LBJ's Ghost: A Contextual Approach to Targeting Decisions and the Commander in Chief

I. INTRODUCTION The moral imperative and relevance of the Law of Armed Conflict ("LOAC") is more apparent today than before September 11, 2001. Law distinguishes democratic societies from the terrorists who attack them; nowhere is this more apparent than in the methods and means of warfare. Indeed, part of our revulsion and contempt for terrorism lies in the terrorists' indiscriminate, disproportionate, and unnecessary violence against civilians. In contrast, the enduring strength of the LOAC is its reliance on the principles of proportionality, necessity, and discrimination, which protect civilians and minimize combatant suffering. For these reasons, we should not begrudge the LOAC's limitations but continue to find the best contextual process for its meaningful application. In war, and no more so than in a war against terrorism where the terrorists' choice of weapons and targets may be unlimited, this means a process that is both militarily effective and legally sound. This Article is about the role of the President, and the President's legal counsel, in US targeting decisions and in applying the LOAC.1 Section II begins with three foundational judgments regarding the LOAC. First, the LOAC is hard law; that is, it is identifiable and subject to effective sanction in US criminal law and in international law. Second, the LOAC is realistic law that relies on contextual principles adaptable to changing circumstances. Third, the LOAC is good policy and usually consistent with military effectiveness. In many contexts there are good policy reasons to restrict the manner in which a target is attacked that go beyond limitations required by the LOAC. As a result, a process of target decision entails the exercise of policy discretion as well as legal judgment and military command. In constitutional design and practice, the President is given extraordinary authority over the methods and means of warfare. He is also constitutionally responsible for upholding the law. Because of prudential considerations involving the nature of combat and the necessity for secrecy and speed in military command, there is little opportunity, and often less desire, for civilian input into targeting decisions outside the military chain of command. Therefore, the President and the Secretary of Defense, as the senior members (and only civilians) within the chain of command, bear special responsibility to apply and oversee the application of the LOAC. This responsibility is reinforced by the separation of powers doctrine and correlated exercise of deference by the Congress to the President when he is acting as Commander in Chief, and by the judiciary under the non-justiciability doctrine. In short, it is with the President that law, policy, military command, and democratic legitimacy merge. In light of the President's military and LOAC responsibilities, Section III of this Article emphasizes a contextual process for the exercise of presidential targeting decision. By contextual, I mean a process that is flexible to factual circumstance and need, but not to the application of law. By targeting, I mean presidential decisions regarding the focal application of coercion by forces in the air, on the ground, and at sea. The Article identifies legal, policy, and military factors that should determine when a target should be approved by the President, as a matter of law and as a matter of policy. These same factors should determine whether approval comes on a target-by-target basis, by category of target, by application of Rules of Engagement ("ROE"), or through general direction, known in military doctrine as the commander's intent. Presidential style will also appropriately influence presidential process. Perceptions of past presidential performance, however, in particular that of President Johnson during the Vietnam War,2 should not determine the degree of presidential involvement today; current legal, policy, and military context should. …