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Oversight of DOD Kill-Capture Missions Outside Theaters of Major Hostilities: What May Change Under the Next NDAA?

Robert Chesney
Friday, May 20, 2016, 4:02 PM

Despite the substantial overlap between counterterrorism activities undertaken by the CIA and JSOC, we tend to pay a lot more attention to the details of the congressional oversight framework for the former as compared to the latter. The NDAA often addresses CT oversight relating to DOD activities, however, and this year is no exception. What follows below is an attempt to provide a user-friendly guide to the proposals on the table.

I. Increasing the pace of quarterly operational briefings regarding CT:

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Despite the substantial overlap between counterterrorism activities undertaken by the CIA and JSOC, we tend to pay a lot more attention to the details of the congressional oversight framework for the former as compared to the latter. The NDAA often addresses CT oversight relating to DOD activities, however, and this year is no exception. What follows below is an attempt to provide a user-friendly guide to the proposals on the table.

I. Increasing the pace of quarterly operational briefings regarding CT:

Currently, 10 USC 485 requires DOD to make a quarterly report to HASC and SASC “outlining [DOD] counterterrorism operations and related activities,” including coverage of the following topics:

(1) A global update on activity within each geographic combatant command and how such activity supports the respective theater campaign plan.

(2) An overview of authorities and legal issues, including limitations.

(3) An overview of interagency activities and initiatives.

(4) Any other matters the Secretary considers appropriate.

I have no idea whether this report really matters much for HASC and SASC awareness of the particulars of where and how DOD in general, and JSOC in particular, conduct CT activities. But it seems HASC likes the vehicle enough to want to see much more of it: Under section 1031 of the House NDAA bill, the section 485 report would become a monthly rather than quarterly obligation. The Senate bill, in contrast, does not make this change.

II. Expanding the “Sensitive Military Operations” Notification System

When CIA engages in CT activities via covert action, the well-known requirements of a written Presidential finding and notification of that finding to SSCI and HPSCI of course apply. But what happens when the exact same sort of activity occurs, instead, as a Title 10 activity? (“Traditional military activities” do not count as “covert action” subject to Title 50 oversight rules, after all). This question is particularly important in the context of kill or capture operations that may take place in locations where the U.S. military is not otherwise engaged in sustained, overt, combat operations.

For this reason, Congress several years ago enacted a special notification regime for a category of operations it labeled “sensitive military operations,” or SMOs. The basic idea is that DOD must give written notification promptly (though only “after the fact”) to SASC and HASC when it conducts an SMO. See 10 USC 130f.

The key question is: what counts as an SMO?

Distilling the various elements, the trigger boils down to this checklist (the statute does not list the elements this way, but I think this is an accurate--and definitely clearer--paraphrase):

1) point of the operation is to capture or to kill someone;

2) the operation occurs outside US territory;

3) the operation also occurs outside “a theater of major hostilities”;

4) the operation is carried out by US armed forces;

5) the operation is not governed by Title 50 (so Neptune’s Spear would not count, for example); and

6) the affirmative domestic law authorization for the op comes from either:

a) the 2001 AUMF, or

b) “any other authority” aside from a formal Declaration of War or some other AUMF aside from the 2001 AUMF.

I used bold above to highlight the two trickies parts. What counts as a theater of major hostilities, and what is this confusing business about domestic authorization? Let’s review that before moving on to consider how the new NDAA bills in the House and Senate might impact this system.

1. What Counts as a Theater of Major Hostilities?

Alas, the statute does not attempt to define “theater of major hostilities,” so the question appears to be left to DOD and SASC/HASC to work out in practice. That said, the statute contains an explicit carve-out for Afghanistan good through the end of 2017, which has the practical effect of ensuring that no one can argue that the SMO oversight regime applies to kill/capture operations there for the time being.

There is no similar exception for Syria or Iraq, for example, though one can imagine that DOD might want to argue that our engagement there amounts to major hostilities at this point. Then again, let’s not forget the Administration’s crabbed interpretation of the “hostilities” concept as employed in the WPR setting vis-à-vis Libya in 2011. Might the same reasoning be extended to this setting, to try to avoid having to give operation-by-operation notifications (bear in mind that we have loudly proclaimed our deployment of the SOF Expeditionary Targeting Force to engage in precisely these sorts of missions)?

2. How Does the Domestic-Law-Authorization Criterion Work?

Perhaps the Expeditionary Targeting Force question in Syria/Iraq is moot. The most convoluted part of the SMO trigger is that last criterion, which turns off the notification requirement when the affirmative domestic law authorization for the operation comes from either a Declaration or an AUMF other than the 2001 AUMF. I can’t tell you what the point of having this criterion in the mix, but I can tell you that so long as the administration claims its anti-ISIS efforts are rooted in both the 2001 AUMF and the 2002 Iraq AUMF, it sure looks like they could claim by extension that no kill-capture ops conducted under that rubric would be subject to the SMO notification system.

3. Anything else to know about the status quo for SMO oversight?

Yes: As noted above, the system applies only to military operations conducted under Title 10, and does not reach situations such as Neptune’s Spear, where JSOC or other forces might temporarily act under color of Title 50. Of course, the Title 50 scenario triggers the Presidential Finding requirement and notification to SSCI and HPSCI. But SASC and HASC don’t want to be left entirely out of the loop regarding such situations. Note the following:

Department of Defense support to operations conducted under the National Security Act of 1947 (50 U.S.C. 3001 et seq.) is addressed in the classified annex prepared to accompany the National Defense Authorization Act for Fiscal Year 2014.

Paging Dakota Rudesill! Who knows what this reference concerns, but I speculate that it ensures some degree of notification or reporting to SASC and HASC.

4. So, how might this system change under the new NDAA?

Section 1036 of the House NDAA would modify this system as follows:

a. Require the notification to be delivered within 48 hours after the SMO, rather than the indeterminate current standard.

b. Clarifying that the SMO regime applies not just to activities undertaken solely by the United States, but also to operations undertaken “cooperatively” with others.

c. Extending the definition of SMOs to encompass not just the existing categories defined as “lethal” or capture operations but, also, “an activity of self-defense, collective self-defense, or in defense of a foreign partner during a cooperative operation.”

That first change is self-explanatory. As to the other two? Hard to say. Perhaps a response to situations such as those in which the United States uses force against al Shabaab personnel in Somalia not as part of a targeted strike against al Qaeda-linked high-value targets but, rather, in collective self-defense of AMISOM personnel (see, e.g., here)?

Meanwhile, we also have SASC’s NDAA bill, which is a bit different. In relevant part, section 1044 would make the following changes:

a. Specify 36 hours as the notification period post-SMO.

b. Simplifying the SMO definition to some degree by eliminating reference to the affirmative domestic legal justification for the operation (i.e., making it irrelevant whether the operation occurs under the 2001 AUMF, the 2002 AUMF, Article II, or what-have-you).

c. Modifying the SMO definition to reach the “self-defense” and “defense of foreign partners” scenarios, much like the House bill but with different language.

d. Eliminating the language that makes all of Afghanistan immune from the SMO oversight system.

What to watch for in the conference committee:

The conferees will need to:

a. choose between 36 and 48 hours as the notification period;

b. decide whether to exempt all operations in Afghanistan or not;

c. decide whether to drop the affirmative domestic authorization criterion; and

d. decide whether to move the quarterly-reporting system to a monthly system.

It’s hard to see anything really turning on (a) (the 36 vs 48 hours question).

The next two questions (b and c) seem to matter a lot, however. The idea behind the general exception for “theater of major hostilities” (and the specific exception for Afghanistan) was, no doubt, that Congress has no business asking DOD for operation-by-operation notifications during high-intensity conflict. Put another way, the whole point of the new SMO regime was not to inject Congress into the full-spectrum of conflict, but rather just into the extra-sensitive scenarios in which force might be used in other settings. Alas, it’s difficult to say just how to draw the line between these categories, even if the distinction is clear at the ends of the spectrum. The “theater of major hostilities” language is indeterminate, and probably purposefully so from this perspective. It leaves the answer in close cases to be sorted out quietly, behind closed doors, between the Pentagon and SASC/HASC.

Stay tuned for more as the NDAA bills continue to churn along...

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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