On the eve of a new administration that has promised more aggressive counterterrorism operations, the Obama White House has released a lengthy compendium of its own policies governing the use of force.
The 61-page document outlines eight years of the administration’s legal opinions, executive orders and military directives. In a strong defense of the administration’s actions, it lists rules for lethal drones and terrorist detention and describes the international and domestic law that undergirds them.
Such rules are important to reduce “the risk of an ill-considered decision,” President Obama wrote in an introduction to the document. When making policy on war and peace, he wrote, it was critical to disclose “as much information as possible to the public . . . so that an informed public can scrutinize our actions and hold us to account.”
Obama said that, together with the report, he was issuing a presidential memorandum “that encourages future Administrations to build on this report and carry forward the principles of transparency it represents.” The memorandum, he said, asks for it to be updated by the National Security Council staff at least on an annual basis and released to the public.
There is no statutory requirement for the document, titled “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations,” and no obligation to make it public.
A senior administration official said that the White House-compiled report had “been in the works” since before the election and is not targeted at the incoming Trump administration, which will be led by a president who has spoken approvingly of using torture.
“Putting it together and presenting it to the next administration, it would be a helpful guidebook, certainly,” said the official, who spoke on the condition of anonymity in advance of the official release. “But it wouldn’t have the same import as informing the American public.”
Although some of the procedures the report outlines are based on court decisions and legislation, many come from executive orders that the next president is free to amend or override. For instance, the use of interrogation techniques, such as waterboarding and other methods that have been deemed torture, are a combination of legal interpretations and legislation as well as military and presidential directives.
Obama said repeatedly this year that he wanted to “institutionalize” the policies that have governed his administration’s use of force, in hopes that they would serve future administrations and better position the public to judge the actions of its government.
While the document contains no new information, “it’s the first time it’s all been in the same place, that it’s put together in such a way that it will be a guidebook for what we have employed . . . and how we have justified our use of force,” said the official, who called it a “one-stop shop.”
During his campaign, Donald Trump said of waterboarding that “nobody knows if it’s torture,” and that “enhanced interrogation . . . works.” Speaking of the Islamic State, he said, “We have to play the game the way they’re playing the game. You’re not going to win if we’re soft and they’re, they have no rules.”
The U.S. ban on waterboarding, he said early this year, was a sign of weakness. “I think we’ve become very weak and ineffective,” he said. The Islamic State “must think we are a little bit on the weak side.”
Following strong criticism of those views, including his willingness to target family members of terrorists, Trump appeared to reverse himself somewhat and said that he understood “that the United States is bound by laws and treaties.”
“I will not order a military officer to disobey the law. It is clear that as president I will be bound by laws just like all Americans and I will meet those responsibilities.”
Last month, in comments on his meetings with retired Marine Gen. James N. Mattis, subsequently selected as his nominee for defense secretary, Trump said he was “surprised” when Mattis told him he had “never found [torture] to be useful.”
“I was surprised, because he’s known as being like the toughest guy,” Trump said in an interview with the New York Times. “And when he said that, I’m not saying it changed my mind. Look, we have people that are chopping off heads and drowning people in steel cases and we’re not allowed to waterboard.” But, he said, “if it’s so important to the American people, I would go for it.”
Trump has said he plans a more aggressive strategy against the Islamic State and other terrorist groups, but he has provided no specifics. Although he disparaged the abilities of the U.S. military and its leadership at various times, he has also said that he will give his “generals” 30 days to come up with a new strategy for him to consider.
While his choice of a secretary of state is still awaited, Mattis’s selection to head the Defense Department has met with widespread approval and strong indications that he will have no trouble being confirmed. Trump has also said he plans to nominate Rep. Mike Pompeo (R-Kan.), a member of the House Intelligence Committee, as director of the CIA and Sen. Jeff Sessions (R-Ala.) as attorney general.
The White House document released Monday is organized into sections covering the legal bases for its actions, including the 2001 Authorization for the Use of Military Force, the president’s constitutional powers to defend the nation without first seeking congressional authorization, the Geneva Conventions and other aspects of international law covering self-defense.
Revisiting past announcements and releases, the report outlines how those rules have been applied in each theater in which they have been used, including Afghanistan, Iraq, Syria, Somalia, Libya and Yemen — all of which, except Yemen and Somalia, have been designated “areas of active hostilities” covered by the international laws of war. The designation exempts such areas from rules that the administration laid out in 2013 for targeted killings outside war zones.
Adding to previously released documents, the report details the most recent designation of Libya as an “area of active hostilities,” based on a request from the Libyan government to help dislodge Islamic State-linked militants in the city of Sirte. Since then, more than 400 airstrikes have been carried out there.
The Obama administration maintains that the Islamic State, as an offshoot of the al-Qaeda group in Iraq, is covered under the 2001 authorization, allowing the use of military force against those who planned and carried out the al-Qaeda attacks against the United States this year. Obama has unsuccessfully requested that Congress pass a new authorization specifically directed at the Islamic State.
The new report also mentions a recent decision to place Somalia’s al-Shabab group in the list of al-Qaeda “associated forces” for purposes of targeting under the 2001 authorization. Other portions of the report cover rules for the targeting, capture, detention, prosecution and transfer of individuals in an armed conflict.
It notes that previously released guidance on lengthy procedures to determine whether an individual or group is eligible for lethal targeting, and a “near certainty” that civilians will not be killed. The document also restates a preference for captures over kills, and revisits legal decisions governing the rules for targeting U.S. citizens abroad.
Although Obama is unlikely to achieve his goal of closing the U.S. detention center at Guantanamo Bay, Cuba, the report notes that the number of prisoners there has been reduced from 242 to 59 under his administration. Trump has said he plans to keep Guantanamo open. On the campaign trail in February, he said, “We are keeping [it] open . . . and we’re gonna load it up with some bad dudes; believe me, we’re gonna load it up.”