The next president inherits deadly instruments for killing – with few limitations on how to use them.
Rapid advancements in U.S. military technology over 15 years of conflict have yielded weapons with an effectiveness that at times outpaces the rules governing their use, offering the incoming commander-in-chief broad latitude to decide how and when to deploy some of America's most far-reaching instruments of war.
George W. Bush's administration first saw the benefit of using drones to find, track and kill America's enemies across the globe. Under President Barack Obama, these missions increased exponentially as the technology developed and the demand soared for an ability to wage war without endangering Americans. And still, the rules governing the use of these weapons are as much agreed-upon custom as they are established laws.
As President-elect Donald Trump prepares to take office, he has not yet made clear how his fledgling administration will wade into the legally gray area surrounding drones as well as other modern tactics like cyber tools and the use of highly trained special operations forces with deep experience finding, surveilling and killing high-value targets.
"There is a great deal of latitude in the interpretation and application of the law of war," says Madeline Morris, an expert on the subject and frequent adviser to the departments of Defense and State. "Any president wields enormous military power that can be deployed surgically and massively, and for that reason, bears enormous responsibility."
After eight years of war during the Bush administration, Obama's foreign policy was in large part defined by his campaign promise to bring troops home from foreign battlegrounds and to commit America's forces to overseas conflicts only sparingly. Above all, the administration worked to avoid killing civilians. That policy, however, was greeted with pushback from some commanders who said such extreme caution only prolongs fighting. And it does not bind Trump, who has openly questioned whether the U.S. should target the families of terror suspects as a deterrent.
It remains illegal to attack noncombatants, but U.S. commanders have the authority to balance the opportunity of striking and killing a target with the possibility that it might kill innocent people. It's uncertain how that balance might change.
"If you were to say, 'We're going to teach an ISIS family member a lesson,' that would be an obvious illegality," says Morris, now a professor at Duke University, using an alternate name for the Islamic State group. "If [Trump] used a lawful attack as a pretext to kill family members, and declared the 'collateral damage' proportionate, that would be an example of how he might commit an illegality.
"But who knows whether that's not already been happening?" she says.
The White House historically has broad authority to justify legally a military action the president decides he wants to take. One of the most recent examples is the 2001 congressional approval to fight al-Qaida. The Obama administration says this law authorizes its campaign against the Islamic State group, which the White House legally considers an extension of al-Qaida, even though the two groups have formally denounced one another. The reasoning does not meet the legal standard for some in Congress – including the Democrats' vice presidential nominee, Sen. Tim Kaine of Virginia – but continues to provide the foundation for military action against the extremist group.
In perhaps the most high-profile example of another debatable legal interpretation, the military unit Obama dispatched to Pakistan to kill Osama bin Laden at his Abbottabad compound, which usually operates under the Pentagon's Joint Special Operations Command, that night was placed under the authority of the CIA in order to lawfully allow the uniformed soldiers to operate in a country with which the U.S. was not at war.
Each of these technologies and advancements have allowed the U.S. greater access to kill its enemies than ever before, raising concerns going forward that American leaders have become too comfortable with the process. These abilities have wrought new precedents, including the extrajudicial killing of at least one American citizen.
Lawyers for the White House argued Anwar Awlaki, born in New Mexico, forfeited his right to due process when he communicated with extremists who carried out attacks against the U.S., such as the 9/11 hijacking and the attempted 2009 Christmas Day bombing, and that he supported al-Qaida while hiding in Yemen.
At issue is how that precedent could apply to the future. It's yet unclear if the U.S. could, for example, legally kill an American hiding out in the Molenbeek neighborhood of Brussels if there were enough proof the person was contributing to an attack against the U.S. that was deemed imminent. It's also unclear how much proof is considered enough.
"The issue is not, 'You're only allowed to execute him after you've already had a trial.' The issue is, 'What is the right standard for determining an enemy fighter?' That is one of those areas that's not clearly defined in the law," says Geoffrey Corn, an Army veteran and senior law of war adviser.
He cites that decade and a half of experience that the military and intelligence agencies have had grappling with the legality of these operations, and believes that in itself would prevent any outright violations.
"It's very likely the new administration is going to reconsider those policy restrictions and probably seek to relax them," says Corn, also a professor at South Texas College of Law Houston. "What that's going to do is inevitably bring to the surface the legitimacy of U.S. legal interpretations."
Public examination serves as a check on this type of presidential power, at least for now. Torture or "enhanced interrogation" has been vetted and rejected broadly across most of the political spectrum under the Obama administration since the Bush White House deemed it an acceptable method of obtaining information amid urgent security concerns after the 9/11 attacks. Duke's Morris points out that allows for an important, overt and public debate, such as in the aftermath of the 2014 Senate report on CIA interrogation activities, on the methods the American people are willing to tolerate in extracting information from their enemies.
A survey released earlier this year found roughly two-thirds of the U.S. public believe torture can be justified.
Speaking at a security conference in Halifax over the weekend, Sen. John McCain, the chairman of the powerful Armed Services Committee, declared the U.S. will not employ the practice with its captives after Trump insisted on the campaign trail that he would reinstate the practice.
If the Trump administration or any other started waterboarding, which simulates the feeling of drowning, "we'd have them in court in a New York minute," the Arizona Republican said.
"What does it say about America if we're going to torture people?" asked McCain, a former Navy pilot who was tortured as a prisoner during the Vietnam war.
Trump told The New York Times in a meeting this week he had reconsidered his stance on torture after speaking with retired Marine Gen. Jim Mattis, whom Trump is considering for his secretary of defense.
Other corners of the Pentagon's secretive weaponry, however, remain too new to have guidance, policies or even laws fully governing their use. The military is particularly tight-lipped about its offensive cyber capabilities, though it acknowledges it has tools it can use as proactive weaponry, not just for benign surveillance or defense. This realm is unprecedented, officials say, in its contributions to a battle against a near-peer opponent where a single shot may not be fired.
Now the military is trying to discern how to incorporate these capabilities into its warfighting units, and who, potentially as high as the president, should have the power to authorize their use.
"It's literally a blank piece of paper," Brig. Gen. Patricia Frost, head of the Army's cyber and electronic warfare directorate, told U.S. News in a recent interview.
The uncertainty of military law has been offset or nullified by policy limitations the last two presidential administrations have placed on their legal authorities, despite some objections.
Taking these limitations on activities away will, at best, reignite the debate all over again and at worst open up the U.S. to a new era of valid criticism.
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