ARTICLE Demystifying the Title 10-Title 50 Debate ...

1 ARTICLED emystifying the Title 10-Title 50 Debate : distinguishing military operations , IntelligenceActivities & Covert ActionAndru E. Wall*AbstractModern warfare requires close integration of military and intelligenceforces. The Secretary of Defense possesses authorities under Title 10 andTitle 50 and is best suited to lead US government operations againstexternal unconventional and cyber threats. Titles 10 and 50 createmutually supporting, not mutually exclusive, authorities. Operationsconducted under military command and control pursuant to a Secretary ofDefense-issued execute order are military operations and not intelligenceactivities. Attempts by congressional overseers to redefine militarypreparatory operations as intelligence activities are legally and historicallyunsupportable.

2 Congress should revise its antiquated oversight structure toreflect our integrated and interconnected IntroductionAfter being hunted for nearly ten years, Osama Bin Laden was shotand killed by Navy SEALs in the early hours of May 2, 2011. Theidentity of the elite special operations unit that conducted the raid on binLaden's compound in Pakistan was not immediately released, as the* Senior Associate with Alston & Bird LLP; former senior legal advisor for SpecialOperations Command Central (2007 to 2009). While this ARTICLE was cleared forpublication as required by my security clearance and nondisclosure agreements, the viewsexpressed herein are my own and do not necessarily reflect the position of the or Department of Defense.

3 I thank Harvard Law School for its generoussupport of this paper andJack Goldsmith, Hagan Scotten., Mark Grdovic, Nick Dotti, ChrisCosta, Michael Bahar, and Lenn Ferrer for their invaluable comments and suggestions. Tomy beloved wife., Yashmin, and two adorable children, Isabella and David Alejandro,thank you for your extraordinary patience and support as I repeatedly disappeared to workon this C 2011 by the Presidents and Fellows of Harvard College and andru e . Wall2011 /Demysti/ing the Title 10- Title 50 Debateoperation was described as covert. Yet as rumors swirled and informationleaked to the media, Leon Panetta, the head of the Central IntelligenceAgency (CIA) and soon-to-be-head of the Department of Defense (DoD),clarified during an interview that the operation to kill or capture bin Ladenwas a " Title 50" covert operation.

4 Panetta explained that the raid wascommanded by the President through Panetta, although "the realcommander" was the head of Joint Special operations Command, ViceAdmiral William McRaven-the on-scene commander "actually in chargeof the military operation that went in and got bin Laden."IPanetta's description of the bin Laden raid as a covert " Title 50"operation with a chain of command that included military commanders andthe Director of Central intelligence renewed a long-simmering debatewithin the national security community over " Title 10" and " Title 50"authorities. Titles 10 and 50 are part of the Code, but why wouldPanetta invoke a statute, the legal authority, to explain who was in charge ofan operation conducted by military forces?

5 We will see in a moment that theanswer has everything to do with an antiquated congressional oversightparadigm and little to do with actual legal Title 10-Title 50 Debate is the epitome of an ill-defined policydebate with imprecise terms and mystifying This is adebate, much in vogue among national security experts and military lawyersover the past twenty years, where one person gravely states "there are somereal Title 10-Title 50 issues here," others in the room nod affirmatively, andwith furrowed brows all express agreement. Yet the terms of the Debate aretypically left undefined and mean different things to different people. If youI Transcript available at (last visited Sept.)

6 8., 2011).2 Admiral Vern Clark, former Chief of Naval operations of the Navy, ProfessorJohnRadsan, a former assistant general counsel for the CIA, and Professor Gregory McNeal, aformer Department ofJustice lawyer., were asked "what is Title 10 authority?" and "what isTitle 50 authority?" during a panel discussion at a law school symposium on nationalsecurity law. Admiral Clark phrased the Debate as one "about the line between covert andovert" (an issue we will examine in Part IV of this paper), yet his articulation of this concernfocused on military transparency and public perceptions about the military . ProfessorRadsan framed the Debate in terms of defined roles for the military and intelligencecommunities, while Professor McNeal opined that military lawyers advising specialoperations forces are often confused about the legal basis for their actions.

7 NationalSecurity Symposium: 7ie Battle Between Congress & he Cotirts in the Face ofan UnprecedentedGlobal 7lreat: Legislation Panel: Discussion & Conmmentay., 21 REGLNT RLV. 331, 347(2009) [hereinafter "National Security Symposium"].86 Harvard National Security Journal / Vol. 3ask four military lawyers or DC policy wonks to define what " Title 10-Title50 issues" means, you could get four different answers each cloaked inanother layer of ambiguity, intrigue, and Title 10-Title 50 Debate is essentially a Debate about the properroles and missions of military forces and intelligence agencies. "Title10" is used colloquially to refer to DoD and military operations , while "Title50" refers to intelligence agencies, intelligence activities , and covert about appropriate roles and missions for the military andintelligence agencies, or the " Title 10-Title 50 issues" as commonlyarticulated, can be categorized into four broad categories: authorities,oversight, transparency, and "rice bowls.

8 "4 The first two concerns,See, , comments by James A. Lewis of the Center for Strategic and InternationalStudies:You have intelligence authorities, Title 50, and you have militaryauthorities. Title 10. Well, what does the commander of CyberCommand do? Does he get to pick and choose between them? You needsome way to say, "This kind of thing is military , you have to use themilitary decision chain," versus., "this kind of thing is intelligence , youhave to use the intelligence decision chain." I'm not sure they've workedthrough all of by Greg Bruno withJames A. Lewis, Director., Techn. & Pub. Policy Program,Ctr. for Strategic & Int'l Studies, (Dec. 28, 2009), available 3554%2 Fgreg "Authorities" is a term commonly used by government lawyers and military personnel todescribe statutory and delegated powers.

9 For example, Title 10 of the Code createdthe Office of the Secretary of Defense and assigned the Secretary of Defense all "authority,direction and control" over DoD, including all subordinate agencies and commands. 113(b). Title 10 later created Special operations Command (USSOCOM)and lists several tasks or missions that USSOCOM "shall be responsible for, and shall havethe authority to conduct." 10 167. The President, in his role as Commander inChief, may delegate through the Secretary of Defense additional responsibilities or"authorities" to USSOCOM, just as the Secretary of Defense may delegate certain of hisstatutory authorities to USSOCOM. These statutory and delegated responsibilities fallunder the general rubric of "authorities.

10 " If the Commander of USSOCOM wants toconduct a given activity, he must first determine whether he possesses the statutory ordelegated authority to use assigned personnel and resources to conduct the activity inquestion. Double-Tongued Dictionary defines "rice bowl" as: "in the military , a jealouslyprotected program, project, department., or budget; a fiefdom. Etymological Note: Perhapsrelated to the Chinese concept of the rice bowl as a metaphor for the basic elementsrequired to live, as seen, for example., in the iron rice bowl, employment that is guaranteedfor life." Dictionary definition of "rice bowl", DOUBLL-TONGULD DICTIONARY,872011 /Demysti ing the Title 10- Title 50 Debateauthorities and oversight, are grounded in statutes and legislative historyand are the focus of this ARTICLE .