President-elect Donald Trump has effectively extinguished any hope that his administration might pursue a more centrist approach to national security.
His recent selection for key posts – Lieutenant General Michael Flynn (National Security Adviser), Senator Jeff Sessions (Attorney General), and Representative Mike Pompeo (CIA) – instead demonstrate what Patrick Eddington has described as a dangerous tilt towards an Islamophobia administration.
The Trump administration will not be writing on a blank slate. In January, Trump will take control of a government that has been waging war against terrorist groups for more than 15 years.
This conflict, which began as a military action against al-Qaeda and the Taliban in Afghanistan after the 9/11 attacks, has morphed into a global war against a wider array of groups that includes both offshoots and associated forces of al-Qaeda.
Trump will also inherit a statute, the 2001 Authorization for Use of Military Force (AUMF), that has been interpreted and applied expansively to encompass organisations and threats that did not exist on 9/11.
Trump, who has vowed to pursue aggressively the so-called and self-proclaimed “Islamic State of Iraq and the Levant” (ISIL) and other armed groups, will inherit this framework.
Lack of accountability
The transition to a Trump administration is likely to have far-reaching implications for US counterterrorism policy in multiple areas, including drone strikes.
The Drone Memos: Targeted Killing, Secrecy, and the Law, edited and introduced by Jameel Jaffer, highlights several of the risks ahead.
The Drone Memos assembles the legal and policy documents – many formerly secret – that provided the basis for the Obama administration’s expanded use of drone strikes against suspected terrorists.
The book also includes an introduction that provides a comprehensive overview of the Obama administration’s development of a legal framework to justify these strikes.
Despite his good faith efforts to ground drone warfare in law, the book underscores how Obama’s legacy includes two features that could prove especially troubling in a Trump administration.
First, drone strikes remain shrouded in secrecy. The Obama administration, to be sure, finally released some aggregate data, including the number of “non-combatants” and “combatants” killed since 2009 in drone strikes conducted outside Afghanistan, Iraq, and Syria (all characterised areas of active hostilities).
But despite promises of greater transparency, it has refused to provide more case specific information, including about the identity of targets, dates, and locations of strikes, and assessments of collateral damage.
The administration, moreover, continues to resist the release of other legal documents regarding the drone programme and to defend the significant reductions in documents that have been released (whether via government leak or through litigation), including the 11-page factual discussion in the July 2010 Office of Legal Counsel memo regarding the strike that killed an American citizen in Yemen.
Such continued secrecy prevents independent examination of whether US drone strikes have complied with international law, let alone with the standards that the administration has articulated as a matter of policy.
Moreover, the Obama administration has favoured flexible guidelines over legal rules to constrain drone strikes. In May 2013, Obama issued a Presidential Policy Guidance (PPG) that stated the US would, as a matter of policy, follow strict requirements in conducting lethal strikes outside areas of active hostilities, including that targeting would remain a last resort.
Yet, the administration also hews to a legal position that would authorise the US to use drones more expansively, including through status-based strikes against members of any terrorist group falling within the AUMF anywhere in the world.
Thus, while Obama has relied primarily on the AUMF for drone strikes, he has interpreted his statutory authority broadly.
Further, the president has rejected the argument that The Constitution – including the due process clause of the Fifth Amendment – places any judicially enforceable constraint on the use of lethal force in the global war on terror, including against American citizens.
Inheriting an unconstrained programme
It would be foolish to expect a Trump administration to pursue anything other than broader legal authority and greater secrecy.
Meanwhile, the more stringent policies in the PPG – a reflection of President Obama’s awareness of the risks to the US in waging war by drones – are likely to fall by the wayside.
The expansive interpretation of legal authority and strong defences of secrecy wielded by a president who at least understood the risks and downsides of drone warfare will now be available to an administration that sees the world in black-and-white, rather than shades of grey.
Perhaps the Congress or federal courts, which have yet to impose limits on US drone strikes, will be more willing to do so in the face of an administration that will presumably act recklessly and in blatant disregard of legal norms (as the Supreme Court did during the Bush administration with respect to the detention and mistreatment of enemy combatants).
But, for the moment, as The Drone Memos suggests, Trump will assume command of a drone campaign that lacks any meaningful constraints that “could not be lifted by the stroke of a pen”.
Written by Jonathan Hafetz, Associate Professor of Law at Seton Hall University School of Law. You can follow him on Twitter @JonathanHafetz.