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Presidential Policy Guidance: Procedures for Approving Direct Action Against Terrorist Targets Located Outside The United States and Areas of Active Hostilities

Published online by Cambridge University Press:  27 December 2017

Rita Siemion
Rita Siemion*
Affiliation:
Rita Siemion is International Legal Counsel at Human Rights First, where she advocates for national security and counterterrorism policies that respect human rights. She is also an Adjunct Professor of Law at the Georgetown University Law Center and Associate Adjunct Professor of Law at American University Washington College of Law, where she teaches courses on national security and human rights.
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Extract

With the rise of terrorist threats emanating from outside the territory of the United States and simultaneous advancements in armed drone technology, the United States began a rapidly escalating lethal drone program in the years after 9/11. While the first U.S. drone strike occurred in Yemen in 2002 during the George W. Bush administration, President Barack Obama dramatically increased the number of drone strikes during his first term.

Type
International Legal Documents
Information
International Legal Materials , Volume 56 , Issue 6 , December 2017 , pp. 1209 - 1225
Copyright
Copyright © 2017 by The American Society of International Law 

Introduction/Background

With the rise of terrorist threats emanating from outside the territory of the United States and simultaneous advancements in armed drone technology, the United States began a rapidly escalating lethal drone program in the years after 9/11.Footnote 1 While the first U.S. drone strike occurred in Yemen in 2002 during the George W. Bush administration, President Barack Obama dramatically increased the number of drone strikes during his first term.Footnote 2

Although the Obama administration viewed these strikes as part of the ongoing armed conflict with al Qaeda, the Taliban, and their associated forces, many of the strikes took place outside recognized war zones, where legal experts and allied nations believe that law enforcement standards governed by human rights law—not the law of armed conflict—apply.Footnote 3 Given disputes over the legality of these strikes, concerns about harm to civilians outside war zones, heightened diplomatic and security considerations involved with using force where the United States is not already engaged in ground combat, and the risk of alienating allied nations and local partners, the Obama administration believed that heightened policy standards and approval procedures were warranted, and that capturing suspects was generally preferable to the use of lethal force.Footnote 4 Moreover, the administration worried about the precedent it was setting for future U.S. presidents as well as for other nations,Footnote 5 many of which have continued to acquire armed drone technology at a rapid pace.Footnote 6

Spurred on by fears of losing the 2012 presidential election to Republican candidate Mitt Romney, the Obama administration worked to develop formal standards and procedures before turning over the reins of the drone program.Footnote 7 The effort to solidify these standards and procedures slowed after Obama won a second term, but they were ultimately finalized in the months that followed and released in 2013.Footnote 8

During a major counterterrorism speech on May 23, 2013, Obama announced that he had signed a new policy framework for drone strikes and other operations against suspected terrorists outside recognized war zones, including capture operations.Footnote 9 On the day of the speech, the Obama administration released a three-page Fact Sheet summarizing key substantive aspects of the new policy framework that Obama had signed the previous day.Footnote 10 However, the actual “Presidential Policy Guidance” that Obama signed remained classified. The public Fact Sheet explained that the purpose of the new policy framework, which came to be known as “the PPG,” was to formalize the process for “reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities.”Footnote 11

Three years later, faced with litigation that might soon force disclosure of the PPG, the Obama administration publicly released a redacted and revised version of the full eighteen-page PPG on August 5, 2016.Footnote 12 While the public Fact Sheet released in 2013 had already provided several important details regarding the substantive standards that were required before lethal force could be used, the full policy released in 2016 set forth additional details regarding the approval process for lethal and capture operations outside areas of active hostilities.Footnote 13

The Presidential Policy Guidance

The PPG sets forth both substantive standards that must be met before lethal action may be taken and procedural mechanisms for approving operations and targets. The PPG's standards and procedures govern “direct action” against suspected terrorists outside the United States and “areas of active hostilities.” According to the policy guidance, “direct action” refers to both lethal and nonlethal uses of force, including capture operations. The phrase “areas of active hostilities,” where the PPG's requirements do not apply, is not a legal term, nor is it defined in the policy guidance. But, as then-State Department Legal Advisor Brian Egan explained, when designating a location as an area of active hostilities, the administration considers the “scope and intensity” of the fighting.Footnote 14 During the Obama administration, Afghanistan, Iraq, and Syria (and parts of Libya, temporarily) were considered areas of active hostilities where the PPG's requirements did not apply.Footnote 15 Notably, these are locations where the existence of an ongoing armed conflict, and therefore the application of the law of armed conflict, was less in dispute.

Before using lethal force outside areas of active hostilities, certain substantive standards must be met. First, there must already be a legal basis for using lethal force against the particular individual (though of course this requirement merely begs the question of which legal framework applies). Second, the individual must pose a “continuing, imminent threat to U.S. persons.” Third, there must be near certainty that a high-value terrorist or other lawful target is present, that the target has been accurately identified, and that noncombatants will not be injured or killed. Most significantly, lethal force may be used only if capture is not feasible at the time of the operation, local authorities cannot or will not effectively address the threat, and no other reasonable alternatives exist to effectively address the threat. The policy also notes that “international legal principles,” including the law of armed conflict and respect for state sovereignty, impose important constraints on the unilateral use of force in foreign territories.

Under the detailed procedural requirements outlined in the PPG, either the CIA or Department of Defense (the “operating agencies”) can “nominate” a person for capture or killing after the General Counsel of the nominating agency has advised that the individual is a lawful target.3 The National Security Staff then prepares a report on the nominated individual and the report is reviewed by the Deputies Committee, which includes the second–highest ranking officials from the national security agencies and departments. The Deputies Committee members make recommendations to their agency and department principals, including on whether the threat can be minimized by measures short of lethal force and whether the nominated individual could provide valuable intelligence if captured. If the principals unanimously agree that the person should be targeted with lethal force, they can authorize the attack and must notify the president. If they cannot reach consensus or if the individual is a “U.S. person,” the president must decide whether to authorize the strike.

But the PPG also permits the president to authorize a strike that does not meet the PPG's standards when there is a “fleeting opportunity” and in “extraordinary cases.” The PPG states that such an “extraordinary case” includes the use of “lethal force against an individual who poses a continuing imminent threat to another country's persons” but does not elaborate further on when the PPG's requirements may be circumvented.

Enduring Significance/Conclusion

Just three months after the release of the full PPG, Donald Trump won the 2016 U.S. presidential election. Given some of Trump's rhetoric on the campaign trail, national security and counterterrorism experts wondered whether the new administration would keep the PPG in place and warned of the serious strategic, humanitarian, and diplomatic consequences of dispensing with the carefully crafted policy.Footnote 16 Human rights groups noted their concern that the PPG already fell far short of the legal requirements of human rights law and urged the Trump administration to strengthen the Obama-era policy, not weaken it.Footnote 17

Early on in the Trump administration, however, the new president ordered a review of policy constraints on the use of force,Footnote 18 reportedly removed some of the procedural requirements for White House approval,Footnote 19 and, at least temporarily, designated areas of Yemen and Somalia “areas of active hostilities” to which the PPG did not apply.Footnote 20 At the time of this publication, the Trump administration was reportedly near completion of a revised policy that maintained the Obama administration's requirement of “near certainty” that no civilians would be injured or killed but that did away with the requirement that lethal force only be used against individuals posing a “continuing, imminent threat to U.S. persons.”Footnote 21 The status of the capture requirement was unknown.

The Trump administration's anticipated changes to the PPG highlight the inherent limitations of policy—rather than legal—constraints. As President Obama himself noted back in 2012, a legal architecture is necessary to constrain future presidents.

PRESIDENTIAL POLICY GUIDANCE: PROCEDURES FOR APPROVING DIRECT ACTION AGAINST TERRORIST TARGETS LOCATED OUTSIDE THE UNITED STATES AND AREAS OF ACTIVE HOSTILITIESFootnote *

* This text was reproduced and reformatted from the text available at the Department of Justice website (visited November 1, 2017), https://www.justice.gov/oip/foia-library/procedures_for_approving_direct_action_against_terrorist_targets/download.

May 22, 2013

PROCEDURES FOR APPROVING DIRECT ACTION AGAINST TERRORIST TARGETS LOCATED OUTSIDE THE UNITED STATES AND AREAS OF ACTIVE HOSTILITIES

This Presidential Policy Guidance (PPG) establishes the standard operating procedures for when the United States takes direct action, which refers to lethal and non-lethal uses of force, including capture operations, against terrorist targets outside the United States and areas of active hostilities.

Any direct action must be conducted lawfully and taken against lawful targets; wherever possible such action will be done pursuant to a plan. In particular, whether any proposed target would be a lawful target for direct action is a determination that will be made in the first instance by the nominating department's or agency's counsel (with appropriate legal review as provided below) based on the legal authorities of the nominating department or agency and other applicable law. Even if the proposed target is lawful, there remains a separate question whether the proposed target should be targeted for direct action as a matter of policy. That determination will be made pursuant to the interagency review process and policy standards set forth in this PPG. The most important policy objective, particularly informing consideration of lethal action, is to protect American lives.

Capture operations offer the best opportunity for meaningful intelligence gain from counterterrorism (CT) operations and the mitigation and disruption of terrorist threats. Consequently, the United States prioritizes, as a matter of policy, the capture of terrorist suspects as a preferred option over lethal action and will therefore require a feasibility assessment of capture options as a component of any proposal for lethal action. Lethal action should be taken in an effort to prevent terrorist attacks against U.S. persons only when capture of an individual is not feasible and no other reasonable alternatives exist to effectively address the threat. Lethal action should not be proposed or pursued as a punitive step or as a substitute for prosecuting a terrorist suspect in a civilian court or a military commission. Capture is preferred even in circumstances where neither prosecution nor third-country custody are available disposition options at the time.

CT actions, including lethal action against designated terrorist targets, shall be as discriminating and precise as reasonably possible. Absent extraordinary circumstances, direct action against an identified high-value terrorist (HVT) will be taken only when there is near certainty that the individual being targeted is in fact the lawful target and located at the place where the action will occur. Also absent extraordinary circumstances, direct action will be taken only if there is near certainty that the action can be taken without injuring or killing non-combatants. For purposes of this PPG, non-combatants are understood to be individuals who may not be made the object of attack under the law of armed conflict. The term “non-combatant” does not include an individual who is targetable as part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of national self-defense. Moreover, international legal principles, including respect for a state's sovereignty and the laws of war, impose important constraints on the ability of the United States to act unilaterally – and on the way in which the United States can use force – in foreign territories. Direct action should only be undertaken

As reflected in the procedures contained in this PPG, whenever possible and appropriate, decisions regarding direct action will be informed by departments and agencies with relevant expertise, knowledge, and equities, , as well as by coordinated interagency intelligence analysis. Such interagency coordination and consultation will ensure that decisions on operational matters of such importance are well-informed and will facilitate de-confliction among departments and agencies addressing overlapping threat streams. Such coordination is not intended to interfere with the traditional command and control authority of departments and agencies conducting CT operations.

Lastly, when considering potential direct action against a U.S. person under this PPG, there are additional questions that must be answered. The Department of Justice (DOJ), for example, must conduct a legal analysis to ensure that such action may be conducted against the individual consistent with the laws and Constitution of the United States.

Based on the principles and priorities described above, Section 1 sets forth the procedure for establishing plan for taking direct action against terrorist targets. Section 2 sets forth the approval process for the capture and long-term disposition of suspected terrorists. Section 3 sets forth the policy standard and procedure for designating identified HVTs for lethal action. Section 4 sets forth the policy standard and procedure for approving lethal force against terrorist targets other than identified HVTs.Footnote 1 Section 5 sets forth the procedures for approving proposals that vary from the policy guidance otherwise set forth in this PPG. Section 6 sets forth the procedure for after-action reports. Section 7 addresses congressional notification. Section 8 sets forth general provisions.

SECTION 1. Procedure for Establishing a Plan for taking Direct Action Against Terrorist Targets

1.A Operational Plans for Taking Direct Action Against Terrorist Targets

Each of the operating agencies may propose a detailed operational plan to govern their respective direct action operations against: (1) suspected terrorists who may be lawfully detained; (2) identified HVTs who may be lawfully targeted for lethal action; or (3) lawful terrorist targets other than identified HVTs.

1.B Interagency Review of Operational Plans

All operational plans to under1ake direct action operations against terrorist targets must undergo a legal review by the general counsel(s) of the operating agency executing the plan, and be submitted to the National Security Staff (NSS) for interagency review. All proposed operational plans must conform to the policy standards set forth in this Section. All proposed operational plans to undertake direct action against terrorist targets along with the conclusions of the General Counsel, shall be referred to the NSS Legal Adviser. The NSS Legal Adviser and the General Counsel of the proposing operating agency shall consult with other department and agency counsels, as necessary and appropriate. The NSS Legal Adviser shall submit the relevant legal conclusions to the Deputies Committee to inform its consideration of the proposed operational plan. All proposed operational plans to undertake direct action against terrorist targets will be reviewed by appropriate members of the Deputies and Principals Committees of the National Security Council (NSC) (defined in Presidential Policy Directive-1 or any successor directive) before presentation to the President for decision.

1.C Guidelines for Operational Plans

Any operational plan for taking direct action against terrorist targets shall, among other things, indicate with precision:

  1. 1) The U.S. CT objectives to be achieved;

  2. 2) The duration of time for which the authority is to remain in force;

  3. 3) The international legal basis for taking action ;

  4. 4) The strike and surveillance assets that may be employed when taking action against an authorized objective;

  5. 5)

  6. 6) Any proposed stipulation related to the operational plan, including the duration of authority for such stipulation;

  7. 7) Any proposed variations from the policies and procedures set forth in this PPG; and

  8. 8) The conditions precedent for any operation, which shall include at a minimum the following: (a) near certainty that an identified HVT or other lawful terrorist target other than an identified HVT is present; (b) near certainty that non-combatants will not be injured or killed; (c) Footnote 2 and (d) if lethal force is being employed: (i) an assessment that capture is not feasible at the time of the operation; (ii) an assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and (iii) an assessment that no other reasonable alternatives to lethal action exist to effectively address the threat to U.S. persons.

1.D Additional Requirements When Requesting Authority for Directing Lethal Force Against Targets Other Than Identified HVTs

When requesting authority to direct lethal force against terrorist targets other than identified HVTs, the plan shall also include the following:

  1. 1) The types of targets that would qualify as appropriate targets pursuant to Section 4 (Terrorist Targets Other Than Identified HVTs) for purposes of the proposed operational plan; and

  2. 2) A description of the operating agency's internal process for nominating and approving the use of lethal force against terrorist targets other than identified HVTs.

I.E Policies and Procedures

The operating agencies shall establish harmonized policies and procedures for assessing:

  1. 1) Near certainty that a lawful target is present;

  2. 2) Near certainty that non-combatants will not be injured or killed; and

  3. 3) With respect to a proposal to take direct action against terrorist targets other than identified HVTs, whether the target qualities pursuant to the policy standard set forth in Section 4.A of this PPG and in the specific operational plan.

1.F When Using Lethal Action, Employ All Reasonably Available Resources to Ascertain the Identity of the Target

When the use of lethal action is deemed necessary, departments and agencies of the United States Government must employ all reasonably available resources to ascertain the identity of the target so that action can be taken, for example, against identified HVTs in accordance with Section 3 of this PPG. Verifying a target's identity before taking lethal action ensures greater certainty of outcome that lethal action has been taken against identified HVTs who satisfy the policy standard for lethal action in Section 3.A.

1.G Principals and Deputies Review of Operational Plans for Taking Direct Action Against Terrorists Targets

When considering a proposed operational plan, Principals and Deputies shall evaluate the following issues, along with any others they deem appropriate:

  1. 1) The implications for the broader regional and international political interests of the United States; and

  2. 2) For an operational plan that includes the option of lethal force against targets other than identified HVTs, an explanation of why authorizing direct action against targets other than identified HVTs is necessary to achieve U.S. policy objectives.

1.H Presentation to the President

1.H.1 If the Principal of the nominating operating agency, after review by Principals and Deputies, continues to support the operational plan, the plan shall be presented to the President for decision, along with the views expressed by departments and agencies during the NSC process.

1.H.2 An appropriate NSS official will communicate, in writing, the President's decision, including any terms or conditions placed on any approval, to appropriate departments and agencies.

1.I Amendments or Modifications to Operational Plans

Except as described in Section 5, any amendments or modifications to an approved operational plan for direct action shall undergo the same review and approval process outlined in this Section.

SECTION 2. Approval Process for Certain Captures and the Long-Term Disposition of Certain Suspects

This Section sets forth the approval process for nominating for capture suspected terrorists or individuals providing operational support to suspected terrorists (in this section, together referred to as “suspects”); proposals to take custody of suspects, including pre- and post-capture screening; and determining a long-term disposition for suspects.

Unless otherwise approved in an operational plan under Section 1, the NSS shall coordinate for interagency review under this PPG, as described below, the following: (1) operations intended to result (2) operations that result in United States Government personnel taking custody (through a capture or transfer)Footnote 3 of a suspect located overseas and outside areas of active hostilities; and (3) long-term disposition decisions with respect to such suspects. The involvement of United States Government personnel in extraditions or transfers initiated for the purpose of prosecution in civilian court or those scenarios to which PPD-14 applies (i.e., circumstances in which an individual is arrested or otherwise taken into custody by the Federal Bureau of Investigation (FBI) or another Federal law enforcement agency)Footnote 4 are not covered by this PPG.

Captures and Transfers by Foreign Governments: These procedures do not apply to U.S. law enforcement requests for foreign governments to arrest or otherwise take into custody a suspect or to United States Government provision of training, funds, or equipment to enable a foreign government to capture a suspect. These procedures also do not apply to non-law enforcement United States Government requests to capture a suspect who will remain in the custody of the foreign government or to the provision of actionable intelligence to enable such captures. Every 6 months, departments and agencies shall notify the NSS of any requests made of a foreign government to capture a suspect in the preceding 6 months. Unless covered by the exceptions above or otherwise included in an operational plan under Section 1, if United States Government personnel Footnote 5 capture a suspect, or an operation is intended to result in United States Government personnel taking custody of a suspect, the department or agency must submit a proposal through the NSS for interagency review. Operational plans may include additional conditions requiring interagency review of capture operations involving United States Government personnel, depending on the policy consideration of the particular country or region in which the operations would occur. If United States Government personnel are expected to capture or transfer suspects in a particular country or region on an ongoing basis, the department or agency involved should seek to include a proposed plan for such activities in the operational plan approved under Section 1.

2.A Nomination Process

2.A.1 Any department or agency participating in the Deputies Committee review in Section 2.D may identify an individual for consideration, but only an operating agency or DOJ (“nominating agencies” for purposes of Section 2 of this PPG) may formally request that a suspect be considered for capture or custody by U.S. personnel. Additionally, a department or agency that has captured a suspect, or that plans to capture or otherwise take custody of a suspect, shall, whenever practicable, propose a long-term disposition for such individual. Prior to requesting that an individual be considered for capture or custody by the United States, the nominating agency must confirm with its General Counsel that the operation can be conducted lawfully, but it is not necessary to have resolved the long-term disposition plan prior to proposing a capture operation.

2.A.2 Whenever possible, the nominating agency shall notify the Interagency Disposition Planning Group prior to such a request.

2.A.3 A nomination for custody, including capture, or a proposed long-term disposition under Section 2.A.1 shall be referred to the NSS, which shall initiate the screening process described in Section 2.B.

2.A.4 In the event initial screening under Section 2.B has not taken place prior to U.S. personnel taking custody of a suspect, the process for screening after capture described in Section 2.C shall be initiated.

2.B Screening Prior to a Capture Operation

2.B.1 The nominating agency shall prepare a profile for each suspect referred to the NSS for review of a proposal to capture or otherwise take custody of the individual. The profile shall be developed based upon all relevant disseminated information available to the Intelligence Community (IC), as well as any other information needed to present as comprehensive and thorough a profile of the individual as possible. The profile should explain any difference of views among the IC and note, where appropriate, gaps in existing intelligence, as well as inconclusive and contradictory intelligence reports. At a minimum, each individual profile shall include the following information to the extent that such information exists:

2.B.2 Once the profile has been completed, the nominating agency shall provide the profile to the NSS Senior Director for Counterterrorism.

2.B.3 Whenever time permits, the Interagency Disposition Planning Group shall assess the availability, including the strengths and weaknesses, of potential disposition options.

2.B.4 All nominations under this Section for capturing or otherwise taking a suspect into custody must undergo a legal review by the General Counsel of the nominating agency to determine that the suspect may lawfully be captured or taken into custody by the United States and that the operation can be conducted in accordance with applicable law. The General Counsel's conclusions shall be referred to the NSS Legal Adviser. The NSS Legal Adviser and the General Counsel of the nominating agency shall consult with other department and agency counsels, as necessary and appropriate. In addition, in the event that the suspect who has been nominated is a U.S. person, DOJ shall conduct a legal analysis to ensure that the operation may be conducted consistent with the laws and Constitution of the United States. The NSS Legal Adviser shall submit the relevant legal conclusions to the Deputies Committee to inform its consideration of the nomination.

2.B.5 The NSS shall convene a Restricted Counterterrorism Security Group (RCSG)Footnote 6 for the purpose of reviewing and organizing material and addressing any issues related to the nomination of an individual for capture, custody, or long-term disposition. Before forwarding to the Deputies the nomination of a suspect for capture or to otherwise be taken into custody, the RCSG shall identify whether any other material is needed for Deputies’ consideration of the nomination and issue taskings to departments and agencies, as appropriate. For each nomination, the NSS will request, and the National Counterterrorism Center (NCTC) shall conduct, an assessment of the suspect and provide that assessment to the NSS prior to consideration of the nomination or proposed long-term disposition by the Deputies Committee, and where feasible, prior to RCSG review. The NSS will be responsible for ensuring that all necessary materials, including the profile developed by the nominating agency and the NCTC assessment, are included in the nomination package submitted to Deputies.

2.C Screening After Capture

2.C.1 Whenever feasible, initial screening by the United States of suspects taken into U.S. custody should be conducted before the United States captures or otherwise takes custody of the suspect, as set out in Section 2.B.

2.C.2 In the event initial screening cannot be conducted before the United States takes custody of the individual, immediately after capturing or otherwise taking custody of the suspect, appropriate U.S. personnel shall screen the individual to ensure that the correct individual has been taken into custody and that the individual may be lawfully detained. Such screening shall be conducted consistent with the laws and policies applicable to the authorities pursuant to which the individual is being detained, and

2.C.3

2.C.4 In the event that the suspect is detained pursuant to law of war authorities by the U.S. military and additional time is needed for purposes of intelligence collection or the development of a long-term disposition option, the Secretary of Defense or his designee, following appropriate interagency consultations coordinated through the NSC process, may approve an extension of the screening period subject to the following:

  1. 1) The suspect's detention must be consistent with U.S. law and policy, as well as all applicable international law;

  2. 2)

  3. 3) The International Committee of the Red Cross must be notified of and provided timely access to, any suspect held by the U.S. military pursuant to law of war authorities; and

  4. 4) When possible and consistent with the primary objective of collecting intelligence, intelligence will be collected in a manner that preserves the availability of long-term disposition options, including prosecution.

2.D Deputies Review

2.D.1 A nomination or disposition package for capture, custody, or long-term disposition forwarded to the Deputies shall include the following:

  1. 1) The profile, produced by the nominating agency pursuant to Section 2.B.1, for the suspect or suspects proposed for capture or long-term disposition;

  2. 2) Any assessment produced by NCTC pursuant to Section 2.B.5;

  3. 3) If appropriate, a description of the planned capture and screening operation and operational plan under which the capture would be conducted;

  4. 4) The department(s) or agency or agencies that would be responsible for carrying out the proposed operation, if not already conducted;

  5. 5) A summary of the legal assessment prepared under Section 2.B.4; and

  6. 6) An assessment, including the strengths and weaknesses, of potential long-term disposition options.

2.D.2 The Deputies of the Department of State, the Treasury, DOD, DOJ, DHS, the Office of the Director of National Intelligence (DNI ), , CIA, JCS, , NCTC, and any other Deputies or officials a Deputy National Security Advisor (DNSA) may invite to participate, shall promptly consider whether to recommend to the Principal of the nominating agency that a capture operation be conducted in the context of the proposed plan at issue, that the United States Government otherwise take custody of the individual, or that a particular long-term disposition option be pursued.

2.D.3 When considering a proposed nomination, the Deputies shall evaluate the following issues, and any others deemed appropriate by the Deputies:

  1. 1) Whether the suspect's capture would further the U.S. CT strategy;

  2. 2) The implications for the broader regional and international political interests of the United States;

  3. 3) Whether the proposed action would interfere with any intelligence collection or compromise any intelligence sources or methods;

  4. 4) The proposed plan for the detention and interrogation of the suspect;

  5. 5) The proposed plan to capture the suspect, including the feasibility of capture and the risk to U.S. personnel;

  6. 6) In the event that transfer to a third party or country is anticipated, the proposed plan for obtaining humane treatment assurances from any country;

  7. 7) The long-term disposition options for the individual; and

  8. 8)

2.D.4 When considering the long-term disposition of a suspect who is already in U.S. custody, or whom a department or agency has already been authorized to capture or take into custody, the Deputies’ discussion shall be guided by the following principles:

  1. 1) Whenever possible, third-country custody options that are consistent with U.S. national security should be explored;

  2. 2) Where transfer to a third country is not feasible or consistent with U.S. national security interests, the preferred long-term disposition option for suspects captured or otherwise taken into custody by the United States will be prosecution in a civilian court or, where available, a military commission. Consistent with that preference, wherever possible and consistent with the primary objective of collecting intelligence, intelligence will be collected in a manner that allows it to be used as evidence in a criminal prosecution; and

  3. 3) In no event will additional detainees be brought to the detention facilities at the Guantanamo Bay Naval Base.

Following consideration and discussion by the Deputies, departments and agencies shall submit the final positions of their Principals within a timeframe consistent with operational needs.

2.E Presentation to the President and the Principal of the Nominating Agency

2.E.1 If the nominating agency, on behalf of its Principal, continues to support taking action, a DNSA shall inform the President of the views expressed by departments and agencies. As appropriate, the nomination shall be presented to the President for a decision or the nomination will be provided to the Principal of the appropriate operating agency for a decision, along with any views expressed by the President.

2.E.2 An appropriate NSS official will communicate in writing the decision taken, including any terms or conditions placed on such decisions, to the Deputies who participated in the Deputies Committee review of the nomination.

SECTION 3. Policy Standard and Procedure for Designating Identified HVTs for Lethal Action

3.A Policy Standard for the Use of Lethal Action Against HVTs

Where the use of lethal action against HVTs has been authorized , an individual whose identity is known will only be eligible to be targeted, as a policy matter, consistent with the requirements of the approved operational plan , if the individual's activities pose a continuing, imminent threat to U.S. persons.

3.B Necessary Preconditions for Taking Lethal Action

Lethal action requires that the individual may lawfully be targeted under existing authorities and that any conditions established in the appropriate operational plan, including those set forth in Section 1.C.8. are met. The preconditions set forth in Section 1.C.8 for the use of lethal force are as follows: (a) near certainty that an identified HVT is present; (b) near certainty that non-combatants will not be injured or killed; (c) ;Footnote 7 (d) an assessment that capture is not feasible at the time of the operation;Footnote 8 (e) an assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and (f) an assessment that no other reasonable alternatives to lethal action exist to effectively address the threat to U.S. persons.

3.C Interagency Review Process

3.C.1 Any department or agency participating in the Deputies Committee review in Section 3.D may identify an individual for consideration, but only the operating agencies (also known as the “nominating agencies” for purposes of Section 3 of this PPG) may formally propose that an individual be nominated for lethal action following confirmation from the General Counsel of the nominating agency that the individual would be a lawful target.

3.C.2 The nominating agency shall prepare a profile for each individual nominated for lethal action. The profile shall be developed based upon all relevant disseminated information available to the IC, as well as any other information needed to present as comprehensive and thorough a profile of the individual as possible. The profile shall note, where appropriate, gaps in existing intelligence, as well as inconclusive and contradictory intelligence reports. At a minimum, each individual profile shall include a summary of all relevant disseminated intelligence required to determine whether the policy standard set forth in Section 3.A for lethal action against HVTs has been met, and include the following information to the extent that such information is available:

3.C.3 The NSS shall convene a meeting of the RCSG for the purpose of reviewing and organizing material, and addressing any issues, related to the nomination of an individual for lethal action.

3.C.4 Before forwarding the nomination of an identified HVT for lethal action to Deputies, the RCSG shall identify other materials needed for Deputies' consideration of the nomination and shall issue such taskings to departments and agencies, as appropriate. For each nomination, the NSS will request, and NCTC shall conduct, an assessment of the nomination and provide that assessment to the NSS prior to consideration of the nomination by the Deputies Committee, and where feasible prior to RCSG review. The NSS will be responsible for ensuring that all necessary materials, including the profile developed by the nominating agency and the NCTC assessment, are included in the nomination package submitted to Deputies.

3.C.5 All nominations for lethal action must undergo a legal review by the General Counsel of the nominating agency to ensure that the action contemplated is lawful and may be conducted in accordance with applicable law. The General Counsel's conclusions shall be referred to the NSS Legal Adviser. In all events, the NSS Legal Adviser and the General Counsel of the nominating agency shall consult with DOJ. The NSS Legal Adviser and the General Counsel of the nominating agency shall also consult with other interagency lawyers depending on the particular nomination. In addition, in the event that the individual proposed for nomination is a U.S. person, DOJ shall conduct a legal analysis to ensure that lethal action may be conducted against that individual consistent with the laws and Constitution of the United States. The NSS Legal Adviser shall submit the relevant legal conclusions to the NSS Senior Director for Counterterrorism for inclusion in the nomination package to be submitted to Deputies.

3.C.6 If the proposal may be conducted lawfully, the nomination shall be referred to a DNSA, or another appropriate NSS official, to facilitate consideration by the Deputies Committee.

3.D Deputies Review

3.D.1 Upon completion of a nomination package, the NSS shall forward the nomination package to the Deputies Committee for consideration. A standard nomination package to be forwarded to the Deputies shall include, at a minimum, the following:

  1. 1) The profile, produced by the nominating agency pursuant to Section 3.C.2, for the individual proposed for lethal action;

  2. 2) The assessment produced by NCTC pursuant to Section 3.C.4;

  3. 3) A description operational plan to which the nomination would be added, including the time frame, if any, in which the operation may be executed;

  4. 4) The operating agency or agencies that would be responsible for conducting the proposed lethal action;

  5. 5) A summary of the legal assessment; and

  6. 6) The determinations made by the nominating agency that capture is not currently feasible and that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons, as well as the underlying analysis for those determinations.

3.D.2 The Deputies of the Department of State, DOD, JCS, DOJ, DHS, DNI, CIA, and NCTC shall promptly consider whether to recommend to the Principal of the nominating agency that lethal action be taken against the proposed individual in the context operational plan at issue. shall participate in the review process as observers. A DNSA may invite Deputies or other officials to participate as appropriate. Following consideration and discussion by the Deputies, departments and agencies shall submit to the NSS the final positions of their Principals within a timeframe consistent with operational needs.

3.D.3 When considering each proposed nomination, the Deputies shall evaluate the following issues, and any others deemed appropriate by the Deputies:

  1. 1) Whether the Deputies can conclude with confidence that the nominated individual qualifies under the policy standard in Section 3.A for lethal action, taking into account credible information that may cast doubt on such a conclusion;

  2. 2) Whether the threat posed by the individual to U.S. persons can be minimized through a response short of lethal action;

  3. 3) The implications for the broader regional and international political interests of the United States;

  4. 4) Whether the proposed action would interfere with any intelligence collection or compromise any intelligence sources or methods;

  5. 5) Whether the individual, if captured, would likely result in the collection of valuable intelligence, notwithstanding an assessment that capture is not currently feasible; and

  6. 6)

3.E Presentation to the President and the Principal of the Nominating Agency

3.E.1 The Principal of the nominating agency may approve lethal action against the proposed individual if: (1) the relevant Principals unanimously agree that lethal action should be taken against the proposed individual, and (2) the Principal of the nominating agency has notified the President through a DNSA of his intention to approve lethal action and has received notice from a DNSA that the President has been apprised of that intention. The Principal of the nominating agency may not delegate his authority to approve a nomination.

3.E.2 Nominations shall be presented to the President for decision, along with the views expressed by departments and agencies during the process, when: (1) the proposed individual is a U.S. person, or (2) there is a lack of consensus among Principals regarding the nomination, but the Principal of the nominating agency continues to support approving the nomination.

3.E.3 In either case, an appropriate NSS official will communicate in writing the decision, including any terms or conditions placed on any approval, to the Deputies who participated in the Deputies Committee review of the nomination.

3.F Annual Review;

3.F.1 The NSS, in conjunction with the nominating agency, shall coordinate an annual review of individuals authorized for possible lethal action to evaluate whether the intelligence continues to support a determination that the individuals qualify for lethal action under the standard set forth in Section 3.A. The NSS shall refer the necessary information for the annual review to the Deputies for consideration. Following Deputies review, the information, along with any recommendations from Deputies, shall be forwarded to the Principal of the nominating agency for review. A separate legal review will be conducted, as appropriate. An appropriate official from each nominating agency shall inform a DNSA of what action, if any, the Principal of the nominating agency takes in response to the review.

3.F.2 The Deputy of any department or agency participating in the Deputies Committee review in Section 3.D may propose at any time that an individual be for lethal action. In the event that such a proposal is made, NCTC shall update the IC-coordinated profile for the individual at issue and, as appropriate, the Deputies shall consider whether to propose that the individual be removed by the Principal of the nominating agency.

3.F.3 Following consideration and discussion by the Deputies in accordance with 3.F.1 or 3.F.2 departments and agencies shall submit the final positions of their Principals within an appropriate timeframe determined by the NSS.

SECTION 4. Policy Standard and Procedure for Approving Lethal Force Against Terrorist Targets Other Than Identified VTSs

4.A. Policy Standard for Directing Lethal Force Against Terrorist Target Other Than Identified HVTs

This Section applies to the direction of lethal force against lawful terrorist targets , such as manned or unmanned Vehicle Borne Improvised Explosive Devices or infrastructure, including explosives storage facilities. Where an operating agency has been authorized to take direct action against terrorist targets other than identified HVTs , such a terrorist target may be acted against as a policy matter, consistent with the requirement of the approved operational plan , if the target poses a continuing, imminent threat to U.S. persons.

4.B. Necessary Preconditions for Directing Lethal Force Under This Section

Directing lethal force under this Section requires that: (1) the target may lawfully be targeted and that any conditions established in the appropriate operational plan, including those set forth in Section l.C.8, are met. The preconditions set forth in Section l.C.8 for the use of lethal force are as follows: (a) near certainty that a lawful terrorist target other than an identified HVT is present; (b) near certainty that non-combatants will not be injured or killed; (c) Footnote 9 (d) Footnote 10 (e) an assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and (f) an assessment that no other reasonable alternatives to lethal action exist to effectively address the threat to U.S. persons.

4.C Nomination and Review of Terrorist Targets Other Than Identified High-Value Individuals

Where an operating agency has been authorized to direct force against terrorist targets (including property) other than identified HVTs may nominate specific terrorist targets to target with lethal force consistent with the requirements of the approved operational plan , including the process required by the plan for nominating and approving such targets.

SECTION 5. Procedures for Approving Proposals that Vary from the Policy Guidance Otherwise Set Forth in this PPG

5.A. Already Authorized Targets: Variations from Operational Plan Requirements When Fleeting Opportunities Arise

5.A.1 When direct action has been authorized under this PPG against identified HVTs or against terrorist targets other than identified HVTs , the operating agency responsible for conducting approved operations, as a result of unforeseen circumstances and in the event of a fleeting opportunity, may submit an individualized operational plan to the NSS that varies from the requirements of the operational plan . In that event, an appropriate NSS official shall consult with other departments and agencies, as appropriate and as time permits, before submitting the proposal to the President for his decision.

5.A.2 All such variations from an operational plan must be reviewed by the General Counsel of the operating agency conducting the operation and the conclusions referred to the NSS Legal Adviser. In all cases, any operational plan must contemplate an operation that is in full compliance with applicable law. Absent extraordinary circumstances, these proposals shall:

  1. 1) Identify an international and domestic legal basis for taking action in the relevant country

  2. 2) Mandate that lethal action may only be taken if: (a) there is near certainty that the target is present; (b) there is near certainty that non-combatants will not be injured or killed; (c) it has been determined that capture is not feasible; (d) the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and (e) no other reasonable alternatives exist to effectively address the threat to U.S. persons.

5.A.3 Any variation from an operational plan shall be presented to the President for decision, and an appropriate NSS official shall communicate the President's decision, including any terms or conditions placed on any approval to appropriate agencies.

5.B Extraordinary Cases: Variations from the Policy Guidance Otherwise Set Forth in this PPG

Nothing in this PPG shall be construed to prevent the President from exercising his constitutional authority as Commander in Chief and Chief Executive, as well as his statutory authority, to consider a lawful proposal from operating agencies that he authorize direct action that would fall outside of the policy guidance contained herein, including a proposal that he authorize lethal force against an individual who poses a continuing, imminent threat to another country's persons. In extraordinary cases, such a proposal may be brought forward to the President for consideration as follows:

  1. 1) A proposal that varies from the policy guidance contained in this PPG may be brought forward by the Principal of one of the operating agencies through the interagency process described in Section 1 of this PPG, after a separate legal review has been undertaken to determine whether action may be taken in accordance with applicable law.

  2. 2) Where there is a fleeting opportunity, the Principal of one of the operating agencies may propose to the President that action be taken that would otherwise vary from the guidance contained in this PPG, after a separate legal review has been undertaken to determine whether action may be taken in accordance with applicable law.

  3. 3) In all cases, any proposal brought forward pursuant to this subsection must contemplate an operation that is in full compliance with applicable law.

SECTION 6. Procedures for After Action Reports

6.A The department or agency that conducted the operation shall provide the following preliminary information in writing to the NSS within 48 hours of taking direct action against any authorized target:

  1. 1) A description of the operation;

  2. 2) A summary of the basis for determining that the operation satisfied the applicable criteria contained in the approved operational plan;

  3. 3) An assessment of whether the operation achieved its objective;

  4. 4) An assessment of the number of combatants killed or wounded;

  5. 5) A description of any collateral damage that resulted from the operation;

  6. 6) A description of all munitions and assets used as part of the operation; and

  7. 7) .

6.B The department or agency that conducted the operation shall provide subsequent updates to the NSS on the outcome of the operation, as appropriate, including any intelligence collected as a result of the operation. The information provided to the NSS under this Section shall be made available to appropriate officials at the departments and agencies taking part in the review under Sections 1 and 3 of this PPG.

SECTION 7. Congressional Notification

A congressional notification shall be prepared and promptly provided to the appropriate Members of the Congress by the department or agency approved to carry out such actions when:

  1. 1) A new operational plan for taking direct action is approved;

  2. 2) Authority is expanded under an operational plan for directing lethal force against lawfully targeted individuals and against lawful terrorist targets other than individuals; or

  3. 3) An operation has been conducted pursuant to such approval(s).

In addition, appropriate Members of the Congress will be provided, no less than every 3 months, updates on identified HVTs who have been approved for lethal action under Section 3. Each department or agency required to submit congressional notifications under this Section shall inform the NSS of how it intends to comply with this Section prior to providing any such notifications to Congress.

SECTION 8. General Provisions

8.A This PPG is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

8.B

8.C#Twelve months after entry into force of this PPG, Principals shall review the implementation and operation of the PPG, including any lessons learned from evaluating the information provided under Section 6, and consider whether any adjustments are warranted.

Footnotes

22 This PPG does not address otherwise lawful and properly authorized activities that may have lethal effects, which are incidental to the primary purpose of the operation.

23 Operational disagreements shall be elevated to Principals. The President will adjudicate any disagreement among or between Principals.

24 “Custody,” as referred to here, it is anticipated that the United States Government will have temporary or transitory custody of the individual(s) without the presence of officials of the foreign government maintaining custody of the detainee(s).

25 Consistent with existing policy and practice, DOJ will, as appropriate, continue to notify the NSS, through the Counterterrorism Security Group (CSG), of plans to arrest, or seek the extradition or transfer of, a suspected terrorist, and where appropriate (e.g., to consider other potential disposition options) the NSS, in consultation with DOJ, may arrange for interagency consideration of a request for extradition or transfer.

26

27 The RCSG shall be chaired by the NSS Senior Director for Counterterrorism and shall include the following departments and agencies: the Department of State, the Department of the Treasury, DOD, DOJ, the Department of Homeland Security (DHS) , CIA, Joint Chiefs of Staff (JCS), and NCTC. Additional departments and agencies may participate in the RCSG meetings, as appropriate.

28 Operational disagreements are to be elevated to Principals. The President will adjudicate any disagreement among or between Principals.

29 This process is designed to review nominations of individuals only where the capture of any individual at issue is not feasible. If, at any point during or after the approval process capture appears feasible, a capture option in accordance with Section 1 of this PPG (or the relevant operational plan ) should be pursued. If the individual has already been approved for lethal action when a capture option becomes feasible, the individual should be referred to the NSS Senior Director for Counterterrorism and undergo an expedited Deputies review focused on identifying disposition options.

30 Operational disagreements are to be elevated to Principals. The President will adjudicate any disagreement among or between Principals.

31

References

ENDNOTES

1 Miles McCain & Sarah Kreps, Congress Keeps Quiet on U.S. Drone Policy—And That's a Big Problem, Wash. Post (Aug. 24, 2017), available at https://www.washingtonpost.com/news/monkey-cage/wp/2017/08/24/congress-keeps-quiet-on-u-s-drone-policy-and-thats-a-big-problem/?utm_term=.23ecefe52275.

2 Id.

3 Nathalie Weizmann, A Drone Strike and the Debate on the Geography of the War Against al-Qaeda and Its Associates, Just Security (July 14, 2015), at https://www.justsecurity.org/24646/drone-strike-debate-geography-war-al-qaeda-associates/; Heather Brandon, Will Obama's Targeted Killing Policy Say What “Areas of Active Hostilities” Means?, Lawfare (May 5, 2016), at https://www.lawfareblog.com/will-obamas-targeted-killing-policy-say-what-areas-active-hostilities-means.

4 Luke Hartig, Can Trump Unravel Obama's Rules of War?, Foreign Policy (Jan. 5, 2017), at http://foreignpolicy.com/2017/01/05/can-trump-unravel-obamas-rules-of-war-ppg-drones-jsoc-lethal-force-terrorism/.

5 Josh Gerstein, Obama Releases Drone Strike ‘Playbook,’ Politico (Aug. 6, 2016), at http://www.politico.com/blogs/under-the-radar/2016/08/obama-releases-drone-strike-playbook-226760.

6 Patrick Tucker, Every Country Will Have Armed Drones Within 10 Years, Defense One (May 6, 2014), at http://www.defenseone.com/technology/2014/05/every-country-will-have-armed-drones-within-ten-years/83878/.

7 Gerstein, supra note 5.

8 Id.

9 President Barack Obama, Remarks at the National Defense University (May 23, 2013) (transcript available at https://obamawhitehouse.archives.gov/the-press-office/2013/05/23/remarks-president-national-defense-university).

10 Exec. Office of the President, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (2013), available at https://obamawhitehouse.archives.gov/the-press-office/2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-counterterrorism.

11 Id.

12 Gerstein, supra note 5.

13 Exec. Office of the President, Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (2013), available at https://www.justice.gov/oip/foia-library/procedures_for_approving_direct_action_against_terrorist_targets/download.

14 Brian Egan, Legal Adviser, Dep't of State, Keynote Address at Annual Meeting of the American Society of International Law (Apr. 1, 2016) (transcript available at https://www.justsecurity.org/wp-content/uploads/2016/04/Egan-ASIL-speech.pdf) (“The phrase ‘areas of active hostilities’ is not a legal term of art—it is a term specific to the PPG. For the purpose of the PPG, the determination that a region is an ‘area of active hostilities’ takes into account, among other things, the scope and intensity of the fighting. The Administration currently considers Afghanistan, Iraq, and Syria to be ‘areas of active hostilities,’ which means that the PPG does not apply to operations in those States.”).

15 Id.

16 Hartig, supra note 4; Letter from Former Gov't Officials to the Hon. James Mattis, Sec'y of Def., on Principles to Guide U.S. Counterterrorism Use of Force Policies (Mar. 10, 2017), available at https://assets.documentcloud.org/documents/3515908/Use-of-Force-Principles-FINAL.pdf.

17 Letter from Human Rights and Civil Liberties Groups to Lt. Gen. H.R. McMaster, Jr., Assistant to the President for Nat'l Sec. Affairs (June 1, 2017), available at https://www.humanrightsfirst.org/resource/letter-national-security-advisor-mcmaster-possible-changes-use-force-counterterrorism.

18 Exec. Office of the President, Presidential Memorandum on Plan to Defeat the Islamic State of Iraq and Syria (2017), available at https://www.whitehouse.gov/the-press-office/2017/01/28/plan-defeat-islamic-state-iraq.

19 Greg Jaffe & Karen DeYoung, Trump Administration Reviewing Ways to Make It Easier to Launch Drone Strikes, Wash. Post (Mar. 13, 2017), available at https://www.washingtonpost.com/world/national-security/trump-administration-reviewing-ways-to-make-it-easier-to-launch-drone-strikes/2017/03/13/ac39ced0-07f8-11e7-b77c-0047d15a24e0_story.html?utm_term=.21d1bbb6e1e7.

20 Charlie Savage & Eric Schmitt, Trump Administration Is Said to Be Working to Loosen Counterterrorism Rules, N.Y. Times, Mar. 13, 2017, at A15.

21 Charlie Savage & Eric Schmitt, Trump Poised to Drop Some Limits on Drone Strikes and Commando Raids, N.Y. Times, Sept. 22, 2017, at A1.