How has the legal justification for U.S. counterterrorism strikes evolved under the Biden administration?
Executive summary
The Biden administration has layered new procedural constraints and transparency gestures onto established legal rationales for counterterrorism strikes, tightening presidential oversight for strikes outside active warzones while continuing to rely on Article II self‑defense and, at times, AUMF language to justify force; critics say those changes are uneven and often preserve the underlying post‑9/11 counterterrorism architecture [1] [2] [3]. Legal and civil‑liberties groups, congressional critics, and some scholars contend the reforms reduce some executive discretion but leave unresolved questions about accountability, civilian harm assessments, and Congress’s role [4] [5] [6].
1. Biden’s formal tightening: a Presidential Policy Memorandum that raises the bar
Early in the administration the White House imposed temporary limits on strikes outside conventional battlefields and later declassified a Presidential Policy Memorandum (PPM) that requires near‑certain minimization of civilian harm and elevated presidential sign‑off for drone strikes in areas not deemed active hostilities, signaling a formal shift from looser prior practices [2] [1]. Lawfare’s reporting on the declassified memoranda documents that the PPM specifically orders operators to obtain presidential permission for strikes outside Iraq and Syria and to apply a “near certainty” civilian‑harm standard, a procedural tightening intended to impose more internal review before lethal action [1].
2. Legal justifications remained grounded in self‑defense and Article II authority
Despite new process rules, the Biden administration has consistently framed many strikes as exercises of the President’s Article II constitutional authority and the inherent right of self‑defense under international law, including the “unwilling or unable” theory when operations target groups in states that do not confront those actors, and has not consistently invoked the 2001 or 2002 AUMFs as sole domestic legal bases [2] [7]. Analyses of strikes in Syria and other locations show the administration repeatedly described actions as protecting U.S. personnel and interests under self‑defense and commander‑in‑chief powers, which retains the executive‑centric legal posture that long drove U.S. counterterrorism [2] [7].
3. War Powers reporting and intermittent AUMF pivots to manage escalation concerns
Where sustained or repeat actions risked prolonged hostilities, the administration has shifted rhetoric and paperwork: the White House submitted War Powers Resolution reports and in at least one 2024 instance pivoted to citing AUMF authorities rather than relying solely on Article II to address concerns about escalation and the WPR’s 60‑day clock [3]. The Congressional Research Service summary and related filings show the administration has furnished reports “consistent with” the WPR that lay out the executive branch’s chosen legal authorities after strikes, a tacit acknowledgement of legal and political pressure from Capitol Hill [3].
4. Accountability, civil‑liberties criticisms, and the limits of declassification
Civil‑liberties groups and some senators argue that the administration’s changes are insufficient: the ACLU and others pressed for public release of legal opinions and have criticized past OLC rationales that purportedly immunized personnel and stretched “armed conflict” concepts, and lawmakers have urged limits on lethal force outside warzones and better collateral damage accounting [4] [5] [6]. While declassification of the PPM and a national security memorandum increased transparency about procedures, critics view those disclosures as partial and contend that core executive authorities — and practices such as claim‑and‑control of detention and targeting frameworks — remain opaque [1] [5].
5. Practice vs. policy: wide operational footprint, similar outcomes
Independent research finds the Biden administration’s counterterrorism footprint remains broad — operations in dozens of countries with airstrikes and ground actions continuing — which suggests that tighter rules have not substantially narrowed the scope of U.S. action even if they altered decision pathways and paperwork [8]. That continuity feeds two competing readings: defenders argue procedural safeguards and presidential review improve legal rigor and lower civilian risk, while critics and some members of Congress see cosmetic reforms that preserve presidential latitude and avoid addressing systemic accountability gaps [1] [8] [9].