The Pentagon confirmed this week that President Joe Biden has imposed new, temporary restrictions on counterterrorism drone strikes outside of active battlefields, making them subject to review by the National Security Council. According to The New York Times, which first broke the news, the rules were quietly put in place on Biden’s first day in office, as a stopgap measure while his national security team conducts a broader review of U.S. counterterrorism operations.
According to Charli Carpenter, a professor at the University of Massachusetts-Amherst specializing in the laws of war, the Biden administration’s review is a long-overdue opportunity to rein in the practice of targeted extrajudicial killings, like the drone strike that killed Iran’s top military commander, Gen. Qassem Soleimani, in January 2020. She joined WPR’s Elliot Waldman on the Trend Lines podcast this week to discuss the potentially far-reaching implications of Biden’s move.
The following is a partial transcript of the interview. It has been lightly edited for clarity.
World Politics Review: What impact do you expect the Biden administration’s new rules will have on the frequency of U.S. drone strikes around the world?
Charli Carpenter: I think it will immediately result in fewer drone strikes. Essentially what Biden is doing is he’s moving the barometer back to where it was before Trump devolved authority for drone strikes away from the executive branch and into the hands of commanders. What that means is that anytime a drone strike is envisioned, it needs to be approved by the White House. There’s going to be a much higher level of oversight and much more concern over the legal nuances of each strike. It will just make drones harder to use, and you can imagine the weaponized drones will only be used in the most extreme cases.
WPR: What was the basis on which the Trump administration devolved the authority to commanders in the field? What impact did that have on the dynamics of the war on terror and also on the actual relationships with countries where these strikes were taking place?
Carpenter: One of the interesting things about Trump’s drone policy is we know much less about it than we knew about Obama’s policy, because he didn’t really explain his thinking or justify it publicly. A lot of those documents are classified. So, there’s a limited extent to which I can speak to it. My understanding of the rationale was that it was partly just to empower those in the field—lower-level commanders—to be much quicker on their feet. Trump, of course, was not as concerned as the Obama administration was with the legal nuances of whether these strikes were really lawful under human rights law and under the laws of war. He also had a different perspective on grand strategy and the war on terror. I will say that I think that there was—to a great extent on the right during the Obama years—a sense that a commander’s hands were really being tied by all of the legal requirements and legal oversight for these strikes.
The idea that we would be using military air power—which also risks civilian lives in the vicinity, regardless of how precise we try to be—in areas that are not hot battlefields, is extremely problematic in terms of international law.
WPR: How else did the rules that the Trump administration put in place differ from what the Obama administration was doing?
Carpenter: Essentially what he did is he removed oversight on strikes. He also removed the requirements to count and publicize civilian casualties. In some respects, this really signaled to the military and to the CIA—which is not part of the military, it’s a civilian agency, but it does also have a drone program—that the gloves were coming off a bit. They wouldn’t be dealing with JAG lawyers [Judge Advocate General, the U.S. military’s legal arm] at the highest levels, going over every strike. There was much less scrutiny on these pilots and on their commanders to account for collateral damage. One thing that we do know from global civil society groups that track civilian casualties from drone strikes, or from airstrikes in general—groups like Airwars—is that civilian casualty counts went way up during the Trump administration. So that’s one of the concrete impacts and one of the regretful things that we would hope would be rolled back a bit by Biden’s new policy. We would hope to see civilian casualties go down.
But at the same time, I think that it’s important to note that part of the impetus for Trump’s shift comes from a sense that you heard from many commanders and troops in the field during the Obama years that their hands were really being tied in the war on terror by all of these legal nuances and legal strictures. There was a sense that much more discretion was needed in order to fight the war on terror effectively. Now, that is disputed by many analysts who study counterterror dynamics. We know that if there’s a very large level of civilian casualties, there’s actually a blowback effect in terms of your effectiveness in counterterror operations. But there was very much a sense that this was going to assist troops. So you can imagine that there’s going to be some sense on the right that this is, again, going to hobble the troops in the field.
WPR: One of the interesting things about this new rule that the Biden administration put in place was its distinction between active battle zones and the fact that the rules only apply to areas outside of those active battle zones. What does that distinction mean in reality? Is there a formal definition for that?
Carpenter: The Biden administration is attempting to create a formal definition, and governments do this—they creatively interpret norms and laws to suit their moral proclivities and their strategic interests at the time. This is not a term in international humanitarian law, but it does map onto an important distinction. It’s a salient distinction, the kinds of theaters where we are using weaponized drones. The International Committee of the Red Cross, which is sort of the guardian of international humanitarian law, would use language about “situations of armed conflict, in which the U.S. is a party to the conflict.”
A situation like that would be Afghanistan or Iraq, and to some extent, Syria. But Pakistan is not such a situation. There is to some extent an armed conflict going on there, a low-level armed conflict, but the U.S. is not a party to that conflict. It is not a party to the war in Yemen, or a party to what’s going on in Somalia. These are three areas in which the U.S. has used drones, to a greater or lesser extent, to essentially decapitate individuals suspected of being terrorists or al-Qaida affiliates or militants. That is a different beast than using air power in an active battle zone where the U.S. is engaged in hostilities against either another state or nonstate armed forces.
The concern is that drones are being used essentially for a campaign of extrajudicial execution in areas in which we’re not at war.
The reason why this matters is that in war, there’s one set of legal rules that applies, and within certain constraints, you’re actually allowed to kill people. But outside of situations of armed conflict, those rules don’t apply. The rules that apply are human rights law, which says you actually can’t just carry out extrajudicial executions of individuals you suspect of criminal activity. You’ve got to capture them and try them and punish them for their crimes if they’ve committed crimes, and offer them due process and release them if they’re found innocent. So, the idea that we would be using military air power—which also risks civilian lives in the vicinity, regardless of how precise we try to be—in areas that are not hot battlefields, is extremely problematic in terms of international law, as many human rights lawyers and human rights groups have argued. So the fact that Biden is actually pointing to this distinction can be very impactful in shifting U.S. rhetoric and international rhetoric on when drones might be acceptable, and when they may not be.
WPR: We’ve seen a lot of other countries use drones in battlefields, for example, in Libya, and also recently in Nagorno-Karabakh in the conflict between Armenia and Azerbaijan. But is the U.S. the only one right now using drones for these kinds of extrajudicial executions that you’re talking about?
Carpenter: That’s a good question. I would want to really research that before answering, but it’s certainly the country that is most known for using drones in this way. I will say that there are nonstate actors that have also tried to use drones to assassinate their enemies. It’s rather simple to actually use a weaponized drone to go after anybody you want. It’s one of the ironies that we’ve popularized and proliferated this technology, which could so easily be used against us.
But it’s the United States that has really become known for this tactic, and really criticized for this tactic by many actors, including local groups in Pakistan, a wide grassroots movement in the U.S. and in Europe, and to some extent, the big international human rights and humanitarian law organizations. These organizations are not so much concerned with drones per se, because drones are really not so different from their perspective from any other aerial platform for delivering weapons in an armed conflict. The concern is that they’re being used essentially for a campaign of extrajudicial execution in areas in which we’re not at war.
This is really a precedent that the U.S. has set that thankfully not so many countries have followed. But it would not surprise me if some were beginning to, and I would expect more and more to do so in the future if this isn’t reigned in a bit. That may be what Biden is trying to do. It may be that his advisers have decided that the risks of proliferating and justifying a type of act that could easily be used against us by our adversaries, or in areas where our civilians are at risk, isn’t worth the potential hypothetical gains in counterterror operations. They may have determined that we may in fact benefit from—in terms of our counterterror work—using means that are much more likely to protect civilians.