University of Illinois Urbana-Champaign law professor and Heidi Hurd Faculty Scholar Patrick Keenan is an expert in counterterrorism law and international criminal law. He spoke with News Bureau business and law editor Phil Ciciora about the implications of the Biden administration’s new national security and counterterrorism policies.
The Biden administration released several important new policies on national security and counterterrorism recently. What stands out?
The new National Security Strategy policy document lays out what the government sees as the most significant challenges facing the U.S. and the ways it will confront those challenges. It’s not meant to be a detailed action plan. Instead, it’s an overview of how the Biden administration sees the U.S. It’s also a signal to the world, and to U.S. policymakers, of the Biden administration’s policies.
For example, the NSS addresses many of the issues that most people would think are important: competition with China; containing Russia; addressing climate change; dealing with global health challenges and food insecurity; controlling the spread of arms and nuclear weapons; and making cyberspace more secure.
These priorities are not surprising, but the way the Biden administration intends to address them represents a bit of a shift. For example, the need for a comprehensive, coherent industrial policy to compete with China’s growing power. The NSS promises to do more to secure the U.S. supply chain and make strategic public investments in key industrial areas such as semiconductors to strengthen the private sector. Public investments have long been part of U.S. policy, so this isn’t completely new, but the NSS’s focus on it is significant. It suggests that the U.S. is moving toward the approach taken by Japan, South Korea and many countries in Europe.
Another noteworthy part of the NSS is the explicit acknowledgement that the U.S. must continue to work with countries that are not democratic. This is a recognition that the U.S. goals of promoting democracy and openness must be pursued alongside the reality that many states are not democratic and may not become so in the foreseeable future.
What does the National Security Strategy say about terrorism?
The NSS details some important and overdue shifts in U.S. counterterrorism policy. It mentions domestic terrorism and international terrorism in almost equal terms, which is a first for this kind of document. International terrorism is still an important issue, but domestic terrorism is increasingly recognized as a real threat in the U.S. The focus on domestic terrorism is long overdue and will likely be welcomed by federal law enforcement.
Two other shifts are more subtle but, if implemented, may be equally consequential. First, the NSS promises to shift from “U.S.-led, partner-enabled” counterterrorism operations to “partner-led, U.S.-enabled” operations.
If this is fully implemented – and I doubt that it will be – it would mark a big change. U.S. forces have long trained and supported counterterrorism professionals from other countries. But in actual operations, partner forces have, in most cases, been working at the direction of U.S. forces. I don’t think the new policy is suggesting that U.S. forces will now be directed by foreign forces. But I do think it means that the U.S. will increasingly provide intelligence, support from drones and perhaps air support – but many fewer troops on the ground.
The second subtle shift is an apparent recognition that terrorism has root causes and that the U.S. should work to address those causes instead of simply trying to fight terrorism using military or law enforcement tools. The NSS mentions the impacts of terrorism on people and communities; links terrorism to underdevelopment and poor governance; and promises to address the root causes of terrorism in Africa. This is a welcome shift and suggests a more holistic approach.
What is the Biden Administration’s new policy on drone strikes?
The new drone policy is in a Presidential Policy Memorandum that hasn’t been released to the public, but many details of it have been reported in the media.
Since the Obama administration, it has been U.S. policy to divide the world into basically two categories: areas of active hostilities, and areas outside of active hostilities. Areas of active hostilities are what we would think of as traditional war zones – places where there is active, kinetic conflict. In those places, the usual laws of armed conflict apply. Commanders make decisions as to when and how to use lethal force via drone strike. They must avoid committing war crimes or other atrocities, but beyond that they are permitted to make decisions as necessary to prosecute the war.
The new memorandum deals with areas outside of active hostilities – basically, where there are terrorism threats, but there is not an active armed conflict going on at the moment. In these areas, the usual legal approach is that lethal force – including drone strikes – is only permitted under very limited circumstances.
The new rules on drone strikes appear very similar to the Obama administration’s approach but a bit different from the Trump administration’s approach. They represent a return to the Obama-era approach of requiring extensive interagency review of targeting requests outside of active war zones. The Trump policies had left these choices to lower-level decision-makers.
How do you think these new policies will affect U.S. operations on the ground?
The Biden policies suggest that there will be fewer strikes overall, in that tighter rules and more vetting usually result in fewer strikes. They also show the need to acknowledge the political impacts of drone strikes. For the first time, U.S. ambassadors in the target countries must be involved in the decision-making process.
But overall, I don’t think the policies go far enough to scale back the use of lethal strikes outside of war zones. We should never think it’s normal for the U.S. to use force against threats located entirely within another country that is not at war. It’s useful to remind ourselves that using force inside other countries should never be seen as a normal part of U.S. strategy.