Not Your Grandfather's Zone of Twilight: Civil Military Relationships in Debatably Legal Precision Strikes

This spring, for the second time, President Trump ordered a precision air strike against another nation’s sovereign territory on the ground that it had used unlawful chemical weapons against its own civilian population, warranting a “strong deterrent” message to uphold international laws and norms. He did so without the explicit authorization of Congress, acting only on his executive powers under Article II of the Constitution. Moreover, his action was based on ill-defined and much debated principles of jus cogens norms and the evolving international legal standard that purports to authorize states to intervene in each other’s sovereign territory where such norms are threatened. In short, Trump’s order operated in a legal grey area, both domestically and internationally, creating a novel challenge for military and civilian officers of the executive branch who are both required to execute the president’s lawful orders and sworn to uphold the Constitution and the laws of war. When President Trump decided to strike Syrian territory this time, the United States, France, and Great Britain each contributed military force. This time, the use of force was met with Russian counter-rhetoric, calling it an “act of aggression” that is “destructive of the entire system of international relations,” because it lacked a United Nations Security Council mandate, was not self-defense under the meaning of the U.N. Charter, and had no support from any other corner of international law of armed conflict. Moreover, whether President Trump had sufficient legal authority under U.S. law to order these strikes is strongly questioned by some while supported by others. More than the traditional jus ad bellum issues usually argued over, like proper authority, last resort, just cause, success probability, and macro-proportionality, decisions like this one raise another kind of legal and ethical challenge, a special case of tension that intensifies the already complicated challenges of American civil-military relations among presidents, Congress, and senior military officers. When a president orders the use of military force to strike an adversary’s strategic military capabilities with precision attacks, but does so based on “deeply rooted [American] historical practice,” without reliance on traditional domestic and international legal authorities, senior commanders and the president’s principal military advisor must plan for and execute in a zone of twilight unforeseen even by Justice Jackson. Discussion among strategic level civil-military authorities, especially given the lack of concrete legal guidance, is characterized by what Eliot Cohen famously called an “unequal” dialogue, given that the President, of course, must always decide. Emphasizing the significance of this dialogue between military and civilian decision-makers, Lieutenant General James Dubik, now an academic philosopher, has elevated what Cohen thought of as practical reality into a “Principle of Continuous Dialogue,” which serves as one of his five necessary pillars in a blend of jus ad bellum and jus in bello justification. Or, in a similar context, what a lawyer would understand to be his or her dutiy to communicate with, and act with diligence for, the client. Knowing that this dialogue between these unequal partners must happen is one thing; knowing what to say is another. What is the content of the dialogue—what questions should senior military agents ask of their senior civilian principals under conditions where jus ad bellum legitimacy is precariously perched? After all, the Department of Defense’s own Law of War Manual, reflecting US Government policy, has regarded the combination of just war principles, obligations under international treaties, and customary international law (most of it) to be binding on our decisions when, where, why, and how to use military force—irrespective of the reason, duration, tempo, scale, or means used. What could or should the senior military advisor do, given both his subordination to civil authority and his intrinsic moral agency, if he receives unsatisfying answers, or no answers at all, to questions about the legitimacy of an operation? This article offers 13 generic questions that should outline the form and content of the dialogue. I do not imagine that they be used as a script for examination of the civilian decision-maker; rather, the answers to probing questions like these should help inform military and other decision-makers of their legal and ethical duties with respect to these sorts of “twilight” engagements. Absent answers to questions of this sort, it would be right to question whether the senior military agents are adequately following their own policies and rules, or communicating with their principal and exercising their implied duty of diligence—whether it be on behalf of the civilian administration or the public they defend. This article is based on two assumptions about the legal framework in which this dialogue occurs, and which appear unlikely to change. First, I assume that American presidents will continue to exercise their war power muscle with foreign precision strikes absent explicit domestic or international authorization, based on reasons like those proffered by retired general and judge advocate Charlie Dunlap, the Justice Department’s Office of Legal Counsel, and the White House. Further, I assume that Congress will not intercede with any restraining or clarifying legislation. If these assumptions hold true, serious strategic concerns related to the amount of force, the duration of force, and—most importantly—the purpose of force will remain sources of friction in civil-military relationships. This friction potentially undermines the legitimacy of certain operations (and that of the actors involved) in the eyes of both the domestic and international public. In turn, a lack of legitimacy could contribute to the perception that two core legal principles of modern war, rooted in military doctrine, have been violated: that the use of violent force be indispensable (“military necessity”) as the only viable means left (a “last resort”), and be proportional in light of the objective (the universal “good” consequences outweighed the universal “bad” consequences of violent action).