By Marjorie Cohn: During the 2016 presidential campaign, Donald Trump advocated killing innocent families of suspected terrorists. "When you get these terrorists, you have to take out their families," he declared. Besides the immorality of killing innocents, the targeting of civilians violates the Geneva Conventions.
The George W. Bush administration unlawfully detained and tortured suspected terrorists. Determined not to send more suspects to Guantánamo, Barack Obama's administration illegally assassinated them with drones and other methods, killing many civilians in the process.Now the Trump administration is killing record numbers of civilians and weakening the already-flimsy targeted killing rules Obama put in place.
In 2013, the Obama administration promulgated a set of requirements regarding targeted killings "outside areas of active hostilities" in a Presidential Policy Guidance (PPG).
The New York Times reported on September 21, 2017, that Trump's national security advisers proposed watering down Obama's PPG. These recommendations to Trump are called Principles, Standards and Procedures, or PSP. On October 29, the Times reported, "Two government officials said Mr. Trump had recently signed his new rules for such kill-or-capture counterterrorism operations, without major changes" to the PSP.
Obama mounted both "personality strikes" -- aimed at named suspected terrorists -- and "signature strikes" -- in which all military-age men in an area of suspicious activity could be killed. Signature strikes are often called "crowd killings" because those perpetrating the attacks don't even know whom they are killing. Trump has presumably continued these two types of strikes.
The PPG required that the target pose a continuing, imminent threat to US persons. There is no indication that Trump's new rules have changed this requirement. Moreover, even under Obama, a 2011 Department of Justice white paper said that a US citizen could be killed even when there was no "clear evidence that a specific attack on US persons and interests will take place in the immediate future." Obama presumably set a lower bar for killing non-citizens.
Obama's rules also mandated near certainty that an identified "high-value terrorist" or other lawful terrorist target is present before taking a strike. One official told the Times that the administration "reduced the required level of confidence that the intended target was present in a strike zone from 'near certainty' to 'reasonable certainty.'" Signature strikes don't target named individuals. Under the new Trump rules, targets would no longer be limited to high-value terrorists, but could also include foot soldiers with no leadership roles.
During the Obama administration, targeting decisions were made at the highest levels of government and the president reportedly had the final say about who would be assassinated. Under the PSP, however, these determinations would not require vetting by top administration officials, and could be made by commanders in the field.
Trump advisers recommended maintaining the PPG's requirement of near certainty that civilians would not be injured or killed, and the administration agreed, according to the Times.
In spite of the PPG, the Obama administration killed many civilians. Obama's Office of the Director of National Intelligence (ODNI) reported killing between 64 and 116 non-combatants "outside areas of active hostilities" from January 2009 to December 2015. That encompassed Pakistan, Yemen, Somalia and Libya. Civilian deaths in Afghanistan, Iraq and Syria were not included. And even for the included countries, the ODNI figures could be low: The London-based Bureau of Investigative Journalism estimated between 380 and 801 civilians killed outside areas of active hostilities during the same period.
Even before relaxing the rules, drone strikes and other targeted killings outside areas of active hostilities have already increased from one every 5.4 days during the Obama administration, to one every 1.25 days under Trump, Micah Zenko of the Council on Foreign Relations reported.
Trump granted increased authority to the CIA and the Pentagon to conduct drone strikes. He also loosened the targeted killing rules in large areas of Yemen and Somalia by designating them "areas of active hostilities."
In March alone, the Trump administration killed 1,000 civilians in Iraq and Syria, according to Airwars, a non-governmental organization that monitors civilian casualties from airstrikes.
We can expect to see increasing numbers of civilian deaths as Trump continues the "war on terror" he inherited from his predecessors. Since Bush launched this war after 9/11, we have become more vulnerable to terrorism. Civilian killings heighten anger toward the United States and lead to stepped-up recruitment of those who would do us harm.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law where she taught for 25 years. The former president of the National Lawyers Guild and criminal defense attorney is a legal scholar, political analyst and social critic who writes books and articles, makes media appearances and lectures throughout the world about human rights and U.S. foreign policy.
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