In the face of whim and wishes will Obama’s legal and policy framework survive?

By: Matthew T. Goepfrich

In the last month of office, the Obama Administration released five new documents regarding use of force doctrine and counterterrorism operations as conducted by the United States. Among these is the significant, but hardly new, Use of Force Framework Report which summarizes the continuing United States doctrine and justifications regarding its ongoing counterterrorism operations.

As the new Trump Administration takes over, one begins to wonder to what extent this current framework of using military force overseas will continue to be followed with the rigor traditional law abiding societies demand. It should not be forgotten that an Executive Action is only as good in so far as the next President doesn’t know about it. The Branch that makes the rules can after all change the rules. But the Use of Force Framework Report is different in some regards in that it specifically highlights the long asserted AUMF legal justifications for ongoing use of military force. These legal justifications are well rooted in international law principles. However, given the indications of the Trump Administration as transactional and result focused, it does mean that certain prevailing heightened policy standards and procedures from the Report very quickly may meet their demise during future operational planning.

Among these include the PPG, which laid out heightened procedures for assessing and approving direct action against terrorist targets outside the United States. Drafted in order to ensure incidental civilian casualties were minimalized, as obligated by international law both treaty and customary. Beyond levels required by international law, the PPG established a preference for capture and laid out a procedural scheme where most decisions of use of lethal force are to be made at the highest senior levels of the U.S. Government.

In addition, Executive Order 13732 established policies directly related to the reduction of civilian casualties and applied to all use of force operations. This order included ex gratia payments for civilian deaths and maintaining channels for engagement with the ICRC and NGOs for help in distinguishing military objectives and civilians. Further, an annual report was to be released regarding information related to civilian casualties. One can begin to imagine the ‘nationalist outrage’ the Trump Administration will face when it is learned that money can be paid to foreign civilians who suffered losses in counterterrorist operations. Getting rid of the annual report and the payments quickly allows the Trump Administration to do its current favorite political tactic: hide behind secrecy.

But these aren’t the only frameworks potentially under attack. Detention of individuals in armed conflict and the prohibitions against torture have at least been flirted with in terms of implementing new rules with a proposed EO to reassert black sites and torture never mind the statutory domestic issues that would be violated. In addition, it seems more likely than not that the use of the criminal justice system and military commissions to provide a level of procedure and substantial right protections for those charged with terrorism related acts will be undermined and shifted for tactics like indefinite detention and quick ad hoc judgments.

There should be no surprise that policies of the previous Administration will be changed. But the United States becoming the bottom floor upholding obligations of international law should worry us. The previous Administration, while criticized, still maintained an ethos of obligation and standards to a rule of law and expectations. This meant it remained important that appearances of violations be preventable, hence the robust framework for use of force. I have yet to see any direct Trump talk suggesting a likeminded desire to keep the United States’ international imagine to that level.

Lastly, we should not expect the Trump Administration to be as concerned and involved in laying out justifications for ongoing operations. Obama, as a constitutional lawyer attuned to the value of the law, naturally played a larger role in developing the framework as an administration priority. Trump, however, cares more about if something can be done then why something can be done. And that could be a silver lining in these times, namely that Trump will by personal preference be bound to a large aspect of the framework simple by an indifference to the work. That being said, don’t expect the heightened levels of procedures to stick around for long. Such values for human life quickly will go away in the name of ‘efficiency.’