Armed Conflict Cybersecurity & Tech

President Obama's Executive Order on Pre/Post Airstrike Policies and Practices

Robert Chesney
Friday, July 1, 2016, 2:55 PM

Hot off the press: The new Executive Order concerning pre-strike and post-strike practices and policies is here, ODNI's release of aggregate casaulty information is here, and the official fact sheet concerning them both is

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Hot off the press: The new Executive Order concerning pre-strike and post-strike practices and policies is here, ODNI's release of aggregate casaulty information is here, and the official fact sheet concerning them both is here.

A few quick items:

How does this relate to the administration's desire to entrench, as much as possible, its approach to the use of force outside areas of active combat operations?

Nothing will prevent a future president from revoking this executive order, of course. President Obama famously moved quickly to revoke President Bush's executive order on interrogation, for example, and if Donald Trump becomes president it is not hard to imagine today's order also being revoked. That said, there is still some marginal entrechment effect from such measures, if only by virtue of placing the onus on a successor to make a public break with the status quo. Since Congress is not remotely likely to legislate in this area in the months ahead, an executive order is about the best the administration could do on this dimension (short of an equally-unlikely effort to oblige the Justice Department to identify pending cases that present opportunities for the government to make concessions to the effect that existing law somehow require some of these policies and practices).

Is the EO designed to confirm that international law requires these practices/policies?

No, it is framed as a confirmation of the desirability of certain practices beyond what law requires. Best practices, in short, not legal requirements as such.

So, what are these best practices?

This is all about minimizing civilian casualties. Best practices include:

  • ensuring that personnel of all "relevant agencies" (i.e., both DOD and CIA) get training on the applicable law and best practices pertaining to minimization of civilian casualties
  • create and use intelligence-collection platforms that can help towards this end
  • create and use weapons that facilitate distinction (i.e., ever more accurate, ever more discrete in terms of effect radius)
  • embracing precautions such as warnings to civilians, striking at times with lower risks of this kind, etc.
  • learn from past attacks how we can do better
  • conduct post-strike investigations...and take into account information provided by outsiders
  • acknowledge US responsibility when civilians are killed (though note that this is conditional on compliance with applicable law, and hence presumably would not apply if and when a strike is conducted by CIA as a covert action), and offer condolences (including ex gratia payments)
  • try to help foreign partners improve in this area (hello, KSA...)
  • work with NGOs like ICRC on these issues, including encouraging them to clearly distinguish themselves and keep us up to date on locations of their personnel and facilities (is this an MSF-related point?)

In addition--and here is the part that will be controversial in some quarters (among those who think it won't do anything to quell criticism and hence just invites complaints, as well as among those who will say that it is indeed an insufficient amount of information)--the EO also requires annual disclosure of data on aggregate casualties outside areas of active combat operations. Specifically:

  • By May 1 of each year (unless and until this EO is rvoked, that is), ODNI is to release aggregate data on the # of airstrikes conducted by any and all agencies (thus encompassing CIA even when acting in a Title 50 capacity, presumably) outside an area of active hostilities as well as data on the # of resulting deaths of combatants and non-combatants.
  • Said annual report should have something to say explaining why USG data on non-combatant deaths may be much lower than estimates by others (that's not how the EO puts it, but that's what it means of course)

A final interesting detail:

Note that the very first line of the Executive Order refers distinctly to the use of force both in armed conflict and, separately, in national self-defense (i.e., below the threshold of the legal standard for recognition that an armed conflict exists). I highlight this simply because it is another data point confirming that the US government does take the position that the national self-defense category is not coextensive with armed conflict. Something everyone needs to bear in mind whenever the conversation turns to how things might be different--or not--if we did not claim to be in an armed conflict with AQ and ISIS...

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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