War Powers

Important New Oversight Legislation for Military Kill/Capture Outside Afghanistan

By Robert Chesney
Thursday, May 9, 2013, 12:24 AM

Big news out of the House Armed Services Committee: Representative Mac Thornberry (a graduate of the University of Texas School of Law, I proudly note) is going to introduce a bill enhancing oversight of kill/capture operations that may be conducted by the armed forces outside of Afghanistan.  [UPDATE: Full disclosure: I gave comments on an early draft of this bill.  Also, I should have emphasized in my original post that SASC and HASC reportedly already receive something very close to the operation-by-operation disclosure required in section 2 of this bill (see this piece by Craig Whitlock this morning); the main impact of section 2 is to formalize and entrench that practice, which is no small thing of course.]

This is a big deal, in my view, an important adjustment to the legal architecture that governs kinetic national security activities and a long-needed response to the increasing significance of such activities outside of conventional battlefields in the post-9/11 era.  (This is a topic I treat at some length in this article on the evolution of SOF and CIA activities over time and how that evolution has tended to disrupt the legal framework of oversight.  Not surprisingly, I am quite pleased to see a serious legislative initiative to address this issue.)

Without further ado, here is the bill, and here is my section-by-section analysis and bottom line:

Section 1 – Short Title

  • The legislation is titled the “Oversight of Sensitive Military Operations Act.”

Section 2 – Congressional Notification of Sensitive Military Operations

(a) Required Notification

  •  This section would create a new congressional oversight mechanism, focused on keeping the Senate Armed Services Committee and the House Armed Services Committee (SASC and HASC) notified on an individual, post-hoc basis of kill/capture operations conducted by the military outside of the Afghan battlefield.  It does this through creation of 10 USC 103f, which would contain the following sections:
  • Section 130f(a) – requires written, post-hoc notification to SASC and HASC.  No specific deadline; the language is “promptly.”  Not necessary that POTUS sign it, so this is not quite analogous to notification to SSCI and HPSCI of covert action findings (though there are obvious parallels).
  • Section 130f(b) – requires SecDef to develop compliance procedures and report them to SASC and HASC (a later section requires this to be done within 60 days of passage), and also requires SASC and HASC to review their existing (and much-tested) procedures to ensure that the new notification regime won’t risk inappropriate disclosures.  One issue to consider here: Should this be tweaked to ensure that the notification regime includes sharing of notifications with SASC and HASC staff, including lawyers?
  • Section 130f(c) – defines “sensitive military operations” (SMOs) with four elements:
  1. Operation involves lethal force or attempt to capture
  2. Carried out by US armed forces (without respect, notably, to whether those armed forces are acting in a Title 10 or Title 50 capacity, thus closing an oversight gap that arguably emerged thanks to the Traditional Military Activities exception to the Title 50 covert action definition and also ensuring that SASC and HASC stay informed on a timely and relatively granular basis when it comes to SOF or other armed forces acting temporarily within a Title 50 framework; note that the language would not obviously encompass a “proxy force” scenario involving close support to direct action conducted by a foreign security service/military).
  3. Carried out abroad (but see section 130f(d) below, which excludes Afghanistan for now)
  4. Carried out under color of the 2001 AUMF or Article II authority (that is, generally applicable except in the event of some future AUMF or some future declaration of war; obviously this element could have interactions with a possible revision to the 2001 AUMF…in the event there is a revision to the 2001 AUMF, either this passage in the SMO oversight bill would need to be tweaked or else the AUMF renewal legislation should speak directly to the SMO scenario)
  • Section 130f(d) – excludes SMOs in Afghanistan from the notification regime, presumably on the theory that Afghanistan for now at least remains a zone of combat operations, meaning that there would be both too many such operations to justify this sort of each-time reporting, and that the circumstances of such operations in combat zone don’t warrant such a legislative intrusion (in contrast to places like, say, Yemen…of course, our operations in Afghanistan itself are likely in 2015 to look more like today’s activities in Yemen, so this carve-out should not be permanent).
  • Section 130f(e) – clarifies that nothing in this statute should be construed to impact existing reporting obligations under the War Powers Resolution or the scope of authorities that might exist under the 2001 AUMF.  That bears repeating: this bill is purely about adding a new wrinkle to the oversight architecture, not limiting existing elements let alone creating new affirmative authorities.

Section 3 – Report on Process for Determining Targets of Targeted Lethal Operations

  • I like this part as well.  Having created a new operation-by-operation notification system in section 2, section 3 reaches out for information about how the executive branch goes about making decisions to identify either an individual or a group as targetable in a SMO.
  • Specifically, section 3 gives SecDef 60 days to report to SASC and HASC as to both the “considerations and approval processes” used to make such decisions.  Smartly, the obligation extends explicitly both to legal and policy elements.

 Section 4 – Counterterrorism Operational Briefings

  •  This section at first blush appears to buttress the SMO notification system from section 2 by adding a system requiring quarterly reporting by SecDef (to SASC and HASC) on SOF activities relating to “counterterrorism” (a category obviously broader than SMOs), including (i) updates on activities within each geographic combatant command, (ii) updates on current state of legal authorities and other legal issues, and (iii) updates on “interagency activities and initiatives” (read: cooperation with CIA).
  • The thing is, though, this provision actually is on the books already.  It was section 1031 in the NDAA FY ’12 (see here).  It’s just never been codified.  So the point of section 4 of this new legislation is simply to remedy that, locating the quarterly updates on SOF CT activity in 10 USC 492.

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.