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A Note From The Editors

by frank news editors
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Intelligence Oversight: Legal or Legislative Conundrum?

by Mark Young
April 23, 2018

Introduction

While there is no shortage of policy and legal issues in the national security arena, one issue that periodically causes anxiety and consternation is the perceived discrepancies and operational limitations imposed in the law governing intelligence and military operations. An example of this debate is provided by the May 2, 2011 raid that resulted in the death of Al-Qaeda’s founder, Osama bin Laden. Based on the comments made by then-Central Intelligence Agency (CIA) Director Leon Panetta, many wondered how the CIA Director could command an operation involving U.S. Navy SEALs from Joint Special Operations Command (JSOC).

According to Panetta, the raid was conducted under legal authority granted to the CIA in Title 50 of the U.S. Code.

While the authority under which a military or intelligence operation is conducted may seem less important to the general public, it is significantly important to military and intelligence professionals whose highest duty is to conduct intelligence under the law. It is also important to congressional oversight committees who appropriate the funding and authorize the activities of the Department of Defense and the Intelligence Community. Furthermore, any belief that the national security apparatus is acting against the wishes of the public is problematic to a democratic system.

Based on the fact that the public cannot know the details of sensitive intelligence and military operations, congressional oversight is an established and critical element of U.S. national security. Accountability to the legislative branch provides legitimacy to the military and intelligence operations executed on behalf of the American people. Historic examples of when the United States Intelligence Community and military acted outside of the authority provided by Congress and the military chain of command that have embarrassed the executive branch and resulted in changes to policy and law to reinforce the importance of appropriate governance over the application of force or the collection of intelligence. Despite these amendments, military and intelligence operations still derive their authority from the U.S. Constitution, the National Security Act of 1947, and from multiple statutes and executive orders that establish the boundaries of military and intelligence operations. 1. Mark D. Young is the former Chief Security Officer and Senior Vice President for IronNet Cybersecurity, Inc. where he lead business development and technical integration of security solutions in the financial sector. He previously led two cybersecurity startups focused on advanced analytics for the public and private sectors. His senior government experience includes serving as the Executive Director of Plans and Policy at U.S. Cyber Command, more than 10 years at the National Security Agency, and as a senior counsel for the House Permanent Select Committee on Intelligence. Mr. Young is a Senior Fellow at George Washington University’s Center for Cyber and Homeland Security and a life member of the Council on Foreign Relations. 2. See generally, The U.S. Intelligence Community Law Sourcebook: A Compendium of National Security Related Laws and Policy Documents (Adam Ross Pearlman, Andrew M Borene, Harvey Rishikof, eds., 2017); see also Executive Order 12333, The U.S. Intelligence Community, as amended by Executive Orders 13284 (2003), 13355 (2004), and 13470 (2008).

Because these authorities can be nuanced and subject to different interpretations, it is understandable that the general public may wonder how U.S. Navy SEALs could be under the command of the CIA Director. Typically called the “Title 10/Title 50 Debate”, the argument focuses on the authorized roles of U.S. military forces and those missions authorized for U.S. intelligence agencies.

A generalized view is activities authorized under Title 10 of the U.S. Code delineates the permitted activities of the Department of Defense and of the armed services and that:

Title 50 of the U.S. Code authorizes intelligence activities, to include covert action, an intelligence operation conducted without attribution to the US government.

Inexperienced observers of these statutory titles and of military and intelligence operations have perceived exclusive authorities, where no such exclusivity exists. Military and intelligence authorities work in concert, not in isolation.

Thus, there is no conflict or authority gap with Titles 10 and 50. The Osama Bin Laden raid is but one unclassified example of how these authorities work together. The lack of lack of definition of specific terms in these laws and in policies may, however, generate agitation for two important constituents of U.S. national security: the public and the U.S. Congress. The undefined terms within the authorities results in confusion about whether an activity is a traditional military activity or an intelligence operation. But, for those who conclude that military forces should not be executing intelligence missions, E.O.12333, Section 1.10 authorizes the Secretary of Defense to:

(a) Collect (including through clandestine means), analyze, produce, and disseminate information and intelligence and be responsive to collection tasking and advisory tasking by the Director; and

(b) Collect (including through clandestine means), analyze, produce, and disseminate defense and defense-related intelligence and counterintelligence, as required for execution of the Secretary's responsibilities.3

Not only can the technical terms within these legislative and executive authorities be challenging to reconcile, but on Capital Hill – where committee jurisdiction is vigorously defended - the rules giving congressional committees authority to oversee intelligence and military activities do not align well with the statutes that authorize the executive branch to conduct those activities. The result is a fully lawful intelligence operation that causes justifiable concern to the chairman or other member of a national security committee to whom the operations was not required to be reported. 3 Exec. Order No. 12333, 46 Fed. Reg. 59941 (December 4, 1981) at § 1.10. This distinction is reinforced in subsection (c) where the Secretary of Defense is given authority to "[c]onduct programs and missions necessary to fulfill national, departmental, and tactical intelligence requirements." 4 See generally, H. R. Res 5, 115th Cong. (2017) adopting the Rules of the House of Representatives for the 115th Congress available at https://rules.house.gov/sites/republicans.rules.house.gov/files/115/PDF/ House-Rules-115.pdf and the Standing Rules of the Senate available at https://www.rules.senate.gov/rules- of-the-senate.

A broad set of national security activities is authorized under law, but these laws governing intelligence and military activity complicates the execution of congressional oversight.

For example, while it may be good political judgment to report a sensitive intelligence operation to the Armed Services and Intelligence committees of the House and Senate, the requirement to do so is less clear.

Title 10 and Title 50 are mutually supporting authorities that can be exercised by the same person or agency, yet congressional oversight is exercised by separate, often competing, committees and subcommittees. This dysfunctional division of congressional oversight of national security is the fundamental “Title 10-Title 50” challenge. Congressional committees exercise oversight and, importantly, authorize and appropriate funds based in part on whether they perceive an activity to be an intelligence activity or a military operation.

Debates concerning the propriety of specific American intelligence activities are as old as the Republic. Sensitive military operations have also attracted the public’s attention, particularly when they do not proceed as planned.

As most military and intelligence officials will proclaim, the national security committees within Congress are the mechanism by which American citizens exercise their democratic right of government accountability. While the public does not generally have access to classified information, the congressional committees exercise these rights on behalf of those represented.

Any misunderstanding of the authorities provided by statutes, regulation, and executive order contributes to a misinformed citizenry, which is inconsistent with democratic principles. Sensitive military and intelligence operations have the potential to have significant impacts on the reputation, foreign relations, and well being of the United States. The Title 10/Title 50 debate is an important issue not because current operations violate legislative and executive authority, but because it indicates a lack of understanding of the exact authorities that authorize these current operations.

The citizenry must understand who is allowed to do what on their behalf if the U.S. military and intelligence community is to maintain its legitimacy and the support of the governed.

Relevant Legal Authorities

Within the United States Code, Title 10 governs military operations and personnel. Title 50 governs intelligence operations and personnel. Intelligence personnel may support military operations, but they still operate under Title 50. Similarly, military units operating under Title 10 may support a Title 50 mission. The label of the operation as Title 10 or Title 50 refers to the statutory authority of the mission commander, and it does not inhibit the participation or support of other personnel or agencies under their respective authority.

Title 10 provides Combatant Commanders – military leaders responsible for operations within a geographic region or function - and their subordinates statutory authorities and establishes their reporting hierarchy directly to the Secretary of Defense. For illustrative purposes, consider the United States Special Operations Command (USSOCOM). Title 10, Section 167 authorizes special operations forces assigned to USSOCOM to conduct direct action5, strategic reconnaissance, unconventional warfare, foreign internal defense, civil affairs, psychological operations, counterterrorism, humanitarian assistance, theater search and rescue, and such other activities as may be specified by the President or the Secretary of Defense. Thus, Combatant Commanders have broad authority to conduct various missions that may appear to some as exclusively intelligence operations.

Title 50 provides intelligence community authorities and clarifies the Secretary of Defense’s authority over specific intelligence agencies that are part of the Defense Department, such as the National Security Agency and Defense Intelligence Agency. Thus, the Defense Secretary has broad intelligence authorities, particularly in the areas of signals intelligence (NSA) and defense intelligence (DIA).

Section 3000 of Title 50 implies that “military intelligence activities” and “tactical intelligence activities” are different from the intelligence activities reserved for agencies such as CIA. The statute states that military intelligence and tactical intelligence are not subsets of national intelligence or covert action. This differentiation is reinforced in 50 U.S.C. § 3003 that states that the National Intelligence Program “does not include programs, projects, or activities of the military departments to acquire intelligence solely for the planning and conduct of tactical military operations by United States Armed Forces.” The National Intelligence Program is the budgetary structure through which Intelligence Community projects and activities are funded and managed.

Reasonable Concern

From the perspective of those charged with overseeing the sensitive and classified activities of the military and intelligence community, the military should not conduct activities that appear like intelligence operations better executed by a national intelligence agency and overseen by the appropriate congressional intelligence committees.

As was mentioned above, the misalignment between the statutory authorities provided to the Secretary of Defense and to the Director of National Intelligence (and the directors of Intelligence Community agencies) and the jurisdiction of specific congressional oversight committees causes repeated friction between the legislative and executive branches.

At the beginning of each Congress, the Senate and the House publish rules that re- establish each congressional committee and document their respective jurisdictions. For example, the current House Rules state:

The Permanent Select Committee on Intelligence shall review and study on a continuing basis laws, programs, and activities of the intelligence community and shall review and study on an exclusive basis the sources and methods of entities described in clause 11(b)(1)(A).

Given the authorities of the Secretary of Defense described earlier, which committee has jurisdiction over the sources and methods of a military command that is executing a strategic reconnaissance, psychological operations, or offensive cyber operation? According to House Rule X, the House Armed Services Committee has jurisdiction over general common defense, “tactical intelligence and intelligence-related activities of the Department of Defense.”

Thus, while there are clear statutory authorities for military and intelligence operations within statute, there is overlapping and ambiguous oversight authority within Congress. The National Commission on Terrorist Attacks Upon the United States (The 9/11 Commission) recognized this conclusion in their final report:

So long as oversight is governed by current congressional rules and resolutions, we believe the American people will not get the security they want and need. The United States needs a strong, stable, and capable congressional committee structure to give America’s national intelligence agencies oversight, support, and leadership.

Few things are more difficult to change in Washington than congressional committee jurisdiction and prerogatives.

To a member, these assignments are almost as important as the map of his or her congressional district.

The American people may have to insist that these changes occur, or they may well not happen.

Under the terms of existing rules and resolutions the House and Senate intelligence committees lack the power, influence, and sustained capability to meet this challenge.

Although Congress and the executive branch accepted most of the recommendations within this report, those calls to action to amend oversight of intelligence and counterterrorism remain unanswered. 5 Short-duration strikes and other small-scale offensive actions conducted as a special operation in hostile, denied, or diplomatically sensitive environments and which employ specialized military capabilities to seize, destroy, capture, exploit, recover, or damage designated targets.

Congressional Oversight

Confusion over Title 10 and Title 50 authorities has more to do with congressional oversight and its attendant internecine power struggles than with operational or statutory authorities. Operators, be they special operations forces (SOF) operating under Title 10, CIA agents operating under Title 50, or NSA personnel operating under both Title 10 and Title 50, know from whence their authorities are derived. The operators recognize dual lines of authority and are primarily concerned with coordination and deconfliction. To outsiders looking in, such as a Senator in Washington, DC, the activities performed by SOF and CIA operatives, especially during periods preceding possible or anticipated conflict, may appear virtually indistinguishable. Yet similarity in no way does not vitiate their dual lines of authority, nor does it create great challenges for operators.

When the concern of these committees is that military units conducting operations similar in form to national agency (CIA, NSA, DIA) activities without oversight, which is within their exclusive jurisdiction. Thus it is understandable that members of the legislative branch will be concerned and frustrated with the misalignment between how the executive branch views the authorities for military and intelligence operations and the jurisdictional lines of various oversight committees within the House and Senate.

The perception that the Executive Branch is deliberately trying to avoid congressional oversight naturally riles the intelligence committees. In its report accompanying the Intelligence Authorization Act for Fiscal Year 2010, the House Permanent Select Committee on Intelligence noted “with concern the blurred distinction between the intelligence-gathering activities carried out by the Central Intelligence Agency and the clandestine operations of the Department of Defense.”

The Committee accused DoD of labeling its clandestine activities as operational preparation of the environment (OPE) in order to justify them under Title 10 and avoid oversight by the intelligence committees “and the congressional defense committees cannot be expected to exercise oversight outside of their jurisdiction.” The Intelligence Committee apparently perceives an oversight lacuna, yet no such lacuna exists. Rather, all activities conducted under Title 10 authorities are subject to oversight by the armed services committees and, for example, commanders of special operations forces regularly brief the armed services committees on their clandestine activities.

Congressional oversight of military activities appears simple: the Senate and House Armed Services Committees have jurisdiction over the Defense Department and – as noted above - matters related to the “common defense.” These committees authorize the policy and resources for the DoD; the entire House and Senate must approve these authorizations.

Congressional oversight of intelligence is more complicated. The National Security Act of 1947 included no provisions for congressional oversight. From 1947 to 1974 Congress conducted almost no formal oversight of intelligence activities. However, after thirty years of little oversight, congressional oversight of intelligence activities was “revolutionized” by a congressional investigation that resulted in the creation of the Senate Select committee on Intelligence. The creation of the House Permanent Select Committee on Intelligence followed in 1977.These committees have exercised oversight of the intelligence community, while sharing oversight of military intelligence with the armed services committees in the Senate and House.

Despite this broad – and overlapping oversight – the public and congressional debate about conflicts within Title 10 and Title 50 continue, albeit quietly. Congress could remove lingering questions about the roles of the military and intelligence organizations by aligning oversight with the relevant statutory authorities. Congress could modernize its oversight by amending the appropriate provisions within Titles 10 and 50 to allocate jurisdiction based on the program that funds the activity and the individual who has direction and control of the activity. Congress could accept the 9/11 Commission recommendations by resolving it divided authorization and appropriations functions, thus eliminating a perceived statutory discrepancy between Title 10 and Title 50. 6 Rules of the House of Representatives: 115th Congress, Rule X, clause 3(m) (January 5, 2017) (emphasis added). The referenced section 11(b)(1)(A) lists the Central Intelligence Agency, the Director of National Intelligence, and the National Intelligence Program. 7 Id. at Rule X, clause 1 (c)(2). 8 Id. at Rule X, clause 1 (c)(8).
9 The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 419-420 (July 24, 2004). 10 Loch K. Johnson, The Church Committee Investigation of 1975 and the Evolution of Modern Intelligence Accountability, 23 INTELLIGENCE AND NAT’L SECURITY 199 (2008).

Previous Arguments That Failed to Gain Traction

Transparency. Those in Congress and the public that advocate for military transparency to preserve a positive reputation of U.S. military forces are concerned with the risk to this reputation if these forces are tarnished by an association with espionage. For this group, the conflict between Titles 10 and 50 concerns the question of the use of U.S. military for secret operations, which may require military men and women to operate without their uniform, which could result in the loss of the protections provided to militaries forces by the Geneva Conventions. This argument has failed to result in any public or legal restrictions to the employment of military special operations units, such as the mission that resulted in the death of Osama Bin Laden.

Resources. This portion of the Title 10/Title 50 debate essentially expressed concern about the military inappropriately being provided resources better suited to the Intelligence Community. If the military requires additional funding to further develop its intelligence capabilities, then these resources will likely be removed form those of agencies such as the Central Intelligence Agency. Further, more intelligence operations by the military is likely to lead to conflicts between the Intelligence Community and the military pursuing the same target, which further reduces the efficiency of those resources.

Intelligence Community supporters, the principle issue is the legal role of intelligence agencies will be diminished by the Department of Defense’s accelerated growth of its intelligence capabilities. They fear the disproportionate impact on agency resources when federal budgets are reduced.

The transparency and resource arguments are not based in law – neither claims that the activities are inconsistent with relevant statutes.

Both arguments are effects-based, meaning that the debate focuses on the results of enhancing the military’s role in intelligence. 11 H.R. Res 658, 95th Cong. (1977) available at https://intelligence.house.gov/uploadedfiles/ h.res_658_passed_14_july_1977.pdf.

Preserving the reputation of the U.S. military and defending intelligence agencies’ resources are legitimate concerns, but have little to do with the statutory authorities under which the agencies and the military operate. It is inappropriate to frame these policy considerations as legal issues that require the amendment of the U.S. Code. If these issues warrant attention, they are far better addressed within the Executive Branch by sound management and within the Legislative Branch through the budget appropriation and authorization process.

Operations in Question

Those who see conflicts between Title 10 and Title 50 typically focus on two areas that have involved both the military and the intelligence community: unconventional warfare and cyber warfare. These operations are highly classified and not usually acknowledged, regardless of whether they are carried out by intelligence or military operators. Because both activities may involve national security and diplomatic sensitivities, various congressional committees conclude that these operations fall within their jurisdiction.

The first activity that elicits concern about the inconsistencies between Titles 10 and 50 is unconventional warfare. Defined by the military as, “[a]ctivities conducted to enable a resistance movement or insurgency to coerce, disrupt, or overthrow a government or occupying power by operating through or with an underground, auxiliary, and guerrilla force in a denied area,” unconventional warfare is a sensitive operation.

In this type of operation, the U.S. is not using its conventional units to violate the territorial integrity of an adversary; instead, these units – supported by the Intelligence Community – work “by, with, and through” forces within the target country.

The second activity that motivates concerns about appropriate legal authorities for the military and intelligence community is cyberwarfare.

This activity involves gathering intelligence about adversary computer networks and developing ways to achieve operational effects on those networks when ordered by a military commander, including the Commander-in-Chief. Cyber operations are more nuanced than other activities, since after discovering an adversary in your network, you cannot be certain if the penetration is the start of an attack or an initial scan to determine the level of protection of that network.

While this may seem like an unimportant distinction, it is notable that if the penetration would reasonably determined to be an attack, a wide range of self-defense options are available to any party – including the government. In contrast, if the penetration is merely a scan or attempt to exploit your network, the responses are far more limited. Cyberwarefare depends on intelligence. It must be an amalgamation of intelligence and military thinking and authorities.

The question of whether an unconventional or cyber warfare activity is a military operation, an intelligence activity, or covert action is more precisely a question of congressional oversight: will the intelligence committees exercise primary oversight jurisdiction, or will the armed services committees? To answer this question, we will first define intelligence activities and identify the key elements that distinguish military operations from intelligence activities. We will then examine covert action, which is not synonymous with intelligence activities despite that persistent misperception, and we will learn why even unacknowledged military operations may be exempt from intelligence committee oversight. Our analysis of the relevant statutes will reveal that traditional military activities are not intelligence activities or covert action. A brief review of military and legislative history will show that military operations preparatory to anticipated conflict are traditional military activities, and that even unacknowledged operations by military personnel under military command and control may not constitute covert action.

To summarize, an essential element of covert action is lack of intended acknowledgement of the overall operation, so the existence of intended acknowledgement obviates any need for further analysis under the traditional military activities exception.

The only time the military would need to concern itself with analysis under the traditional military activities exception is when the specific military operation is not intended to be acknowledged. In that situation, the next analytical step is to determine whether the specific unacknowledged military operation is a traditional military activity.

If an unacknowledged activity is 1) conducted by military personnel, 2) under military direction and control, and 3) pursuant to an order issued or authorized by the Secretary of Defense, then the only remaining requirement to escape falling within the definition of covert action is that 4) the U.S. role in the overall anticipated military operation must be acknowledged. Notwithstanding this relatively straightforward analysis, military preparatory operations continue to raise congressional ire.

Conclusion

There is no explicit contradiction between Title 10 and Title 50. A more accurate interpretation is simply that Title 10 clarifies roles and responsibilities within DoD, while Title 50 clarifies roles and responsibilities within the intelligence community; both titles explicitly recognize that the Secretary of Defense has statutory roles and authorities under Title 10 and under Title 50. Executive Order 12,333 confirms this reading by directing the Secretary of Defense to collect intelligence for both his department and the intelligence community writ large.

The American population must understand that its military and intelligence organizations have broad authority to work together and to apply the right skills to the right security challenge to protect the Nation, its allies, and its interests. This public understanding of this authority is the essential support that provides legitimacy to these operations. Without such generalized support of the governed – exercised through their rightfully elected representatives – intelligence and military organizations will be unable to execute their statutorily defined missions. This is the essence of national security in a democracy.

This article explained the two most significant national security statutes, while also providing examples of how – and why - they may be misinterpreted. In the current time of evolving national security threats, the population must engage in these debates and ask questions about the applications of military force and intelligence resources. The legitimacy of the Republic depends on such interest and such engagement.