Recent events, such as Central Intelligence Agency (CIA) and the Department of Defense (DoD) “drone” programs and CIA Director
Leon Panetta’s unequivocal statement that the SEAL Team 6 raid resulting in Al-Qaeda leader Osama Bin Laden’s death was a “Title 50 operation,” have led both scholars and practitioners to express concern about military-intelligence convergence and unclear distinctions between the so-called “Title 10” and “Title 50” legal authorities. This concern has also extended to Special Operations Forces (SOF) use of Operational Preparation of the Environment (OPE) and DoD’s classification of OPE as a traditional military activity.
The House Permanent Select Committee on Intelligence (HPSCI) has publicly criticized the DoD for frequently labeling DoD activities as OPE. The HPSCI scathingly opined that “overuse of the term has made the distinction [between traditional military activities and intelligence functions] all but meaningless,” and that DoD “appl[ies] the OPE label where the slightest nexus of a theoretical, distant military operation might one day exist.”
Terms like OPE and the various terms used by Director Panetta in his interview with PBS can be confusing and are often misused. These terms are legal terms of art, and part of the larger legal framework that authorizes and provides for executive and congressional oversight over military and intelligence operations. Thus, the clear definition and appropriate use of these terms is crucial for the national security of the United States.
A significant portion of this legal framework is found in Title 10 and Title 50 of the United States Code. Of particular relevance to this Title 10/Title 50 “debate” is the definitions of covert action and traditional military activity (TMA).
50 U.S.C. § 413b defines covert action as “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.” Operations that constitute TMA or “routine support” to such activities avoid the “covert action” label. This exception is significant because of the presidential finding and congressional notification requirements that attach to activities carried out under covert action authority.
So what is TMA? TMA does not have a statutory definition. Nevertheless, legislative history provides a three-part, conjunctive test that determines whether an activity constitutes TMA. TMA includes activities:
1) By military personnel;
2) Under the direction and control of a United States military commander; and
3) Preceding and related to hostilities which are either anticipated (meaning approval has been given by the National Command Authorities for the activities and for operational planning for hostilities) to involve U.S. military forces, or where such hostilities involving United States military forces are ongoing, and, where the fact of the U.S. role in the overall operation is apparent or to be acknowledged publicly.
OPE is primarily an enabling tactic that facilitates future military operations. It is an amalgam of lesser activities that combine to minimize surprise and manage uncertainty by leveraging the capabilities and assets at the disposal of SOF to shape the environment. The “environment” that is being shaped, or “prepared” includes both the physical environment and “human terrain.”
OPE fits snugly within the abovementioned definition of TMA. It is undertaken by SOF personnel, under the direction and control of SOCOM, and, by definition, its activities precede and are related to anticipated hostilities against Al-Qaeda and its affiliates.
When combined with the reality of the current “armed conflict” against Al-Qaeda and its affiliates, the intricacies of the Title 10/Title 50 debate and the military-intelligence convergence provide a challenging set of legal and policy issues regarding both exactly when and under what circumstances the DoD must receive presidential authorization and when it must notify the proper channels of congressional oversight. As the HPSCI’s retort emphasizes, the DoD’s classification of some of its activities as OPE only adds another layer of obfuscation. Nevertheless, OPE is a legal and beneficial tool in the United States’ arsenal of traditional military activities against Al-Qaeda and its affiliates and one that cannot be abandoned simply because of congressional discomfort.