At Forbes, Pepperdine Law professor Greg McNeal comments extensively on President Obama's allegedly unprecedented personal involvement in targeting decisions:
President Obama is personally involved in vetting targets and approving strikes, according to a recent article in The New York Times entitled “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.” The piece has received a substantial amount of attention with expert commentators such as Ben Wittes describing it as “rich and detailed” and Ken Anderson writing that it is “the most detailed insider account of how the administration has gradually evolved a process for vetting targets.”
I think the article amounts to a largely self-serving campaign piece, which is to be expected when the piece is sourced to interviews with President Obama’s “current and former advisers.” For those not familiar with the targeted killing process, the article may seem to be filled with rich details that suggest that President Obama, the “liberal law professor” who “approves lethal action without hand-wringing” has taken on unprecedented authority and responsibility. I’m not convinced that his actions are remarkable or unprecedented, let’s unpack what we learn from this story.
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. . . .
The Times piece tries to paint President Obama as the first President to take moral responsibility for the actions of the military he commands. Obama, we learn from his aides is a “student of writings on war by Augustine and Thomas Aquinas, he believes that he should take moral responsibility for such actions. And he knows that bad strikes can tarnish America’s image and derail diplomacy.” Moreover, “[w]hen a rare opportunity for a drone strike of a top terrorist arises – but his family is with him – it is the president who has reserved to himself the final calculation.” This would be an unprecedented act of political leadership if it weren’t for the fact that there is some precedent for it that predates President Obama.
As I point out in this book chapter, since at least September of 2008 (e.g. during George W. Bush) the Rules of Engagement in Afghanistan required the President or Secretary of Defense to sign off on any pre-planned strike (e.g. targeted killing) where even one civilian casualty was expected.
For a more detailed examination of American policy on targeted killings, see Professor McNeal's article "The U.S. Practice of Collateral Damage Estimation and Mitigation." Also, in January 2011, FedSoc's International & National Security Law Practice Group aired a podcast on "Predator Drones and Targeted Killings." It featured Michael W. Lewis, Ben Wizner, and Dean A. Reuter. You can listen to it here.