AUMF: Scope and Reach

Oversight & JSOC: Withholding Funds to Force Disclosures on Targeting Process?

By Robert Chesney
Tuesday, May 6, 2014, 12:00 PM

Has DOD failed to comply with its statutory obligation to explain to Congress how the executive branch decides which groups and persons are within the scope of the AUMF?

HASC Chairman McKeon has released the Chairman's Mark for the National Defense Authorization Act for Fiscal Year 2015 ("NDAA FY'15"),  HR 4435.  As always there is much in the bill that should be of interest to Lawfare readers.  I'd like to draw attention to an important section that addresses Congressional oversight of "targeted operations" carried out by the military (read: use of force by JSOC to capture or kill under color of the AUMF).

Last year's NDAA included an important piece of oversight legislation in this area: the Oversight of Sensitive Military Operations Act (OSMOA), sponsored by HASC Vice Chairman Mac Thornberry (see my comments at the time here).  In brief, OSMOA enhanced existing oversight of DOD operations by creating 10 USC 130f, which in relevant part requires case-by-cast notifications to SASC and HASC when the military carries out a targeted kill or capture operation outside of Afghanistan.  This ensures oversight is granular in this setting in a manner akin to SSCI/HPSCI oversight of comparable CIA activities, albeit with the difference that there need not be a written Presidential finding undergirding the military operations.  Anyway, OSMOA not only imposed this reporting requirement but also required DOD to (i) develop a compliance system to ensure the oversight occurs and to share the particulars of that system, and (ii) produce a report explaining how the executive branch goes about deciding that particular individuals or groups are targetable.  And in both cases this information was to be provided to SASC and HASC within 60 days.

Well, it appears this has not happened in either case.  The newly-released Chairman's Mark threatens to freeze 25% of the budget for the Office of the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict if these materials are not forthcoming:

Section 1046—Submittal of Procedures and Reports Relating to Sensitive Military Operations

This section would prohibit the obligation or expenditure of 25 percent of the funds authorized to be appropriated by this Act or otherwise available for fiscal year 2015 for the Office of the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict until the congressional defense committees receive the procedures required by section 130f(b)(1) of title 10, United States Code, and the report required by section 1043 of the National Defense Authorization for Fiscal Year 2014 (Public Law 113-66).

Sections 1041 and 1043 of Public Law 113-66 are critical to the congressional defense committees' oversight of targeted lethal and capture operations conducted by the armed forces. The committee is troubled that the Department has missed the statutory deadlines for submitting these materials.

The issue is summarized in the fact sheet that HASC has released on the bill, and the bill itself (with the above-quoted summary appears here.