In yesterday’s Wall Street Journal, Gordon Lubold and Shane Harris reported that President Trump “has given the Central Intelligence Agency secret new authority to conduct drone strikes against suspected terrorists, … changing the Obama administration’s policy of limiting the spy agency’s paramilitary role and reopening a turf war between the agency and the Pentagon.” The article is sparking a lot of hand-wringing. Should it?
Latest in Joint Special Operations Command (JSOC)
With less than two months to go before it hands over power to the Trump administration, the Obama administration is continuing to fine-tune the legal, policy, and institutional architectures that guide its approach to the ongoing conflict with al Qaeda. Under that heading, I want to flag some important recent developments.
1. AUMF expansion: al Shabaab is now a full-fledged "associated force"
Greg Miller has an interesting and seemingly quite well-sourced article in the Washington Post today documenting (and offering explanations for) a significant decline in CIA drone strikes. To be clear, the claim is not that drone strikes on the whole are in decline.
Oversight of DOD Kill-Capture Missions Outside Theaters of Major Hostilities: What May Change Under the Next NDAA?
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:
These days, when the United States plays the lead role in using lethal force or detaining and interrogating prisoners, the force typically involves only airpower and detention-and-interrogation typically are just transient. This has the effect of tamping down the political, legal, and diplomatic headaches that follow from using boots-on-the-ground to conduct raids and from holding detainees for the long term. But these are not the only means by which to tamp down those frictions.
The Expeditionary Targeting Force in Iraq: Putting the Short-Term Military Detention Model to the Test
It is commonly said that the Obama administration rejects the use of military detention, and understandably so. Many factors support that characterization, after all: no new detainees have been brought to Guantanamo under this administration; President Obama himself has depicted GTMO as inconsistent with our values and the rule of law (despite the fact that his Justice Department has been defending the legality of the GTMO detention model for seven years and counting); and in recent years we ended U.S.
An article by Mark Mazzetti and Eric Schmitt in today's New York Times discusses a Pentagon plan for expanding/developing the global basing framework for counterterrorist activities, particularly those involving SOF and "intelligence operatives." This should not come as a surprise.
I'm not certain this adds value, but I've decided to give Storify a shot. My first shot at it uses the platform to pull together my posts on the ongoing development of the statutory regime for oversight of kill/capture ops conducted by the military outside of theaters of major ongoing hostilities, along with some accompanying commentary from others and links to news articles and the statute itself. Not particularly different from my regular post here at Lawfare a few hours ago, but a different packaging. My sense is this will be useful in some contexts much more than others.
A little-noticed provision of the National Defense Authorization Act for Fiscal Year 2016 might expand Congressional oversight of kill/capture operations conducted by the U.S. military. The change arguably reflects the ongoing process whereby U.S. involvement in Afghanistan is coming to resemble our involvement in Yemen and Somalia (and we now might add Libya), and constitutes the latest development in the long-running process whereby we are evolving a legal architecture for kinetic operations in situations that are not obviously full-fledged combat operations.
This weekend the New York Times ran a lengthy piece about SEAL Team 6, with the dramatic subtitle “A Secret History of Quiet Killings and Blurred Lines: The unit best known for killing Osama bin Laden has been converted into a global manhunting machine with limited outside oversight.” With that framing, I anticipated the story might reveal operations involving the use of lethal force against groups or individuals not obviously within the scope of the 2001 AUMF or at least