In July 2016, several political fringe web sites published articles reporting that President Obama had signed an executive order allowing the military to fight U.S. citizens. These articles typically included a brief paragraph introducing this claim, followed by the full text (more than 1300 words) of the executive order:
President Obama has signed an executive order that allows for the US military to use force against American citizens for the first time in history.
The order was signed on July 1st, 2016 and is titled “Executive Order — United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force“.
The order looks like the rules of engagement between the military vs ordinary US citizens have significantly and unconstitutionally changed.
The web sites promoting this rumor did not, however, point to any specific language in this executive order that signified President Obama’s intent to use military force on American citizens. Instead, these web sites simply made bold and baseless claims at the top of their articles and then sent readers on a wild goose chase for evidence.
On 1 July 2016, President Obama signed an executive order (EO) entitled “United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force.” That EO addressed the increased use of drone strikes (both within and outside areas of active hostilities) by the U.S., aiming to protect civilians during armed conflicts and provide more transparency in the case of civilian casualties:
The protection of civilians is fundamentally consistent with the effective, efficient, and decisive use of force in pursuit of U.S. national interests. Minimizing civilian casualties can further mission objectives; help maintain the support of partner governments and vulnerable populations, especially in the conduct of counterterrorism and counterinsurgency operations; and enhance the legitimacy and sustainability of U.S. operations critical to our national security. As a matter of policy, the United States therefore routinely imposes certain heightened policy standards that are more protective than the requirements of the law of armed conflict that relate to the protection of civilians.
Civilian casualties are a tragic and at times unavoidable consequence of the use of force in situations of armed conflict or in the exercise of a state’s inherent right of self-defense. The U.S. Government shall maintain and promote best practices that reduce the likelihood of civilian casualties, take appropriate steps when such casualties occur, and draw lessons from our operations to further enhance the protection of civilians.
The Washington Post summarized the three main points of that executive order as follows:
Obama’s executive order on drone strikes outlines three main policies designed to add greater transparency and safeguards:
1. Implement measures to reduce the risk of civilian casualties (e.g., train personnel and develop more accurate reconnaissance and weapons systems)
2. Acknowledge U.S. responsibility for civilians killed by strikes and provide payments to civilians injured and families of civilians killed
3. Release an annual report from the Director of National Intelligence on the number of strikes in areas outside of active hostilities, the number of combatant and noncombatant casualties, and the reasons for any discrepancies between noncombatant drone casualty estimates by nongovernmental organizations and the U.S. government.
These policies apply both to strikes in conflict zones (e.g., Iraq during the Iraq War) and strikes outside of conflict zones (e.g., Yemen and Pakistan). The executive order specifically aims to address concerns with non-conflict zone strikes by requiring specific reporting on these strikes. Under either scenario, drone strikes can violate international law.
The White House also released a Fact Sheet explaining the intent of executive order:
[U]nlike terrorist organizations, which deliberately target civilians and violate the law of armed conflict, the United States takes great care to adhere to the law of armed conflict and, in many circumstances, applies policy standards that offer protections for civilians that exceed the requirements of the law of armed conflict. Moreover, even when the United States is not operating under the PPG [Presidential Policy Guidance] — for example, when the United States is taking action in “areas of active hostilities,” such as it is today in Afghanistan, Iraq, and Syria, or when the United States is acting quickly to defend U.S. or partner forces from attack — the United States goes to extraordinary lengths to minimize the risk of civilian casualties.
Nothing in this executive order calls for or authorizes the United States military to use force against American civilians, nor does the order “change the rules of engagement between the military vs ordinary US citizens.” Rather, this executive order aims to curb civilian causalities during the use of force in areas of conflict outside the U.S.
Although the claims made by fringe political sites on this subject may be overblown, the executive order in question has been criticized by legal scholars who argue that the United States drone policy could violate international law because the United States’ war on terrorist groups doesn’t have specific geographic bounds:
Whether or not one accepts the Obama administration’s drone policy rationale, it has important implications for civilians. Because the U.S. sees itself in an armed conflict against terrorist groups — not conventional armies — throughout the world, there are no clear geographic limits to this conflict, or the civilian populations affected by it. The conflict is wherever al-Qaeda or its affiliated groups are and capture is deemed unfeasible. The conditions of war can follow terrorists as they move, even into areas without active hostilities.
U.S. drone strikes have resulted in civilian injuries, deaths and trauma. Obama’s executive order perhaps mitigates these risks — but does not eliminate them. At the end of the day, the U.S. government chooses to accept a certain level of risk to civilian lives when conducting drone strikes against suspected terrorists.