Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military. University of Texas law professor Robert Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary. Whether this is an important step or not depends on one’s starting point, of course; I agree with Chesney that it is a big deal and a welcome step to regularizing . (Though if one’s view is that all these operations are unlawful, or that they require judicial oversight, or something else, whether from the Left of the Democratic Party or what we might call the Pauline wing of the Republican Party, then you won’t be much moved.)
Seen within the framework of US law and oversight of overseas use of force operations, this is an important step. A couple of observations. First, this (soon-to-be) proposed legislation is with respect to operations conducted by the US military under US Code Title 10; it does not cover CIA activities, which are already subject to oversight and reporting under US Code Title 50. Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; essentially it increases the role of the Armed Services committees in oversight of US military operations in what it defines as “Sensitive Military Operations” – which in practice means clandestine Joint Special Operations Command (JSOC) activities. It does not alter the existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations. Why this focus on military operations conducted by JSOC?
Counterintuitive as many might find it, the CIA is subject to far greater oversight, and at a far higher level of government, in its conduct of Title 50 covert activities than the US military is in its conduct of armed operations under Title 10. There are good reasons why the military is not subject to direct oversight in essentially tactical decision-making in its traditional military activities once a decision has been made to commit to the use of force. These decisions have long been understood to be within the discretion and responsibility of commanders who have the expertise to carry them out. Oversight through the Armed Services committees is robust, including its closed sessions, but is not considered the same as that which Title 50 requires for covert activities because the kinds of activities traditionally conceived – conventional conflict versus covert activities – were different. However, the expansion of the US military into clandestine activities – which might or might not meet the legal definition of “covert” under Title 50 and so trigger those oversight functions – has raised new questions as to whether the Armed Services committees’ oversight, traditionally conceived for conventional conflicts, keeps Congress sufficiently informed and permits sufficiently timely oversight in the case of activities carried out by JSOC.
[Added: Chesney has amended his original post to emphasize that in practice JSOC operations receive an op-by-op review by the Armed Services committees; he points to this Craig Whitlock article in the Washington Post. I am quite prepared to believe this, but agree with Bobby that the formalization of this process in law remains just as important as ever. The problem of "institutional settlement" in US counterterrorism policy, discussed at the bottom of this post, is in large part taking jury-rigged and ad hoc processes, in order to both make them permanent features of the national security toolkit and to regularize and institutionalize them.]
Whether there is sufficient oversight depends partly on whether you think that oversight by the Intelligence committees is sufficient, or whether, in the case of US military operations through JSOC, the Armed Services committees ought to be more involved irrespective of what happens in the Intelligence committees. My strong impression is that members of the Armed Services committees, on both sides of the aisle, believe that there needs to be a stronger role for those committees; this bill is partly a response to that concern. This is reinforced by a further feature of the existing legislative structure for oversight. Title 50 defines covert activities, but then exempts from the definition “traditional” military activities as well as activities done in routine support of others’ (e.g., CIA) activities.
This suggests – at least as a structural possibility – that important JSOC operations might be carried out on an internal legal view that they do not constitute “covert” activities because they are “traditional” military activities, and therefore do not trigger Title 50 oversight. As military activities, oversight would take place through the Armed Services committees, but only in the relatively limited way that now exists. One result of Rep. Thornberry’s proposed reforms would be essentially to close that structural gap. It does so by requiring oversight through the Armed Services committees for any “Sensitive Military Operation” carried out by the military, without regard to any other obligations under Title 50 covert activities. Among its specifics, it requires reporting on the process and criteria for targeting decisions – the so-called “kill list” committees and “disposition matrix.”
This seems to me a very good idea. I need to think through other parts of the proposed legislation to be sure I understand the implications, but as a general proposition, I’ve long believed that “institutional settlement” of the permanent structure of US “counterterrorism-on-offense,” as I’ve sometimes termed it, requires important reforms and updating of the legislative structure of oversight in order to take account of the realities of targeted killing, drone warfare, and other forms of highly targeted use of force, as well as the expansion of JSOC and its capabilities. This proposed legislation is a first, and welcome, step toward getting Congress directly involved in that reform process. Congress needs to be directly involved in updating the machinery of covert and clandestine operations – more precisely, in delineating the range of activities that involve discrete, intelligence-driven uses of force that carry hostilities directly to terrorism targets – and the oversight processes. The administration ought to work with Congress to do that. It is an area that – unlike many others, such as Guantanamo, what happened and why at Benghazi, etc. – ought to permit for a lot of bipartisan agreement. Here is Chesney’s bottom line:
What’s not to like? I have long had concerns with respect to whether there was adequate operation-by-operation transparency vis-à-vis Congress when it came to JSOC direct action outside of Afghanistan. This legislation speaks directly and clearly to that concern, while also moving the ball forward at least a bit in terms of forcing the executive branch to explain to the armed services committees the legal and policy elements that govern its decisions regarding the designation of individuals or groups as objects of direct action. The Obama administration should get behind this, not resist it—especially if it is inclined to shift some or all of the CIA’s kinetic portfolio over to JSOC.
This is not, as regular readers will know, an unstated attempt on my part to kill off these programs by process reforms. It is instead endorsement of attempts to “discipline” them – as Harold Koh put it in his Oxford Union speech a few days ago – and put them on a footing of institutional permanence, so that these tools join the permanent repertoire of national security available to presidents into the future. That requires a process of oversight by the political branches more attuned to the realities of how covert and clandestine uses of force are likely to unfold than existing statutes do today. As it happens, Benjamin Wittes and I are co-authoring a new book that addresses the terms of institutional settlement in counterterrorism, based in an analysis and reconstruction of speeches by senior Obama officials and agency general counsels on national security (we’re putting it out chapter by chapter online, and Hoover Press will put out a hardback once completed).