Biden Rules Tighten Limits on Drone Strikes

U.S. military and C.I.A. drone operators generally must obtain advance permission from President Biden to target a suspected militant outside a conventional war zone, and they must have “near certainty” at the moment of any strike that civilians will not be injured, newly declassified rules show.

The 15-page rules, signed by Mr. Biden last October, also limit such drone strikes to situations in which the operators deem “infeasible” any option of capturing the targeted person alive in a commando raid. And if national security officials propose targeting any American, it prompts a more extensive review.

The rules tightened constraints on drone strikes and commando raids that President Donald J. Trump had loosened in 2017. The Biden administration partly declassified and disclosed the document, along with an 18-page national security memo laying out its international counterterrorism strategy, after The New York Times filed a Freedom of Information Act lawsuit.

A senior administration official, speaking on the condition of anonymity to discuss sensitive security matters, said the government currently considers only two countries — Iraq and Syria, where operations against the remnants of the Islamic State continue — to be areas of active hostilities, where military operators have greater latitude to order airstrikes.

That means the rules apply everywhere else the United States has carried out drone attacks in recent years, including Afghanistan, Yemen, Libya, Somalia and a semi-tribally controlled region of Pakistan. By contrast, when the military carried out a botched drone strike in Kabul, Afghanistan, in August 2021 that killed 10 civilians, including seven children, there were still U.S. forces on the ground, making it a conventional war zone.

The international counterterrorism strategy — a counterpart to the Biden administration’s national strategy on domestic terrorism, which it made public in June 2021 — adopts a more measured tone in assessing various terrorist threats than has sometimes been the case since the attacks of Sept. 11, 2001.

Both grew out of a comprehensive review of government policy that the Biden administration began when it took office. The strategy document calls for a calibrated approach to international terrorist threats in light of how they have changed over time — emphasizing addressing direct terrorist threats to the country and its overseas installations but saying there is a need to prioritize risks amid competing national-security threats and resource constraints.

Citing a need to avoid repeating “past mistakes,” the strategy says, “In particular, we must avoid undertaking large-scale, U.S.-led nation-building efforts” in the name of counterterrorism and instead employ “tailored approaches,” like helping local authorities provide security in their own countries by building up local partner forces.

Oona Hathaway, a Yale Law School professor who criticized the Biden administration for not making the documents public last fall, said it was significant that the strategy, while portraying international terrorism as a persistent and varied threat, recognized that there were other, competing national security priorities.

“Its call for ‘realistic and achievable goals’ is a rare U.S. government acknowledgment that eliminating all possible terrorism risk is not really possible,” Professor Hathaway said. “That seems to me a step in the right direction.”

Luke Hartig, a former senior counterterrorism aide in the Obama White House, said the document “lays out a pretty different counterterrorism strategy than we have seen in years past.” He pointed to how it de-emphasized offensive strikes in favor of defensive measures, and did not suggest a grandiose ambition to defeat terrorism everywhere.

“This is really sound for where we are now in the struggle against terrorism,” he added.

While the rules allow operators to seek approval for exceptions, the requirement for individualized presidential approval means Mr. Biden has banned a disputed drone tactic known as signature strikes, which target groups of suspected militants whose individual identities are not known. Such strikes carry a greater risk of mistakes and have led to civilian deaths.

Still, exempted from the special procedures are strikes carried out in defense of American forces stationed abroad or in the “collective self-defense” of partner forces trained and equipped by the United States. Such strikes are permitted in the cases of “foreign partners and allies who are under attack or are threatened with an imminent attack,” the document says.

That carve-out is significant because in recent years, the majority of American drone strikes have taken place in Somalia in the name of defending partner forces against Al Shabab, the Qaeda-affiliated Islamist militant group. The United States Africa Command has disclosed nine airstrikes so far this year in Somalia, which it estimated killed about 64 militants.

“With such a broad definition for defense of foreign partners, to include those who are ‘threatened with imminent attack,’ it’s no wonder Africa Command’s collective self-defense strikes in Somalia sometimes resemble close air support to the Somali military,” said Sarah Harrison, a former Pentagon lawyer from 2017 to 2021 who studies counterterrorism policy in Somalia.

The government censored certain lines in the version of the rules that it released. For example, while The Times reported last fall that the State Department’s chief of mission in a given country must sign off before operators can carry out a drone strike or commando raid there — a check on military operators — that rule is not visible.

Also left censored was the standard of confidence an operator must have that a person Mr. Biden approves for killing is the same person in the operator’s target sights. However, the length of the redaction strongly suggests that the omitted words are “reasonable certainty,” one level down from “near certainty.”

If that is indeed the case, then that is “notable given high-profile target misidentification incidents like Kabul,” said Brian Finucane, a former State Department national security lawyer who worked with the drone rules of the Obama and Trump administrations. “Persistent problem during 20 years of war on terror,” he added.

Counterterrorism drone strikes in remote and poorly governed regions — neither battlefield zones where American ground forces are fighting nor normal countries where police officers can arrest terrorists plotting attacks — have become a new style of warfare in the 21st century, raising legal and policy dilemmas that have now spanned four presidencies.

As the number of strikes increased, so did the botched ones in which military or C.I.A. operators mistakenly killed civilians, leading to human-rights controversies and blowback against the United States. The drone killing in 2011 of an American citizen — Anwar al-Awlaki, a U.S.-born radical Muslim cleric who joined a Qaeda affiliate based in Yemen — fueled further controversy.

In 2013, President Barack Obama first laid out a comprehensive set of rules and constraints for “direct action” operations away from war zones, imposing a centralized vetting system in selecting potential targets. In 2017, President Donald J. Trump replaced that system with a looser one in which the White House set broad rules for specific countries, giving operators greater latitude to pick targets. Mr. Biden’s system more closely resembles Mr. Obama’s.

But over the years, the global terrorist threat has evolved. In particular, the rise of the Islamic State in Iraq and Syria acted as a magnet for jihadist-minded extremists, who flocked to an area that the United States considered a conventional war zone where it has had ground forces engaged in combat, so the special constraints do not apply.

According to data compiled by The Long War Journal, the last known U.S. airstrike in Pakistan was in 2018; there was one that year, down from a peak of 117 in 2011. The last known strike or raid in Libya — where there were 497 in 2016 — came in 2019. The last airstrike in Yemen — where there were 125 in 2017 — was in 2020.

But the decline of the Islamic State could lead to a return to a more geographically dispersed terrorist threat. And there have been some operations targeting high-value individuals in the Biden administration.

A drone strike in Afghanistan last summer killed Al Qaeda’s leader, Ayman al-Zawahri, and U.S. Special Operations commandos killed a senior Islamic State leader in a helicopter raid in a remote area of northern Somalia in January, according to American officials. On May 20, a senior Shabab leader apparently was injured in a U.S. strike but is believed to have survived.

The direct action rules also cover capture operations. Among other things, Mr. Biden required the government to tell the International Committee of the Red Cross that it has taken a detainee, and forbade it to bring any new detainee to the wartime prison at Guantánamo Bay, Cuba. No new detainee has arrived there since the Bush administration.