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Biden Secretly Limits Counterterrorism Drone Strikes Away From War Zones

WASHINGTON — The Biden administration has quietly imposed temporary limits on counterterrorism drone strikes and commando raids outside conventional battlefield zones like Afghanistan and Syria, and it has begun a broad review of whether to tighten Trump-era rules for such operations, according to officials.

The military and the C.I.A. must now obtain White House permission to attack terrorism suspects in poorly governed places where there are scant American ground troops, like Somalia and Yemen. Under the Trump administration, they had been allowed to decide for themselves whether circumstances on the ground met certain conditions and an attack was justified.

Officials characterized the tighter controls as a stopgap while the Biden administration reviewed how targeting worked — both on paper and in practice — under former President Donald J. Trump and developed its own policy and procedures for counterterrorism kill-or-capture operations outside war zones, including how to minimize the risk of civilian casualties.

The Biden administration did not announce the new limits. But the national security adviser, Jake Sullivan, issued the order on Jan. 20, the day of President Biden’s inauguration, said the officials, who spoke on the condition of anonymity to discuss internal deliberations.

Any changes resulting from the review would be the latest turn in a long-running evolution over rules for drone strikes outside conventional battlefield zones, a gray-area intermittent combat action that has become central to America’s long-running counterterrorism wars that took root with the response to the attacks on Sept. 11, 2001.

Counterterrorism drone warfare has reached its fourth administration with Mr. Biden. As President Barack Obama’s vice president, Mr. Biden was part of a previous administration that oversaw a major escalation in targeted killings using remote-piloted aircraft in its first term, and then imposed significant new restraints on the practice in its second.

While the Biden administration still permits counterterrorism strikes outside active war zones, the additional review and bureaucratic hurdles it has imposed may explain a recent lull in such operations. The United States military’s Africa Command has carried out about half a dozen airstrikes this calendar year in Somalia targeting the Shabab, a terrorist group affiliated with Al Qaeda — but all were before Jan. 20.

Emily Horne, a spokeswoman for the National Security Council, acknowledged that Mr. Biden had issued “interim guidance” about the use of military force and related national security operations.

“The purpose of the interim guidance is to ensure the president has full visibility on proposed significant actions into these areas while the National Security Council staff leads a thorough interagency review of the extant authorizations and delegations of presidential authority with respect to these matters,” Ms. Horne said.

Though Mr. Trump significantly relaxed limits on counterterrorism strikes outside war zones, fewer occurred on his watch than under Mr. Obama. That is largely because the nature of the war against Al Qaeda and its splintering, morphing progeny keeps changing.

In particular, during Mr. Obama’s first term, there was a sharp escalation in drone strikes targeting Qaeda suspects in the tribal region of Pakistan and in rural Yemen. Mr. Obama broke new ground by deciding to approve the deliberate killing in 2011 of an American citizen, Anwar al-Awlaki, a radical Muslim cleric who was part of Al Qaeda’s Yemen branch.

Then, after the Islamic State arose in Iraq and Syria, its “caliphate” became a magnet for jihadists during Mr. Obama’s final years and much of Mr. Trump’s presidency. But the region ISIS controlled was considered a conventional war zone, so airstrikes there did not raise the same novel legal and policy issues as targeted killings away from so-called hot battlefields.

The Biden administration’s review of legal and policy frameworks governing targeting is still in preliminary stages. Officials are said to be gathering data, like official estimates of civilian casualties in both military and C.I.A. strikes outside of battlefield zones during the Trump era. No decisions have been made about what the new rules will be, Ms. Horne said.

“This review includes an examination of previous approaches in the context of evolving counterterrorism threats in order to refine our approach going forward,” she said. “In addition, the review will seek to ensure appropriate transparency measures.”

Among the issues said to be under consideration is whether to tighten a limit intended to prevent civilian bystander casualties in such operations. The current rules generally require “near certainty” that no women or children are present in the strike zone, but the Trump team apparently permitted operators to use a lower standard of merely “reasonable certainty” that no civilian adult men were likely to be killed, the officials said.

Permitting that greater risk of killing civilian men made it easier for the military and the C.I.A. to meet the standards to fire missiles. But it is also routine for civilian men to be armed in the kinds of lawless badlands and failed states for which the rules are written.

Among the trade-offs under discussion, officials said, is that intelligence-gathering resources are finite. For example, keeping surveillance drones over a potential strike zone for a longer period to watch who comes and goes means rendering them less available for other operations.

Biden administration officials are also discussing whether to write general rules that are more strictly applied than the Trump-era system sometimes was in practice. They discovered that the Trump system was very flexible and allowed officials to craft procedures for strikes in particular countries using lower standards than those laid out in the general policy, so that administration’s safeguards were sometimes stronger on paper than in reality.

Officials are also confronting a broader philosophical issue: whether to return to the Obama-era approach, which was characterized by centralized oversight and high-level vetting of intelligence about individual terrorism suspects, or maintain something closer to the Trump-era approach, which was looser and more decentralized.

Under the previous rules, which Mr. Obama codified in a 2013 order known as the P.P.G., an acronym for Presidential Policy Guidance, a suspect had to pose a “continuing and imminent threat” to Americans to be targeted outside a war zone. The system resulted in numerous interagency meetings to debate whether particular suspects met that standard.

Mr. Obama imposed his rules after the frequency of counterterrorism strikes soared in tribal Pakistan and rural Yemen, prompting recurring controversies over civilian deaths and a growing impression that armed drones — a new technology that made it easier to fire missiles at presumed enemies in regions that were difficult to reach — were getting out of control.

But military and intelligence operators chafed under the limits of the 2013 rules, complaining that the process had become prone to too much lawyering and interminable meetings. In October 2017, Mr. Trump scrapped that system and imposed a different set of policy standards and procedures for using lethal force outside war zones.

His replacement centered instead on crafting general standards for strikes and raids in particular countries. It permitted the military and the C.I.A. to target suspects based on their status as members of a terrorist group, even if they were merely foot soldier jihadists with no special skills or leadership roles. And it permitted operators to decide whether to carry out specific actions.

During the presidential transition, Mr. Sullivan and Avril D. Haines, who oversaw development of Mr. Obama’s drone strike playbook and is now Mr. Biden’s director of national intelligence, raised the prospect of tightening the Trump-era rules and procedures to reduce the risk of civilian casualties and blowback from excessive use of drone strikes, but not necessarily going all the way back to the Obama-era system, one official said.

Since Mr. Biden took office, the ensuing interagency review has been primarily overseen by Elizabeth D. Sherwood-Randall, his homeland security adviser, and Clare Linkins, the senior director for counterterrorism on the National Security Council.

The Biden team is also weighing whether to restore an Obama-era order that had required the government to annually disclose estimates of how many suspected terrorists and civilian bystanders it had killed in airstrikes outside war zones. Mr. Obama invoked that requirement in 2016, but Mr. Trump removed it in 2019. The military separately publishes some information about its strikes in places like Somalia, but the C.I.A. does not.

While The New York Times reported on Mr. Trump’s replacement rules in 2017, the Trump administration never released its drone policy or publicly discussed the parameters and principles that framed it, noted Luke Hartig, who worked as a top counterterrorism aide in Mr. Obama’s White House.

Asserting that there was good reason to believe the government did not publicly acknowledge the full range of strikes carried out under Mr. Trump, Mr. Hartig said it was appropriate for the Biden team to gather more information about that period before deciding whether and how to change the system that governed it.

“There is a lot the administration needs to do to reinstate higher standards after the Trump administration, but they shouldn’t just snap back to the Obama rules,” he said. “The world has changed. The counterterrorism fight has evolved.”

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