On December 5, the Obama administration released a report outlining the legal and policy frameworks for the president’s use of military force. A Presidential Memorandum accompanying the report directs the National Security Council staff to update and release the report to the public on at least an annual basis.
The report was not designed specifically in response to the incoming Trump administration, but its tone is colored by Trump’s win. In a post-election New Yorker article, President Obama said “I think that if Hillary Clinton had won the election then I’d just turn over the keys. We’d make sure the briefing books were in order and out we go.” Trump’s upset win upended that plan.
The report received brief coverage in the midst of the—wholly justified—media scrutiny of Trump’s executive appointments. Beneath its wonkish veneer, however, the report addresses one of the key concerns surrounding a Trump presidency: the amount of military power that has been centralized in the presidency, which Trump will now inherit, and the opacity with which that power has been exercised by the preceding Republican and Democratic administrations.
The accumulation of presidential prerogative to authorize the use of force outside of Congressional constraints and with limited public disclosure—often through the use of drones—has become an issue of structural governance rather than partisanship. Further, concerns about President-elect Trump’s judgment, temperament, and his campaign pledge to “bomb the hell out of ISIS” bring greater urgency to the issue.
The Obama administration received more criticism on its drone policy from liberals than from conservatives. As drone technology developed and standards for their use in lethal operations remained ad hoc, organizations like the Stimson Center and the New America Foundation aimed to codify how, and by whom, drones were used.
President Obama embraced drones as an effective anti-terror tool that reduced U.S. military footprints in trouble spots. His ability grew to authorize strikes against individuals and groups deemed a threat to America. In Obama’s hands, that power was tempered by a prevailing skepticism about the use of military force. That power now passes to Trump, who has shown a greater openness to the use of force.
The report is an important marker in President Obama’s effort to impact Trump administration policy as he leaves office. Under any administration, the report is a paradox: it is an attempt at transparency that ultimately points to how little can be revealed about the use of military force.
Secrecy still governs national security strategy, both to protect those on the front lines and to ensure the strategy itself has the greatest chance to succeed. The report’s country-by-description of the administration’s use of force is brief and full of legal vagaries (“among other things”, “limited number”, “necessary operations”) that tack around specifics. It adds nothing to descriptions of military operations that mainstream media cannot improve on. It is an academic hat-tip to transparency that reveals little.
The second part of the report, particularly the portion addressing the rules used for targeting and engaging enemy combatants, is far more pertinent. It describes the decision-making procedure regarding the use of lethal force that involves five factors:
A review process, while shielded from outside scrutiny in a classified environment, ensures that the decision to use force passes through many hands, each one able to weigh it against the preceding standards. Describing the review, the report reads:
Throughout the military chain of command, commanders, advised by trained and experienced staffs—including intelligence officers, operations officers, and judge advocates—review operations for compliance with applicable U.S. domestic and international law, including the law of armed conflict, and for consistency with the policies and orders of superiors in the military chain of command.
While not addressed to President-elect Trump specifically, this reads like an appeal to order in the face of a incoming leader known and feared for his impulsiveness and bombast. Should it calm fears about the concentrated power about to be handed to an inexperienced and potentially trigger-happy president-elect? Yes and no. Here are two reasons why it should not.
First, the Obama administration—while showing a commitment to both multilateralism and international law that its predecessor did not—acknowledges constraining standards while stopping just short of pledging to follow them. This sentence appears early in the report’s discussion of targeting: “The U.S. Government makes extensive efforts to ensure that its targeting efforts comply with all applicable international obligations, domestic laws, and policies.” The hole in the language is deliberate; “extensive efforts” are not a commitment. It is the presidency protecting itself.
Since 9/11, the presidency—regardless of party—has operated on permanent wartime footing and chafed at any constraint on its ability to project power quickly. There are strategic justifications for this. The result, however, is that concentrated power has accumulated, and is now to be handed to the least qualified incoming president in the nation’s history.
Second, the Obama administration promulgated its standards using Presidential Policy Guidance (PPG) governing the use of force. A PPG is just that—presidential. President-elect Trump will have the right and ability to supplant President Obama’s procedures. The report’s call for the National Security Council to update and release it at least annually is the Obama administration’s effort to be on the record attempting to influence how force is used and information about its use is disseminated. Ultimately, however, Obama cannot compel his successor to follow his recommendations.
That said, does the report have value? Yes. It is an on-the-record standard to which the Trump administration military policies may be held to account. It is an explicit acknowledgment that the nature of the fight against extremism and terrorism has changed the way presidents make decisions about force. It is an effort to codify precedents as presidential power changes hands to support consistency in decision-making.
Finally, it is an invitation to the public to demand more information about military decision-making from the incoming administration. Think tanks and NGOs took up the mantle of oversight on drones during Obama’s tenure. America benefits from a NGO sector, outfitted with expertise from former government officials, that keeps a watchful analytical eye on those in power. They do so as watchdogs, and in effort to influence government action. As the Trump administration takes office, these roles has never been more important.
