The Next Administration Should Bring the Shadow Wars into the Light

As the U.S. moves toward a new administration and a new Congress, our leaders have an unprecedented opportunity to reflect on the need to re-evaluate and reconsider the total costs, consequences, and risks of insufficiently bounded, secret warfare. 

“The purpose of this meeting is to assign tasks for the first wave of the war against terrorism,” George Bush told his National Security Council in the White House Situation Room on Sept. 17, 2001. Not even President Bush could have imagined what he set in motion that day. Nor could he have guessed that the menu of ways the government could wield lethal force secretly, and almost anywhere in the world, would remain in effect twenty years later.

Many of the options currently available to U.S. presidents to use lethal force abroad were created based on the perception of an urgent threat. To enable flexibility and speed, several secret programs and activities were exempted from traditional legal controls, expectations of transparency, and congressional oversight. But over the course of two decades, the use of these authorities and tools, through drone strikes and paramilitary support for surrogate forces, has associated the “war on terror” with a lack of accountability for civilian casualties and complicity in human rights violations. More recently, these same programs and activities have implicated the United States in wars not specifically authorized by Congress, against adversaries with no direct association with the events of 9/11.

Our new report examines the trade-offs and consequences involved with the continued use and availability of certain counterterrorism practices. We focus on the proliferation and normalization of options for employing lethal force, including secretive modes of security cooperation where the use of lethal force and civilian harm are reasonably foreseeable outcomes. More specifically, we hone in on three specific programs that are subject to fewer rules and much narrower forms of congressional oversight than other “conventional” military and intelligence programs, especially those forms of oversight that govern national decisions to go to war; the prevention and accountability for civilian casualties; and the protection of internationally recognized human rights. 

A Biden administration may be eager to make certain symbolic reforms and to temper the most visible aspects of the “forever war” (e.g., by reducing troop levels in Afghanistan), yet preserve the option of using covert lethal action and secret surrogates to counter threats with lower perceived cost and less apparent risk to U.S. forces, and all on the basis of an expansive interpretation of the President’s constitutional authorities. Then-candidate Biden referred to these programs, taken to mean drone strikes and operations conducted by special operations forces, during this primary campaign as “light footprint” operations. 

Dabbling on the margins would be a mistake. If we have learned anything in twenty years, it’s that clandestine and covert operations carry their own, often underestimated, risks for the executive branch, to include blowback from civilian casualties (without the ability to publicly defend the purpose of an operation), mission creep, and public distrust. The use of secret operations requiring only the narrowest form of Congressional oversight have placed U.S forces at risk, or even placed the nation at risk of war. Moreover, the use of lethal force through drone strikes outside of conflict areas has cast the United States as an outlier, rather than a leader, in its support for internationally recognized human rights. A policy of elective restraint and transparency would provide a better alternative for an administration keen on restoring America’s image in the world.

Congress would also benefit from a comprehensive approach to reform. The accumulation of legal loopholes and “parallel” counterterrorism programs subject to different restrictions and oversight regimes allows any President to “forum shop” for the least burdensome source of authority in decisions to use lethal force or support partner forces. This compromises the ability of the Congress to play its oversight role, and by extension, places at risk the American public’s stake in how and when its government kills or involves itself in war. These loopholes also undermine several Congressional initiatives – several of them the result of executive branch excess during the cold war – designed to prevent American complicity in human rights abuses.

These recommendations – and others that we provide in the report –could serve as a starting point for the next presidential administration and Congress for ensuring that U.S. national security practice is defined by the rules it follows, rather than by the exceptions it employs. 

Dan Mahanty is Director of U.S. Programs for the Center for Civilians in Conflict. Rachel Stohl is Vice President of the Stimson Center.