Revocation of Reporting Requirement

Overview

Context and Purpose

Executive Order 13862, signed by President Donald Trump on March 6, 2019, fundamentally aims to rescind a specific reporting requirement that was initially established under Executive Order 13732. This earlier order, signed by President Barack Obama on July 1, 2016, mandated an annual unclassified disclosure concerning U.S. military strikes against terrorist targets outside areas of active hostilities. Specifically, EO 13732 required the Director of National Intelligence, or a designated official, to publish a summary of the number of strikes and assessments of combatant and non-combatant casualties resulting from those actions. The intent of EO 13862 is to eliminate this reporting requirement.

The abolition of this reporting requirement reflects broader regulatory changes under the Trump administration, which often prioritized national security prerogatives over transparency measures. The previous order was part of a broader strategy under the Obama administration to enhance accountability and minimize civilian casualties resulting from military operations, particularly in counterterrorism scenarios that frequently occur in complex geopolitical landscapes.

In essence, EO 13862 aims to simplify administrative burdens imposed on intelligence and defense agencies by removing the specific obligation to release unclassified reports to the public. The Trump administration justified this by suggesting that existing statutory requirements for similar reports—established under the National Defense Authorization Acts (NDAA) of fiscal years 2018 and 2019—provided sufficient oversight and accountability. Therefore, this order can be seen as part of a strategy to streamline bureaucratic processes while still maintaining compliance with essential defense legislation.

Legal and Policy Implications

Constitutional Authority and Executive Power

EO 13862 invokes the constitutional authority of the President to direct military operations and oversee national defense. It underscores the broad discretionary power vested in the executive branch to determine what level of transparency is practical or necessary in military affairs. By revoking Section 3 of EO 13732, this order effectively narrows the scope of executive oversight in civilian casualties outside areas of active hostilities, placing greater emphasis on classified intelligence assessments rather than public disclosure.

The revocation also implies a shift from a policy-based framework prioritizing transparency and civilian protection to one that potentially prioritizes operational security and flexibility. This change aligns with the Trump's administration broader foreign policy agenda that often emphasized rapid and decisive actions over longer-term strategic transparency initiatives.

In terms of statutory changes, the executive order is careful to note that it does not interfere with the statutory obligations under the NDAA. However, it does contribute to the broader discourse on the balance between national security interests and public accountability. Some critics have viewed this move as a step back from the advancements made during the Obama administration in terms of military transparency and accountability.

Who Benefits

Defense and Intelligence Agencies

The primary beneficiaries of EO 13862 are likely the various defense and intelligence agencies charged with executing national security and counterterrorism operations outside traditional battlefields. By eliminating the requirement to produce annual unclassified reports on civilian casualties, these agencies potentially face fewer administrative burdens, allowing them to focus on operational objectives without the additional step of public transparency mandates.

The reprieve from extensive disclosure requirements also benefits agencies by reducing the risk of leaking sensitive information that could be detrimental to ongoing operations. With less public reporting, these agencies may find it easier to maintain operational security and protect intelligence sources and methods.

Additionally, political leaders and policymakers who advocate for stronger national security measures over civilian transparency could perceive this order as a favorable development. By reducing the emphasis on public reporting, they might argue that national policies are better aligned with the exigencies of modern warfare, which occasionally necessitate secrecy and swiftness in decision-making.

Furthermore, contractors and military-industrial stakeholders who work closely with defense agencies may also benefit indirectly. Reduced transparency means less public scrutiny over military operations, strategies, and related expenditures, potentially facilitating more decisive procurement and quicker operational decisions.

Who Suffers

Civilian Populations in Conflict Zones

The principal groups negatively affected by EO 13862 are civilian populations in those regions where the United States conducts counterterrorism operations. Without mandatory public disclosure of civilian casualties, it becomes more challenging for international and domestic human rights organizations to monitor, report, or contest military actions that may harm non-combatants.

Human rights advocates and transparency proponents are also adversely affected, as the rollback of public reporting restricts their ability to gather comprehensive data and hold the U.S. government accountable for military actions that lead to civilian harm. This lack of transparency could lead to falsely perpetuating narratives without the checks and balances of public scrutiny and institutional accountability.

Critics argue that by diminishing transparency, EO 13862 potentially undermines trust between the U.S. government and both domestic and international communities, which could further detract from U.S. efforts to promote human rights and rule of law abroad.

Families of civilian casualties in conflict zones might suffer as well, as fewer measures are required for public accountability, making it difficult to seek justice or redress for harm caused by U.S. military actions. The decrease in transparency could contribute to a lack of empathy and awareness among the U.S. public about the real human costs of its foreign policy.

Historical Context

Shifting Priorities and Ideologies

EO 13862 reflects a broader historical pattern of executive actions taken during the Trump administration that emphasize national security over transparency. This order is consistent with other Trump-era regulatory changes that often seek to roll back Obama-era policies perceived as overly restrictive or cumbersome for military and intelligence communities.

During the Obama administration, there was a concerted effort to increase transparency regarding military operations, particularly given the unintended harm imposed on civilians, which often triggers global criticism. This step-by-step transparency initiative was implemented to foster accountability and align military practices with international norms.

The revocation of reporting requirements through EO 13862 marks a regression from these transparency efforts, realigning U.S. military policy with more traditional secrecy practices often prevalent during wartime. This highlights an ongoing tension within American political discourse: balancing the need for operational security with increasingly vocal demands for accountability and transparency.

Historically, administrations have wavered between these poles, guided by prevailing political ideologies, geopolitical dynamics, and public sentiment about military oversight. In this context, EO 13862 is emblematic of a conservative executive approach that champions military effectiveness coupled with limited public intervention.

Potential Controversies or Challenges

Legal and Ethical Debates

EO 13862 has generated controversy for potential implications on transparency and accountability, raising legal and ethical questions. Critics argue that the order may violate principles of democratic governance that advocate for accountability and citizens' right to know what is happening in their name. This aspect often invites legislative and public scrutiny, which could cast doubt on its legitimacy.

Strong opposition from human rights organizations and legal advocates is expected, as these groups contend that reducing transparency contradicts both domestic norms of accountability and international legal standards governing conflict engagement. This could challenge the order's application, particularly in media and academic circles focused on military ethics and international law.

Congressional reviews may surface, particularly from members who see public disclosure as critical to maintaining oversight and ensuring that military actions are subjected to legislative checks. As U.S. foreign policy witnesses increased polarization, EO 13862 might become a focal point for debates on the proper balance of power between executive action and congressional oversight.

If operational secrecy continues to veer the public trust and invites increased political pressure, the administration may face new legislative proposals demanding the reinstatement of transparency measures, potentially reviving discussions seen during the Obama administration related to similar issues.