First 100 Days

The Role of “America First” in the Laws of War

If a Trump doctrine emerges from the first 100 days, its major tenet seems to be that American lives come first and that the lives and concerns of non-Americans need not be valued highly, if at all. “America First” is not merely a rhetorical strategy. Rather, this valuation calculation lies at the heart of President Trump’s refugee and immigration policies as well as his trade policy and call to “buy American, hire American.” In this essay, I first identify some early evidence of this Trump doctrine in the administration’s approach to the laws of war. Specifically, the floated expansion of hostile battlefields abroad, the sharp rise in civilian casualties, and proposed executive order on military detention all suggest that the Trump administration is less concerned with valuing foreign lives than its predecessor. But, given the nature of the ongoing conflicts, this evidence might support more generous explanations as well.

Second, President Trump’s actions during his first 100 days also demonstrates a high degree of legal delegation. Rather than micromanage legal decisions and layer levels of policy constraints on top of hard legal constraints, President Trump seems content with a minimal-compliance approach in the laws-of-war arena. Just as he wants to dismantle the administrative state, he may be deconstructing the existing deep legal framework by which one might assess the administration’s compliance with the laws of war. Third, and somewhat relatedly, the first 100 days reveal serious internal disagreements over the implementation of America First with respect to the laws of war. Presidential administrations are a “they” rather than an “he,” leaving room for powerful underlings to impose their interpretation of presidential doctrines and commands, especially when the president is a delegator. While several high-profile administration figures voice a strong commitment to the laws of war and their value, others seem less enthusiastic about international law’s constraints.

Lastly, like many of his predecessors, President Trump neither shows an interest in allowing other countries to punish Americans who may have violated the laws of war nor, under his vision of America First, holds many Americans accountable domestically for their violations committed against non-Americans.

I. Nonacts

In thinking about whether Trump’s America First doctrine is shaping the laws of war, one must distinguish words from actions. While candidate Trump displayed an extreme skepticism towards the laws of war, questioning the value of the Geneva Conventions and advocating for specific violations such as waterboarding and executing the family members of terrorists, President Trump has largely walked those comments back. 1 Similarly, a number of leaked draft executive orders embodied an extreme vision of the America First approach, including (1) a revocation of executive orders on humane treatment of detainees and closure of the Guantanamo Bay detention facility; (2) a declaration regarding Guantanamo Bay to be legal, safe and effective; (3) a review of the Army Field Manual with an eye toward “lawful” changes to enhance opportunities for interrogation of enemy combatants; and (4) the contemplation of reopening of CIA black sites along with the use of extreme, and potentially unlawful, interrogation and detention policies that pose significant harm to non-Americans2 to enhance the safety of Americans.3 Yet 100 days in, and after a large uproar from civil society and those within the government itself, the order remains unsigned and, as discussed below, the Trump administration has pledged obedience to at least the minimal requirements of the Geneva Conventions and other laws of war.4

II. Acts

Despite the seemingly isolationist rhetoric of America First, Trump has not withdrawn the United States from its role in ongoing hostilities and, in fact, has expanded and deepened its commitments. For instance, he has massively escalated drone strikes both in areas of active hostilities and against terrorists, outpacing Obama’s average five to one. While drone strikes are not per se unlawful under international law, they do create a significant toll for the domestic populations surrounding the targets. This toll, whether it be on civilian casualties, property destruction, or simply the terror of life under drones, is not one that President Trump has acknowledged as a significant part of his calculations, though a White House spokesman has clarified that “[n]o American will ever be targeted” in counter terrorism operations.

One of Trump’s first acts, authorizing a commando raid in Yemen, raises questions about the Trump doctrine and its commitment to minimizing civilian casualties and conducting the kinds of precautions required by the Geneva Conventions. The operation was plagued by a series of “mishaps and misjudgments” resulting in an unexpected firefight, the death of an American soldier and significant civilian casualties. Observers wonder whether the botched Yemen raid was simply a tragic mistake or an abandonment of Obama’s attempt to exceed laws of war obligations or, more worrisomely, a violation of the Geneva Convention principles of distinction, proportionality, and precautions. Such concerns are echoed with airstrikes in Mosul that may have killed up to 200 civilians as well as mounting civilian casualties in Afghanistan 5 and Syria. Of course, without full reviews, it is extremely difficult to know whether such casualties reflect new battles at an “acute and dangerous phase” or a “change in approach.”

We do know that President Trump’s predecessor, through significant interagency and interbranch consultation, constructed an elaborate legal framework to guide the use of force outside areas of active hostilities. In short, this framework required that the target poses “a continuing imminent threat to U.S. persons”; near certainty that noncombatants will not be killed; an assessment that capture is not feasible; and that no reasonable alternatives exist. President Trump seems skeptical about these policy limits which massively exceed the Geneva Convention requirements. For instance, he issued a Presidential Memorandum on ISIS asking for recommendations for changes to “any United States rules of engagement and other . . .  policy restrictions that exceed the requirements of international law.” Moreover, some observers suggest that the rising civilian tolls provide early evidence that President Trump has already abandoned Obama’s legal framework.

At the very least, President Trump does not intend to micromanage laws-of-war compliance. Early reports suggest that he is not vetting counterterror operations through a comprehensive interagency process and, at the same time, has delegated approval for drone and other strikes to lower levels. In addition, he has granted Pentagon requests to declare portions of Yemen “to be an area of active hostilities where looser battlefield rules apply” and may do the same in other countries as well.

III. Staffing

In addition to looking at on-the-ground events about which we have incomplete and uncertain information, consider how staffing may help or hinder a vision of America First. At least two high level Trump appointees, General Mattis as Secretary of Defense and General McMaster as the Chief of the National Security Council, support a strong commitment to the laws of war.  For instance, McMaster helped implement the Army’s Revised Counterinsurgency Field Manual and has emphasized the in-the-field importance of humanizing the enemy, complying with the laws of war and even the soldier’s need to internalize risk so as to protect innocent civilians. Similarly, Mattis voiced strong support for the current limitations on interrogation embodied in the Army Field Manual, and President Trump has cited him as the reason for not pursuing waterboarding. In contrast, White House Advisor Steve Bannon seems to have substantially less commitment to international law, particularly as it relates to counterterrorism and armed conflict. Intelligence officials suggest that Bannon is drafting executive orders, such as the CIA black site, outside of regular interagency channels. Similarly, short-lived Deputy National Security Advisor K.T. McFarland seemed more interested in protecting American troops than preventing civilian casualties.

In this battle between those committed to high compliance and those interested in minimal compliance or, perhaps, even active deconstruction of the laws-of-war system, the first 100 days offer some early skirmishes, but it is too early to predict the course of the administration. Bannon scored an early victory with the Executive Order restructuring the National Security Council (“NSC”), but he has been removed since then and the original players have been restored. Yet, one might wonder how much influence the NSC actually wields, as Bannon may be the likelier to have the President’s ear, and Mattis and McMaster have had limited control over staffing.

IV. Conclusion

President Trump’s first 100 days demonstrate that his vision of America First can value American lives at the expense of others without being militarily isolationist. There is no single administration answer, however, on how much to pursue civilian protections during conflicts and counterterrorism but rather an ongoing fight among officials. Whatever path is chosen, I conclude by noting that Trump’s America First doctrine is almost certain to remain synchronous with his predecessor’s on one key issue—shielding Americans from prosecutions, foreign and domestic, related to their engagement with questionable wartime practices.6

One sees evidence of this with the Trump administration’s maneuvers to protect a former CIA agent from a criminal sentence imposed in Italy and the appointment of a deputy undersecretary of the CIA with a role in running a black site and destroying related interrogation tapes. Such a position makes it all the more important that the administration keep up front-end pressure to follow the laws of war’s civilian protections, but the first 100 days leave open the question of whether that will happen.

* Professor of law, University of Illinois College of Law. She has written extensively on the intersection of the laws of war, civilian casualties, and civil society.

1 Though he has left the door open for waterboarding suggesting that “we have to fight fire with fire.”

2 While Americans could hypothetically be held in Guantanamo and subject to the interrogation policies of the executive orders, past practices and the demographic makeup of Al-Qaeda and ISIS suggest it will be foreigners bearing the brunt of these orders.

3 Yet, as Jack Goldsmith notes, these executive orders sound like a return to the Bush administration. The “insurmountable legal and cultural hurdles” to a return to waterboarding are largely unaffected, however, by such an order but may make cooperation with allies more difficult.

4 For example, in the recent strike on Syria, a Pentagon spokesman stated that “[a]s always, the U.S. took extraordinary measures to avoid civilian casualties and to comply with the Law of Armed Conflict. Every precaution was taken to execute this strike with minimal risk to personnel at the airfield.”

5 Noting the dispute between UN and US over possible civilian casualties from increasing airstrikes by coalition forces.

6 While the Obama administration did support the International Criminal Court, he did not resign or seek its ratification, and he only reluctantly ceded any of our allies in the war on terror jurisdiction over U.S. soldiers or other personnel. Chris Jenks, A Sense of Duty: The Illusory Criminal Jurisdiction of the U.S./Iraq Status of Forces Agreement, 11 San Diego Int’l L. J. 411 (2010) (arguing that the “outside duty status” required for Iraqi jurisdiction will rarely be met). Most relevantly, the Obama administration failed to prosecute high-level officials involved in the creation of the coercive interrogation program.