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CIA or DoD: Clarifying the Legal Framework Applicable to the Drone Authority Debate

By   /  April 4, 2013  /  Comments Off on CIA or DoD: Clarifying the Legal Framework Applicable to the Drone Authority Debate

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From Rand Paul’s filibuster to a United Nations inquiry, the Obama Administration’s use of Unmanned Aerial Vehicles (UAVs), known colloquially as “drones,” in its targeted killing operations has once again become the hot topic. The American public is questioning the morality and utility of drone operations while also pushing for greater accountability and transparency. In an apparent response to its critics, the Obama Administration is apparently debating whether to transfer control over the drone-based targeted killing operations from the Central Intelligence Agency (CIA) to the Department of Defense (DoD).

Some recent editorials note that moving drone operations from the CIA to the DoD invokes the classic Title 10-Title 50. These articles focus on the potential shift in oversight authority over drone strikes from the House and Senate Select Committees on Intelligence to the House and Senate Armed Services Committees and on whether the shift in authority will result in increased accountability and transparency. For instance, Wired’s Spencer Ackerman believes that although the DoD is “more likely” to grant Congress insight into its drone operations, little will change because “the important leverage points over the drones . . . are political, not institutional.” Slate’s Fred Kaplan is more optimistic, but hedges his bets on whether additional oversight will actually occur. Unfortunately, in an attempt to simplify the debate for their readers, some authors have misconstrued several key elements in the Title 10-Title 50 debate.

Scholars and practitioners use the term “Title 10 authority” as a catchall phrase to describe the legal authority for military operations. Unfortunately, the use of the term in this way is misleading because “Title 10 – Armed Forces” does not contain actual operational authorities; it merely describes the organizational structure of the Department of Defense. In fact, the U.S. military’s true operational authority stems from the U.S. Constitution and the President’s Commander-in-Chief power.

Like the term “Title 10 authority,” Title 50 authority is a misnomer. Title 50 is often referred to as the CIA’s authority to conduct its intelligence operations and covert actions –like drone strikes. Yet Title 50 of the United States Code is actually titled “War and National Defense.” Thus, it contains much more than just CIA authority. Military personnel can also act under Title 50 authority – a fact often overlooked in news articles and editorials. In fact, the DoD undertakes the majority of intelligence activities under Title 50 authorities.

Like moving drone operations from the CIA to the DoD, the Title 10-Title 50 debate is really about oversight and accountability, particularly congressional oversight.

Title 10 oversight lies with the House and Senate Armed Services Committees and the Executive Branch. In terms of operational oversight, it primarily consists of oversight over “traditional military activities.” Traditional military activities are undertaken: 1) By military personnel; 2) Under the direction and control of a United States military commander; and 3) related to ongoing hostilities where the fact of the U.S. role in the overall operation is apparent or to be acknowledged publicly.

With regard to drone operations, the keys aspects of this definition include who is undertaking the strikes and under what command structure; the strikes’ relationship to “ongoing hostilities;” and the level of secrecy involved. Current DoD drone operations in Afghanistan, for instance, would clearly fall under congressional oversight of traditional military operations. It is also clear that any CIA drone strikes would not fall under Title 10 oversight.

However, there are multiple scenarios in which DoD drone operations would not fall under Title 10 oversight. Given the conjunctive, three-part test defining a traditional military activity, drone operations 1) outside the context of ongoing hostilities, 2) under CIA command and control, or 3) not acknowledged publicly, would not be considered traditional military activities, regardless of whether military personnel piloted the drone and pulled the trigger. Therefore, the Obama Administrations’ impending decision to move drone operations from the CIA to the DoD may have several loopholes.

Indeed, these operations would likely be considered “covert actions” and held accountable to Title 50 oversight and accountability. A covert action is “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.”

Overall, Title 50 oversight may actually be more stringent, though less transparent, than Title 10 oversight. Drone operations classified as covert actions –whether undertaken by the CIA or the DoD- are subject to both a presidential finding and congressional notification requirement. Section 413(b) of Title 50 of the U.S. Code requires the President to keep the congressional intelligence committees “fully and currently informed” of all ongoing covert actions. It also requires the President to report his presidential finding to the intelligence committees “as soon as possible after such approval and before the initiation of the covert action.” However, in “extraordinary circumstances affecting vital interests of the United States,” this prior notification requirement can be limited to the so-called “Gang of Eight.” Although in these extreme cases the prior notification requirement is limited, it is important to note that, at least under the statutory authority, the President simply cannot refuse to notify Congress.

Ultimately, as many of the recent editorials note, any shift in the operational authority over drone strikes from the CIA to the DoD may have little practical effect. This posting explains that the intended increase in accountability and transparency may actually be prevented by the Title 10-Title 50 legal framework meant to provide congressional oversight over drone operations. This is because Congress’ Title 50 oversight functions are meant to provide limited, yet timely information for those operations that, if made public, would prove damaging to U.S. national security or foreign relations. In contrast, Congress’ Title 10 oversight is less stringent because did not envision the military engaging in ongoing hostilities against a global terrorist threat. Given the legal framework governing operational oversight, the Obama Administration might consider providing more transparency and accountability through regularly scheduled, voluntary briefings rather than shifting operational command and control.

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