1 See Office of the Dir. of Nat’l Intelligence, Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities (2016) [hereinafter DNI Report].

2 The Obama administration has previously acknowledged the existence of U.S. drone strikes outside conventional war zones, as well as the fact that U.S. strikes have caused civilian casualties. See, e.g., John R. Crook, Contemporary Practice of the United States, 107 AJIL 679, 679 (2013) (discussing a letter from U.S. Attorney General Eric Holder to the chairman of the Senate Judiciary Committee disclosing the deaths of four U.S. citizens as a result of counterterrorism activities outside zones of active hostilities during the Obama administration); John R. Crook, Contemporary Practice of the United States, 107 AJIL 674, 676 (2013) (quoting acknowledgement by Obama that “it is a hard fact that U.S. strikes have resulted in civilian casualties, a risk that exists in every war”).

3 See Exec. Order No. 13,732, 81 Fed. Reg. 44,485 (July 7, 2016) [hereinafter Exec. Order No. 13,732].

4 See Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (2013), available at https://www.justice.gov/oip/foia-library/procedures_for_approving_direct_action_against_terrorist_targets/download [hereinafter PPG].

5 White House Press Release, Fact Sheet: 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 Hostilities (July 1, 2016), at https://www.whitehouse.gov/the-press-office/2016/07/01/fact-sheet-executive-order-us-policy-pre-post-strike-measures-address [hereinafter DNI Fact Sheet].

6 DNI REPORT, supra note 1.

7 Id. at 1.

8 Id.

9 Id. Per the most current reporting, it appears that most of the strikes disclosed in the report occurred in Libya, Somalia, Yemen, and tribal Pakistan. See, e.g., Charlie Savage & Scott Shane, U.S. Reveals Death Toll from Airstrikes Outside War Zones, N.Y. Times, July 1, 2016, at A1; Scott Shane, Drone Strike Statistics Answer Few Questions, and Raise Many, N.Y. Times, July 1, 2016, at A1 (reporting confirmation from an anonymous senior administration official that tribal Pakistan is not an “area of active hostilities” for the purpose of the DNI report).

10 White House Press Release, Press Briefing by Press Secretary Josh Earnest (July 1, 2016), at https://www.whitehouse.gov/the-press-office/2016/07/01/press-briefing-press-secretary-josh-earnest-712016 [hereinafter Press Briefing].

11 Id.

12 DNI Report, supra note 1, at 1.

13 Id. at 1 n.a. The administration used the same definition of “non-combatant” as the fact sheet released by the White House in 2013 outlining key elements of the PPG. See White House Press Release, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (May 23, 2013), at http://www.whitehouse.gov/the-press-office/2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-counterterrorism [hereinafter PPG Fact Sheet].

14 DNI Report, supra note 1. Assuming this means that people of uncertain combatant versus noncombatant status are counted as noncombatants, one scholar has pointed out that this part of the DNI's methodology comports with the international law presumption of civilian status. See Sarah Knuckey, The Good and Bad in the US Government's Civilian Casualties Announcement, Just Security (July 2, 2016), at https://www.justsecurity.org/31785/good-bad-governments-civilian-casualties-announcement.

15 DNI Report, supra note 1, at 1 n.a. Senior administration officials reportedly explained that “[a]n individual may be lawfully targeted if they are formally or functionally a member of an armed group with which we are engaged in an armed conflict.” Karen DeYoung & Greg Miller, White House Releases Its Count of Civilian Deaths in Counterterrorism Operations Under Obama, Wash. Post (July 1, 2016), at https://www.washingtonpost.com/world/national-security/white-house-releases-its-count-of-civilian-deaths-in-counterterrorism-operations-under-obama/2016/07/01/3196aa1e-3fa2-11e6-80bc-d06711fd2125_story.html. And functional membership includes the degree to which “the individual performs functions to the benefit of a particular terrorist group that are analogous to those traditionally performed” by members of a military, though there is “no hard and fast rule that any one killed in a particular strike within X many feet of a known combatant is therefore a combatant.” Id.

16 DNI REPORT, supra note 1, at 1.

17 Id.

18 See id. at 1–3.

19 Id. at 2. The lowest reported noncombatant-casualty estimates, provided by the Long War Journal, still count more than 200 civilian deaths in Pakistan and Yemen under the current administration. See Bill Roggio, Pakistan Strikes: Charting the Data for US Airstrikes in Pakistan, 2004–2016, Longwar J., http://www.longwarjournal.org/pakistan-strikes (last visited Sept. 21, 2016); Bill Roggio & Bob Barry, Yemen Strikes: Charting the Data for US Airstrikes in Yemen, 2002–2016, Long War J., http://www.longwarjournal.org/yemen-strikes (last visited Sept. 21, 2016). The New America Foundation, a security policy group, estimates slightly more civilian deaths in those same two countries. See Drone Wars Pakistan: Analysis, New America, http://securitydata.newamerica.net/drones/pakistan-analysis.html (last visited Sept. 21, 2016); Drone Wars Yemen: Analysis, New America, http://securitydata.newamerica.net/drones/yemen-analysis.html (last visited Sept. 21, 2016). And the Bureau of Investigative Journalism reports upwards of 801 civilian deaths during Obama's presidency—almost seven times the government's maximum estimate. See Jack Serle, Obama Drone Casualty Numbers a Fraction of Those Recorded by the Bureau, Bureau of Investigative Journalism (July 1, 2016), at https://www.thebureauinvestigates.com/2016/07/01/obama-drone-casualty-numbers-fraction-recorded-bureau; Get the Data: Drone Wars, Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/category/projects/drones/drones-graphs (last visited Sept. 21, 2016).

20 DNI Report, supra note 1, at 2. The report provides the following examples of additional intelligence that the U.S. government might obtain related to a person's combatant status: “[T]he extent to which an individual performs functions for the benefit of [an organized armed] 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.” Id.

21 Id. at 2–3.

22 Id. at 3.

23 Id. While the report does not itself define “non-permissive environments,” the Department of Defense Dictionary of Military and Associated Terms defines “permissive environment” as an “[o]perational environment in which host country military and law enforcement agencies have control as well as the intent and capability to assist operations that a unit intends to conduct.” Dep't of Defense, Joint Publication 1-02, Dictionary of Military and Associated Terms (2010 as amended through 2016).

24 DNI Report, supra note 1, at 3.

25 See DNI Fact Sheet, supra note 5.

26 DeYoung & Miller, supra note 15; Savage & Shane, supra note 10 (quoting Jameel Jaffer, Deputy Legal Director of the ACLU); Rita Siemion, The Upcoming Release of Obama's Targeted Killing Policy and Casualty Numbers, Just Security (June 24, 2016), at https://www.justsecurity.org/31654/upcoming-release-obamas-targeted-killing-policy-casualty-numbers. See also Knuckey, supra note 14 (criticizing the report's lack of information about injuries, individual victims, and specific causes of death); Marty Lederman, The Government's Treatment of Civilian Casualties in Counterterrorism Operations, Just Security (July 1, 2016), at https://www.justsecurity.org/31764/governments-treatment-civilian-casualties-counterterrorism-operations (criticizing the lack of distinction between strikes that preceded the issuance of the PPG and those that followed it, making it difficult to evaluate the efficacy of the PPG).

27 See Human Rights Watch, between a Drone and Al-Qaeda: The Civilian Cost of US Targeted Killings in Yemen (2013), available at https://www.hrw.org/report/2013/10/22/between-drone-and-al-qaeda/civilian-cost-us-targeted-killings-yemen (citing a 2010 investigative report by the Yemeni parliament).

28 See, e.g., Shane, supra note 9.

29 See Press Briefing, supra note 10.

30 Id. Cf. John R. Crook, Contemporary Practice of the United States, 106 AJIL 670 (2012) (discussing the first public confirmation from the U.S. government of its use of drones in counterterrorism actions).

31 See Exec. Order No. 13,732, supra note 3.

32 Id.

33 Id. Robert Chesney has noted that the disjunctive application of the order to “operations involving the use of force in armed conflict or in the exercise of the Nation's inherent right of self-defense,” id. (emphasis added), and has suggested that the government may consider national self-defense a legal ground for the use of force that is separate from the recognition of an armed conflict under international law. See Robert Chesney, President Obama's Executive Order on Pre/Post Airstrike Policies and Practices, Lawfare (July 1, 2016), at https://lawfareblog.com/president-obamas-executive-order-prepost-airstrike-policies-and-practices.

34 See Exec. Order No. 13,732, supra note 3.

35 Id.

36 Id.

37 Id.

38 Id.

39 Id.

40 Id.

41 See, e.g., Chesney, supra note 33 (suggesting that strikes conducted by the CIA as covert action might not implicate requirements that are conditioned on compliance with “applicable law”); Knuckey, supra note 14.

42 See Exec. Order No. 13,732, supra note 3.

43 Id.

44 DNI Fact Sheet, supra note 5.

45 DeYoung & Miller, supra note 15.

46 Exec. Order No. 13,732, supra note 3, at 5.

47 See PPG, supra note 4.

48 See, e.g., Benjamin Wittes, Presidential Accountability for Capture and Kill Operations Under the PPG, Lawfare (Aug. 8, 2016), at https://www.lawfareblog.com/presidential-accountability-capture-and-kill-operations-under-ppg.

49 See White House Press Release, Remarks by the President at the National Defense University (May 23, 2013), at https://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university [hereinafter NDU Speech].

50 See PPG Fact Sheet, supra note 13.

51 See American Civil Liberties Union v. Dep't of Justice, No. 15 Civ. 1954, slip op. at 5 (S.D.N.Y. Mar. 4, 2016).

52 See U.S. Releases Drone Strike “Playbook” in Response to ACLU Lawsuit, ACLU (Aug. 6, 2016), at https://www.aclu.org/news/us-releases-drone-strike-playbook-response-aclu-lawsuit (linking to the Defense Department documents).

53 PPG, supra note 4, at 1.

54 See id.

55 Id. There is an eighth section with “general provisions.” Id. Since the White House publicly acknowledged its use of drones in lethal, targeted strikes against terrorist suspects (see Press Briefing, supra note 10), Congress has called for greater access to and oversight of covert counterterrorism operations. See, e.g., Nomination of John O. Brennan To Be Director of the Central Intelligence Agency, Hearing Before S. Select Comm. on Intelligence, 113th Cong. (2013) (questioning from senators on the Select Committee on Intelligence of John O. Brennan, then nominee to be director of the CIA, about the executive department's alleged failure to provide documentation to the Committee regarding its legal analysis of specific targeted killings).

56 PPG, supra note 4, at 2.

57 Id. at 1–2.

58 Id.

59 Id. at 3.

60 Id. at 2–3.

61 Id. at 3.

62 Id.

63 Id.

64 Id. at 4.

65 Id. at 3. Except for the redacted text, all of these conditions were set forth in the 2013 PPG Fact Sheet issued by the White House. See PPG Fact Sheet, supra note 13. A footnote corresponding to the redacted text suggests that it may relate to “[o]perational disagreements,” which are adjudicated by the president if they arise among principals. PPG, supra note 4, at 3 n.2.

66 PPG, supra note 4, at 5–11.

67 See PPG Fact Sheet, supra note 13.

68 PPG, supra note 4, at 5–11.

69 Id. at 10.

70 Id. at 8 n.6.

71 Id. at 10.

72 PPG Fact Sheet, supra note 13; PPG, supra note 4, at 11.

73 See note 65 and accompanying text.

74 PPG, supra note 4, at 11–15. There are minor differences. For example, the criteria for lethal action includes consideration of “[w]hether the threat posed by the individual … can be minimized through a response short of lethal action” and “[w]hether the individual, if captured, would likely result in the collection of valuable intelligence.” Id. at 14. And the high-level review process for lethal action includes the Department of National Intelligence rather than the Department of the Treasury. Id. at 13.

75 Id. at 15.

76 Id. at 14.

77 See id. at 15.

78 See id. at 15–16.

79 See, e.g., Karen DeYoung, Newly Declassified Document Sheds Light on How President Approves Drone Strikes, Wash. Post (Aug. 6, 2016), at https://www.washingtonpost.com/world/national-security/newly-declassified-document-sheds-light-on-how-president-approves-drone-strikes/2016/08/06/f424fe50-5be0-11e6-831d-0324760ca856_story.html.

80 PPG, supra note 4, at 15; see also Lederman, supra note 26. The precise application of this section of the PPG is slightly difficult to discern given the remaining redactions. PPG, supra note 4, at 15.

81 PPG, supra note 4, at 4.

82 See id. at 16–17.

83 Id. at 16.

84 Id. at 17.

85 See id.

86 Id.

87 Id. at 17–18.

88 Id. at 17.

89 Id. at 18.

90 Id.

91 Lederman, supra note 26.

92 Charlie Savage, U.S. Releases Rules for Airstrike Killings of Terror Suspects, N.Y. Times, Aug. 6, 2016, at A10 (quoting Jameel Jaffer, Deputy Legal Director of the ACLU); see also Charles Kels, Defining Legal/Policy Deviancy Down? An Alternative View of the PPG, Lawfare (Aug. 23, 2016), at https://www.lawfareblog.com/defining-legalpolicy-deviancy-down-alternative-view-ppg (arguing that one consequence of the PPG is “to normalize the abnormal” and describing the document as “so clinical and antiseptic” that it “masquerade[s] novel theories as matters of routine interagency review”).

93 See, e.g., Jonathon Horowitz & John Reed, The PPG Visualized, What the US Kill and Capture Bureaucracy Looks Like, Just Security (Aug. 15, 2016), at https://www.justsecurity.org/32391/ppg-visualized-kill-capture-bureaucracy/; Brett Max Kaufman, Details Abound in Drone “Playbook”—Except for the Ones That Really Matter Most, ACLU (Aug. 8, 2016), at https://www.aclu.org/blog/speak-freely/details-abound-drone-playbook-except-ones-really-matter-most.

94 See, e.g., Horowitz & Reed, supra note 93; Kaufman, supra note 93 (claiming that “for all the PPG's … invocations of legal and policy standards, those invocations come completely divorced from any substantive discussion about what the government's chosen … standards actually mean and how they are applied in practice” but also recognizing that “perhaps [that information is provided] behind black boxes,” or redactions).

95 Cf. Heather Brandon, Will Obama's Targeted Killing Policy Say What “Areas of Active Hostilities” Means?, Lawfare (May 5, 2016), at https://lawfareblog.com/will-obamas-targeted-killing-policy-say-what-areas-active-hostilities-means. Although not specified in the PPG, an article by the Intercept quotes an anonymous senior administration official as stating that the government's designation of geographic zones as “areas of active hostilities” is “not the same as a determination that an armed conflict is taking place in the country at issue.” Ryan Devereaux, Drone Casualty Report Promised As U.S. Airstrike Kills 150 Al-Shabaab Suspects, Intercept (Mar. 7, 2016), at https://theintercept.com/2016/03/07/drone-casualty-report-promised-as-u-s-airstrike-kills-150-al-shabaab-members.

96 See Brandon, supra note 95.

97 DNI Fact Sheet, supra note 5. The DNI Fact Sheet addresses some jus in bello principles more specifically. For example, it states that “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.” Id.

98 See, e.g., Kels, supra note 92. Kels also notes, with some skepticism, “the PPG's notion that ‘national self-defense’ is a separate legal paradigm for the conduct of military operations, vice the initial resort to armed force.” Id. This observation is likely based on the administration's statement that “even when the United States is not operating under the PPG—for example, when [it] is taking action in ‘areas of active hostilities’ … or when [it] 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.” DNI Fact Sheet, supra note 5.

99 DNI Fact Sheet, supra note 5.