Biden Administration Sets New Drone Strike Restrictions

People overlook the National September 11 Memorial on Aug. 2, the day after President Biden announced the death of al-Qaeda leader Ayman al-Zawahri by drone strike. Photo: Julia Nikhinson / AP

On Oct. 7, President Biden issued a memorandum that, among other things, will restrict US drone activity outside “conventional war zones.” 

For terrorists operating outside existing hostile boundaries, Biden will have to personally approve them for a “direct action” list. Here, the term “conventional war zone” encompasses just Iraq and Syria, and “direct action” refers to any sort of direct attack, including drone strikes. In effect, strikes in conflict zones like Afghanistan, Yemen and Somalia will now have to be officially sanctioned by the president.

The memorandum is classified, meaning that its contents are technically unavailable to the public, but an anonymous official summarized the changes to the New York Times. 

Prior to the memorandum, regulatory drone policy existed in a more primitive form, since Inauguration Day. The Biden Administration took time in between these announcements to review the policy handed down to them from the Trump era, and then systematically decided where and how to rewrite it. Biden’s memorandum merely formalizes those unofficial rules with a number of classified tweaks.

Biden’s policy also represents a reversal from Trump and a return to Obama-era policy. While Trump delegated most of this sensitive decision to lower-level commanders, Obama was keen to run a tighter ship, as it seems will be the case for Biden, too. 

In contrast to the Trump-era standard of “reasonable certainty” that no civilian will be harmed, Biden’s new policy establishes a stricter “near certainty” policy that no civilian deaths will occur as a result of a given strike. 

Questions abound, nevertheless, about what exactly is meant by “near certainty” and how much liberty will be afforded to officials’ interpretation of the term. For a target to be added to the direct action list, they must be identified with a name and, above all, must represent a “continuing, imminent threat” to the US.

Such restrictions are clearly part of a broader effort by the Biden Administration to curb civilian deaths from military operations, a problem for which both sides of the political aisle have drawn intense criticism. 

Letta Tayler, an Associate Director of the Crisis and Conflict Division of Human Rights Watch, considers Obama and Trump’s respective drone policies to be mutually reinforcing recipes for needless destruction. 

According to the Council on Foreign Relations, Obama sanctioned 542 drone strikes throughout his two terms, killing 342 civilians. The scale of killings ballooned under Trump — in May 2020, Business Insider reported that civilian deaths by airstrike had swelled by 330 percent since 2016. 

A car destroyed in the aftermath of a US drone strike on Aug. 29, 2021 that claimed 10 lives. Photo: Jim Huylebroek / New York Times

Biden’s own administration has faced criticism over a drone strike that killed 10 Afghan civilians, seven of them children, as the US was hurrying to withdraw from Afghanistan in August 2021. Overall, however, Biden has significantly decreased drone strikes; from 2020 to 2021, the number of US strikes across the globe fell by 54 percent.

Some experts and politicians are displeased with the new restrictions. Apart from those who consider it too strict, among them entrenched counterterrorism operators, some take issue with the lack of congressional approval as an issue of constitutionality. In particular, Hina Shamsi, director of the ACLU's National Security Project, remains sharply critical of US drone policy, stating “[f]or two decades now, successive presidents have flouted the constitutional separation of powers by authorizing unlawful and unaccountable killing abroad.”

At this time, it is unlikely that the memorandum will undergo any significant change in any direction, especially because it is confidential. With regards to drone strikes, therefore, this memorandum forms the probable basis of what the world can expect from the Biden Administration.