Navy SEALs and Afghan commandos conduct village clearing operation in Shah Wali Kot district, Kandahar Province
Covert Action Title 10, Title 50, and the Chain of Command
By Joseph B. Berger III U.S. Army (Daniel P. Shook) U.S. Army (Daniel P.
ecent media reports have that he had directed “the[n] Director of the the military operation that went in and got bin Pentagon officials considering CIA [Leon Panetta], to make the killing or Laden.5 “putting elite special operations capture of bin Laden the top priority of our R troops under CIA [Central war against al Qaeda” and that the operation, Despite his self-effacing trumpeting Intelligence Agency] control in Afghanistan carried out by a “small team of Americans” of Vice Admiral McRaven’s role, Panetta’s after 2014, just as they were during last year’s was done “at [his] direction [as President].” In comment highlights that critical confusion raid on [Osama bin Laden’s] compound.”1 the following days, senior executive branch exists among even the most senior U.S. leaders This shell game would allow Afghan and U.S. officials garrulously provided explicit details, about the chain of command and the appro- officials to deny the presence of American from the now-iconic White House Situation priate classification of such operations. troops in Afghanistan because once “assigned Room photograph to intricate diagrams of Openly describing the raid as both a to CIA control, even temporarily, they become the Abbottabad compound and the assault “covert operation” and “military operation,” spies.”2 Nearly simultaneously, Department force’s composition. Most noteworthy was Panetta asserted he was the “commander,” of Defense (DOD) leaders were warned to Panetta’s unequivocal assertion the raid was a describing a chain of “command” that went “be vigilant in ensuring military personnel covert action: from the President to Panetta to McRaven. are not inappropriately utilized” in perform- Panetta’s public comments are problematic, ing “new, expanding, or existing missions,” Since this was what’s called a “Title 50” opera- as is describing a chain of command that ensuring the force is aligned against strategic tion, which is a covert operation, and it comes excludes the Secretary of Defense and pur- choices “supported by rigorous analysis.”3 directly from the president of the United States ports to route command authority through the Placing Servicemembers—uniformed who made the decision to conduct this opera- CIA director. Title 50 is clear: members of the Army, Navy, Marine Corps, tion in a covert way, that direction goes to me. and Air Force—under CIA control demands And then, I am, you know, the person who The term “covert action” means an activity such rigorous analysis. The raid on bin then commands the mission. But having said or activities of the United States Government Laden’s compound provides a framework. that, I have to tell you that the real commander to influence political, economic, or military In his May 1, 2011, televised address, was Admiral [William] McRaven because he conditions abroad, where it is intended that President Barack Obama reported “to the was on site, and he was actually in charge of the role of the United States Government will American people and to the world that the United States ha[d] conducted an operation that killed Osama bin Laden.”4 President Lieutenant Colonel Joseph B. Berger III, USA, wrote this essay while a student at the National War College. It Obama initially detailed little beyond noting won the 2012 Secretary of Defense National Security Essay Competition.
32 JFQ / issue 67, 4 th quarter 2012 ndupress.ndu.edu BERGER not be apparent or acknowledged publicly, but of command; spies conducting intelligence Changed Character of the does not include . . . (2) traditional . . . military activities under executive authority have no Battlefield and Enemy activities or routine support to such activities.6 such protections. This distinction rests on a In the decade since 9/11, DOD and constitutional, statutory, treaty, and doctri- CIA elements have become “operationally The administration did the opposite, nal framework underpinning the military synthesi[zed].”10 A senior intelligence official making patently clear the raid’s nature concept of command authority. recently noted that “the two proud groups of and, in exhaustive detail, the precise role U.S. power relies on moral and legal American secret warriors had been ‘decon- of the United States. Instead of categoriz- legitimacy. Exclusive state control over the flicted and basically integrated’—finally—10 ing it as a covert action under the director’s legitimate use of armed force remains viable years after 9/11.”11 The direct outgrowth is the “command,” the President could have domestically and internationally only where increased reliance on special operations forces conducted the raid as a covert action under exercised within an accepted framework. (SOF) to achieve national objectives against a the Secretary of Defense instead of the CIA Thus, employing DOD forces in a nontradi- “nimble and determined” enemy who “cannot director, or under his own constitutional tional manner entails significant risk. The be underestimated.”12 While the United States authority as Commander in Chief and the policy implications of classification and struc- fought wars on geographically defined battle- Secretary’s statutory authorities, classify- ture are neither semantic nor inconsequential, fields in Iraq and Afghanistan and beyond, ing it as a traditional military activity and and must be understood by senior decision- the underlying legal structure remained con- excepting it from the statute’s coverage. As a makers; likewise, individual Servicemembers stant. In the wars’ background, leaders, advi- traditional military activity, there would have must understand the practical effects. A sors, academics, and others argued about the been no legal limits on subsequent public rigorous risk analysis should therefore inform structure of the appropriate legal and policy discussion. Alternatively, conducting the any deviation, however permissible under framework. Post-Iraq and post-Afghanistan, raid as a covert action within a military chain domestic law. the United States must still address other of command removes the issues the direc- This article focuses on the risks associ- threats, including those that al Qaeda and tor raised in asserting command authority ated with both using military personnel their associated forces present. over Servicemembers. The decisionmaking to conduct kinetic covert action and using The threats have migrated beyond process remains shrouded, but conducting them without a military chain of command. a battlefield defined by sovereign nations’ a raid into a sovereign country targeting a Those risks inform the recommendation borders. When asked recently in “how many nonstate actor using military personnel and to change practice, but not the law. Specifi- countries we are currently engaged in a equipment under the “command” of the CIA cally, the author rejects melding distinct shooting war,” Secretary of Defense Panetta director and classifying it as a covert action operational military (Title 10) and intel- laughed, responding, “That’s a good question. raises significant legal and policy questions. I have to stop and think about that . . . we’re Such decisions threaten the legitimacy and going after al Qaeda wherever they’re at. . . moral authority of future U.S. actions and U.S. power relies on moral clearly, we’re confronting al Qaeda in Paki- demand a rigorous examination of those and legal legitimacy stan, Yemen, Somalia, [and] North Africa.”13 associated risks. The unresolved legal and policy challenges The Abbottabad raid illustrates the ligence (Title 50) authorities into the often will likely increase in complexity on this post-9/11 security environment convergence mentioned Title 60. Properly classifying geographically unconstrained battlefield. of DOD military and CIA intelligence opera- actions—either under the statute as a covert Remaining rooted in enduring principles is tions.7 While dead terrorists attest to this action or exempted from the statute as a critical. DOD conduct of kinetic operations arrangement’s efficacy, many directly chal- traditional military activity—ensures the beyond traditionally recognized battlefields lenge the legal and policy framework behind correct command structure is in place.8 raises significant legal and policy concerns, current DOD-CIA cooperation. The dis- Ultimately, the analysis argues for revisiting especially where the U.S. Government con- course focuses largely on distinctions between the previously rejected 9/11 Commission ducts them without knowledge or consent of Title 10 and Title 50 and the legal basis for recommendation to place paramilitary the host nation, as apparently happened with conducting apparently overlapping military covert action under DOD control.9 the Abbottabad operation.14 Properly catego- and intelligence operations beyond the This article first outlines current and rizing and structuring these operations, while battlefields of Iraq and Afghanistan. Notwith- likely future threats and then explains the vexing for policymakers and their lawyers, standing the potentially misleadingly simple critical terms of art related to covert action carries much greater stakes for the Service- labels of Title 10 and Title 50, these complex and, against that lingua franca, examines why members executing them. issues lack clear answers. Many argue the kinetic military operations should be either legacy structure ill equips the President to classified as traditional military activities or The Need for a Lingua Franca effectively combat the threat. But tweaking kept under a military chain of command. Colloquial usage refers to DOD authori- that structure carries risk. Thus, correctly Analyzing the relevant constitutional, ties as Title 10, and the CIA’s as Title 50. That classifying and structuring our actions within statutory, treaty, and doctrinal elements of is technically inaccurate and misleading since that framework are critical. The law of war command, this article illustrates that a raid DOD routinely operates under both Titles is designed to protect our nation’s military conducted like the Abbottabad raid, while 10 and 50.15 Instead of Title 10, this article forces when they are engaged in traditional legally permissible, is best conducted as a tra- uses the term military operations; instead of military activities under a military chain ditional military activity. Title 50, it uses CIA operations or the more
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President delivers statement on successful special operations raid on Osama bin Laden compound in Pakistan White House (Pete Souza)
specific covert action. All three terms require cision.20 DOD activities “may be both covert should be limited to clandestine” activities, clarification. and clandestine . . . focus[ing] equally on as this would ensure military personnel are CIA operations are all CIA activities operational considerations and intelligence- protected by the law of war,24 a critical point except covert action. Covert action is the related activities.”21 Appropriately, DOD offi- examined in detail later. narrow, statutory subset of Presidentially cials assert that, absent a Presidential covert Military operations are DOD activities approved, CIA-led activities.16 Unfortunately, action finding, they “conduct only ‘clandes- conducted under Title 10, including activities colloquially, covert action “is frequently tine activities.’” 22 They characterize clandes- intended or likely to involve kinetic action. used to describe any activity the govern- tine activities as those “conducted in secret but Pursuant to an order issued by the Secretary ment wants concealed from the public.”17 which constitute ‘passive’ intelligence infor- of Defense, they are conducted by military That common usage ignores the fact that a mation gathering.”23 Interchanging the terms personnel under DOD command and in traditional military activity, notwithstand- and mixing them with intelligence functions accordance with the law of war. They specifi- ing how “secretly” it is executed, is by statute is inaccurate and dangerous; practitioners cally exclude DOD’s intelligence activities not a covert action. DOD defines a covert must draw clear distinctions. The sponsorship (for example, the Joint Military Intelligence operation as one “planned and executed as of a covert action is hidden, not the act itself. Program); like the CIA’s, those intelligence to conceal the identity of or permit plausible The specific acts of the U.S. Government in activities are conducted pursuant to Title 50. denial by the sponsor,” where “emphasis is influencing a foreign election (for example, Statutorily assigned responsibility helps placed on concealment of the identity of the posters, marches, election results, and so distinguish between CIA operations and sponsor rather than on concealment of the forth) would be visible, but not the covert military operations. Although the President operation.”18 While not in conflict with the sponsorship of those acts. For clandestine can designate which department, agency, or statutory definition, the DOD definition is acts, the act itself (for example, intercepting entity of the U.S. Government will participate incomplete; it fails to recognize the President’s a phone call) must remain hidden. The CIA in the covert action, the statute implicitly role and ignores the exception of traditional and DOD can conduct clandestine operations tasks the CIA as the default lead agency: “Any military activities.19 Practitioners should use without Presidential approval, whereas covert employee . . . of the [U.S.] Government other the statutory definition. action triggers statutory requirements for a than the [CIA] directed to participate in any The concept of clandestine operations Presidential finding and congressional noti- way in a covert action shall be subject either to further blurs colloquial and doctrinal impre- fication. Some have argued DOD’s “activities the policies and regulations of the [CIA], or to
34 JFQ / issue 67, 4 th quarter 2012 ndupress.ndu.edu BERGER written policies or regulations adopted . . . to control of the military commander. Activities clear chain is rooted in the uniquely military govern such participation.25 that are not under the direction and control of concept of command and the President’s Executive order 12333 (EO 12333) makes a military commander should not be consid- constitutionally defined role as Commander that default tasking explicit: ered as “traditional military activities.”29 in Chief. It clarifies congressional oversight responsibility, results in unquestioned jurisdic- The Director of the [CIA] shall . . . conduct That nonstatutory definition frames the tion, and forms the basis of the strongest legal covert action activities approved by the follow-on analysis. That functional and his- argument for combatant immunity. Part 1B President. No agency except the [CIA] (or the torical definition turns on who is in charge. represents the President as chief executive, Armed Forces of the United States in time of Activities under the “direction and exercising oversight and control of the CIA war declared by the Congress or during any control of a military commander” meet the under Title 50. This hierarchy lacks the legal period covered by a report from the President requirement to be excepted from the statute; command authority exercised over military to the Congress consistent with the War Powers those with a different command and control personnel in 1A. Finally, part 1C represents the Resolution. . . .) may conduct any covert action arrangement are not traditional military paradox created by the covert action statute’s activity unless the President determines that activities. “Command” is unique to the attempts to overlap the parallel structures of another agency is more likely to achieve a par- military and the definition appears to draw a 1A and 1B; it is often described as Title 60. ticular objective.26 bright line rule; but the CIA director blurred The current Congressional Authoriza- the line by asserting “command” over a tion for the Use of Military Force allows the The statute, coupled with EO 12333, DOD element.30 The confusion questions the President to “use all necessary and appropriate unequivocally places all covert action necessary nature and scope of leadership by force” to prevent “future acts of international squarely under the CIA’s control; the narrow a “military commander.” What level or rank terrorism against the United States.”32 This exception for DOD is currently inapplicable. of command is required? Must the chain of statutory grant of power creates the paradox: While the Executive order expressly tasks command from that military commander here, where the Senate vote was 98 to 0 and the director with conducting covert action, run directly back to the Commander in Chief the House vote was 420 to 1, the President’s it does not task the Secretary of Defense.27 solely through military channels? Must it run executive authority (as Commander in Chief Default CIA primacy and the absence of through the Secretary of Defense? Can it run and chief executive) is greatest,33 the exercise statutory specificity in defining traditional through the director if there is a military com- of those powers blurs the clear lines of parts military activities create risk when DOD con- mander below him? Given Goldwater-Nich- 1A and 1B of the illustration. Merging the two, ducts kinetic covert action. ols,31 what about the geographic combatant although permissible under the covert action commander? In short, what does the wiring statute, creates risk. The Unique Nature of Traditional diagram look like? These questions highlight Consequently, questions about Military Activities three baseline possibilities as depicted in the the nature and structure of the chain of One practitioner described traditional figure below. command demand rigorous scrutiny and military activities’ exclusion from covert Part 1A of the figure reflects DOD’s Title cannot be left to ad hoc arrangements. action’s definition as “the exception that swal- 10 chain of command, illustrating the broad- Defining military command determines lows the rule.”28 But while DOD-CIA opera- est historical, functional, and consequential whether or not the activity is a traditional tional convergence blurs the issue, the excep- definition of traditional military activity. The military activity and therefore not under the tion need not swallow the rule. Functionally, anything done by a uniformed member of a Chain of Command Possibilities nation’s armed forces is a “military” activity; the nuanced requirement is to understand President as which are traditional military activities. That Commander in Chief President as Chief Executive President definition can be consequential, functional, or historical—or a combination of some or Secretary of all three approaches. The statute’s legislative Defense Director, CIA Director, CIA history provides the best clarification, noting the conferees intended that: Combatant Commander CIA Personnel Subordinate “Traditional military activities” include activi- Military ties by military personnel under the direction Commander and control of a United States military com- Subordinate mander (whether or not the U.S. sponsorship Commander Covert Action of such activities is apparent or later to be “Command” Constitutional and Constitutional and Structure as acknowledged) . . . where the fact of the U.S. Statutory Chain of Statutory Described by role in the overall operation is apparent or to be Command Executive Hierarchy Director Panetta acknowledged publicly. In this regard, the con- ferees intend to draw a line between activities Figure 1A Figure 1B Figure 1C that are and are not under the direction and
ndupress.ndu.edu issue 67, 4 th quarter 2012 / JFQ 35 Essay winners | Covert Action ambit of the statute. The criticality of this tion, “A civilian, other than the President as assets, nor did it grant the President a caveat categorization is twofold: it is the core of the Commander-in-Chief . . . may not exercise like that with the Secretary of Defense’s state’s monopoly on the legitimate use of command.”40 Goldwater-Nichols allows the authority.49 Although the director’s duties force and cloaks Servicemembers in the legal President to exercise command through his include the transfer of “personnel within the armor of combatant immunity. Secretary of Defense. Command rests on con- NFIP,” which includes DOD personnel, such stitutional and statutory authority (including transfers are limited to personnel within Chain of Command, or Control? the Uniform Code of Military Justice) and the DOD’s Joint Military Intelligence Program Since George Washington’s Presidency, customs and practices of the Service. Remov- (JMIP).50 SOF are not part of the JMIP. When the Secretary of War (later Defense) has ing military personnel from that hierarchy— DOD does transfer any JMIP personnel to the served without interruption as a Cabinet illustrated in part 1C of the figure—changes CIA, the director must “promptly” report that member. The President’s role, enshrined in their fundamental nature. This is Panetta’s transfer to both the intelligence oversight and the Constitution, is clear: “The President assertion: he was in “command” 41 of the raid Armed Services Committees of both houses.51 shall be Commander-in-Chief of the Army on Osama bin Laden’s compound. Transfers between other executive branch ele- and Navy of the United States.”34 With the Titles 10 and 50 define the specific ments trigger no such requirements. Congress Secretary of Defense, this embodies the duties of the Secretary of Defense42 and Title only intended CIA control over DOD intel- Founders’ vision of civilian control of the 50 the CIA director’s.43 The duties are neither ligence assets and was clearly concerned about military. The Secretary of Defense’s appoint- identical nor interchangeable. In Title 50, even that. Goldwater-Nichols reinforces this ment requires the “Advice and Consent of the Congress explicitly states that DOD shall analysis. Senate.”35 While the President can relieve him function “under the direction, authority, Goldwater-Nichols codifies geographic and replace him with an inferior officer (that and control of the Secretary of Defense” in combatant commanders’ nearly inviolable is, the Deputy Secretary of Defense), Senate- order to “provide for their unified direction command authority: “all forces operating confirmed executive branch officials are under civilian control.”44 Placing the Services within the geographic area assigned to a not fungible. He cannot interchange officials under the Secretary of Defense is necessary to unified combatant command shall be assigned individually confirmed to fulfill separate and “provide for the establishment of [a] clear and to, and under” his command.52 Two excep- unique duties—something James Madison direct line of command.”45 Congress is equally tions supplant that authority. Servicemembers warned about in Federalist 51.36 clear in Title 10, granting the Secretary com- assigned to U.S. Embassies (for example, the Longstanding U.S. practice is an unbro- plete authority over DOD: “there shall be a Defense Attaché) are under the Ambassador’s ken chain of command from the President, Secretary of Defense, who is the head of the control and the Defense Intelligence Agency’s through his Secretary of Defense, to a subordi- [Department], appointed . . . by the President, command. For those Servicemembers, dip- nate uniformed commander. Even Goldwater- by and with the advice and consent of the lomatic protections have replaced law of war Nichols’s37 streamlining the military warf- Senate.”46 The statute allows the Secretary to protections, but the Secretary of Defense ighting chain of command to run from the “perform any of his functions or duties, or remains in the chain of command. The President through the Secretary and directly [to] exercise any of his powers through” other second exception, carved from Goldwater- to the unified combatant commanders did not persons, but only persons from within DOD.47 Nichols’s “unless otherwise directed by the President” language, covers DOD participa- 53 Goldwater-Nichols codifies geographic combatant tion in covert action. Goldwater-Nichols’s silence on the Secretary of Defense remaining commanders’ nearly inviolable command authority in the chain of command indicates Congress did not intend to change the default hierar- alter that fundamental practice.38 Combatant Two caveats exist to the Secretary of chy. DOD recognized that point by defining commanders simply replace Service chiefs. Defense’s “authority, direction, and control”: combatant command as being “under a single The civilian leader between the Commander the Secretary’s authority is “subject to the commander” and running “through the Secre- in Chief and his senior uniformed commander direction of the President” and the 1947 tary of Defense.”54 All these say nothing about remains unchanged—a specific individual National Security Act.48 The latter covers covert action. confirmed by the Senate to execute statu- DOD personnel within the National Foreign The statute and EO 12333 put the tory duties. The inviolate concept of civilian Intelligence Program (NFIP). The former director “in charge” of the conduct of covert control of the military and the Senate’s Advice appears to be an exception that swallows the actions.55 CIA “ownership” means any and Consent requirement make assertion of rule. But even in empowering the President non-CIA employee supporting a covert action any executive authority to “trade out” duties to limit his Secretary’s authority, Congress “belongs” to the CIA. However, the CIA lacks between Cabinet officials implausible. The did not specifically authorize any change to DOD’s legal command structure and no CIA President can place military personnel under the fundamental command of military forces. official possesses the command authority CIA control, but control is not command. Likewise, in defining the director’s limited inherent in an officer’s commission.56 The Command is the inherently military authorities over military personnel, Congress CIA can only be in charge, not in command. “privilege” that is “exercised by virtue of maintained the military command structure The director cannot give a lawful order that office and the special assignment of members over military operations. would be legally binding on Servicemem- of the US Armed Forces holding military Congress neither allows the director bers. The Constitution unequivocally grants grade.”39 In fact, under the Army regula- command nor control of DOD operational Congress the authority to “make Rules for
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Special operations forces use fast-rope insertion technique during assault and secure building training U.S. Army (Jason Cauley)
the Government and Regulation of the land individual is subject to criminal prosecution ments for those not considered part of the and naval Forces.”57 Those rules, the Uniform for his wartime conduct. His deliberately tar- Nation’s army, is the parallel to Servicemem- Code of Military Justice, never contemplated geting and killing others become nonmilitary bers conducting kinetic covert action under CIA personnel exercising command authority and therefore criminal. In World War II’s CIA control. Combatant immunity neces- over Servicemembers. The CIA’s ownership aftermath, widespread acceptance of what sitates prisoner of war status; for those not of covert action is limited. Exclusive CIA constituted an “army” rendered a definition acting as part of the army, that status requires control fails elsewhere; the statute authorizes unnecessary: “Individuals composing the a military chain of command. Replacing the the President to task “departments, agencies, national forces” automatically enjoyed com- Secretary of Defense with the CIA director or entities”58 to conduct covert action. The batant immunity.60 However, for those outside eviscerates this. implication is that DOD can conduct a covert their nation’s military hierarchy, specificity U.S. history records a fundamental belief action exclusively. EO 12333 specifically envi- was necessary. The Third Geneva Convention in the rules for combatant immunity.68 First, sions that.59 Placing DOD elements under CIA grants prisoner of war status—which confers to codify these requirements, the 1863 Lieber control to conduct a kinetic operation is argu- combatant immunity—to those who are Code defined prisoner of war as including “all ably unnecessary. subordinate to a responsible commander, wear soldiers.”69 The code noted noncompliance This chain of command is constitution- a fixed, distinctive insignia recognizable at a with the rules meant no combatant immunity: ally enshrined, codified, and ratified through distance, carry their arms openly, and conduct spies were “punishable with death by hanging longstanding practice; even if Congress had their operations in accordance with the laws by the neck.”70 “Armed prowlers . . . who steal explicitly authorized the President to reroute and customs of war.61 within the lines of the hostile army for the it, doing so creates risk. First, it removes the The command requirement stems from purpose of . . . killing . . . are not entitled to law of war’s protections upon which Service- the “dual principle of responsible command the privileges of the prisoner of war.”71 The members conducting kinetic operations rely. and its corollary command responsibility.”62 code’s noteworthy purpose was not to regulate In such an event, Servicemembers must be The Hague Convention required that a com- conduct between nations, but for application made aware they are no longer protected. mander be “responsible for his subordinates.”63 in a non-international armed conflict and Second, as a state practice, realigning military The Geneva Convention recognized “no maintaining the moral high ground necessary personnel under a nonmilitary framework to part of [an] army . . . is not subordinated to a to facilitate reconciliation with and reintegra- conduct kinetic activities creates precedential military commander,” applying this “from the tion of the confederate states. risk for U.S. allies. Such a decision must be Commander-in-Chief down to the common The law of war’s efficacy rests on the fully informed at all levels. soldier.”64 The later protocols “could not principle of reciprocity. One party provides conceive” of a hierarchy “without the persons the protections to its prisoners believing Chain of Command: who make up the command structure being and hoping its enemies will respond in kind. International Law Context familiar with the law applicable in armed Commendable German and U.S. treatment National armies engaged against each conflict.”65 This is DOD’s unchallenged area of of each other’s prisoners during World War II other have, throughout modern history, expertise.66 Like Congress’s definition of tra- exemplifies this principle; Japanese treatment been cloaked in the law of war’s combatant ditional military activity,67 the commentary’s of U.S prisoners at Bataan proves its imper- immunity. Absent that immunity, a captured definition, when coupled with the require- fections. Regardless, maintaining the moral
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as traditional military activities, maintaining secrecy and preserving individual Service- member protections. The need for continued distinction between covert action and tradi- tional military activities and, where covert, the need for DOD-conducted operations to main- tain a military chain of command, drive these recommendations. The United States should revisit the rejection of the 9/11 Commission’s recommendation that DOD assume responsi- bility for paramilitary covert operations.75 Where DOD participation is neces- sary and primary, the operation should be conducted as an unacknowledged traditional military activity. If the risk analysis drives a decision to conduct the operation as a covert action, the President should maintain the military chain of command. This ensures Ser- vicemembers going in harm’s way have every protection the Nation they serve can provide Special Operations Task Force West Marines investigate Taliban presence in Zanghlav, Herat Province them—or a clearer understanding of the U.S. Army (Kimberly K. Fritz) additional risks they are assuming on behalf high ground is critical. Had Abbottabad gone DOD can undoubtedly conduct secretive of their Nation. JFQ poorly, the United States would have asserted (that is, clandestine and/or unacknowledged) that U.S. personnel in Pakistani custody were actions as traditional military activities Notes entitled to the high standards of prisoner of and enjoy the full body of the law of war’s 1 Kimberly Dozier, “AP Sources: CIA-Led war treatment. That would have required protections. The current framework neither Force May Speed Afghan Exit,” ABC News Online, those Soldiers and Sailors to be in compliance envisions nor facilitates placing Servicemem- March 3, 2012, available at
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DC: Congressional Research Service, 2011), avail- 29 H.R. Rep. No. 102-115, at 5898 (1991) (Conf. 62 Elihu Lauterpacht et al., International Law able at
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