"Areas of Active Hostilities" and Authority to Authorize Attacks Without White House Involvement

Yesterday U.S. News ran an article titled “‘Areas of Active Hostilities’: Trump’s Troubling Increases to Obama’s Wars.” As the title suggests, the thrust of the article is that there is something wrong with the Obama administration’s “areas of active hostilities” concept—or at least there’s something wrong with it now that it is in the hands of a different president. Unfortunately, the piece confuses a number of important legal and policy issues. As I explain below, it seems to me that the article actually identifies what could be a very important policy problem (involving the decision-making process for military operations), but not one that should have been framed as having a legal dimension.

Some context:

For nearly sixteen years now, the position of the U.S. government has been that there is an armed conflict with al Qaeda, that this conflict is not defined by geographic borders, and that the Law of Armed Conflict (LOAC, aka IHL) therefore governs the specifics of using force regardless of location. The legal relevance of geography, on this view, is that the location of a particular action may well implicate Article 2(4) of the U.N. Charter. If both Charter concerns and LOAC concerns are satisfied (and assuming no domestic law issues), the only remaining constraints are those derived from policy, diplomacy, and the like.

Policy concerns are always present to one degree or another when it comes to the use of force, but in 2013 President Obama elected to take a more formal approach to them in connection with the use of force in locations that are not currently areas of recurring combat activity. Famously, he adopted an array of policy-based constraints for such scenarios, embedding them in a Presidential Policy Guidance document. Those of us who follow this stuff have been referring, ever since, to “the PPG” and its policies on when force may be used outside “areas of active hostilities.”

Simplifying things a bit, the idea was to limit the use of lethal force in such locations to circumstances involving imminent threats to U.S. lives, where capture is not a feasible alternative, and it is near certain there will be no collateral damage at all. Put another way, the idea was to eschew the full range of authority that LOAC would permit, in favor of a more constrained approach. This policy choice made it possible for the Obama administration to argue that there was little or no gap in practical terms between the U.S. position (i.e., that there is a borderless armed conflict) and the position of those who reject that view.

There has been some reason to question whether the PPG in actual practice constrained the use of force as much as this description suggested. The PPG seemed to be interpreted pretty flexibly in Somalia at a time when that region was deemed not to be an areas of active hostilities, and in any event the president was willing to designate new areas of “active hostilities” when needed (as happened in Libya in connection with air support for the effort to evict the Islamic State from Sirte). And yet it seems clear that the PPG did have at least some constraining effect, and hence many of us have assumed that President Trump sooner or later would abandon it, ignore it, or generously-designate new areas as zones of active hostilities (thus rendering it less relevant). It seems like the administration is taking that last approach—witness the decision to designate Somalia an area of active hostilities—at least for now, while probably still contemplating what longer-term approach to take.

Against this backdrop, how does the U.S. News article from yesterday hold up?

First, the article opens by claiming that the “active hostilities” concept is a “little-known term.” That might be true for the general public, but then again that’s true for most of the terms that matter in this area. Insofar as the idea is that the concept (and its associated rules) is little-known amongst those who actually work in this area, however, then the characterization is just wrong. The Obama administration was at pains to promote awareness of its decision to embrace these policy constraints. It is unhelpful to suggest that this was something obscure or hidden.

Second, the article suggests that the “phrase has no legal definition.” That’s true, but it is misleading. The phrase is not supposed to have a legal meaning. As explained above, the phrase is part of a policy framework. It is no more and no less than a label used to distinguish between (i) those locations where the President determines as a matter of policy our uses of force should be constrained beyond the limits already imposed by LOAC and (ii) those locations that should not be so constrained. No one claims—or at least no one should claim—that the phrase “areas of active hostilities” also is meant to tell us anything about what law applies in a given place. That’s an important and contested, but entirely independent, question.

Third, the article suggests that the label “offers no formal protections [for U.S. forces] other than the generally understood compact that the American government will support the actions of its soldiers in foreign conflicts.” It’s not clear what the author means here. If he means that forces operating outside areas of active hostilities somehow are operating without connection to LOAC (and hence would lack, say, combat privilege from prosecution for otherwise lawful uses of force), that’s certainly not the U.S. view. If instead he means that forces operating inside such zones—in Iraq or Afghanistan, for example—somehow are operating without reference to LOAC, then that is even more-clearly incorrect (no one denies LOAC’s relevance in most such places, even if they reject the US view that LOAC also applies outside areas of active hostilities).

So what is really going on here? After making the points discussed above, the author moves onto firmer ground by talking about how President Trump has pushed authority to make decisions on particular uses of force away from the White House and towards commanders in the field, and how some commanders worry this is in part a move designed to preserve the president’s ability to criticize military decisions that turn out poorly (citing Trump’s reaction to the SOF ground raid in Yemen that occurred early in his presidency).

This is an important policy topic, for sure, and worthy of sustained attention and reporting. And perhaps there is some connection to the PPG “areas of active hostilities” concept, insofar as the White House may have determined to use that same category as the line for determining when to push decision-making authority out to commanders in the field. If the PPG is playing such a role, and if there is any uncertainty in the Pentagon or CIA regarding which precise locations are on that list and which ones are not, that is certainly a problem that should be fixed.

But none of that presents a legal issue about LOAC’s relevance or other legal matters. Far, far better to focus the reporting on clarifying this single question of military policy: Has the Commander-in-Chief not been clear as to whether, when, and where use-of-force decisions require White House sign-off?