Show sidebar

Delegating Commander-in-Chief Powers–Where to strike the balance

 

The Trump Administration is busy reconsidering the United States’ approach to counterterrorism, and its revised policies will assuredly reflect President Trump’s desire to delegate more authority to his military commanders.  Hidden amid the wall-to-wall coverage of L’Affaire Russe and the President’s first international trip, however, are recent press reports that suggest the Department of Defense may be of two minds about being provided “total authorization” to conduct counterterrorism operations.  This hesitation makes sense.  Although the Pentagon and others have been seeking greater delegations in order to improve operational flexibility and efficiency, U.S. counterterrorism operations often implicate delicate issues that cut across the equities of numerous departments and agencies; considering the views of these other institutional actors is therefore crucial to making and implementing effective decisions.  Moreover, robust interagency and presidential involvement can give decisions greater legitimacy in the eyes of the public and international community.  And the President is the Commander-in-Chief, the individual the public will ultimately hold responsible for an operation’s success or failure.  Given these factors, calibrating presidential and interagency involvement based on the particular circumstances is a better approach than adopting a one-size-fits-all solution that simply delegates decisions to the military.  Indeed, as laid out below, there are numerous ways to maintain operational flexibility and timeliness while still ensuring accountability and appropriate input from all affected stakeholders.

Background.  For context, a little background about the prevailing process at the end of the last Administration may be helpful.  To that end, here’s what the Obama Administration said publicly about the steps the United States would take “to minimize the risk of civilian casualties” in counterterrorism operations:

“Before a strike against a terrorist target is considered in any theater, U.S. Government personnel review all available information to determine whether any of the individuals at the location of the potential strike is a non-combatant.  A body of standards, methods, techniques, and computer modeling, supported by weapons testing data and combat observations, informs the analysis as to whether those not specifically targeted would likely be injured or killed in a strike.”

Above and beyond this baseline, President Obama also promulgated Presidential Policy Guidance (PPG) that, at times, applied heightened policy standards and procedures:

“Decisions to capture or otherwise use force against individual terrorists outside the United States and areas of active hostilities are made at the most senior levels of the U.S. Government, informed by departments and agencies with relevant expertise and institutional roles.  Senior national security officials – including the deputies and heads of key departments and agencies – will consider proposals to make sure that our policy standards are met, and attorneys – including the senior lawyers of key departments and agencies – will review and determine the legality of proposals.”

The PPG itself was subsequently released to the public, providing further detail.  Overall, the upshot of the document is that outside “areas of active hostilities” prevailing policy required senior decision makers from across the interagency, up to and including the President in some cases, to review certain counterterrorism operations.  (This interagency and White House review thus raises issues different than the appropriate approval level within the Department of Defense, a subject that was discussed here and here in the wake of changes to the ROE for the fight against the Islamic State in Iraq.)

Early Signs of President Trump’s Approach.  President Trump has very publicly made clear his intent to devolve authority to the Pentagon, and examples of him doing so abound.  In response to a question about whether he had authorized the dropping of the MOAB in Afghanistan, the President stated that he has given the military “total authorization.”  He also granted Secretary Mattis the authority to set Force Management Levels in Iraq and Syria.  And press reports indicate that the President has designated parts of Yemen and Somalia as “areas of active hostilities,” such that the more robust procedures required by the PPG no longer apply.

Interestingly, as recently reported, the last of these actions – the designation of additional “areas of active hostilities” – has led to the emergence of two schools of thought at the Pentagon.  One sees the increased delegations as an “extension of a management style that is businesslike, delegates authority and remains hands-off,” while another is concerned that the delegations leave open the possibility that the White House will seek to distance itself from operations that don’t go as anticipated (with the President’s reaction to the death of a Navy SEAL during a January raid in Yemen cited as an example).  Thus, although the Pentagon initially hailed being granted greater autonomy to conduct counterterrorism operations, it is now asking whether this comes with a sharp downside.

So what to make of this internal debate at the Pentagon?  How should one think about the President delegating additional authorities to his military commanders?

An Expected Move.  On the one hand, President Trump’s decision to devolve authority to the Pentagon is unsurprising and comports with the many predictions that he would cut back or loosen the rules that the Obama Administration used to fight terrorism.  Members of Congress and former Defense officials have repeatedly expressed concerns over White House “micromanagement” of national security and foreign policy and stated that greater delegation would accelerate decision-making and provide flexibility that would make operations more responsive to developments on the ground.  The “scope and intensity of U.S. counterterrorism operations” is also a key factor in determining whether the PPG’s rules apply (i.e., in determining whether something is an “area of active hostilities”) and the decision of President Trump and his team to ramp up operations in Yemen and Somalia may make those guidelines less directly applicable.  As my former colleague Luke Hartig has noted, the PPG’s procedures seem “to embody so much of what Trump, his team, and his supporters have criticized — specifically, [President Obama’s] supposed attention to high-minded principles and legalistic process over effectiveness.”  Against this backdrop, it seemed there was little doubt President Trump would grant the Pentagon additional authority over counterterrorism operations, with the only questions being how much and how quickly.

Centripetal Forces.  As the internal Pentagon debate indicates, however, correcting for perceived “micromanagement” is easier in theory than in practice.  There are a number of reasons for this:

First, today’s counterterrorism operations can increasingly implicate a range of foreign policy and national security equities, the evaluation of which requires input from various departments and agencies.  Ensuring that all relevant information is brought forward and rigorously weighed is thus vital for effective decision-making and implementation in many circumstances.

Consider the following.  Our current conflict is an unconventional one against enemies that neither wear uniforms nor respect geographic boundaries or the laws of war.  Operations often take place in extremely complex environments, such as countries like Yemen where multiple armed conflicts – with different arrays of parties to the conflicts – are ongoing simultaneously.  To maximize our effectiveness, we must work with partners and pair our military operations with other elements of national power, such as diplomatic engagement, intelligence cooperation, and public messaging.  Moreover, today’s 24/7 media environment, the prevalence of social media, and the increasingly inter-connected nature of the world means that it is difficult to keep counterterrorism operations secret for long, and that actions taken in one theater may have significant implications for seemingly unrelated initiatives in other theaters.

For these reasons and more, individual counterterrorism operations can, with some frequency, raise novel and important legal and policy questions that cut across the equities of multiple departments and agencies (and multiple functional and geographic bureaus within individual departments and agencies).  For example, how might the participants in other conflicts in the theater respond to our actions?  Will they perceive our actions as a threat?  Will they use force in response?  What would be the legal considerations relevant to that response – and our potential counter-moves?  What would be the precedential implications of our actions?  How would our allies react?  Would conducting this operation provide leverage to ask them for greater counterterrorism assistance—what other opportunities can be gained?  Conversely, might the operation affect seemingly unrelated negotiations over, say, embassy security or defense cooperation, or even further flung matters such as trade deals?  How should we talk about the operation so as to maximize its messaging impact?  The Pentagon is certainly a key stakeholder with respect to each of these questions.  But the State Department, the Intelligence Community, the Justice Department, and other agencies may also possess vital information and have key interests that should be considered and weighted in coming to a decision.

The National Security Council was designed to handle questions just like these.  To be sure, as described in more detail below, not every operation will present issues that warrant a White House-led interagency process, and other interagency coordination procedures are available.  But the NSC is the institutional actor best situated to ensure that key stakeholders are able to provide relevant information and views.  Moreover, having to present views outside of one’s department requires testing hypotheses and fielding questions from those who may approach a matter differently; this back-and-forth can sharpen perspectives and prevent groupthink.  The President is also the only one who can ultimately weigh the potentially competing equities among departments and agencies and resolve remaining differences between them.  In short, a thorough interagency process ensures a robust consideration of all relevant information, leading to better and more effective decisions.  It also leads to better implementation, as after such a process, key participants are aware of and vested in the U.S. Government’s actions – so they can, for example, describe our operations to our allies and the public in a consistent way that takes into account the full range of military, diplomatic, and legal equities and builds confidence in U.S. actions.

Second, the public and international community may perceive counterterrorism operations as having greater legitimacy if the decision to undertake the operation is preceded by interagency – and, when necessary, presidential – involvement.  While this perception may be largely unwarranted – the Pentagon, after all, evaluates all operations with rigor – a robust policy process signifies that the United States is treating counterterrorism operations with great care and importance and accordingly considering a diverse range of viewpoints before deciding what to do.  The importance of this is magnified, moreover, when, as here, it is difficult for the United States to make public any of the underlying factual information that prompted the action in the first place.  Put simply, a robust process that involves the highest levels of government underscores how seriously and rigorously the United States takes conducting these operations.

Finally, the fact that the President is the Commander-in-Chief, the one who the public ultimately places on the hook for these decisions, centripetally pulls decisions toward the White House.  Fifteen years ago, then-Professor Elena Kagan wrote a landmark paper on how Presidents have, over time, increasingly come to assert control over the administrative state.  “We live today in an era of presidential administration,” Kagan wrote, pointing to “enduring, structural aspects of the modern Presidency and the political system in which it operates” that contributed to this trend:  the “high and rising expectations” of the American public, fueled by technologies that have increasingly put the President in the spotlight; a press that “makes insatiable demands and places impossible pressures on the office of the President;” and the resulting increasing “pressure on Presidents to demonstrate action, leadership, and accomplishment.”

I don’t want to overstate the analogy, as there are of course unique aspects of national security decision-making that make it different from the domestic regulation that was Kagan’s focus – for example, the need to ensure that intelligence estimates are appropriately cabined from political pressure.  But the structural trends identified by Kagan – the expectations of the American people, the pressure on Presidents to lead, the never-ending spotlight driven by a 24-hour news cycle – operate equally, if not more so, on the President as Commander-in-Chief as they do on him as a domestic actor.  This inevitably creates pressure for the President to be more involved in national security matters.  For example, as Sam Rascoff observed, after the 2013 disclosures of certain intelligence activities, “political blame was assigned to the White House for perceived intelligence excesses and the President was compelled to assume greater control” over certain intelligence matters.

Of course, no President can (or should) approve every single counterterrorism operation, and President Trump appears to be very willing to delegate authority to his military commanders.  But, as the Yemen raid demonstrates, military operations do not always go as planned.  In those cases, even if the President did not approve an operation, he may still be held responsible by the public for the results, particularly if it is a highly salient operation that he would have been expected to review.  This creates strong incentives for the White House to be able to explain and defend the ex ante decision-making process that led to such an operation, including, if applicable, that all relevant decision makers were on board.  And it also creates incentives for the Pentagon to ensure that the President explicitly supports at least certain operations (as the concerns expressed by some at the Pentagon demonstrate).

So Where Do We Go From Here?  Given these competing equities, what should be done in practice?  When should the President delegate his authorities to the Pentagon?  Here are a few initial thoughts on how one might think about this issue:

First, there is no one-size-fits-all answer to the question of what authorities should be delegated to the Pentagon.  Just as the military should not receive a “total authorization,” every operation need not and should not be brought to the President or the interagency for review.  There are certain circumstances, for example, when dispatch is at a premium and authorities are rightfully devolved to the appropriate military commander – U.S. ground forces, for instance, always retain the inherent authority to defend themselves when they come under attack.  Similarly, some operations are unlikely to present novel legal or policy issues, such that delegation may be more appropriate – for example, when the United States is undertaking its baseline missions in areas where substantial military operations are ongoing.  But there are also situations when the centripetal forces noted above may augur for greater interagency or Presidential involvement – for example, when operations raise novel and cross-cutting legal or policy questions, perhaps because they involve new missions or technologies or take place in new areas; when it is particularly important to coordinate military operations with diplomacy or other elements of national power to maximize their effectiveness; when the operations are taking place in a theater where U.S. operations are infrequent; or when operations involve elevated levels of risk to U.S. personnel or are otherwise expected to be particularly salient such that one would expect them to be brought forward for Presidential decision.

In fact, the variety of possible situations is virtually endless, such that no single attribute can be used to demarcate the line between delegated and retained authorities.  Take the nature of the battlefield.  Even if this element plays a role (as it does with “areas of active hostilities”), U.S. forces stationed away from hot battlefields may still need to defend themselves against attack, and operations inside active combat theaters may still raise novel questions that warrant interagency consideration and Presidential approval.  In other words, it’s inevitable that several factors will dictate whether operations should be delegated – for example, operations in certain geographic areas could be delegated with a cap on the assessed risk level or the number of troops involved.  Application of these factors will inevitably require judgment calls and constant dialogue among a number of national security decision makers.  This means that, as Bobby Chesney has pointed out, the key will be ensuring that there is as much clarity as possible about what the lines are and that national security principals have a common understanding of “whether, when, and where use-of-force decisions require White House sign-off.”

Second, it is mistake to think of this as a strictly binary issue, with the only options for a given operation being Presidential approval versus complete delegation.  Rather, there are a variety of procedural approaches available for maintaining operational timeliness and effectiveness while ensuring appropriate policy and legal review.  For example, if an operation implicates cross-cutting equities but is unlikely to prompt disagreement between departments and agencies, the National Security Council could use a streamlined review process or the Pentagon could be required to secure interagency concurrence before proceeding (with the White House brought into the mix only if disputes arise during the clearance process).  Likewise, if an operation needs to be conducted quickly but is likely to attract attention, authorities can be delegated with a requirement that the Pentagon notify the President and other key principals in advance of the operation.  Or the Pentagon could be required to brief the President or other national security departments and agencies on the results of the operation.  In short, there is a range of ways to account for interagency equities and to seek to diminish principal-agent slack short of requiring Presidential decisions.

Finally, the delegation line need not be static.  A battle rhythm may emerge such that novel operations become more regularized over time and it becomes appropriate to delegate authorities that were previously retained.  Or the facts on the ground may change – new countries may start operations in an existing theater or countries with which we are working may undergo leadership changes – such that old issues may require revised processes for how authorities are delegated.  In short, it makes sense to periodically revisit the distribution of authority to see if anything has changed that would warrant a course correction.

* * * * *

In the end, determining the appropriate level of delegation is a pretty thankless task.  Attention is typically paid to such matters only when things go wrong.  And if the historical record is any guide, like all issues that involve competing equities, it is difficult to get this right to everyone’s satisfaction.  Nonetheless, a well-functioning decision-making process is fundamental to the success of U.S. counterterrorism operations that oftentimes put U.S. personnel in harm’s way.  Thus, it is critically important to continually work on finding the right equilibrium.

 

Image: Defense Secretary Gen. James Mattis greets President Donald Trump at the Pentagon on January 27, 2017 prior to swearing in ceremony.

Tags: , , ,


About the Author

most recently served as Deputy Assistant to the President, Deputy Counsel to the President, and National Security Council Legal Adviser. He previously worked at the Department of Justice in the Office of Legal Counsel and on the Civil Division’s Appellate Staff and served as Special Counsel to the General Counsel of the Department of Defense.