ACLU v. DOD – FOIA Case Seeking Biden Administration’s Presidential Policy Memorandum

The Biden administration’s Presidential Policy Memorandum (PPM) is the newest iteration of rules that govern the U.S. government’s actions outside of recognized battlefields. Previously known as the “Principles, Standards, and Procedures (PSP)” under President Trump, and the “Presidential Policy Guidance (PPG)” under President Obama, these rules govern the executive branch’s unlawful and publicly controversial use of lethal force outside of recognized war zones, without meaningful congressional or public oversight.

The PPG was issued by President Obama in May 2013 following public outcry and the administration’s resulting promises of more transparency and stricter controls over the government’s controversial drone killing program, which operated largely in Pakistan, Yemen, and Somalia. The rules entrenched the administration’s use of force outside of recognized battlefields, while imposing important (though insufficient) policy constraints intended to limit harm to civilians. In 2017, the Trump administration replaced the PPG with the PSP, which scaled back protections for civilians, including by broadening the standard under which the U.S. could use lethal force, loosening the standards for ensuring that a targeted individual was actually present, and delegating presidential authority to regional military commanders. Despite their importance, both policies were kept secret until the ACLU forced their disclosure through two lawsuits in 2016 and 2021.

In this case, the Biden administration likewise refused to release the new rules until the ACLU (and the New York Times, in a separate lawsuit) sued. In June 2023, in response, the Biden administration released a redacted version of the policy that appeared to restore the minimal safeguards against civilian harm in the original Obama-era PPG, but problematically excluded from those protections strikes conducted in “collective self-defense” of U.S. partner forces. The Biden administration has frequently invoked this novel legal theory to justify deadly strikes in Somalia.

We remain vigilant in our fight for transparency and accountability. It should not require lawsuits for these controversial policies to be made fully public. And while we welcome the PPM’s attempt to restore the minimal safeguards against civilian harm, the U.S. lethal force policy remains unlawful and does not prevent deadly consequences for predominantly Muslim, Brown, and Black civilians around the world.