Covert Action Title 10, Title 50, and the Chain of Command

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

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