Thursday, October 3, 2013, by Nicholas Turza
That the President frequently employs drone strikes against national security threats – mainly Al-Qaeda and their ilk in hiding spots such as Pakistan and Yemen – is certainly no secret. But the legal authority under which those operations is, literally, the code of secrets. Rather than operating under traditional military Title 10 authority, these strikes have long been governed by the clandestine U.S. statutes of Title 50 in the US code. That was, at least, until May of last year. President Obama signed an order in late Spring to execute a phased transfer of the Central Intelligence Agency’s lethal unmanned aerial vehicle (UAV) counterterrorist (CT) operations to the Department of Defense. Transparency supposedly motivated President Obama’s decision, as did as a desire to reset the CIA’s mission after its growth beyond intelligence collection since President Bush endorsed its paramilitary initiative immediately after 9/11. In breaking the story, the Daily Beast quoted unnamed senior officials in claiming that the move would “toughen the criteria for drone strikes, strengthen the program’s accountability, and increase transparency.”
Moving the CT drones out from the umbrella of the CIA and under the far-more-transparent DoD could score easy political points among pacifists who have become greatly skeptical of the Nobel Peace Prize winner who expanded Bush’s war in Afghanistan and pushed for two more in the Near East. Greater transparency should be welcome considering the President’s particular embrace of lethal drone strikes, even if nuanced, as a CT tool despite the rising skepticism of the ethics of their use from not only the left but the libertarian right as well. (Of course, this growing domestic skepticism only adds to the outright opposition to the use of drone strikes overseas, particularly in Pakistan.) Despite the Chamberlain-esque post-Osama criticism, the recent uptick in terrorism highlights the ready criticism from the other end of the hawk-dove spectrum: the President’s reformation of drone policies, which have correlated with less drone strikes, are a victory for terrorists hoping America will go soft.
Transparency and oversight are the main issues with the drone skeptics, but they merge into just a singular issue of oversight, because only Congress can benefit from any increase of transparency of the top secret efforts to kill terrorists. In addition to the privacy fears that the Snowden leaks reignited, the legal debate about torture and rendition is still fresh in the memories of those Congressmen and women upset with the government’s conduct abroad since the war of terror began. In that debate, the CIA’s shadowy methods of interrogation ultimately succumbed, after involvement by all three branches of government, to methods transparently, strictly, and humanely dictated by the U.S. Army Field Manual on Interrogation. Military rules, standards, and ethics became a solution for an intelligence agency seemingly lacking in all three in its paramilitary operations. For Congress itself, charged with holding the executive agencies to account, the memories of American spymasters lying before their own committees are fresher still, whether in regards to the recent NSA revelations or the CIA and the drone operations themselves.
Whatever the operational, bureaucratic, or political advantage from this shift, the practical significance of this shift of legal authority may either be absent entirely or, for those eager for greater oversight, a step backwards.
With that backdrop, the executive order shifts the drone operations out from under Title 50 authority, under which both CIA and the DoD execute clandestine operations, and inserts all drone command and control under Title 10 authority, which governs the structure of the U.S. Armed Forces. This move houses drone strikes under “traditional military authorities,” the oversight of the House and Senate Armed Services Committees, the military Inspectors General, JAG counsels, the cultural mores of avoiding collateral damage, and a general institutional mindset of adhering to rules of engagement rather than ignoring them. The Air Force, as the primary drone operators in the military, are emblematic of this cultural difference; as a recent Oxford Analytica analysis notes, the Air Force drone ‘pilots’ make “[d]ecisions to fire missiles are  in consultation with military lawyers and drones are subject to the same rules of engagement as other aircraft.”
On its face, that shift accomplishes, or at least pushes towards, two goals welcomed by the President’s base: (1) de-militarizing the CIA; and (2) adding transparency and principled, law-of-war restraint to a drone program that arouses great suspicion. However, for two reasons, this shift of legal authority is dubious in fulfilling the second of those two goals.
First, even if the DoD takes the reins, the effect could only be window dressing for those CT warriors at the controls. Under an executive order signed by the Bush administration immediately after 9/11 (and continued by the Obama administration), the CIA, under Title 50 and the Authorization for Use of Military Force to retaliate against Al-Qaeda, has a license for lethality that would make any hard-charging General jealous. In practice however, the CIA isn’t alone. DoD’s Joint Special Operations Command (JSOC), the command almost certain to helm the drone operations after the shift, operates their CT missions under Title 50. They did so, with the CIA, in the Abbottabad raid. In other words, these will not be those by-the-book Air Force operators flying under multiple layers of commanders, JAG, and sundry staff. As Fred Kaplan points out at Slate, “if control of drone strikes is shifted from the CIA to the military and the military decides to assign the mission to JSOC, the strikes might be as frequent and far-flung as ever—maybe even more so, since Bush’s executive order allows JSOC to conduct its operations without consulting or notifying Congress.” (Emphasis added). While it’s true that the conventional military is highly cautious in regards to targeting, such as with collateral damage concerns, “civil terrain” and “second and third order effects,” JSOC is not part of the conventional military and operates under far less rules-based culture than “Big Army.” Thus, many of the institutional restraints associated with military authority are not only deceptive legally but also deceptive culturally. (JSOC is, after all, the same component from which Delta Force operates; restraint is not their watchword.)
Second, the shift under Title 10 could lead to less oversight by Congress of ongoing operations. Title 50 requires the President to keep congressional intelligence committee members abreast of covert actions – to include drone strikes – and even in pressing situations must still present the “Gang of Eight” with the Presidential Finding required to pull the trigger. (A good, or at least well-scripted, visual of this type of formal presentation to Congress is the Posse Comitatus episode of the West Wing.) No such requirement to report exists for actions under Title 10. In fact, such a requirement could be unconstitutional, since military actions, as opposed to Title 50 actions, fall unequivocally within the President’s Article II constitutional powers as commander chief. So, even if the President actually did fully operate the drone CT strikes under Title 10, this new legal framework eliminates perhaps the most important oversight: the oversight before the strikes occur.
Whatever the operational, bureaucratic, or political advantage from this shift, the practical significance of this shift of legal authority may either be absent entirely or, for those eager for greater oversight, a step backwards. The President’s reformation of drone protocols may have only empowered the executive to target Al-Qaeda with much less Article I input, despite congressional demands to the contrary, while still maintaining he’s reigning in the excesses of the much-maligned CIA. Since the core significance of the Title 10 / Title 50 distinction is the degree and type of congressional oversight, the President has unshackled the control over his drone prerogative while publically displaying a humble willingness to have more oversight on his drone prerogative. Perhaps not the predictable work of America’s preeminent Nobel laureate, but certainly the adept craftsmanship of America’s top politician.