Should the President (Micro?) Manage Drone Attacks?

by John C. Dehn

Not according to John Yoo.  Believing a recent NY Times article to be accurate, Yoo criticizes the President for “personally select[ing] the targets and approv[ing] each operation” and characterizes this as “an incredible misuse of presidential time and a serious distortion of proper war management.”  Yoo more recently posited, in response to reports of al-Libi’s successful targeting, “the greater threat to security comes from Mr. Obama’s micromanagement of the drone campaign.”  I find these views ironic given Yoo’s consistently expressed belief that the President alone — not Congress, not the courts, not the armed forces (or its lawyers) — possesses plenary power to wage war on behalf of the US in virtually (if not) any manner he deems expedient.

As a former OLC lawyer, Yoo should well know the legal reasons that the President may feel obligated to select targets beyond Afghanistan’s borders.  In the Authorization to Use Military Force (AUMF), Congress empowered the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” (emphasis added)  Additionally, one of Yoo’s favorite Supreme Court cases (judging from his OLC opinions), the Prize Cases, may indicate that the President is constitutionally (or perhaps statutorily) vested with responsibility to determine whether a threat to the United States should be countered by resort to war measures:

“Whether the President in fulfilling his duties, as Commander in-chief, … has met with such armed hostile resistance … as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.” (emphasis added)

The administration has repeatedly asserted that drone attacks are undertaken either pursuant to the AUMF or as independent acts of national self-defense.  In either situation, both statute and case law  indicate that the President must determine whether a given individual or entity is a proper object of the nation’s war powers.  It certainly strengthens the government’s litigation position in the face of inevitable challenges.

This is not to say that the President must select every target in an ongoing conflict.  When the President identifies and designates an enemy, such as the “Taliban” or “Al Qaeda,” he may certainly (and usually does) delegate the power and responsibility to identify and engage it.  But the President must first identify and designate the enemy.   In the process described by the Times, it seems that this may be exactly what the President is doing in most (if not all) cases.

Moreover, beyond an active battlefield or theater of operations, there are obviously diplomatic considerations that require caution.  Should not the “sole organ” of our nation in international affairs (to quote the dicta most often cited by proponents of exclusive executive power in foreign affairs) consider them?  In Yoo’s own words:

“Poring over the files of kill-list nominees recalls Lyndon Johnson’s role in tightly controlling bombing strikes during the Vietnam War. During Operation Rolling Thunder, Johnson held Tuesday lunches when he and his advisers picked targets to avoid attacks that might provoke Soviet or Chinese intervention.”  (emphasis added)

Surely, one would think, the President should be involved in deciding issues that might spark a broader war, perhaps even the next world war.

Yoo then continues, “[t]his misuse of presidential time produced a myopic focus on tactics. Photos of LBJ hunched over maps said it all: Staring at individual targets prevented him from seeing the broader strategic picture in Vietnam and Southeast Asia. Worse yet, it encouraged the military to set aside its judgment in favor of the president’s political preferences.”

It would require quite a bit of space to expose the many fallacies that lie at and beneath the surface of these claims.  For starters, identifying targets for “strategic bombing” is generally not considered a “tactical” decision.  And it was precisely the potential strategic consequences that prompted LBJ’s involvement. It’s not as if he reserved authority to approve every airstrike in support of troops being engaged by enemy forces in Vietnam.  Nor did LBJ dictate every operational or tactical objective to be pursued in the effort to achieve the desired strategic end state.  The errors of the Vietnam conflict did not result from an obsessive presidential focus on the tactical. They resulted from a failure to relate tactical, operational and strategic decisions to an achievable strategic end state.

Additionally, one need not have spent much time reading the news over the past decade — or even the past few weeks or months — to understand that certain “tactical” events may have significant strategic consequences.  Common military parlance now refers to the potential for a “strategic corporal.”

The key for every military commander from the President down the chain of command to a squad or fire team leader is to accurately identify matters that require his or her direct involvement, whether  for legal, strategic or other reasons, and those which may and should be delegated to subordinates in order to best ensure that a given mission or objective is accomplshed.  Such military decision-making is an art; one that appears to be poorly understood by Professor Yoo.

http://opiniojuris.org/2012/06/08/should-the-president-micromanage-drone-attacks/

3 Responses

  1. John, 

    I liked this post.  I think the point you make about the strategic implications of tactical decisions is a critical one, and one that is at the heart of the sensitive target approval and review process and the ROE.  That’s a point that is frequently lost on national security specialists and international lawyers who haven’t taken the time to study how the military actually conducts its operations.  

    This is a point I make in a post here (with apologies for the gratuitous self promotion).  My argument in the post was that the NY Times “kill list” story’s breathless revelations about President Obama’s “unprecedented” decisions weren’t really that unprecedented:


    The times writes Obama’s “current and former advisers described Mr. Obama’s evolution since taking on the role, without precedent in presidential history, of personally overseeing the shadow war with Al Qaeda.”  I’m sure those advisers are very impressed with the President and their role in supporting him, but he’s hardly the first President to approve targeting decisions, and he’s not the first President to approve targeting decisions against Al Qaeda.
     
    When a botched bombing operation presents the risk of strategic consequences, Presidents have frequently relied on strict rules of engagement and high level approvals of specific targets.  Most students of history are familiar with the tight controls over both target selection and nomination that were implemented during the Vietnam War.  (A great history of the process is available in this School of Advanced Airpower Studies thesis).  Even during Vietnam, targets were selected in Washington by a small team on the joint staff, and approved only at the presidential level.  Thus, contrary to the Times’ assertions, there are some precedents for outsized influence by the Commander in Chief in the targeting process — a fact that was true of Johnson and was also true of President Clinton.  Just consider this passage from Richard J. Newman’s aptly titled “Vietnam’s Forgotten Lessons”  … President Clinton had one advantage Johnson didn’t: “POTUS slides.” During the war against Yugoslavia last year, intelligence analysts produced viewgraphs exclusively for the President of the United States–POTUS, in administration speak. Each contained detailed information on targets NATO commanders wanted to bomb …  Someone needs to tell the New York Times and the advisers they interviewed that they weren’t the first to present target nominations to a president.  Even Clinton got the PowerPoint treatment.

    Moreover, as I note in the post the ROE in Afghanistan have required POTUS or SecDef approval for all pre-planned strikes where expected noncombatant casualties will exceed 1.  

    As for your comment “As a former OLC lawyer, Yoo should well know the legal reasons that the President may feel obligated to select targets beyond Afghanistan’s borders.”  I’m not convinced that all OLC lawyers are as focused on IHL as you and I would like them to be. (I can think of some recent one’s who comment and blog here who are not doubt very concerned).  I think you’ll find the focus on IHL is at DoD and State, and that repository of knowledge will only get worked into an OLC legal opinion if there is a strong interagency process in place in which OLC shares their analysis with relevant parties outside OLC.  But merely working at OLC doesn’t necessarily make one concerned or knowledgeable about the reasons for target selection in different regions.  

    Best, 

    -Greg

    PS-  Something weird is going on with the comment registration. If anyone is having trouble commenting, the trick is you have to click on “indicates required information” then hit tab.  

     

  2. Response…
    Of course, John did not sit in on every meeting of Condi’s National Security Council that had meetings in the White House Situation room from 2002-2003 to provide specific approval of unlawful interrorgation tactics, although he reportedly sat in and provided advice with respect to some, even with real time feed. Bush and Cheney (who also sat in on some meetings) (and John) did not micromanage torture and cruel, inhuman treatment of human beings, so at least he seems to be somewhat consistent, Has John complained that Condi was micromanaging?

  3. Thanks for taking time to comment, Greg. I am sorry I didn’t notice it was awaiting moderation until just recently.  Your linked post is very interesting!  

    To clarify, though, my point regarding the “legal reasons” for presidential involvement in drone targeting decisions intended to emphasize domestic law, not IHL.  I do agree, however, that presidential involvement in these targeting decisions might also be influenced by IHL, specifically the proportionality requirement. Who better to evaluate whether anticipated collateral damage is excessve compared to the expected military advantage than the commander-in-chief? 

    Thanks for your input as well, Jordan. 

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