Nearly twenty years after the terrorist attacks of 9/11, and a decade after the death of Osama Bin Laden, the President of the United States continues to draw from a quiver of legal, policy, and technological instruments to use lethal force in secret, directly or through proxies, in countries around the world. Many of the authorities claimed as available to the President to use lethal force today were justified as necessary based on the perception of an urgent threat two decades ago. To enable flexibility and speed, several secret programs and activities were exempted from traditional legal controls, expectations of transparency, and congressional oversight. Meanwhile, covert lethal strikes by armed drones and paramilitary operations with surrogate forces continue to be associated with a lack of accountability for civilian casualties, human rights violations, and U.S. involvement in wars not specifically authorized by Congress.
“Exception(s) to the Rule(s)”, a report produced by Center for Civilians in Conflict (CIVIC) in partnership with the Stimson Center and Security Assistance Monitor, examines the tradeoffs and consequences involved with the continued use and availability of certain counterterrorism authorities and practices as the “endless war” enters its twentieth year. In examining these tradeoffs, it calls attention to the proliferation and normalization of authorities and tools for employing lethal force, including modes of security cooperation where the use of lethal force and civilian harm are reasonably foreseeable outcomes. It focuses on three specific and emblematic 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.
The report’s main assertion is that the continued availability and, in fact, increased use of a range of “parallel” authorities risks fatally undermining rules that govern and control the use of force. The report provides a set of recommendations for the next administration and Congress to ensure that U.S. national security practice is defined by the rules it follows, rather than by the exceptions it employs.