White House Tightens Rules on Counterterrorism Drone Strikes

WASHINGTON — President Biden has signed a classified policy limiting counterterrorism drone strikes outside conventional war zones, tightening rules that President Donald J. Trump had loosened for a 21st-century method of warfare, according to officials.

The policy, which the White House sent to the Pentagon and the C.I.A. on Friday, institutionalizes a version of temporary limits that Mr. Biden’s team quietly put in place on the day of his inauguration as a stopgap for reducing risks to civilians while the new administration reviewed the counterterrorism policies it had inherited from Mr. Trump.

A description of the policy, along with a classified new counterterrorism strategy memo Mr. Biden has also signed, suggest that amid competing priorities in a turbulent world, the United States intends to launch fewer drone strikes and commando raids away from recognized war zones than it has in the recent past.

The policy requires Mr. Biden’s approval before a suspected terrorist is added to a list of those who can be targeted for “direct action,” in a return to a more centralized control of decisions about targeted killing operations that was a hallmark of President Barack Obama’s second term. Mr. Trump had given commanders in the field greater latitude to decide whom to target.

The New York Times has not seen a copy of the classified document, which officials call the P.P.M., for presidential policy memorandum. But it was described by a senior administration official, who spoke on the condition of anonymity to explain its key aspects.

In a statement, Liz Sherwood-Randall, Mr. Biden’s homeland security adviser who oversaw a 20-month review that led to the changes, acknowledged that the policy had been completed and characterized it as directing the government to be “discerning and agile in protecting Americans against evolving global terrorist challenges.”

She added: “The president’s guidance on the use of lethal action and capture operations outside areas of active hostilities requires that U.S. counterterrorism operations meet the highest standards of precision and rigor, including for identifying appropriate targets and minimizing civilian casualties.”

The Biden administration’s rules apply to strikes in poorly governed places where Islamist militants are active but that the United States does not consider to be “areas of active hostilities.”

Only Iraq and Syria — where U.S. troops and partners are fighting the remnants of the Islamic State — are currently deemed to be conventional war zones where the new rules will not apply and commanders in the field will retain greater latitude to order counterterrorism airstrikes or raids without seeking White House approval, the official said.

That means the rules will limit any such operations in several other countries where the United States has carried out drone strikes in recent years, including Afghanistan, Somalia and Yemen, as well as the tribal region of Pakistan.

The number of counterterrorism raids and drone strikes in several of the affected countries had been decreasing in recent years. The last U.S. drone strikes in Pakistan and Yemen were in 2018 and 2019, according to the Foundation for Defense of Democracies’ Long War Journal. In August, a U.S. drone strike in Afghanistan killed Al Qaeda’s leader, Ayman al-Zawahri.

The policy requires “near certainty” that a target is a member of a terrorist group approved for so-called “direct action” and “near certainty” that no civilians will be killed or injured before pulling the trigger, the official said.

Operators are also required to obtain the consent of the State Department’s chief of mission in a country before carrying out a strike there, the official said.

By limiting targeting approval to specific, named people, the policy does not authorize a tactic that may increase the risk of mistakes that kill civilians: so-called signature strikes, attacking people without knowing their identities based on patterns that raised suspicions.

Still, the rules permit seeking Mr. Biden’s permission for other types of strikes in extraordinary circumstances. And the rules do not require White House approval for strikes carried out in self-defense, such as the so-called collective self-defense of partner forces.

Many strikes in Somalia, where U.S. forces are helping to build up government troops battling the militant group Al Shabab, have been justified as collective self-defense of partners — including one on Sept. 18 that the military said killed 27 Shabab fighters who had attacked Somali forces.

Counterterrorism drone strikes targeting militants in remote and poorly governed regions — where there are no police to arrest people plotting terrorist attacks — have become a new style of warfare, raising legal and policy dilemmas. Four presidents have now grappled with how to use and constrain the technology.

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The C.I.A. used a novel armed drone to kill a militant in 2002, after the terrorist attacks of Sept. 11, 2001. In the 2002 attack, the strike destroyed a car carrying a suspected member of Al Qaeda in Yemen.

By the end of the George W. Bush administration, the government had acquired many more armed drones, and airstrikes in tribal regions of Pakistan were soaring.

Drone strikes increased still further early in the Obama administration, including in Yemen with the emergence of a dangerous Qaeda affiliate. And as the frequency of airstrikes increased, so did botched ones in which the military or the C.I.A. mistakenly killed civilians.

In 2013, Mr. Obama sought to impose greater control over drone warfare by issuing new limits on “direct action” operations away from war zones. In 2017, Mr. Trump replaced those guidelines with a looser set of rules, which Mr. Biden set aside in January 2021.

Mr. Biden’s rules are said to declare that the United States will carry out such strikes in other countries consistent with domestic and international law — both areas where the government’s interpretations have been the subject of some dispute.

As a matter of domestic law, the government has generally claimed that it has legal authority to attack terrorism suspects under the Authorization for Use of Military Force that Congress enacted after the Sept. 11 attacks. Presidents in both parties have stretched that law beyond the original version of Al Qaeda in Afghanistan to cover many other groups and places.

As a matter of international law, the policy is said not to delve into the circumstances in which the United States believes it can carry out strikes in another country without the consent of its government under a disputed theory that local authorities are unwilling or unable to suppress a threat emanating from their territory.

The policy also says that to be put on the kill-or-capture list, a target must be deemed a “continuing and imminent threat to U.S. persons,” the official said.

For now, the Biden administration is not making public the text of its drone strike rules. Nor is it releasing a classified national security memo encapsulating a new international counterterrorism strategy, the development of which Ms. Sherwood-Randall oversaw in parallel.

The strategy is said to respond to how the terrorist threat has evolved over time — it is more diffuse, ideologically diverse and geographically dispersed — and the need for the United States to prioritize threats amid competing problems and resource constraints, including those involving Russia, China, cybersecurity, climate change and the coronavirus pandemic.

The strategy is also said to emphasize other means of reducing the risk of terrorism, including working with partner forces and supporting overseas civilian law enforcement abilities, while reserving U.S. kinetic action as a tool where merited.

Under Mr. Trump’s system, the White House approved “country plans” that set broad standards for particular areas, in which operators had greater latitude to select targets.

The Biden system still envisions country plans that will include things like local logistics and identifying which militant groups operating there are eligible for targeting.

The new counterterrorism rules are distinct from Defense Secretary Lloyd J. Austin III’s efforts to strengthen the Pentagon procedures aimed at preventing civilian deaths in military operations generally. That includes conventional battlefield zones, which Afghanistan was still considered to be in August 2021, when a botched military drone strike in Kabul killed 10 innocent people amid the chaotic U.S. withdrawal.

The review also weighed whether to restore an Obama directive, rescinded by Mr. Trump, that had required the government to annually disclose its best understanding of how many militants and civilians it had killed in counterterrorism airstrikes. Congress has separately required the military to make public some of that information.

But for now, the White House has not restored the Obama-era directive as applied to the C.I.A. The official said whether and how to build on the disclosure law was still under consideration.

Still, the review did lock down some higher standards than ones that apparently prevailed in the Trump era.

The Biden-era standard of “near certainty” that no civilians will be killed applies equally to adult men in a potential strike zone as to women and children, the official said. The Trump-era rules also had a standard of “near certainty” that no civilians would be harmed in a strike but are said to have allowed systematic exceptions so long as bureaucratic procedures were followed.

Officials familiar with the matter have described some country plans in the Trump era, which remain classified, as permitting a lower standard — “reasonable certainty” no civilians would be hurt — in assessing the status of adult men in a potential strike zone.

But it remains unclear what the “near certainty” standard means in practice. The military announced this month that it had carried out a strike in Somalia that apparently killed Abdullahi Nadir, a longtime Shabab leader.

The military initially said he was the only person killed in the strike — but later realized that a second person, also believed to be a Shabab militant, was also killed, according to officials familiar with the matter. The two were apparently in a car at the time of the attack.

Senior officials at the Pentagon and the White House have questioned how operators could have met the “near certainty” standard if they did not realize a second person was present. An Africa Command spokesperson acknowledged that the strike was under review.

Eric Schmitt contributed reporting from Stuttgart, Germany.