Fact Sheet on Executive Order on the US Policy on Pre & Post-Strike Measures to Address Civilian Casualties in the US Operations Involving the Use of Force & the DNI Release of Aggregate Data on Strike Outside Area of Active Hostilitie
Since President Obama took office, he has been clear that, when necessary, the United States will use force abroad to protect the American people consistent with our values and all applicable law, including the law of armed conflict. He has also emphasized the need to be as transparent as possible with the American people about the basis for our counterterrorism operations and the manner in which they are conducted in order to enhance the public's confidence in these activities, set standards for other nations to follow, and counter terrorist propaganda and false accusations about U.S. operations. Additionally, the President has underscored that we will continue to develop a sustainable legal and policy architecture to guide our counterterrorism activities going forward. To these ends, in 2013 the President approved and publicly described policy guidance formalizing and strengthening the rigorous standards and procedures governing our use of lethal force against terrorist targets outside areas of active hostilities. Today, the Administration is taking additional steps to institutionalize and enhance best practices regarding U.S. counterterrorism operations and other U.S. operations involving the use of force, as well as to provide greater transparency and accountability regarding these operations.
These steps include promulgating an Executive Order on United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force, as well as releasing aggregate data regarding both the number of strikes undertaken during this Administration by the U.S. Government against terrorist targets located outside areas of active hostilities and the range of assessed combatant and non-combatant deaths resulting from those strikes. The Executive Order provides additional information on best practices and procedures that are already in place for current operations and that will be applied in future operations, regardless of the location. Collectively, these measures demonstrate the professionalism and high standards employed by U.S. Government personnel who help keep Americans safe from terrorist threats overseas, while also underscoring our commitment to constantly refine and strengthen our counterterrorism framework and enhance accountability for our actions.
Executive Order to Address Civilian Casualties
As President Obama has said, "All armed conflict invites tragedy. But by narrowly targeting our action against those who want to kill us and not the people they hide among, we are choosing the course of action least likely to result in the loss of innocent life." In that spirit, this Executive Order applies to all of our operations, regardless of where they are conducted, and underscores that our legal and policy commitments regarding the protection of civilians are fundamentally consistent with the effective, efficient, and decisive use of force in pursuit of our Nation's interests.
First, this Executive Order catalogues the best practices the U.S. Government currently implements to protect civilians in the context of operations involving the use of force inside and outside areas of active hostilities, and it directs relevant departments and agencies to sustain such measures in present and future operations. These measures include conducting training on implementation of best practices that help reduce the likelihood of civilian casualties and dedicating operational resources to mitigate that risk. It also includes, as appropriate, maintaining channels for engagement with the International Committee of the Red Cross and non-governmental organizations that can assist in efforts to distinguish between military objectives and civilians; acknowledging U.S. Government responsibility for civilian casualties and offering condolences, including ex gratia payments, to civilians who are injured, or to the families of civilians who are killed; and, when civilian casualties have occurred, taking steps to minimize the likelihood of future such incidents.
Second, to help address challenges associated with assessing the credibility of reports of civilian casualties in non-permissive environments, the Executive Order emphasizes the U.S. Government's consideration of credible reporting provided by non-governmental organizations in its post-strike reviews, including drawing on existing information-sharing arrangements to ensure the availability of such reporting to those conducting post-strike analyses.
Third, it directs the Director of National Intelligence (DNI), or such other officials as the President may designate, to release publicly an annual summary of information obtained from relevant departments and agencies about the number of strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities and the assessed range of combatant and non-combatant deaths resulting from those strikes, based on relevant and credible post-strike reporting and consistent with the need to protect sources and methods. The annual report will also include information regarding the general sources of information and methodology used to conduct these assessments and address general reasons for discrepancies between post-strike assessments by the U.S. Government and credible reporting from non-governmental organizations.
Finally, the Executive Order establishes a mechanism for experts from relevant U.S. Government departments and agencies to convene to consult on civilian casualty trends and consider potential improvements to the U.S. Government's civilian casualty mitigation efforts.
Background on Processes and Procedures Taken by the U.S. Government to Mitigate Civilian Casualties
In May 2013, President Obama issued Presidential Policy Guidance (PPG) that, among other things, set forth policy standards for U.S. direct action outside the United States and outside areas of active hostilities. These policy standards generally include that the United States will use lethal force only against a target that poses a "continuing, imminent threat to U.S. persons," and that direct action will be taken only if there is "near certainty" that the terrorist target is present and "near certainty" that non-combatants will not be killed or injured. As the President has said, the "near certainty" standard is the "highest standard we can set."
Thus, unlike 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 - 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.
In particular, in dealing with enemy forces that do not wear uniforms or carry their arms openly, the United States goes to great lengths to apply the fundamental law of armed conflict principle of distinction, which, among other things, requires that attacks be directed only against military objectives and not against civilians and civilian objects. The United States considers all available information about a potential target's current and historical activities to inform an assessment of whether the individual is a lawful target. For example, an individual may be targetable if the individual is formally or functionally a member of an armed group against which we are engaged in an armed conflict. As Administration officials have stated publicly, to determine if an individual is a member of an armed group, we may look to, among other things: the extent to which the individual performs functions for the benefit of the group that are analogous to those traditionally performed by members of a country's armed forces; whether that person is carrying out or giving orders to others within the group; or whether that person has undertaken certain acts that reliably connote meaningful integration into the group.
Before a strike against a terrorist target is considered in any theater, U.S. Government personnel review all available information to determine whether any of the individuals at the location of the potential strike is a non-combatant. A body of standards, methods, techniques, and computer modeling, supported by weapons testing data and combat observations, informs the analysis as to whether those not specifically targeted would likely be injured or killed in a strike.
Releasing Aggregate Data on Strikes Undertaken by the U.S. Government Against Terrorist Targets Outside Areas of Active Hostilities
Demonstrating the legitimacy of our counterterrorism efforts requires not only complying with the law of armed conflict and setting policy standards that offer protection that exceeds the law's requirements, but also providing information to the American people about our counterterrorism efforts. As President Obama has said, when we cannot explain our efforts clearly and publicly, we face terrorist propaganda and international suspicion, we erode the legitimacy of our actions in the eyes of our partners and our people, and we undermine accountability in our own government. That is why the President believes it is important to provide the public with as much information as possible regarding the basis for and results of U.S. counterterrorism operations. In keeping with this commitment, today the DNI is releasing a summary of information obtained from relevant departments and agencies about both the number of strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities between January 20, 2009, and December 31, 2015, and the best assessed range of combatant and non-combatant deaths resulting from those strikes. Going forward, figures for the preceding year will be released annually on May 1, consistent with the need to protect sources and methods.
We recognize that U.S. counterterrorism strikes have killed non-combatants, a reality that exists in all conflicts. As the statement today from the DNI notes, in releasing these figures, the U.S. Government also acknowledges that there are differences between U.S. Government assessments and reporting from non-governmental organizations on non-combatant deaths resulting from U.S. operations. Although the U.S. Government has access to a wide range of information, the figures we are releasing today should be considered in light of the inherent limitations on the ability to determine the precise number of combatant and non-combatant deaths outside areas of active hostilities, including the non-permissive environments in which these strikes often occur. But as the information we are releasing also shows, the rigorous standards and procedures we apply to such strikes have resulted in extraordinarily precise targeting. The U.S. Government remains committed to continually refining, clarifying, and strengthening the standards and procedures that govern our use of force abroad to keep the Nation safe from terrorist threats.
 The Administration currently considers Afghanistan, Iraq and Syria to be "areas of active hostilities."
Barack Obama, Fact Sheet on Executive Order on the US Policy on Pre & Post-Strike Measures to Address Civilian Casualties in the US Operations Involving the Use of Force & the DNI Release of Aggregate Data on Strike Outside Area of Active Hostilitie Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/318627