential after 21 years. It’s also no way to rebuild trust with the Muslim world after two decades of war that has destabilized so many countries and eroded U.S. credibility. The longer U.S. operations remain shrouded in secrecy, the more scrutiny and backlash they invite and the harder it becomes for the United States to defend its actions as legitimate.

Failing to talk about these operations also undermines efforts to build an enduring counterterrorism framework. The administration has shown no appetite to take on the legislative fight necessary to repeal and replace the 2001 Authorization for Use of Military Force, meaning that expansive legislation will continue to authorize future presidents to conduct a wide range of operations against a classified, and ever-expanding, list of terrorist targets. The dialogue necessary to bring U.S. legal and policy principles closer in line with international standards will stagnate in the absence of greater transparency and public engagement. And efforts to increase public resiliency in the face of future attacks that will inevitably occur and minimize the temptation for overreaction will largely stall as well.

It all adds up to a counterterrorism policy that may align with Biden’s promises to end the Forever War but ultimately has no staying power. We could be one terrorist attack in a future administration away from a full return to the Forever War and all it has wrought.

Image: A military drone replica is displayed in front of the White House during a protest against drone strikes on January 12, 2019 in Washington, DC. (Photo by Brendan Smialowski / AFP) (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images).

The post The Biden Drone Playbook: The Elusive Promise of Restrained Counterterrorism appeared first on Just Security.

 Coalition forces have not yet disclosed sufficient information on al-Kurdi’s detention to provide a clear picture of what comes next. We do not know key facts such as al-Kurdi’s citizenship, nor has the Department of Defense indicated where he is being held, by whom, or whether any criminal charges could be brought in the United States or other jurisdictions. Each of these details will be key to his own future disposition, and depending on the answers, could also provide a roadmap for future high-level ISIS captures (assuming, as seems to be the case, the United States remains engaged in these types of operations for the foreseeable future).

But none of the options for al-Kurdi’s future disposition are straightforward – his capture raises persistent thorny questions about how high-level terrorists are detained. These questions are particularly important to answer as the United States enters a new, lower intensity, yet seemingly persistent fight against terrorist groups. 

Based on previous cases, the administration is likely considering three potential dispositions for al-Kurdi: detention by Syrian Democratic Forces (SDF) inside Syria, detention by a regional partner, or prosecution by the United States or a close ally (law of war detention by the United States in Syria or in U.S. territory are likely off the table, as we explain below). 

First, given the location of his capture, it’s likely that the SDF played a role in the operation, and even now he could well be held in a prison administered by the group. Although they have successfully detained some ISIS members, most notably the so-called ISIS Beatles reponsible for murdering American hostages in Syria, long-term detention by the SDF still presents security concerns, since the SDF’s overall track record of securing ISIS prisoners is mixed. Most recently, the Jan. 20 ISIS attack on an SDF prison in al-Hasakah, Syria—which lasted ten days, resulted in over 500 casualties, and led to the escape of potentially hundreds of ISIS prisoners—highlights the challenges SDF partners face as a non-state actor subject to attack by nation-state forces and ISIS remnants alike and lacking the diplomatic, intelligence, and defense capabilities of a state. For these same reasons, the SDF continues to struggle with the difficult task of figuring out what to do with the estimated 43,000 men, women, and children who were once associated with ISIS and continue to be held in camps throughout Syria and Iraq (where conditions are horrendous). Adding high-level ISIS detainees to SDF facilities inside Syria won’t help the situation, but may be the default option.

The second disposition pathway would be for coalition forces to turn to a third country for help, an option that would be particularly viable if al-Kurdi is a foreign fighter operating in Syria or if he is responsible for the deaths of citizens of a third country. If al-Kurdi is Iraqi or if he is demonstrably linked to attacks on Iraqi targets, for example, he could be transferred to the custody of the Iraqi government or potentially the Kurdistan Regional Government for detention or prosecution. The same rationale would apply in transferring him to the custody of another regional or coalition partner. 

The viability of a third country transfer, however, ultimately depends on al-Kurdi’s citizenship, his specific acts, and the reliability of partners under consideration in terms of their ability to hold fair trials if prosecution is contemplated, their ability to securely hold ISIS detainees, and their track record on humane treatment of detainees (assuming the United States holds al-Kurdi and/or would be assisting in his transfer to a third country, U.S. non-refoulement obligations would apply). This last concern is not trivial, given how many U.S. counterterrorism partners have a history of obtaining information from detainees through torture. And even on the security side, while U.S. military and intelligence have a long history of counterterrorism cooperation with many regional partners, others have proven less reliable in securing, let alone successfully prosecuting, detainees. 

Finally, al-Kurdi could be transferred to the United States to face criminal charges, such as providing material support for terrorism or charges related to specific crimes he may have committed as an ISIS leader. Nearly 700 foreign terrorists have been prosecuted and convicted in U.S. federal courts since 9/11, including a number of ISIS fighters and supporters since the U.S. became involved in that conflict in 2014 (mostly American foreign fighters). However, unless al-Kurdi is a U.S. national (or has committed crimes against U.S. persons for which evidence sufficient to convict in a criminal trial is available), transferring him for prosecution to the United States is an unlikely path.

In previous years, al-Kurdi might have been considered for long-term law of war detention by the United States. But the United States has avoided holding ISIS detainees in exclusive U.S. custody for several reasons: out of respect for local partners, due to the lack of an appropriate long-term detention facility in a country where the U.S. presence is small and on shaky legal ground, and partly to avoid facing any situation that could lead to a habeas petition challenging the application of the 2001 Authorization for Use of Military Force (AUMF) to ISIS. Bringing al-Kurdi to a military facility in the United States, or to Guantanamo (which will be rightly off the table in the Biden administration), would open the door to such a challenge. The United States avoided a ruling on the merits of this issue in Doe v. Mattis, a habeas case brought by a U.S.-Saudi dual national ISIS detainee captured in Syria, which ended after over a year of law-of-war detention in Iraq with a transfer to Bahrain and a canceled U.S. passport.  Losing on the merits of a habeas case brought by an ISIS detainee could undermine a range of the government’s claimed war powers under the 2001 AUMF—a risk the United States would surely go to great lengths to avoid. 

Ultimately, we applaud the U.S. decision to capture al-Kurdi rather than kill him, and the successful conclusion of the operation without harm to civilians or coalition forces, even while we recognize the difficulties that a case like his presents. Identifying an appropriate long-term disposition will likely prove difficult in al-Kurdi’s case, but is essential for future capture operations, both in Syria and beyond.

Image: BAGHOUZ, SYRIA – MARCH 24, 2019: A Syrian Democratic Forces (SDF) fighter walks past destroyed vehicles in the final ISIL encampment on March 24, 2019 in Baghouz, Syria. The Kurdish-led and American-backed Syrian Defense Forces (SDF) declared on March 23 the “100 percent territorial defeat” of the so-called Islamic State, also known as ISIS or ISIL. The group once controlled vast areas across Syria and Iraq, a population of up to 12 million, and a “caliphate” that drew tens of thousands of foreign nationals to join its ranks. (Photo by Chris McGrath/Getty Images)

The post Al-Kurdi Capture Raises Thorny Detention Issues appeared first on Just Security.

There are reasons to be cautious about this move. On the one hand, support to African Union and Somali security forces could help them beat back an organization that has terrorized Somalia and the region for far too long, while the collaboration also gives us critical insights on Shabaab’s plotting against us. But as Oona Hathaway and I recently wrote, the history of U.S. involvement in Somalia over the past 15 years and the current complex dynamics in Somalia suggest a much bigger and balanced civilian-military effort is needed to degrade al-Shabaab and improve conditions in Somalia.

We currently have only piecemeal knowledge of the deployment. Initially it was anonymous administration officials who fed information to leading newspapers, and there was no significant public rollout that would answer hard questions. In particular, the U.S. government should answer three big questions, which were either not or only partially addressed in yesterday’s news, if we are to evaluate the efficacy, legality, and morality of the policy decision.

1. How severe is the al-Shabaab threat?

For months now, some administration officials have been raising alarms about al-Shabaab’s growing strength. The group has become more aggressive on the battlefield, developed a revenue source in the areas it controls, targeted neighboring countries, and become a critical node in the al-Qaeda global network. As noted in the Washington Post, the Africa Center for Strategic Studies projects that al-Shabaab attacks will rise by 71% this year, reaching levels not seen since 2017, the year that al-Shabaab killed more than 500 people in a truck bomb attack in Mogadishu.

Yet there is still much the public doesn’t know about al-Shabaab plotting, including the extent to which it poses a direct threat to the United States. As Oona and I noted, for many years there have been deep divisions within al-Shabaab about how much the group should focus on external plotting beyond the region. Although some terrorists still travel to Somalia, foreign fighter flows have decreased dramatically since Iraq and Syria became the bigger draw and following the death of American al-Shabaab member Omar al-Hammami. And al-Shabaab has yet to pull off a major attack beyond the region, although there is a growing debate about whether it has the capability and intent to do so.

U.S. officials point to the 2019 arrest of an al-Shabaab-affiliated militant who was taking flying lessons in the Philippines as a sign of Somalia’s worrisome external plotting trendlines. And they mention al-Shabaab’s ability to generate revenue through taxing the territories it controls as an indication that the group could finance a more ambitious external plot. Yet the administration has not shared specific information of al-Shabaab’s ability to attack the United States.

I assume that the administration has not shared more about the threat due to the classified nature of this information. But the U.S. government most likely also has significant intelligence collection gaps in Somalia, a country that typically has fallen below other global threats in terms of strategic priority. Although the primary mission of the U.S. forces probably is not collection, their presence and the security infrastructure they bring could enable the intelligence community to ramp up collection on early indicators and warnings of al-Shabaab external plotting. If this was part of the rationale for the deployment, that would make strategic sense, though such a justification that must be clearly stated and properly bounded so that the risk of the unknown does not remain a perpetual justification for sending U.S. military forces to Somalia.

2. What’s the civilian plan for Somalia?

In the news stories on the deployment, U.S. officials took pains to note that it is part of a larger integrated civil-military strategy designed to help the Somali government, support Somalia’s economic development, and undermine the root causes of counterterrorism. Indeed, recent U.S. actions in Somalia suggest it’s serious about a civilian strategy. The Wall Street Journal reports that in the run-up to last weekend’s presidential elections, in which President Mohamed Abdullahi Mohamed was clinging to power, the State Department took the unusual step of “restrict[ing] visas for Somali officials it deemed responsible for ‘undermining the democratic process’ in the country.” International donors threatened to cut off a $400 million International Monetary Fund loan and other aid if the former president continued to delay the vote. These efforts seemed to work, leading to the removal of President Mohamed and his replacement with Hassan Sheikh Mohamud, who previously served as president from 2012-2017. The United States now has a better partner for its civilian strategy.

Yet little information has been made available on what the civilian strategy entails precisely. What is the plan for addressing corruption in Somalia, building governance and the rule of law, or providing humanitarian assistance to a country where six million people face acute food insecurity and 1.4 million children under the age of five are severely malnourished? How many civilian personnel will deploy to Somalia and with what frequency to complement the nearly 500 military forces? What new budgetary resources will be available to implement the civilian strategy? The persistent U.S. military presence could well enable such efforts, but without more information about what they entail, it’s hard not to see this as a militarized approach to a complex conflict.

Of course, U.S. officials may well have decided that civilian efforts are likely to fail and so the emphasis is on a limited military presence to contain the terrorist threat. But if that’s the case, it raises the question of how the United States can ensure that the most recent deployments in Somalia do not merely perpetuate the kind of open-ended military interventions that the Biden administration has pledged to end.

3. What’s the larger strategic and legal context?

Finally, it’s not clear how this deployment fits into the U.S. government’s larger counterterrorism strategy. This is partly because we don’t know what that strategy is. President Biden campaigned on ending the Forever War – a position I strongly support for various strategic reasons – but after the disastrous withdrawal from Afghanistan, the Somalia deployment feels like the administration is walking back that pledge and hedging its bets. That’s true even if the National Security Council Spokeswoman Adrienne Watson describes it as “a repositioning of forces already in theater who have traveled in and out of Somalia on an episodic basis.”

In terms of the larger strategic framework, the administration has yet to release its National Strategy for Counterterrorism, and aside from an informative speech last year from the president’s counterterrorism advisor, Liz Sherwood-Randall, top administration officials have been pretty quiet about counterterrorism policies. The White House has not released the new policies on direct action–capture or kill operations outside of clearly defined war zones–that it reportedly has been working on for more than a year. Without any of this context, it’s hard to know how the Somalia deployment contributes to larger efforts against al-Qaeda and ISIS, what level of risk the United States is prepared to accept from foreign terrorist groups, and whether the administration is open to alternative strategic approaches, like a greater reliance on U.S. defenses.

Similarly, Oona Hathaway and I noted a range of legal issues with U.S. involvement in Somalia that should be addressed if operations are to continue there. These include the increasingly tenuous application of the 2001 Authorization for the Use of Military Force (AUMF) to al-Shabaab and the use of “collective self-defense” to justify a range of strikes in Somalia. These are important questions to address since, according to the New York Times, the deployment of advisors accompanies a decision to lethally target about a dozen al-Shabaab leaders. The administration has not addressed what rules will cover these strikes other than to note that standards are higher than they were under President Trump. Without more specific information on how these questions are viewed in the context of Somalia, or indeed, how the administration intends to address critical, larger questions like the future viability of the AUMF, it seems likely that this deployment will, at a minimum, further strain an already stretched legal framework.

Setting the legal and strategic frameworks for counterterrorism missions is fundamental for ensuring the efficacy, legality, and morality of such operations. The administration may well have done this, but if so, they haven’t shared much of this critical information with a public that has grown weary of endless military deployments.

Deploying additional forces to have a “persistent presence,” as NSC spokeswoman Whatson described it in a statement, could well be a sound strategic approach that makes Somalia, as well as the United States, safer. But based on what we know right now, we can only speculate.

Image: C-5s are parked on the flight line, soon to be on their way to Mogadishu, Somalia (Photo by USAF via Getty Images). 

The post Biden’s New Counterterrorism Policy in Somalia: Cautions and Unknowns appeared first on Just Security.

Background

U.S. military involvement in Somalia began with the humanitarian intervention in the early 1990s as part of a United Nations (U.N.) effort to provide famine relief, and is marked in public memory by the disastrous Battle of Mogadishu in October 1993. Although that conflict was primarily against Somali warlords who were impeding the distribution of food aid, the battle was a harbinger of the kind of fighting that the United States would face in counterterrorism operations in the post-9/11 period. During the battle, U.S. Special Operations Forces (SOF) on a mission to capture a high-value target were pinned down by militants and sympathetic locals. When the battle finally ceased, 19 U.S. soldiers were dead, 73 were wounded, one was captured, and two Black Hawk helicopters were downed and destroyed. Hundreds of Somalis, including civilians, were killed in the battle. The searing image from the debacle was the horrible spectacle of dead U.S. soldiers dragged through the streets. Operatives from the then-nascent al-Qaeda organization were, according to books by Lawrence Wright and Ali Soufan, present in Mogadishu at the time, and played a role in the downing of the U.S. helicopters.

In response to the tragedy, Congress imposed a variety of limitations on U.S. operations in Somalia. President Bill Clinton removed most U.S. forces well before a congressional deadline. Long after the United States retreated from Somalia, the conflict continued to shape U.S. thinking on urban and guerrilla warfare in general, involvement in Somalia specifically, and oversight of SOF operations.

Chastened by the “Black Hawk Down” experience, U.S. policymakers largely stayed out of Somalia’s civil strife and limited U.S. efforts to tracking down al-Qaeda operatives in Somalia, primarily working through the CIA. By the early 2000s, Somalia had deteriorated further and from the chaos emerged the Islamic Courts Union (ICU), a fundamentalist organization that gained traction fighting Somalia’s warlords and promising to bring justice and peace to the country. After a decisive victory against an alliance of warlords in 2006, the ICU claimed control over Mogadishu and a majority of central and southern Somalia. Fearing an Islamist government on its border, Ethiopia joined with allied Somali forces and launched an offensive aimed at wresting Mogadishu from ICU control. The U.S.-backed Ethiopian incursion met with little resistance and the ICU fell before the end of December 2006.

The ICU’s Mujahideen Youth Movement, or al-Shabaab, fled south and started an insurgency against the internationally-recognized Somali Transitional Federal Government (TFG). Seeing the instability in Somalia, the African Union in early 2007 authorized a peacekeeping force, known by its acronym AMISOM, to protect the TFG. Accomplishing that mission meant directly confronting al-Shabaab. Uganda contributed the lion’s share of forces to AMISOM, with support from Burundi and Ethiopia; eventually Kenya and Djibouti sent troops as well.

In AMISOM’s early days, U.S. support primarily focused on contributing funds to the mission and providing trainers and advisors through a private security contractor. Small numbers of U.S. SOF reportedly deployed to Somalia for limited purposes, but direct U.S. involvement in the fight against al-Shabaab was minimal. The United States did conduct intermittent strikes on al-Qaeda operatives present in Somalia, in one case firing from an AC-130 gunship on men reportedly involved in the Kenya and Tanzania embassy bombings and in another case, conducting a helicopter raid against a key operative in the embassy attacks and the 2002 bombing of a resort in Mombasa, Kenya.

As the TFG struggled to establish effective governance and the fledgling Somali National Army (SNA) haltingly built capacity, al-Shabaab gained ground, establishing influence across vast swaths of southern and central Somalia. The United States designated al-Shabaab a foreign terrorist organization in 2008. In 2010, al-Shabaab conducted its first external attack, bombing a World Cup viewing party in Uganda in retaliation against AMISOM’s largest troop contributor. The attack left 74 dead and 85 wounded and raised fears among U.S. policymakers about al-Shabaab’s intent to conduct external terrorist operations. At the same time, al-Shabaab had begun to make overtures to the Somali-American community, raising the specter of a homegrown violent extremist threat. An American from Alabama who had joined al-Shabaab, Omar Hammami, produced a series of recruitment videos, seeking to recruit other disaffected young Muslim Americans to the cause.

U.S. officials grew increasingly concerned as al-Shabaab cozied up to al-Qaeda. In 2011, U.S. forces captured a coordinator between al-Shabaab and al-Qaeda in the Arabian Peninsula (AQAP), Ahmed Abdulkadir Warsame, as he transited between Yemen and Somalia (Warsame pled guilty to material support for terrorism and conspiracy offenses in U.S. federal court after his capture). In early 2012, al-Shabaab emir Ahmed Abdi Godane swore formal allegiance to al-Qaeda, and al-Qaeda emir Ayman al-Zawahiri welcomed the group into its global network. In 2013, smarting from a significant defeat at the hands of Kenyan forces, al-Shabaab conducted another major external attack, this time assaulting an upscale mall in Nairobi, Kenya in a three-day siege that killed 67 and wounded 175.

With al-Shabaab gaining ground, there was pressure for the United States to adopt a more assertive counterterrorism policy in Somalia. Yet the Black Hawk Down debacle still loomed large, dampening policymaker appetite to provide combat advisors to AMISOM or the SNA. Further, questions about whether all of al-Shabaab, or just key operatives, were part of al-Qaeda and whether al-Shabaab sought to attack the United States or had primarily local and regional goals led to legal and policy concerns about lethally targeting the group. In particular, there were serious questions about whether operations targeting al-Shabaab were authorized under the 2001 Authorization for the Use of Military Force (2001 AUMF). In October 2013, the U.S. military deployed a small contingent of advisors to Mogadishu to support AMISOM operations. The United States also conducted occasional airstrikes against al-Shabaab operatives – rather than just remnants of al-Qaeda in East Africa, including a 2014 strike that killed Ahmad Abdi Godane, the emir of al-Shabaab, but on the basis of his status as an al-Qaeda member who posed a continuing, imminent threat to U.S. persons (discussed further below).

The U.S. advisory presence in Somalia increased over the next couple of years and AMISOM became more effective, driving al-Shabaab out of areas that it controlled and securing more of Mogadishu, which in turn allowed more civilian aid to flow into the country. U.S. support to AMISOM became more intensive, with U.S. forces in some cases conducting air strikes in what the Pentagon termed “collective self defense” of its partners in Somalia.

Yet al-Shabaab continued to adapt in the face of pressure. It adopted hit and run guerrilla tactics against AMISOM rather than attempting to defend territory. The group both won over and coerced local populations with its strict justice system and collection of tolls. The Shabaab system, while brutal and intolerant, provided a measure of justice and conflict resolution that stood in stark contrast to the dysfunctional government in Mogadishu. And its terrorist attacks became more violent, including a 2015 siege of a Kenyan university that killed 147 and a 2017 truck bombing in Mogadishu that killed at least 587 people.

In 2016, the Obama administration deemed al-Shabaab, not just individual members or elements of the group, to be an “associated force” of al-Qaeda that was targetable under the 2001 AUMF. While the administration had already been engaging in collective self-defense strikes against al-Shabaab in support of partner forces on the ground, this designation opened the door to more extensive lethal operations by the United States against the group, as opposed to striking only those members of al-Shabaab considered to be part of al-Qaeda core.

Current U.S. Involvement in Somalia

By the time President Donald Trump took office, progress in Somalia had stalled and policymakers worried more about the growing threat posed by al-Shabaab in the region and beyond. U.S. policymakers pushed for stronger action and Trump approved a new strategy built on increased airstrikes and expanded advisory support. In early 2017, President Trump declared parts of Somalia an “area of active hostilities,” which meant that more relaxed war-zone targeting rules applied than had been the case under the Obama-era rules codified in the Presidential Policy Guidance (PPG).

Later that year, after the designation had apparently expired, President Trump approved new rules that superseded the PPG. The Principles, Standards, and Procedures (PSP) guidance loosened the reins on targeting and delegated greater authority to operational commanders to conduct strikes against a broader range of targets than were authorized under the PPG, even while retaining some of the PPG’s high standards, such as the requirement of near certainty that civilians not be harmed in U.S. strikes. Shortly thereafter, the New York Times reported plans for a multi-year counterterrorism strike campaign in Somalia under the PSP. According to New America, strikes more than doubled during Trump’s first year in office before hitting record highs of 61 in 2019 and 49 in 2020. Trump approved the deployment of additional advisors, whose numbers in Somalia would eventually reach 700, and authorized more intensive support. U.S. forces conducted partnered ground operations, including a 2017 operation that led to the death of a Navy SEAL. At the same time, U.S. airstrikes expanded to include more strikes in collective self-defense of partner forces.

Yet, al-Shabaab remained seemingly resilient, conducting a high profile attack on a luxury hotel in Kenya in 2019 and a 2020 attack on a U.S. airfield in Kenya that left one U.S. soldier and two contractors dead. An al-Shabaab-affiliated militant was arrested in 2019 while taking flying lessons in the Philippines, raising fears of U.S.-focused operations. At the same time, an ISIS faction emerged in Puntland, in northern Somalia, carrying out dozens of attacks even while under pressure from U.S. airstrikes and in conflict with al-Shabaab.

Meanwhile, the Federal Government of Somalia (FGS) devolved into chaos, with rival factions undercutting one another, corruption running rampant, much-needed structural reforms delayed, and functional governance elusive. The U.S. and international civilian presence remained small and mostly hunkered down in secure compounds, limiting their ability to provide civilian aid or support the Somali political process.

Nearing the end of his presidency, Trump ordered the withdrawal of U.S. forces from Somalia, fulfilling a promise to draw down America’s forever war commitments.

Upon taking office, the Biden team cautiously re-engaged in Somalia. By late summer, the administration was still considering proposals to send dozens of military advisors back to the country. For the first time since Biden took office, the U.S. military launched a dozen strikes in July and August 2021 before once again halting operations. In late February 2022, the United States again launched a strike on al-Shabab militants.

But as the administration entered its second year, it punted on larger questions about U.S. operations in Somalia as it debated how to balance the threat posed by al-Shabaab against the policy imperative to end the so-called “Forever Wars.” According to the New York Times, some officials worry that al-Shabaab is at its strongest in years, while others believe the threat is overhyped. Some Somalia analysts have begun to contemplate what a political settlement with al-Shabaab would look like, especially as the FGS appears to be incapable of defeating it. Meanwhile, the U.S. military is reportedly asking President Biden to deploy more commandos to Somalia. Commentators have begun to draw comparisons between Afghanistan and Somalia due to the dysfunctional government, the resilient al-Shabaab insurgency, and failed U.S. policies.

The Legal Basis for U.S. Role in the Armed Conflict in Somalia

President Biden’s decision to renew direct military strikes in Somalia raises once again the question of the legal basis for that engagement.

Domestic law. U.S. operations in Somalia against al-Qaeda and al-Shabaab have long been carried out under the 2001 AUMF. As noted above, after several years of targeting only “al-Qa’ida-associated elements of al-Shabaab,” the Obama Administration decided in 2016 to characterize the entire group as an “associated force” that falls under the 2001 AUMF. As former State Department lawyer Brian Finucane explains:

A term of legal art under the 2001 AUMF, the executive branch defines an “associated force” as an organized, armed group that has entered the fight alongside al-Qa’ida or the Taliban and is a co-belligerent with al-Qa’ida or the Taliban in hostilities against the United States or its coalition partners. The announcement in 2016 that al Shabaab was covered by the 2001 AUMF followed at least a year of ground combat by U.S. forces in Somalia as well as a number of airstrikes conducted in “collective self-defense” of partner forces.

The decision appears to have been arrived at after substantial legal wrangling within the administration, partly due to a factual question regarding whether al-Shabaab as an organized armed group could be considered to meet the U.S. government’s own test for what constitutes an associated force. After all, large portions of al-Shabaab have long focused on regional aims and opposed al-Shabaab leadership’s full allegiance to al-Qaeda.

Notably, the legal theories that form the claimed basis for sweeping al-Shabaab within the “associated forces” designation under the 2001 AUMF have been contested by legal scholars. Indeed, the stretching of the 2001 war authorization to include al-Shabaab has long been the subject of criticism from experts. The thin connection between al-Shabaab and the 2001 AUMF may be at least in part explained as an effort at post-hoc justification. Brian Finucane and Stephen Pomper, both of whom worked for the U.S. government in the Obama administration, have argued that “the government decided to deem Al Shabaab an associated force of al Qaeda and thus targetable as a group under the 2001 AUMF after press reports revealed that U.S. forces in Somalia had for more than a year already been ordering strikes against a range of Shabaab forces in what they described as “collective self-defense” of partner forces.” As the 2001 AUMF enters its third decade, reliance on increasingly stretched interpretations of this outdated authority has become more problematic with each passing day.

International law. According to the 2016 Obama Administration Legal and Policy Frameworks Report, U.S. operations in Somalia have taken place with the consent of the FGS, and “in furtherance of U.S. national self-defense.” While the appeal to a right of self defense might be insufficient were it the only international legal justification, the consent of FGS – which exercises tenuous control over the country but is nonetheless internationally recognized as the official central government – provides sufficient international legal authority for the ongoing operations.

Collective Self-Defense Strikes: One of the persistent legal and policy questions of the war in Somalia has been how to frame strikes taken in “collective self-defense” of Somali or AMISOM forces. In July 2021, the Biden administration announced that it had relied on the justification of collective self-defense to respond with military force to threats posed not to U.S. forces but to an elite Somali National Army force known as the Danab–a justification the United States has used since at least 2016 to support strikes in the country. Afterwards, a Pentagon spokesperson stated that the United States had authority for the strikes under Article 51 of the U.N. Charter “to conduct collective self-defense of partner forces.” As one of us noted at the time, this justification was unnecessary if the U.S. military is, indeed, operating in the country with the consent of the FGS.

It is likely that the Pentagon spokesperson was using the term as it has come to be widely used in rules of engagement (ROE) – a usage of the term that appears to be at some disconnect with its meaning in international law. Indeed, U.S. Africa Command chief Gen. Stephen Townsend ordered the July strike without first consulting the White House, reportedly in response to an “imminent threat.” Strikes undertaken as collective self-defense of partner forces do not go through the normal vetting and approval processes established by the PPG and its successor PSP, and are not subject to a prior determination that the specific targets are covered by the 2001 AUMF.

If that is correct, then the July 2021 incident and a similar one in March 2016 highlight the possibility that the ROE rely too heavily in Somalia (and likely elsewhere) on an ever-expanding concept of collective self defense—one that is apparently not fully tethered to the scope of that authority under international law, not to mention heightened policy standards. The dangers of this approach are most evident not in Somalia but in Syria, where U.S. forces have claimed to rely on collective self defense to defend partner non-state actor groups—groups that do not have rights either to self-defense or collective self-defense under Article 51 of the U.N. Charter.

Further, it is possible that U.S. forces have increasingly relied on collective self-defense in Somalia as a means of developing a more robust partner-enabled strategy, with strikes conducted that would not otherwise be authorized under standing policy for lethal action. Whatever the justification, it’s clear that the use of so-called “collective self-defense” strikes has become a major legal and policy issue that the Biden administration must revisit as it finalizes its new guidance on the use of force.

What Now?

U.S. policy in Somalia should consider not only how to address any ongoing terrorist threat but also how best to stabilize the long-troubled country. News accounts and government reporting suggest al-Shabaab is gaining strength. But as has been the case in the past decade, it’s unclear to what extent the group is invested in targeting the United States itself – and building the capabilities to do so – versus gaining ground in Somalia and terrorizing its neighbors. In either case, it’s in the U.S. strategic interest to stabilize Somalia. Yet the militarized approach that has long dominated U.S. policy toward Somalia appears unlikely to produce that outcome; indeed, there’s a strong case that the opposite would prove true.

In Somalia (and elsewhere in Africa), the United States has been caught in an endless loop of strikes and counter-strikes and frustratingly slow capacity building, with little prospect of decisively defeating the enemy or undermining its support. Terrorist groups have gained local support by playing on an abundance of underlying grievances. The Somali government is willing to work with the United States, but it has proven incapable of effectively combating threats on its own, resolving long-standing political fissures, or establishing effective governance. The United States is thus stuck in an awkward position of assisting local forces that are unable to effectively address the threat they face – but who would likely suffer if U.S. support were withdrawn.

After its stepped up military campaign failed to achieve durable gains and following a last ditch effort to negotiate with al-Shabaab, the Trump administration decided to cut its losses and withdraw U.S. forces. The Biden administration has decided to re-engage, though currently at a level that leaves the country in a long-term stalemate. Battlefield losses could still degrade al-Shabaab, especially its external operations capabilities, but the larger conflict is likely to remain static.

As elsewhere in the region, improvements in governance and political reconciliation are the way forward – but prospects look bleak. The international community has dramatically increased aid to Somalia over the past decade. Yet Somalia is one of the worst governments in the world for corruption. As long as that remains the case, investments in governmental capacity building are unlikely to lead to meaningful change. Development aid might help drain al-Shabaab of some of its support and provide new opportunities to young at-risk Somalis, but without governance reform, such investments can only go so far. Further, gains in governance will likely only be possible if Somalia is able to resolve its increasingly divisive politics and forge a government that constructively incorporates Somalia’s complex clan dynamics. All of this will require the Biden administration to consider greater investments in civilian aid, deploying experts to Somalia, and engaging in smart diplomatic support to Somalia’s political reconciliation alongside any efforts to counter al-Shabaab militarily.

To succeed, political reconciliation will have to go beyond the government’s rival factions and include al-Shabaab. This will not be an easy process, with research showing it will likely take many rounds of negotiations over several years. As AMISOM troop-contributing countries lose patience, however, and with indications that Somalis increasingly support dialogue to end the conflict, it’s not clear that there is a better option. Although the group maintains hardline positions, it has begun to make some moves suggesting that it wants to be a political actor and may be willing to come to the negotiating table. As Somalia experts have noted, the experience in Afghanistan provides both a precedent for engaging with al-Qaeda-aligned groups and a cautionary note. Relying on Somalia’s clan elders and traditional conflict resolution processes could provide a foundation for reconciliation. But U.S. policymakers should heed the lessons of Afghanistan by developing a smart integration of diplomacy, military operations, and civilian aid to achieve their aims.

As for U.S. legal authorities, Somalia illustrates how woefully outdated the 2001 AUMF really is. The connection between al-Shabaab and those who carried out the 9/11 attacks is tenuous at best. And the reliance on a concept of “collective self-defense” that bears no real relationship to the international legal understanding of that term illustrates, as Elvina Pothelet observed four years ago, that “a change of term [in the ROEs] should seriously be considered as this clearly contributes to the conceptual confusion.” It’s time for Congress to stop turning a blind eye to the military’s increasingly strained efforts to muddle through on weak legal authority and revisit what, exactly, the United States intends to accomplish in Somalia–and what legal authorities are necessary to give the president the authority to achieve those ends.

Image: US vehicle is pictured at a military base in Rumaylan (Rmeilan) in Syria’s northeastern Hasakeh province on July 28, 2020 (Photo by DELIL SOULEIMAN/AFP via Getty Images). 

The post Still at War: The United States in Somalia appeared first on Just Security.

Seven years into a bloody civil war and twelve years into an intensive counterterrorism campaign in Yemen, the United States finds itself entangled in a messy regional proxy fight. The United States has been deeply compromised by its support for a Saudi-led coalition that has contributed to a horrific war, political instability, and the world’s worst humanitarian crisis. As we approach the seventh anniversary of the Saudi-led intervention in Yemen, it is no longer clear why the United States is fighting or how the use of force will promote U.S. and regional security interests. What is clear is that U.S. operations in Yemen have contributed to the current unstable situation, and that military force alone will not bring peace to the country or secure the United States from the threats it sought to counter in the first place.

Background

The United States has been involved in an armed conflict with al-Qaeda and affiliated groups in Yemen arguably since the October 2000 bombing of the USS Cole off the coast of Yemen, at the time one of al-Qaeda’s most significant attacks. However, Yemen did not become a first tier front in the U.S. counterterrorism campaign until 2009. In the intervening years, al-Qaeda elements in Yemen and Saudi Arabia united under seasoned leadership that had trained with Osama bin Laden to form al-Qaeda in the Arabian Peninsula (AQAP). On Christmas Day 2009, the group supplied Umar Farouk Abdulmutallab with an ingeniously designed explosive device concealed in his underwear in an attempt to bring down an airliner en route to Detroit, Michigan. The device malfunctioned and the crisis was averted, but the U.S. government sprang into action, launching a military campaign against AQAP in Yemen that continues to this day.

In the early days of the campaign, the United States struggled to establish an effective counterterrorism program, and AQAP plotted at least two additional aviation attacks that were disrupted shortly prior to execution, all while building strength on the ground in Yemen. At the same time, the group’s charismatic Yemeni-American propagandist, Anwar al-Aulaqi, and another American, Samir Khan, produced a series of videos and online publications recruiting disaffected young men to their cause and providing instruction on how they could carry out attacks back home.

Yemen’s longtime president, Ali Abdullah Saleh, proved to be a highly erratic partner, and the United States struggled to develop effective counterterrorism assistance or a consistent lethal strike campaign. However, in 2012, the Arab Spring came to Yemen, taking down Saleh in the process and replacing him with a far more pliant counterterrorism partner, Abdrabbuh Mansur Hadi. Hadi embraced the United States and, over the next two and a half years, the United States conducted one of its most intense counterterrorism campaigns in Yemen. The United States flooded Yemen’s government with weapons and trained its commando forces. U.S. Special Operations Forces (SOF) embedded with a range of Yemeni forces and enabled their operations. Yemeni forces flushed AQAP out of its strongholds across southern and central Yemen. Dozens of U.S. targeted airstrikes killed a series of AQAP’s top operatives, including Aulaqi and Khan.

But Hadi handled Yemen’s internal politics poorly and, in late 2014, the Houthis–a predominantly Zaydi Shi’a Islamic religious-political-armed movement from northern Yemen– swept into Sana’a and overthrew the Yemeni government. The United States shuttered its embassy in Sana’a and maintained only a small, episodic presence in Aden. In 2015, Saudi Arabia initiated what has become a disastrous and brutal campaign against the Houthis – a campaign the United States has supported, including by supplying weapons, providing mid-air refueling, and offering targeting assistance. Iran, meanwhile, has provided support to the Houthis, turning Yemen into the site of a proxy war between regional and global adversaries.

Most terrorism watchers assumed AQAP would seize on the chaos to develop a new safehaven. And for a time this is what happened–as AQAP took territory in Mukallah, in eastern Yemen, the group stole millions from its central bank and levied millions more in taxes from running Yemen’s third largest port. Islamic State (IS) elements also emerged in Yemen, and they appeared to enjoy a tenuous truce with AQAP before the groups eventually turned on one another. But all of that changed when Emirati forces, backed by U.S. advisors and air strikes, took the fight to AQAP. Working with local fighters and employing a brutal set of tactics that included extensive torture of prisoners, the Emiratis drove AQAP from Mukallah. They later attacked AQAP in smaller strongholds across the south. Speculation emerged that the United Arab Emirates (UAE) and/or Saudi Arabia were also paying off AQAP, enlisting it in the fight against the Houthis.

Current U.S. Involvement in Yemen

A surge of U.S. airstrikes against AQAP and IS throughout the early years of the Yemeni civil war has now slowed to a trickle. U.S. airstrikes from 2015-2018 degraded AQAP’s leadership, removing its top leaders and external operational experts (including the mastermind of the concealed explosive devices), and supported the UAE in dislodging AQAP from its strongholds. But since 2019, the United States has conducted an average of only about a half dozen strikes per year, including just two reported last year.

According to Biden’s December 2021 periodic report pursuant to the War Powers Resolution, “a small number” of U.S. military forces are deployed to Yemen to conduct operations against AQAP and IS and to work with the Hadi government and regional partner forces. However, infighting among anti-Houthi forces has complicated partnered counterterrorism efforts. The United States continues to back the Hadi government, but southern leaders have organized into the Southern Transitional Council (STC), which has challenged Hadi’s rule and has eclipsed his government as the dominant non-Houthi power in the country. The UAE has soured on Hadi and primarily partners with the STC, though it has fewer counterterrorism forces and conducts less operations in Yemen than before. The U.S. military has publicly disclosed few additional details on the numbers or activities of U.S. forces in Yemen or the range of partners they work with.

AQAP and IS are in shambles, with both groups having suffered major defeats at the hands of local forces, the UAE, U.S. airstrikes, and Houthi forces. AQAP’s current leader, Khaled Batarfi, is known as a far weaker leader than his predecessors and has failed to rebuild the organization after its losses. IS has been largely routed. Yet Yemen’s civil war rages on, and many of the extremists who would likely fight with AQAP or IS, if either group regains its footing, have taken up arms against the Houthis. When Yemen’s civil war ends, and absent an effort at reintegrating fighters, a cadre of seasoned extremist militants could flow back into IS or AQAP’s ranks.

As to Yemen’s civil war, shortly after taking office, U.S. President Joe Biden announced that he was “ending all American support for offensive operations in the war in Yemen, including relevant arms sales.” Yet subsequent reporting made clear that U.S. support continued in the form of “defensive” support, including servicing Saudi aircraft and providing other logistical and intelligence support. Critics maintain that this amounts to continued support – albeit indirect – for Saudi operations in Yemen.

The Legal Basis for U.S. Involvement

The United States involvement in Yemen–and the legal basis for that involvement–has been the subject of criticism for years.

We begin with the counterterrorism operations: As a matter of domestic law, the operations against AQAP rest primarily on the 2001 Authorization for the Use of Military Force (AUMF), which is the central authority cited by the U.S. government for counterterrorism operations against al-Qaeda and “associated forces,” including AQAP and ISIS, in Yemen. While there has been substantial debate about the importance of repealing and replacing the woefully out-of-date AUMF, there is general agreement within the executive branch that this use of the existing authority falls squarely within the use of the AUMF under multiple presidents.

As a matter of international law, counterterrorism operations against al Qaeda and its “associated forces” – including AQAP and IS – in Yemen and around the region have long rested on two bases: consent of the host state and, where that consent is absent, self defense under Article 51 of the UN Charter (combined with a controversial argument that the territorial state involved is “unable or unwilling” itself to effectively suppress the terrorist threat). Hadi remains the internationally-recognized president of Yemen, even though he has resided in Saudi Arabia since 2017. His consent to U.S. and Saudi operations in the country have provided a fig leaf of legal legitimacy, but there remain longstanding, unaddressed concerns about the validity of that consent.

Turning to the U.S. role in Yemen’s civil war: Critics have raised substantial concerns about the absence of domestic legal authority for U.S. support for the Saudi-led coalition’s operations aimed primarily at Houthi rebels. The Houthis, after all, are not an “associated force” of al-Qaeda. To the contrary, they have been engaged in regular fighting against AQAP for years. Hence the U.S. role in the conflict against the Houthis cannot reasonably be said to fall within the scope of the 2001 AUMF. Members of Congress repeatedly sought to force President Trump to withdraw U.S. support for the coalition. On Feb. 28, 2018, for example, Senator Bernie Sanders (I-VT) introduced a joint resolution pursuant to the War Powers resolution calling for the removal of U.S. armed forces from hostilities in Yemen that had not been authorized by Congress. That resolution specifically asserted that U.S. forces had been introduced into hostilities “including providing to the Saudi-led coalition aerial targeting assistance, intelligence sharing, and mid-flight aerial refueling.” It made clear that such introduction of armed forces into hostilities had not been authorized by Congress and therefore violated the War Powers Resolution. That joint resolution failed by a vote of 55-44, but it brought attention to the questionable domestic legal authority for U.S. military support for the Saudi-led coalition, and it helped prompt a series of related resolutions, including a 2019 resolution to end U.S. support for Saudi operations in Yemen that passed both houses of Congress only to be vetoed by then-President Trump.

President Biden’s announcement that the United States would no longer provide “offensive” support for Saudi military operations in Yemen likely brings this chapter to a close, for now. But continued servicing of Saudi jets and other “defensive” support could reignite such legal concerns.

The end of (most) U.S. support for the Saudi-led coalition also brings to a close some of the key concerns under international law. Like the counterterrorism operations, the Saudi-led operations against the Houthis have been justified by Hadi’s “consent.” Yet while this helped paper over worries about jus ad bellum violations, there were independent concerns about ongoing jus in bello violations. Indeed, the Saudis and Emirates have been accused of various war crimes in the course of the brutal war against the Houthis. A 2018 report by the United Nations Panel of Experts on Yemen, for example, documented many violations of international humanitarian law. The end of offensive military support for the Saudi-led coalition helps ease concerns about ongoing U.S. complicity in those war crimes, yet critics still argue that the United States, by continuing some support to Saudi Arabia and failing to condemn its policies in Yemen, is still contributing to the humanitarian crisis in the country.

What now?

This brings us to a final question: Where do we go from here? A year after signaling a new approach in Yemen, the administration’s progress remains uneven, at best. President Biden has addressed some of the most pressing legal concerns by withdrawing direct offensive military support for the Saudi-led coalition’s military operations in Yemen. However, questions remain about residual U.S. support to the Kingdom. What does it mean, for example, to curtail “offensive weapons” sales and what counts as a “defensive weapon”? The civil war in Yemen and continued U.S. support for the Saudi government remain concerning, particularly given the dire situation of the population – ravaged by war, the worst cholera outbreak in modern history, the COVID-19 epidemic, and now a blockade that has led to starvation in parts of the country. The appointment of a senior career diplomat as Special Envoy for Yemen signaled the Biden administration’s intent to prioritize resolving the conflict, but the administration has struggled to gain traction with regional powers and to marshal the full power of the U.S. government toward a peace agreement. Meanwhile, tensions with Saudi Arabia and UAE over the restrained Washington response to Houthi attacks in both countries, along with other issues, has undermined U.S. efforts to rally Middle Eastern partners to the defense of Ukraine against Russian aggression. Some members of Congress, meanwhile, have continued to express interest in bringing the conflict to an end, though partisan divisions on whether to hold Saudi Arabia accountable have hampered Congress’ ability to impose additional constraints on U.S. policy. At the end of the day, it seems likely that more of the onus for resolving the Yemen conflict will lie with the administration than the Hill.

The United States must press for a negotiated end to the conflict, though it is clear that any road to negotiations will be long and fraught. Most recently, the Saudi-based Gulf Cooperation Council invited the warring sides for talks in Riyadh. But the Houthis rejected the offer and then launched a series of drone and missile strikes on natural gas and desalination plants in Saudi Arabia.

As to the counterterrorism campaign, Yemen remains one of many longstanding fronts in the “forever war.” With AQAP and IS in Yemen degraded, that war is relatively quiet for now. Given the reduced terrorist threat and the stain of U.S. involvement in the Saudi campaign, the Biden administration should resist ramping back up military operations. The bigger terrorism threat is what may come after the civil war ends. Years of war have left the country without any effective governance. Many of those who have fought the Houthis are young men partly motivated by religious or sectarian concerns, who may join violent extremist groups after the civil war ends. This leaves Yemen vulnerable to the resurgence of al-Qaeda, IS, or successor groups.

Even though a peace agreement in Yemen may still be a long way off, U.S. policymakers should already be thinking about a counterterrorism program built on civilian tools. Building some semblance of effective governance after the civil war and developing interventions targeted at mitigating violent extremism and reintegrating fighters must be top priorities for U.S. policy. A resumption of significant military operations against terrorist groups in Yemen is unlikely to sustainably address the threat and indeed may disrupt any fragile peace that can be achieved. In short, a campaign of lethal strikes against AQAP or other terrorist groups in Yemen will do little, on its own, to achieve U.S. and regional security goals.

The question for the United States in Yemen, and similar places, is whether it is prepared to invest in the institution building and civilian-led interventions that would truly insulate the country from the resurgence of terrorist threats. As long as the answer is no, the threat of renewed violence – and perpetual war – remain.

Image: US vehicle is pictured at a military base in Rumaylan (Rmeilan) in Syria’s northeastern Hasakeh province on July 28, 2020 (Photo by DELIL SOULEIMAN/AFP via Getty Images).

The post Still at War: The United States in Yemen appeared first on Just Security.

The question is whether the Qurayshi raid points to meaningful systemic change to prevent civilian casualties. Shortly before the raid, on Jan. 27, the Department of Defense (DOD) responded to the criticism it has faced by releasing a memorandum from Secretary of Defense Lloyd Austin, accompanied by a report from the RAND Corporation, outlining a roadmap for tackling longstanding concerns about civilian casualties. It’s an encouraging first step but the proof will be in the follow through. DOD has faced steady allegations of unnecessary and reckless civilian harm for many years and by the Times’ reporting and DOD’s own admission, a great many of what the military calls “lessons learned” have never actually been learned. Problems that should have been solved long ago – that many policymakers assumed had been solved – are now revealed to be chronic features of U.S. counterterrorism operations.

The steps Austin has directed could amount to bureaucratic half measures or they could mark the beginning of a new approach. For this effort to produce meaningful change where others have fallen short depends first on getting the scope of the problem right and then real and sustained leadership from Secretary Austin and his staff, uniformed military leadership, the White House, and Congress. It’s a massive task that requires assessing a complex problem, pushing against ossified procedures and institutional norms, and navigating what is likely to be a tense process. It’s daunting, but essential.

The RAND Report and DOD Memo

The RAND report published alongside Austin’s memo should be required reading for counterterrorism professionals and anybody who cares about civilian harm. It’s a stunning, detailed account of why, despite good intentions, the U.S. military so often fails to account for civilian casualties. It focuses on several DOD processes, including post-strike civilian casualty assessment reports (CCAR), investigations, and responses to civilian harm, as well as how DOD has resourced and structured itself to address such harm. Among the many troubling patterns the report cites are: DOD’s failure to track data and trends on civilian casualties over time, chronic under-resourcing of civilian casualty assessment functions, a shoddy and inconsistent record of making ex gratia payments after errant strikes, chronic undercounting of civilian casualties especially when they occur in urban environments or within collapsed structures, a lack of consistent leadership commitment to preventing and addressing civilian harm, systemic discounting of information on civilian casualties provided by third parties with on the ground access, and failure to learn these lessons despite the fact that most of the patterns of institutional behavior in the RAND report have been cited many times in the past 20 years of war.

These are issues that many policymakers had assumed were long since resolved. Indeed, the confident statements from senior officials over the past decade – about waging precise campaigns, that nobody works harder than the United States to prevent civilian casualties, and that “near certainty” standards of no civilian casualties applied outside of hot battlefields – conveyed a sense of policies and campaigns built on a strong operational foundation. The RAND report shows that the prevailing media and NGO narrative on U.S. strikes is correct – much of that confidence in the fundamentals is misplaced. The report also foretells that reform will be a daunting task that will take massive and widespread commitment to get it right.

Read alongside the RAND report, here’s why Austin’s memo suggests a promising start. He begins by stating that reform is “a strategic and a moral imperative” – which is notable in itself, since DOD historically has highlighted the strategic perils of civilian casualties but shied away from any discussion of morality or ethics. The memo directs the development of a Civilian Harm Mitigation and Response Action Plan (CHMRAP) within 90 days that will outline DOD’s actions in response to the RAND report and other DOD reviews of civilian casualties and ultimately feed into a DOD Instruction (DODI). Austin also directs four immediate actions:

(1) Establish a “civilian protection center of excellence”

(2) Develop improved operational reporting and data management processes to enable learning from operations over time

(3) Review guidance on how DOD responds to civilian harm, including via condolence payments and public acknowledgment

(4) “Incorporate guidance for addressing civilian harm across the full spectrum of armed conflict” so that the policy addresses a range of conflicts, not just counterterrorism and counterinsurgency.

The memo, and particularly the four immediate actions that Austin outlines, directly address many of the issues raised in the RAND report.

But will these steps be effective? It depends. DOD has for 20 years now failed to correct some of the most systemic problems with its targeted strikes. And a DOD-led review, absent interagency or congressional oversight, is simply unlikely to produce sustained change.

Consider the first steps that Austin directs. While working on a separate issue in the Pentagon, I coauthored a DODI that also directed updates to guidance and the establishment of a center of excellence. These are the bureaucratic tools of the Pentagon staff officer. They can mark the beginning of real change, or they can be half measures adopted in response to outside pressure that never gain traction with the military services or combatant commands (the fate of the DODI I worked on). DODIs and guidance can sit on the shelf, formal policy that’s widely disregarded or watered down in practice. Centers of excellence can study important missions but have little plug into how the military services or combatant commands do business.

Well before honing these solutions, DOD needs to make sure it scopes the problem correctly, and it’s not clear that it has. A proper project scope would begin by carefully working through and incorporating the recommendations from the RAND report, as well as the recommendations from the 2018 Joint Staff Civilian Casualty Review, which RAND notes have gone largely unimplemented.

The Credibility Gap

DOD must also open the aperture wider and tackle issues not addressed in these reports. This should begin by digging into accountability mechanisms and addressing what observers have called a “culture of impunity” and a “system of negligence.” This includes evaluating themes like why accountability measures are seemingly so infrequent after errant strikes and whether it makes sense for operational units to investigate themselves when credible indicators of significant civilian harm emerge.

DOD should review how it interprets the laws of war compared to its international partners and leading experts. In particular, it should review how the military defines combatants and non-combatants and what it considers to be “direct participation in hostilities.” This is important both to address longstanding concerns that DOD has been too quick to assume adult males in some circumstances are combatants, lingering questions about when DOD assesses that women and children are combatants and other target engagement criteria.

What’s more, DOD should evaluate why the U.S. military, which prides itself on being a learning organization, has failed to actually learn so many of the lessons identified over the past two decades, about things like confirmation bias, scanning for the presence of children, and ensuring shared situational awareness across operational units.

Beyond these operational issues, DOD’s plan must address the large and growing credibility gap on civilian casualties. Recent responses to reported civilian casualties are illustrative. As the New York Times has noted multiple times, “nearly everything that senior defense officials asserted in the hours, days and weeks after the [Aug. 29 strike in Kabul] turned out to be false.” The Chairman of the Joint Chiefs of Staff characterized that strike as “righteous” even while it was still undergoing a formal investigation that ultimately found that the operation killed 10 civilians, including seven children, and no enemy combatants. DOD initially failed to report and may have even attempted to cover up a March 2019 strike in Baghuz, Syria that may have killed more than 60 civilians. Pentagon spokesman John Kirby told a reporter that he was “not going to relitigate” that strike, even though it had never been properly reviewed in the first place. In nearly every theater where DOD operates, it assesses substantially fewer civilian casualties than reputable media and NGOs report but rarely explains why in any meaningful sense. Senior legal and counterterrorism officials have made only limited public statements about the legal or policy frameworks governing counterterrorism in the Biden administration. Deliberations around the administration’s updated drone strike guidance remain shrouded in secrecy. Without the New York Times’ dogged reporting, the public would hardly know it exists.

In short, DOD statements about civilian casualties that later turn out to be overconfident or inaccurate, as well as recent revelations concerning systemic problems with civilian harm, undermine the U.S. government’s credibility,  with serious implications for U.S. foreign policy. When a reporter pressed White House spokeswoman Jen Psaki last week for evidence that the U.S. military did not cause civilian casualties in the Qurayshi raid, Psaki questioned whether skeptics were trusting ISIS information over the U.S. military’s information. In response, the reporter noted that “the U.S. has not always been straightforward about what happens with civilians.” If DOD and the administration can’t figure out how to share timely, accurate information on its lethal targeting efforts, its reforms, along with other foreign policy communications, will be met with skepticism from the media, Congress, U.S. military personnel, and allies, not to mention the public here at home and abroad.

Toward Real Change

As to actually implementing reforms, success or failure will depend on concerted commitment in the months and years to come from the Defense Secretary, his staff, the uniformed military, the White House, and Congress.

In the power structures of the Pentagon, the Secretary’s persistent queries drive action, and so Austin should request regular updates and repeatedly demonstrate that he prioritizes civilian harm. He also needs to make sure his most talented and best positioned staff are working on the effort. The New York Times reports that the Assistant Secretary of Defense (ASD) for Special Operations and Low-Intensity Conflict (SO/LIC), Christopher Maier, will be leading the effort. This is a good choice, actually a better arrangement than establishing a new civilian casualty official, as some have suggested, in that the ASD SO/LIC is optimally positioned among the Secretary’s staff to engage with operational elements, particularly Special Operations Forces (SOF), who are driving targeting. Maier will need to be backed up by a well-resourced and competent staff.

The RAND report shows how effective civilian harm mitigation is possible when supported by military leadership, as was the case in Afghanistan from 2009-2012. This must be a priority for uniformed leadership, and President Biden should make clear that he expects a strong commitment to preventing civilian casualties from his nominees for key combatant commander roles that are about to turn over, especially Central Command (SOF general Erik Kurilla has his nomination hearing for that post today), Africa Command, and Special Operations Command.

But there are strong reasons to think DOD simply cannot resolve, and should not be tasked with resolving, this problem for the United States alone. Engagement from the White House and civilian departments and agencies is key. The National Security Council has reportedly completed its review of counterterrorism lethal strike policy and is poised to release new guidance soon. These policy commitments, however, will ring hollow if the administration can’t credibly vouch for the underlying fundamentals of the program. It’s essential then that the White House work closely with DOD on this review, applying necessary pressure and elevating tough issues that arise.

The NSC can also play an important role in facilitating feedback from other departments and agencies on DOD’s process. The Intelligence Community, for example, can provide a perspective on how DOD is utilizing intelligence both pre- and post-strike and why analytic failings, like confirmation bias, seem to be prevalent in DOD operations. The State Department can provide views including on how DOD can more regularly engage people on the ground to assess the results of strikes and properly account for civilian casualties. All can apply consistent pressure so that DOD’s process doesn’t fade away like prior efforts. The White House may be wary of the impression that it’s getting into the operational weeds, but it’s not really clear that there is another option, given the importance of getting this right and DOD’s record of addressing civilian harm before now.

Congressional leadership is also critical. So many of the efforts over the past several years to address shortcomings in the military’s lethal strike operations ultimately stem from congressional action. The RAND report was directed by the fiscal year 2020 National Defense Authorization Act (NDAA). Requirements for DOD to release annual statistics on strikes and the number of civilian casualties, establish a policy on condolence and ex gratia payments, and report on the resources needed to reduce and respond to civilian harm were included in other NDAAs. Future legislation may be necessary to properly resource DOD efforts to reduce and better account for civilian casualties and to provide much-needed transparency around operations (including curing ongoing gaps between congressional reporting requirements and the lack of corresponding information in DOD reports).

Congress must also posture itself to properly oversee both DOD’s reform efforts and, when appropriate, individual strikes. This would likely require expanding the oversight staff on the congressional defense committees and ensuring that they’re supported by committee members in carrying out their oversight responsibilities. A recent decision to provide Top Secret clearances to one staff member in every Senate office could also help ensure broader access to information and allow a wider range of lawmakers to engage on civilian harm reduction.

Finally, DOD should ensure a formal role for civil society in advising and informing its activities, including by considering some dramatic reforms to ensure outside accountability. This could take the form of a civilian oversight panel of experts with proper security clearances and the training and experience to evaluate DOD information on its operations. A parallel panel of NGO representatives, think tank experts, and possibly even journalists could provide input on DOD policies and ensure that relevant parts of DOD have access to the non-government information that DOD so often discounts.

This is big, complex work, and it may all prove to be just too heavy of a lift for a department that confidently asserts that “no military in the world works as hard as we do to avoid civilian casualties,” and that has already shifted away from counterterrorism as a strategic priority. Bureaucratic half measures may be all that results from this policy. In that case, the Biden administration may do well to dramatically reduce the number of strikes that it conducts in the first place, as it appears to have done over the past year. For if the administration is not able to demonstrate that its lethal strikes are as discriminate and precise as it claims, any military gain from its operations will be undermined by the strategic blowback and moral stain resulting from civilian deaths.

Photo credit: U.S. Army (retired) General Lloyd Austin after being formally nominated to be Secretary of the Department of Defense by U.S. President-elect Joe Biden at the Queen Theatre on Dec. 9, 2020 in Wilmington, Delaware (Chip Somodevilla/Getty Images)

The post A Big Step Forward or Running in Place?: The Pentagon’s New Policy on Civilian Casualties appeared first on Just Security.

We provide a list of specific questions for members of Congress, reporters, and investigators to ask about the strike. 

Following the investigation into the tragic Aug. 29 drone attack in Kabul, the recently revealed Baghuz strikes raise profound questions about DOD’s policies and practices for conducting strikes and investigating errant attacks. In particular, the strikes raise questions concerning target identification and verification practices, proportionality assessments, and post-strike investigations into civilian casualties. The Baghuz strikes also raise serious questions about investigations and accountability in cases where such strikes could amount to a war crime. DOD must address these questions if it is to restore public confidence in its operations.

I. Pre-Strike Questions

General Framework and Procedures

1. Why has the DOD report concerning the investigation into the Baghuz strikes not been made public? Will DOD commit to releasing an unclassified version of the report or its findings?

2. What was the legal authority under which the strikes were conducted? 

3. Were senior Pentagon officials, others in the executive branch, or members of Congress informed of the Baghuz strikes? If so, when were they briefed? Did any of those officials request additional investigation or review of the strikes?

4. As the International Committee of the Red Cross explains, the presumption of civilian status is a part of the binding laws of war. Does DOD still hold the highly anomalous view (compared to U.S. allies and globally) that this rule is not part of the binding laws of war? Does the U.S. government as a whole agree with DOD’s position?

5. Why were U.S. special forces reportedly unaware of the location of coalition assets in theater that might have reduced the risk of civilian harm? Does DOD have a list of such assets and, if so, why wasn’t this list shared with operators on the ground? 

Self-Defense 

6. What are the criteria for determining whether a strike may be considered “unit self-defense”? At what level are such decisions approved?

7. What are the criteria for determining whether a strike may be considered “collective self-defense” of a partner force? At what level are such decisions approved?  

8. In cases of collective self-defense, what procedures are in place to verify that partners are indeed facing an imminent threat? 

9. To what extent does DOD rely on partner information when making determinations about whether to authorize a strike, and how much does this information affect pre-strike proportionality and civilian casualty assessments? When such information conflicts with information from aerial surveillance or other available sources, how are these different information streams reconciled prior to launching an attack?

10. Are there any procedures in place to ensure that strike logs accurately reflect information that is seen on aerial surveillance feeds? 

Civilian Casualty Assessments 

11. What pre-strike procedures did DOD follow to assess whether there were civilians in the area and how long did this assessment take? 

12. Before taking the strike, what did DOD estimate would be the total number of civilians killed or injured? 

13. What level of certainty did DOD have regarding the estimated number of civilians killed or injured?

14. What did DOD consider would have been an acceptable level of civilian casualties before authorizing the strike?

15. Did DOD apply the standard, which is codified in the Geneva Conventions (Additional Protocol I), that in case of doubt, people and objects should be presumed to be civilians?

Target Identification and Engagement 

16. According to DOD, civilians were not observed on the standard definition camera used by the task force (TF) that conducted the strike, but “a coalition UAV operator”  had a high-definition camera present at the time of the strike that did show the presence of civilians. Why was the TF not aware of the presence of this other asset? Has this happened previously in Syria, Iraq, or other theaters and, if so, what remediation actions were supposed to have been put in place to prevent it from happening again?

17. DOD determined that 16 people killed were ISIS fighters and four were civilians. On what basis did they make those determinations and with what level of confidence? 

18. Why was DOD unable to determine the combatant or civilian status of the other 60 people? What efforts has it undertaken to assess the status of these individuals over the past 2.5 years? What have been complicating factors preventing a high confidence assessment? How many of the 60 were women? Children?

19. Does DOD consider anyone who is armed to be a combatant, regardless of whether they are directly participating in hostilities?

20. How did DOD ensure that the strikes were conducted in accordance with the principles of necessity, distinction, and proportionality? 

21. The principle of proportionality requires that the expected harm is not excessive in relation to the anticipated concrete and direct military advantage, and that feasible precautions are taken in planning and conducting attacks to reduce the risk of harm to civilians. Were feasible precautions taken to reduce the risk of civilian harm and, if so, what were the precautions?

22. What was the anticipated military advantage and how was that determined?

23. Would DOD still have considered the strikes to be proportional if it had determined in advance that there were more than 60 civilians present in the target area? What factors does DOD take into consideration when making determinations of proportionality? 

24. What are the criteria that leads DOD to determine that a woman or a child is a combatant? DOD notes that “some women and children, whether through indoctrination or choice, decided to take up arms in the battle and as such could not be strictly classified as civilians.” What about those who are forced to participate, or at least to carry a weapon — would that change any of DOD’s assessments? 

25. DOD notes that it relied on its local partners, in part, to assess the presence of civilians. Is this a common practice, and how much confidence does DOD place on these assessments compared to its own pre-strike intelligence?

26. Can DOD provide more information on how the 80 individuals targeted in this strike posed a threat to Syrian Defense Forces (SDF)? DOD noted that 16 active ISIS fighters from that group were engaged in attacks on SDF positions. What were the other 64 doing at that time?

27. CENTCOM stated that the strikes using 500- and 2000-pound bombs “were proportional due to the unavailability of smaller ordinance at the time.” That is not a recognizable version of the standard of proportionality. Can DOD clarify how proportionality was applied to this strike?

I. Post-Strike Questions

Initial Assessments 

28. What observations of the strike location did DOD or other agencies carry out post-strike? For how long were observations of the location carried out? What methods were used, other than aerial surveillance? Was new surveillance conducted or only the surveillance available in the immediate period following the strike?

29. What training is given to operators conducting post-strike assessments and do these individuals have access to the full range of classified information needed to accurately conduct such assessments? 

30. To what extent did DOD rely on information provided by the SDF or other local partners in reaching its assessment of civilian casualties?

31. Why did DOD fail to report the assessed four civilian casualties in its 2019 or 2020 civilian casualty reports to Congress? How does DOD intend to report these numbers now? For the 60 for which DOD cannot conclusively characterize their status, would they be presented as a range of potential civilian casualties? What is DOD’s standard practice for publicly accounting for deaths for which it cannot conclusively assess their status? 

32. When reporting civilian casualties, the Office of Director of National Intelligence has stated that when it cannot be determined if an individual was a combatant, they must be assessed as a civilian: “The assessed range of non-combatant deaths includes deaths for which there is an insufficient basis for assessing that the deceased is a combatant.”

Why was this standard not followed in this case?

33. Which allies under the Global Coalition to Defeat ISIS knew about this strike? Did any of them call for additional investigations or raise concerns about the legality of the strike?

34. Has DOD made any attempt to provide solatia or ex gratia payments to the families of the civilians killed at Baghuz?

35. Under the civilian casualties Executive Order 13732, DOD is required to consider “relevant and credible information from all available sources, such as other agencies, partner governments, and nongovernmental organizations” in assessing civilian casualties. Did DOD solicit this wide range of information? What information did non-governmental organizations (NGOs) —  including media, local third parties like Raqqa is Being Slaughtered Silently, and international human rights — provide on the strikes?

Investigation

36. When conducting the initial investigation, what steps did DOD take to respond to internal concerns raised by DOD officials and external allegations from NGOs that the strikes killed dozens of women and children? 

37. Did DOD or coalition partners bulldoze the target area immediately following the strikes? What was the reason for this? If not, does DOD know who took such reported actions?

38. Is it the case that the same operators who authorized the strikes were responsible for the initial post-strike assessment? How can post-strike assessments be accurate and objective if operators are responsible for grading their own behavior?  

39. What actions did the Senate Armed Services Committee take in response to the information that Colonel Korsak shared regarding potential war crimes? Why has he not received a response from the committee? 

40. Is it the case that the Air Force Special Investigations office only investigates civilian casualty incidents where there is a “potential for high media attention, concern with outcry from local community/government, [and/or] concern sensitive images may get out”? Why was that criteria cited in a response Col. Korak reportedly received from the Office of Special Investigations?

41. Why was the assessment that a violation of the law of armed conflict may have taken place removed from the final draft of the civilian casualty report? 

42. Why were all mentions of the Baghuz strikes cut from the inspector general report on civilian casualties that was formally released this spring to select members of Congress and the military? 

43. Why did the deputy inspector general refuse to sign a memo in January 2020 that would have formally alerted authorities and opened a criminal investigation? 

44. Why is Operation Inherent Resolve still publicly listed as an “open” case on DOD’s website 2.5 years after the official civilian casualty report determined that only four civilians were killed? 

45. Is DOD currently drafting a report evaluating CENTCOM’s adherence to the laws of war? Will DOD commit to releasing an unclassified version of the report or its findings?

46. In light of the systemic problems that recent revelations have raised, including the Aug. 29 Kabul strike and the March 2019 Baghuz strikes, will DOD commit to releasing unclassified versions of any reports in which similar allegations have been made that U.S. special forces hit targets knowing civilians would be killed? 

Accountability and Future Operations

47. DOD notes that “the investigating officer determined that no disciplinary actions were warranted.” Did the chain of command determine that other action was appropriate? Short of criminal action, did any personnel involved in the strike receive administrative punishment, decertification, or other remedies that the Department previously suggested were available?

48. What steps has DOD taken to ensure that similar civilian casualty incidents do not occur in the future? Has it changed any targeting methodologies, pre-strike procedures, or post-strike assessment practices? 

Image: Smoke billows after shelling on the Islamic State group’s last holdout of Baghouz, in the eastern Syrian Deir Ezzor province on March 3, 2019. (Photo by DELIL SOULEIMAN/AFP via Getty Images)

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The tragedy for the Afghans killed is searingly obvious. Yet when it comes to evaluating U.S. actions on Aug. 29, at least one way to view the strike is with empathy for the personnel involved. This is where Said ends up. Coming off of a tragic bombing at Kabul airport that killed 13 American servicemembers and almost 200 Afghans, U.S. forces were at a heightened state of alert. It’s the kind of situation that our personnel train for but is still immensely stressful in the moment. By Said’s account, U.S. military personnel were doing their best to keep the airport – and thousands of civilians amassed around it – safe while upholding high operational standards. Further, the targeting timeline was compressed (to about eight hours) due to the assessed imminence of the threat, and while U.S. Central Command head Gen. Kenneth F. McKenzie previously said that “this was not a rushed strike,” Said concluded that the timeline made it difficult to do the careful intelligence analysis required to catch errors like the misidentification of an innocent man, Zemari Ahmadi, as a terrorist operative.

Yet the results of the strike were unspeakably tragic – an innocent man targeted, ten innocents killed, including seven children – and Said offered up fairly modest solutions, what one journalist at the press conference told him felt like, “tweaks around the edges.” His recommendations were carefully bound only to self-defense strikes against imminent threats to forces, and he spoke in vague terms about checking confirmation bias, improving communications and situational awareness, and reviewing how the military assesses the risk of civilian casualties prior to the strike.

The problem is that it’s hard to constrain judgment to just this kind of strike or to chalk the errors up as simply honest mistakes made in the moment. The situation here is not a checkpoint gunner mistakenly firing on a speeding vehicle. Drone strikes are complex analytic and operational undertakings that rely on techniques and procedures developed and refined over many years. Sure, the strike was taken during a tense time and the rules of engagement reportedly required only “reasonable certainty” that they had the right target and that no civilians would be harmed, as compared to the higher “near certainty” requirement that governs many other strikes. But the details made public suggest some fundamental flaws in the underlying targeting methods that should raise deeper questions as to how the U.S. military identifies targets, seeks to prevent and investigate civilian casualties, and communicates about its operations around the world.

Confirmation Bias

Let’s start with one of Said’s most notable findings – the prevalence of confirmation bias throughout the targeting process. We don’t know much about what the intelligence showed regarding the threat, or how granular that information was, though Said alluded several times to classified information that would substantiate his account. Yet, more recent New York Times reporting suggests that the military still doesn’t know the true location of the ISIS-associated structure that was supposedly at the center of the plot. Regardless, once the military had erroneously landed on Ahmadi as a possible ISIS terrorist, they proceeded to massively misread a number of totally innocent and commonplace facts and events.

They were reportedly on the lookout for a white Toyota Corolla at the (misidentified) ISIS compound. Toyota Corollas are the most common vehicles in Afghanistan, and anybody who has spent any time in Kabul can tell you the model is frequently featured in threat reporting. Further, the targeting cell reportedly saw Ahmadi receive a laptop bag from his boss, which matched intelligence on how ISIS carried out its Aug. 26 attack on the airport. Finally, Ahmadi was observed on several occasions filling large bottles with water to take to his home, where he had erratic water service, yet the targeting cell interpreted the containers as explosive materials.

Confirmation bias is a risk in any analytic endeavor, and perhaps there were other factors that analysts saw as confirming their assessment, but it’s hard to fathom how such unremarkable things – driving a ubiquitous car, handing off a bag, and filling water bottles in a place with water shortages – could be interpreted as definitively confirming threat reporting. And it’s even harder to imagine how the military did not develop systems to correct for this risk – even basic things like red-teaming, which Said proposed – long before now.

Misidentification of Civilians

Then there is the misidentification of civilians. The first accounts of the strike suggest that the military saw a man standing in the courtyard where the strike took place and assessed him to be a combatant because of his association with Mr. Ahmadi. It’s unclear if the military did any additional due diligence on the man, who turned out to be Mr. Ahmadi’s cousin and a former U.S. military contractor. But it points to another pitfall of air strikes: bad initial intel tends to compound.

It also raises serious questions about who the Department of Defense considers to be targetable as a combatant and the permitted factual inferences to meet those standards. If determinations of lawful targets are made with less than the utmost rigor, then further assessments of associated combatants will be, by definition, built on shaky foundations.

Presence of Children

As to the children killed in the strike, Said confirmed that kids were seen in the courtyard two minutes before the Hellfire missile was launched. But he insisted that this fact was “100 percent not obvious. You have to be no kidding looking for it.” Said then told The New York Times that four adults and two children were visible nine seconds before the launch of the missile. Yet Said concluded that it would have also been easy to miss the children in viewing surveillance footage. This is a remarkably generous interpretation of a major operational misstep. We have been conducting targeted airstrikes for two decades, and one of the most frequent critiques has been that the strikes kill children. How, then, did the targeting cell not have trained personnel present to really look for the presence of children, even when their appearance was not obvious?

Situational Awareness and Information Sharing

CNN and Times reporting suggests that CIA analysts actually did have indications that children were present prior to the strike, but the analysts were not co-located with the targeting cell and a communications breakdown prevented this information from getting to the operators in time. Said appears to confirm this reporting (though he’s vague due to classification concerns), which fueled his recommendation for enhancing situational awareness and better information sharing.

This was not the only failure to gain and maintain full situational awareness. The targeting cell apparently also had no idea that one of the places Ahmadi visited in the hours before the strike was the offices of the U.S. non-governmental organization (NGO) where he worked. This is a remarkable failing. After twenty years of being in Kabul, the military still did not seem to have a full accounting of certifiably non-combatant locations. Or if it did, it had not fed those locations into a do-not-strike system. This failure is particularly troubling considering that, six years ago in Afghanistan, the U.S. Air Force similarly failed to ensure that an aircrew had possession and properly used a no-strike list, which included an internationally recognized NGO-run hospital, resulting in the misidentification of the hospital as a Taliban-controlled building and a strike that killed more than forty doctors and patients.

Secondary Explosions

Finally, there’s the military’s erroneous claim that there were secondary explosions, likely indicating that Mr. Ahmadi’s vehicle was carrying explosive material to be used in an attack. In Said’s account, the operators saw a larger than expected explosion and only some time later assessed that the missile likely detonated some sort of gas tank. It’s incomprehensible that an organization that looks at explosions day in and day out would make such a mistake. Within a couple of days, the Washington Post and New York Times both spoke with civilian explosives experts who pointed toward clear signs that the only significant explosion came from the missile – things like blast patterns, that nearby trees had not had all their leaves blown off, that surrounding structures remained intact.

This is surely not the first time that a strike, especially one conducted in a closed courtyard in an urban environment, set off nearby flammable materials. How, then, could the military fail to distinguish between a small gas tank and explosives, either in the initial blast or in post-strike surveillance of the surrounding area? And does this mean that there have been other cases where exploding gas tanks were taken as confirmation that the military had hit a bombmaker or the like?

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In short, Said’s public discussion of his classified report evinces empathy not just for the operators serving under trying circumstances – which may well be warranted – but for a set of procedures and methodologies that were presumably refined over many years but that simultaneously and catastrophically collapsed in eight hours.

Since leaving government, I have written extensively and critically of the drone program and the policies that govern it, but I have been steady in defending the professionalism of the men and women who carry out these operations. I have seen countless hours of drone footage, gotten to know the people conducting these missions, and came away amazed at the actions our operators take to address terrorist threats without harming civilians. I would bet that the personnel involved in the Kabul strike were similarly adept and focused on doing their best in a tough situation. But as Loren DeJonge Schulman and Pauline Shanks Kaurin have noted, military professionalism is about more than being skilled and trying to do no harm. It is about incorporating the profession’s ethics into everything it does and embracing the characteristics of a learning organization. As Larry Lewis wrote yesterday, this is only the latest in a steady stream of operational mistakes that produced tragic results. With Said’s conclusion that there was no negligence, nothing approaching criminality, the message to operators may well be: keep doing your job and try to be better. If so, we will have missed an opportunity for deeper learning. Professionalism means introspection and embracing deep operational reforms. Lives are on the line and they deserve not just our best efforts and intentions but a set of systems and procedures to match.

Our credibility as a nation is also at stake. In the days after the strike, while the military’s initial review was ongoing, the military low-balled the potential civilian casualty assessment, even though al-Jazeera and others were already reporting ten civilian casualties. In an internationally broadcast press briefing, the Chairman of the Joint Chiefs of Staff referred to the strike as “righteous,” even as early information suggested the results were not clean and an investigation was ongoing. The military would revise its story several times more in the days and weeks ahead. As New York Times reporter Eric Schmitt put it, “Nearly everything senior defense officials asserted in the hours, then days and weeks, after the drone strike has turned out to be false.”

In reviewing this coverage, many of us have wondered what would have happened if not for the extraordinary Times and Post coverage of the strike. The Times’ video investigation of the strike was a remarkable almost minute-by-minute account of Mr. Ahmadi’s movement on Aug. 29, complete with security camera coverage of his comings and goings across the city, all made possible by years of reporting from Kabul. This type of coverage and insight has been lacking in the countless strikes that have occurred in places like the remote reaches of Nuristan, Afghanistan; Marib, Yemen; or Lower Shabelle, Somalia.

Indeed, we have many such examples, where local journalists and international human rights groups have alleged civilian casualties. In years past, the military often didn’t even address the allegations. Now the military will usually address the situation, but quite often that means disputing the account without saying why. Certainly there are times when journalists or NGOs get it wrong, but in some cases, it’s reasonable to assume that there were civilian casualties but a military relying on flawed procedures pronounced the strike righteous anyway. The Kabul strike will only deepen this credibility gap, and additional steps toward transparency may not be enough to bridge it.

Yet it’s more important than ever that the Biden administration does begin to bridge this gap. As a first step, U.S. Special Operations Command and Central Command should release their own findings on the strike and address whether they have taken any of the administrative or non-criminal disciplinary actions that Said indicated are available. It will be important to show not just overdue accountability for this strike but serious reforms intended to ingrain lessons learned from this tragedy.

Then there’s the question of new drone policies. In the coming months, the administration is set to release new guidance for drone strikes and commando raids. It will likely move the program toward still higher standards when it comes to constraining the use of force, protecting civilians, and improving transparency. But the Kabul strike will undermine the credibility of that document before it’s even completed and amplify the questions that my colleagues at Just Security have raised for years – e.g., about how combatant vs. non-combatant assessments are made, what reasonable certainty vs. near certainty mean, how imminence is defined for external vs. self-defense threats, and when a threat reaches a threshold that allows for a strike.

All of this suggests that we need more than a policy review of direct action. We also need a fundamental review of the operations and procedures that underpin the drone program and how those have evolved in the wake of previous mistakes. It should get into the weedy details of how operations are conducted and whether they meet what policymakers expect of them, and it should include a strong civilian voice, which is often underrepresented in such operational reviews. The administration needs to consider far more significant steps towards transparency on such operations if is to regain the public’s trust. And it may need to consider more dramatic measures that have been floated previously but foundered in the bureaucracy, such as establishing an outside or independent oversight board. Finally, the Kabul strike may reinforce the growing sense that no matter how much we try, drone operations go bad for a range of errors, both human and technological. At some point, the solution set must be more than technical fixes but rather a recognition that maybe we should conduct fewer strikes, that we shouldn’t fumble our way around countries we don’t understand very well, and that we should rely more on our defenses to keep our country safe.

There are certainly unique circumstances to the Kabul strike, but if we miss the bigger lessons, we only invite further tragedy.

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