President Trump’s executive order this week removing a requirement that the government disclose estimates of civilians killed by U.S. airstrikes outside of war zones won’t change very much—in practice. But that doesn’t mean it’s nothing to worry about.
Trump’s order rescinds a requirement created in one issued by Barack Obama in 2016 that the director of national intelligence to disclose civilian casualty estimates from all strikes by U.S. government agencies. The White House says the requirement was superfluous since the Pentagon has its own congressionally mandated reporting requirements. But as Luke Hartig, who helped draft Obama’s order, explains for Just Security, that law doesn’t cover strikes carried out by the CIA.
One of the reasons Trump’s rollback will have only limited impact is that, as the New York Times reported, the Trump administration was already not following the order: The DNI has not issued these reports under Trump. Such strikes are a lot less common than they used to be. In Pakistan, once the heart of the drone war, the last strike was eight months ago, according to New America’s drone-tracking program. The previous one was five months before that. Contrast this with 2010, the height of Obama’s drone war, when there were an estimated 122 strikes, according to New America. But Trump’s move is still part of a larger, more troubling shift. As the U.S. enters a new era of counterterrorism operations, the administration is shifting toward less transparency and accountability, and further blurring the lines between what’s a war zone and what’s not.
To be fair to Trump, much of this trend was established by Obama, who presided over a massive expansion of the covert drone war. But Obama did take some limited steps in his second term to rein in the legally murky state of affairs he had created—steps the Trump administration has been steadily undoing. One of Obama’s steps was shifting control of the lethal drone program from the CIA to the Pentagon, where it would be on firmer legal footing and more transparent. In the first weeks of his administration, Trump granted new authority to the CIA to conduct targeted killing operations—a curious move in light of his overall dim view of the country’s intelligence agencies.
The Obama administration also instituted rules imposing high standards on lethal missions undertaken outside areas of “active hostilities.” The term has no official definition, but under the Obama administration these areas reportedly included Iraq, Afghanistan, and later Syria. A strike outside those countries could be aimed only at “high-value targets” with a minimal risk of civilian casualties and were subject to extensive vetting by the White House. (The degree to which the Obama administration actually complied with some of its own guidelines is debatable.)
Trump has, in the words of one official, made Obama’s guidelines effectively “disappear.” He first did this by designating large sections of Somalia and Yemen, where both administrations carried out airstrikes, as areas of active hostilities. Then he simply dismantled many of the Obama-era limits on strikes that could be conducted outside these areas. (Although the new standards have been reported in the New York Times and elsewhere, they have not been publicly released.)
Does this matter given that such strikes occur only occasionally now? Absolutely. First of all, when it comes to lethal military action, even one instance is significant. Second, there’s no way to know for sure if such strikes are as rare as we’re being told.
It’s true that you can only be so secretive when you’re lobbing a missile at an inhabited area. News of strikes gets out via social media and local news reports, and organizations including New America, the Bureau of Investigative Journalism, and Long War Journal have set up to track them. But this information isn’t always reliable, and attribution can be difficult, particularly in a chaotic war zone.
“It’s very possible, if not likely, that CIA or other covert non-military strikes are occurring in Yemen,” says David Sterman, a senior policy analyst at New America who runs the organization’s drone-tracking program. “We’ve seen reports of strikes that are alleged to be U.S. strikes based on media reporting that [U.S. Central Command] has not claimed. That could be incorrect media reporting, or it could be covert strikes by the CIA or other actors. We just don’t know.”
A recent investigation by the Nation’s Amanda Sperber in Somalia, where the U.S. has increased the number of counterterrorism operations since Trump took office, also found several examples of strikes that “AFRICOM could not confirm—which suggests that another US agency may also be launching air attacks in the region.”
The New York Times reported last September that the CIA has been expanding its drone operations in West Africa, “moving aircraft to northeastern Niger to hunt Islamist militants in southern Libya.” While there’s no indication that these aircraft have yet been used in lethal operations, under Trump’s new guidelines, it’s quite likely that they could be, particularly with the Pentagon sounding the alarm about the growing unrest and influence of extremist groups in the Sahel region.
“It’s remarkably dangerous and shortsighted to act as if this is not an enormous abdication of the executive’s responsibility to be transparent about how we’re fighting wars,” says Sterman.
Lately, there’s been a growing movement in Congress to claw back some of the generous war powers that have been ceded to presidents over the years. The killing of U.S. troops in Niger in 2017 raised some alarm on Capitol Hill over the extent of ongoing U.S. counterterrorism operations outside established war zones. Both the Senate and House have voted in recent months on measures to end U.S. involvement in the war in Yemen. A new bill from Sens. Tim Kaine and Todd Young would rescind the still-in-effect 1991 and 2002 authorizations for war in Iraq. Rep. Adam Schiff, chairman of the House Intelligence Committee, responded to Trump’s order this week by saying he would push to insert the reporting requirement in this year’s Intelligence Authorization Act, essentially codifying Obama’s executive order into law. Some think the accountability could go further than that.
“Progressives aren’t going to find the status quo at the end of the Obama administration to be sufficient, and it wouldn’t surprise me if we saw a move toward a legislative ban on the CIA conducting drone strikes entirely,” says Andrea Prasow, deputy Washington director at Human Rights Watch.
Still, such a fix is probably a long way off with a Republican-controlled Senate and Trump in the White House. For now, there’s little pressure to rein in these programs, which raises the question of why the Trump administration bothered with this week’s order at all. “I wonder why they decided now to formally revoke it,” Prasow says. “That does raise concerns. I don’t know if it’s just that John Bolton got around to noticing it or if it signals an expected change that they don’t want people to know about.”
Prasow notes that it’s ironic that this move comes at time when the Defense Department has actually been getting better about providing information on its strikes.
But it’s also worth keeping in mind that Trump has been pushing to wind down formal military deployments in Syria, Iraq, and Afghanistan. That doesn’t mean the U.S. is giving up on targeting extremist groups like al-Qaida and ISIS. If anything the list of targets is expanding, with recent strikes in Pakistan and Shabaab targeting groups like the Taliban, Haqqani network, and al-Shabaab—which are undoubtedly local threats but have posed little direct threat to the U.S. If Trump wishes to bring the troops home and reduce America’s military footprint around the world, it may mean that counterterrorism operations are increasingly carried out by groups other than the military, and we’ll know much less about it.
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