Foreign Relations & International Law

The Yemen Raid: Highlighting Four Key Issues

Robert Chesney
Thursday, February 2, 2017, 10:47 AM

It is hardly uncommon for the United States to use force against AQAP targets in Yemen. Since 2012, we’ve averaged more than two dozen operations every year (see, e.g., here and here). By and large, these operations don’t generate headlines (the airstrike that killed U.S.

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It is hardly uncommon for the United States to use force against AQAP targets in Yemen. Since 2012, we’ve averaged more than two dozen operations every year (see, e.g., here and here). By and large, these operations don’t generate headlines (the airstrike that killed U.S. citizen Anwar al-Awlaki of course was a glaring exception), in no small part because they usually take the form of airstrikes, and airstrikes in Yemen entail little or no risk of U.S. personnel being killed or captured. Indeed, the last publicly-reported ground operation occurred more than two years ago, when SEAL Team Six attempted a hostage rescue. Not long thereafter, surging political instability associated with the Houthi rebellion resulted in the temporary withdrawal of SOF personnel.

Against that backdrop, the ground operation conducted by SEAL Team Six in Yemen this weekend was bound to draw considerable attention. Add in the fact that the raid was approved by President Trump; that it resulted in civilian casualties (reportedly including Anwar al-Awlaki’s 8-year-old, U.S. citizen daughter); that an Osprey crashed during the operation; that a SEAL was killed; that several servicemembers were injured; and that it all takes place at a time of immense angst about the Trump administration’s organizational and personnel decisions relating to national security; and…, well, it is no wonder that we are seeing a great deal of discussion and post-raid analysis—and mounting criticism—this week.

What are the issues you should focus on when thinking through these developments? Here is my list:

1. Has Trump adopted a different policy from Obama regarding the presence of SOF on the ground in Yemen?

No. It may be tempting to assume that the Obama administration had adopted a policy of keeping SOF personnel out of Yemen since the withdrawal in early 2015, and that Sunday’s raid reveals that Trump has reversed course. But in fact SOF personnel have been back in Yemen since at least July 2016, in order to work “by, with, and through” partner forces that can play the lead role in tracking and attacking AQAP—above all, it seems, SOF units from the United Arab Emirates. Those UAE units have quietly emerged as critical players in the anti-AQAP effort (see here for a detailed discussion of the evolving UAE role in Yemen), providing point-of-the-spear ground capacities on a scale that the United States probably could not long sustain. And they were an integral part of this Sunday’s raid, it seems, alongside the SEALs. Of course, the Sunday raid is distinguishable in that U.S. personnel were not merely advising and assisting, but instead were in the lead. But the public reporting suggests that planning for this operation had been underway for quite some time before the transition from Obama to Trump.

2. Does the raid reveal a change in the U.S. government’s position on any of the key legal issues associated with the “armed conflict” model of counterterrorism?

No. The Obama administration always maintained that (i) there is an armed conflict between the United States and al Qaeda; (ii) that conflict includes those AQ-associated groups that engage in hostilities against the United States; and (iii) AQAP is such a group. Whatever one thinks of those claims, nothing about Sunday’s raid suggests a change from the status quo.

3. Does the raid reveal that the Trump administration has abandoned the policy constraints embodied in the “PPG”?

Famously, the Obama administration in May 2013 adopted a set of policy constraints on the use of force for counterterrorism purposes outside zones of “active hostilities.” This Presidential Policy Guidance, known thereafter as “the PPG,” forbade the use of force in circumstances in which collateral damage was foreseeable, even if such harm would have been permissible under the law of armed conflict. My understanding is that the Obama administration always categorized Yemen as a location in which the PPG applied, and I have speculated that President Trump sooner or later will either change that categorization or else repeal this aspect of the PPG outright. And so the question arises: does Sunday’s raid show that one of these things already has happened?

Perhaps. But the reporting suggests that raid planners had hoped the element of surprise (on a moonless night, with helicopter insertion several miles away) would enable the US and UAE personnel to make their way to the target building undetected. It is possible that the planners did consider the PPG standard, but concluded that the “near certainty” standard of the PPG (i.e., near certainty that the attack won’t cause collateral damage) was met (perhaps just barely). As the raid actually developed, of course, the element of surprise was lost early on and a fierce and long-running firefight resulted, including substantial intermixing of AQAP fighters (including female fighters) with local civilians. In such circumstances, it is no surprise at all that civilians died. I just don’t think we can conclude from this that the Trump administration already has jettisoned the PPG.

4. Does the raid tell us anything about possible changes to the process for approving such raids in the future?

This is, I think, the most important part of the story. As the detailed accounts of Trump’s involvement in approving the raid illustrate, current policy apparently requires the approval of the commander-in-chief before such a raid can occur. The reporting suggests that there is a push underway to change this, in order to push decision-making authority to a lower-level and thus make it quicker and easier to conduct such operations.

This makes much sense insofar as the goal is to replicate the rapid operational cycle (operation-exploitation-analysis-targeting-next operation) pioneered in Iraq in the heyday of the counterinsurgency effort. Speed, in that setting, is everything. On the other hand, the reason that decision-making authority for such raids heretofor has been pushed up to the POTUS level is on full display in the aftermath of this particular raid: Ground ops with U.S. lives at risk entail significant potential repercussions along many dimensions. The interesting question is whether President Trump will conclude from this week’s frictions that he should keep the reins in his own hands, or instead try to create some separation between himself and responsibility for decisions that sometimes don’t turn out well. That’s not clear at this point.

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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