Modern warfare requires close integration of military and intelligence forces. The Secretary of Defense possesses authorities under Title 10 and Title 50 and is best suited to lead US government operations against external unconventional and cyber threats. Titles 10 and 50 create mutually supporting, not mutually exclusive, authorities. Operations conducted under military command and control pursuant to a Secretary of Defense-issued execute order are military operations and not intelligence activities. Attempts by congressional overseers to redefine military preparatory operations as intelligence activities are legally and historically unsupportable. Congress should revise its antiquated oversight structure to reflect our integrated and interconnected world.


After being hunted for nearly ten years, Osama Bin Laden was shot and killed by U.S. Navy SEALs in the early hours of May 2, 2011. The identity of the elite special operations unit that conducted the raid on bin Laden’s compound in Pakistan was not immediately released, as the operation was described as covert. Yet as rumors swirled and information leaked to the media, Leon Panetta, the head of the Central Intelligence Agency (CIA) and soon-to-be-head of the Department of Defense (DoD), clarified during an interview that the operation to kill or capture bin Laden was a “Title 50” covert operation. Panetta explained that the raid was commanded by the President through Panetta, although “the real commander” was the head of Joint Special Operations Command, Vice Admiral William McRaven—the on-scene commander “actually in charge of the military operation that went in and got bin Laden.”1

Panetta’s description of the bin Laden raid as a covert “Title 50” operation with a chain of command that included military commanders and the Director of Central Intelligence renewed a long-simmering debate within the national security community over “Title 10” and “Title 50” authorities. Titles 10 and 50 are part of the U.S. Code, but why would Panetta invoke a statute, the legal authority, to explain who was in charge of an operation conducted by military forces? We will see in a moment that the answer has everything to do with an antiquated congressional oversight paradigm and little to do with actual legal authorities.

The Title 10-Title 50 debate is the epitome of an ill-defined policy debate with imprecise terms and mystifying pronouncements.2 This is a debate, much in vogue among national security experts and military lawyers over the past twenty years, where one person gravely states “there are some real Title 10-Title 50 issues here,” others in the room nod affirmatively, and with furrowed brows all express agreement. Yet the terms of the debate are typically left undefined and mean different things to different people. If you ask four military lawyers or DC policy wonks to define what “Title 10-Title 50 issues” means, you could get four different answers each cloaked in another layer of ambiguity, intrigue, and ignorance.

The Title 10-Title 50 debate is essentially a debate about the proper roles and missions of U.S. military forces and intelligence agencies. “Title 10” is used colloquially to refer to DoD and military operations, while “Title 50” refers to intelligence agencies, intelligence activities, and covert action.3 Concerns about appropriate roles and missions for the military and intelligence agencies, or the “Title 10-Title 50 issues” as commonly articulated, can be categorized into four broad categories: authorities, oversight, transparency, and “rice bowls.”4 The first two concerns, authorities and oversight, are grounded in statutes and legislative history and are the focus of this article. The second two concerns, transparency and “rice bowls,” can be quickly identified and dismissed as policy arguments rather than legitimate legal concerns.

Before delving into the law, we must first dismiss the policy arguments masquerading as Title 10-Title 50 issues. Transparency is the most amorphous concern in the Title 10-Title 50 debate. Often unacknowledged, the essence of this concern is the belief that intelligence operatives live in a dark and shadowy world, while military forces are the proverbial knights on white horses.5 Advocates of military transparency want to ensure the reputation of America’s men and women in uniform remains untarnished by association with the shadowy world of espionage.6 For these people, the Title 10-Title 50 debate is a debate about whether military forces should be engaged in “secret operations” or “go over to the dark side.”7 Because secret operations (used here in the colloquial sense that includes covert and clandestine operations) often require operating out of uniform, there are also concerns that military forces conducting such operations could lose protections under the Geneva Conventions (e.g., treatment as prisoners of war rather than as spies), increase risks to all U.S. military personnel serving abroad, and possibly endanger morale by sacrificing what is viewed as the moral high ground.8

The second policy argument can be colloquially described as the “rice bowls” concern, which employs military jargon to describe those who jealously guard assigned programs, resources, and responsibilities.9 Bureaucrats jealously protect their “rice bowls” for two main reasons: to strengthen their position in the competition for scarce resources and to preserve their “lanes” or operational primacy in a given area. Broadly speaking, proponents of the “rice bowls” concern contend that Title 50 and Presidential orders make the CIA the lead U.S. agency for the collection of human intelligence10 and conduct of covert action, yet the military is stealing from the CIA’s “rice bowl” by expanding its human intelligence capabilities under the guise of Title 10 authorities. The belief is that this expansion by the military threatens to divert resources from the CIA and could lead to operational deconfliction issues.11 For the CIA and its Congressional proponents, the concern is that the CIA’s legal role as lead agency is diminished as it is dwarfed in size by the military’s rapidly expanding human intelligence capabilities.12 When budgets shrink and resources are scarce, the fear is the CIA will be disproportionately impacted.

The related rice bowls concern of “lanes” raises actual operational issues. If the military’s human intelligence collection resources dramatically exceed the CIA’s resources, the CIA may find it difficult to execute its statutory role as lead agency for the coordination and deconfliction of U.S. government human intelligence collection.13 A few hundred CIA officers may find it impossible to coordinate and deconflict the human intelligence activities conducted by thousands of military personnel, thereby de facto ceding the CIA’s statutory primacy.14 In a worst-case scenario, the failure to maintain clear operational lanes could lead to operatives unintentionally impeding or even exposing each other’s human intelligence efforts. The salient point, however, is not that the military is exceeding its statutory authority, but rather that both the military and intelligence agencies possess the statutory authority to conduct intelligence-gathering activities that may be indistinguishable “to the naked eye.”15 This is a valid operational concern and unremitting management challenge; intelligence agencies must strive to ensure the military’s intelligence collection activities are coordinated, deconflicted, and conducted according to established standards.

None of these concerns suggest that a certain activity (or method of conducting that activity) is inconsistent with statutory or legal authority; rather, each suggests that a certain activity ought not to be conducted (or ought to be conducted) a certain way because of practical effects. Guarding the U.S. military’s reputation and protecting an agency’s resources are legitimate policy considerations, just as preserving lanes and ensuring deconfliction is a crucial operational concern. Yet it is misleading to couch these policy and operational debates in terms of statutory law, and it is misleading to label these concerns as “Title 10-Title 50” issues. Transparency, rice bowls and lanes are concerns that can be adequately addressed by sound Executive Branch management and proper allocation of resources by Congress.

Having defined the Title 10-Title 50 debate and summarily exposed the policy arguments and operational challenges that often masquerade as legal issues, this article now turns in Part II to analyzing the significant legal authorities given to the President and Secretary of Defense under the U.S. Constitution and Titles 10 and 50 of the U.S. Code. That “Title 10” is commonly used to refer to DoD and to articulate the legal basis for military operations is understandable. However, the use of “Title 50” to refer solely to activities conducted by the CIA is, at best, inaccurate as the Secretary of Defense also possesses significant authorities under Title 50.

After establishing the relevant legal authorities, Part III discusses Congressional oversight, which reveals itself as the true Title 10-Title 50 issue. It is Congress’s antiquated oversight structure and a concomitant misunderstanding of the law that casts a shadow of concern and purported illegitimacy over military operations that resemble activities conducted by intelligence agencies. Congress’s stovepiped view of national security operations is legally incongruous and operationally dangerous because it suggests statutory authorities are mutually exclusive and it creates concerns about interagency cooperation at exactly the time in history when our policy and legal structures should be encouraging increased interagency coordination and cooperation against interconnected national security threats.

Concern over purported Title 10-Title 50 issues arises most often in the context of discussions over unconventional and cyber warfare. While most details of how these operations are conducted are not publicly available, Part IV will define unconventional warfare and cyberwarfare and generally explain their purpose, role, and conduct. These military operations are conducted in secret and in environments where public acknowledgement of the U.S. military’s involvement may raise diplomatic and national security concerns (e.g., other countries and cyberspace), which is why Congressional intelligence committees often mistakenly conclude they should have oversight of these military operations. However, when the law (and even Congress’s own legislative history) is applied to unconventional warfare and cyberwarfare in Part IV, it becomes apparent that these are military operations rather than intelligence activities so long as they remain under the command and control of a military commander and are conducted prior to or during (anticipated or actual) acknowledged military operations. Part V offers a few concluding thoughts and recommendations.

II. The Law Permits While Congress Attempts to Restrict The Title 10-Title 50 debate is typically invoked to express concerns that the military is taking over missions and activities “properly” within the sole domain of the intelligence agencies. While ordinary Americans in the heartland may care only that U.S. national security objectives are effectively accomplished, military and intelligence bureaucrats and their Congressional overseers remain obsessed with who actually does the mission. Yet a careful analysis of the law and related legislative history shows how the law permits much of what Congress attempts to restrict with its stovepiped approach to oversight of the military and intelligence community.

A. Legal Authorities

Professor Gregory McNeal, sitting on a law school panel discussing Title 10-Title 50 issues, suggested that lawyers advising special operations units may have trouble discerning whether they are operating under Title 10 or Title 50 authorities.16 McNeal elaborated:

When the military goes out, there are JAGs who sit with intelligence agents or officials and advise on whether it is lawful to strike a specific target or engage in a specific operation. If a JAG is seated in a targeting cell in a special operations unit, the first question will still be whether a certain target can be attacked. However, the second question that the officer in that cell will oftentimes ask is whether he is operating under Title 10 or Title 50 authority. If it is a CIA drone, the answer may be that it is fine to hit the target. Under Title 10 the answer may be, no you cannot.17

Professor McNeal’s hypothetical evidences a misunderstanding or mischaracterization of the law and conduct of military operations.18 Military personnel, including Professor McNeal’s hypothetical “special operations unit,” operate under military direction and control and under Title 10 authority. CIA personnel operating under a CIA direction and control operate under Title 50 authorities. CIA personnel operating with military personnel may use their Title 50 authorities to support a Title 10 operation, but they would still be operating under Title 50 authority; likewise, a military unit operating under Title 10 authority could support a Title 50 operation (if they are given such delegated authority).19 In other words, when an operation is termed a “Title 10” operation, that statutory label simply refers to the statutory origins of the mission commander’s authority; this does not preclude other government agencies operating under separate statutory authorities from using their personnel and resources to support the “Title 10” operation.

1. The President’s Constitutional Authority

Our analysis of legal authorities possessed by military commanders begins with the executive and commander-in-chief powers, delineated in the U.S. Constitution and applicable federal statutes, and delegated from the President through the Secretary of Defense down to subordinate commanders. Delegated authorities derive from a myriad of Executive Branch policy documents, including directives issued by various echelons within DoD. As the overwhelming majority of directives relating to unconventional and cyber warfare are classified, our discussion here will focus on the statutes: policy may restrict statutory authorities, but policy can also be changed at the President’s direction. While the majority of national security decisions are made on a daily basis pursuant to statutory and delegated authority, there is no question that the President is the head of the executive branch and commander in chief.20

The President’s authority to direct military operations and intelligence activities against external threats resides in his Constitutional executive and commander-in-chief powers.21 The President is vested with executive power22 and is the “sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.”23 As chief executive, the President may “manage the business of intelligence in such a manner as prudence may dictate.”24 This includes the authority to secretly collect intelligence for reasons of national security.25 As commander in chief, the President may employ the military to protect the national interests of the United States as he deems necessary.26

The President does not wield these powers exclusively, however, as Congress is given the authority to “raise and support Armies,” to “provide and maintain a Navy,” to appropriate funds to support the military, and to issue formal declarations of war.27 Simply put, Congress decides how to resource the U.S. military and when to formally declare war, while the President decides how to employ the military in furtherance of U.S. national security objectives—subject always to constitutionally permissive constraints enacted by Congress and available funding.

Perhaps the most significant restraint, or attempted restraint, upon Presidential employment of the military is contained in the War Powers Resolution of 1973, which directs the President to notify Congress within 48-hours after deploying military forces in situations where hostilities are anticipated.28 The President must generally withdraw the military forces within sixty days unless Congress formally declares war or otherwise authorizes the combat deployment.29 The War Powers Resolution was passed over President Richard Nixon’s veto, and every subsequent President has also believed that “the War Powers Resolution is an unconstitutional infringement by the Congress on the President’s authority as Commanderin-Chief.”30

This Constitutional separation or balancing of power between the President and Congress with respect to war powers sparked intense debate nearly as soon as the Constitution was ratified. Discussions of the President’s constitutional authority as commander in chief implicate “some of the most difficult, unresolved, and contested issues in constitutional law.”31 This debate is perhaps best pictured as a Venn diagram: some assert a circle of “inherent” Presidential power, some favor a circle of Congressional checks on “imperial” Presidential power, while others see a Constitutional overlap or balancing of powers between the two branches. One scholar astutely observes that “[w]riters on the relative powers of the presidency versus the Congress almost invariably lapse into advocacy when they comment on the textual, historical or functional bases of war powers.”32

Those who favor presidential powers in the realm of national security point to the President’s enumerated powers, namely the “executive Power” of Article II, section 1 and the “Commander in Chief” power of Article II, section 2. They assert the only constitutional limitations on those powers are Congress’s power of the purse and power to formally declare war.33 In other words, in situations where a declaration of war is not required (e.g., self-defense or peacetime intelligence activities), the only way Congress can impede Presidential power is by cutting off funding.

Advocates of Congressional war powers, however, argue against rigid interpretations of the Constitutional text and quote James Madison and other framers of the Constitution at length to support their vision of a “national security Constitution” where “Congress, the courts, and the Executive should interact in the foreign policy process.”34 These advocates argue that “[t]he constitutional framework adopted by the Framers is clear in its basic principles. The authority to initiate war lay with Congress. The President could act unilaterally only in one area: to repel sudden attacks.”35

While reviewing two diametrically opposed books on Presidential war powers, Professor Jack Goldsmith succinctly summarizes the intellectual history of arguments debating Presidential and Congressional war powers before wryly observing “that constitutional theory is usually grounded in a theory of preferred outcomes.”36 Presidential power has grown of necessity beyond what the framers could have imagined, yet meaningful Congressional checks on Presidential power remain and “translate, in a rough way, the Framers’ original design.”37 Goldsmith concludes: “the larger picture is one that preserves the original idea of a balanced constitution with an executive branch that remains legally accountable despite its enormous power.”38

2. The Secretary of Defense’s Statutory Authorities

Congress modernized and reorganized the U.S. national security establishment in the National Security Act of 1947.39 The act merged the War and Navy departments into the DoD, and created the National Security Council, CIA, National Security Agency (NSA), and other agencies. The Act also established a formalized process for national security decision-making and Congressional oversight of intelligence activities. The National Security Act of 1947, as amended, is found in Title 50 of the U.S. Code.40

In 1956 and 1962, Congress removed from Title 50 provisions relating to organization and functions of the services and DoD and placed these provisions with amendments in Title 10 of the U.S. Code.41 In 1986, following the failed Iran hostage rescue mission, Congress legislated a new “joint” structure of command and control through which the President exercises his commander-in-chief responsibilities.42

The President exercises Constitutional authority as Commander in Chief through the Secretary of Defense who is also his “principal assistant . . . in all matters relating to the Department of Defense.”43 Title 10 gives the Secretary of Defense all “authority, direction and control” over DoD, including all subordinate agencies and commands.44 Title 10 also created combatant commands, which include geographic commands (e.g., U.S. European Command) and U.S. Special Operations Command (USSOCOM). Title 10 gives combatant commands statutory authorities and their commanders report directly to the Secretary of Defense.45 For example, Title 10 gives USSOCOM authority over the following activities when conducted by special operations forces: direct action, strategic reconnaissance, unconventional warfare, foreign internal defense, civil affairs, psychological operations, counterterrorism, humanitarian assistance, theater search and rescue, and such other activities as may be specified by the President or the Secretary of Defense.46

Title 50 establishes, defines and delineates authorities within the intelligence community, but it also clarifies that the Secretary of Defense controls those members of the U.S. intelligence community, such as the NSA and Defense Intelligence Agency, that are part of DoD.47 The Secretary of Defense’s control and direction of DoD human intelligence activities can be limited only by the President.48 This provision is reinforced by Title 10, which creates an Undersecretary of Defense for Intelligence to whom the Secretary of Defense may delegate duties and powers “in the area of intelligence.”49 Finally, Executive Order 12,333, which has regulated the U.S. intelligence community for nearly thirty years, directs the Secretary of Defense to “[c]ollect (including through clandestine means), analyze, produce, and disseminate information and intelligence [as well as] . . . defense and defense-related intelligence and counterintelligence . . . .”50

One source of confusion in the Title 10-Title 50 debate springs from Title 50’s use of the term “national intelligence.” The discussion of “national intelligence” in Title 50 causes some to opine that “national intelligence” is separate and distinguishable from military intelligence,51 yet other provisions of Title 50 include references to the intelligence needs of combatant commanders, tactical intelligence activities, and the intelligence needs of the military’s operational forces.52 These terms, read in the context of Title 50, suggest labels based on the intended primary consumer of the intelligence, or its primary purpose, not an attempt to categorize or label intelligence by type or the agency collecting the intelligence.

There is no rigid separation between Title 10 and Title 50. A more accurate interpretation is simply that Title 10 clarifies roles and responsibilities within DoD, while Title 50 clarifies roles and responsibilities within the intelligence community; both titles explicitly recognize that the Secretary of Defense has statutory roles and authorities under Title 10 and under Title 50. Executive Order 12,333 confirms this reading by directing the Secretary of Defense to collect intelligence for both his department and the intelligence community writ large. U.S. military doctrine further erodes any attempted distinction between tactical, operational, and strategic intelligence:

National assets such as intelligence and communications satellites, previously considered principally in a strategic context, are an important adjunct to tactical operations. Actions can be defined as strategic, operational, or tactical based on their effect or contribution to achieving strategic, operational, or tactical objectives, but many times the accuracy of these labels can only be determined during historical studies.53

Read in concert with Title 10, Title 50 does not infringe upon the Secretary of Defense’s authorities to collect intelligence. Rather, Title 50 recognizes the authorities assigned to the Secretary of Defense under Title 10 over all DoD intelligence activities, and adds Title 50’s provisions regarding Congressional oversight to intelligence activities conducted primarily by DoD personnel in support of or in furtherance of tasking from the Director of National Intelligence (DNI) (as opposed to tasking from the Secretary of Defense).

Thus, Title 10 and Title 50 are mutually-reinforcing authorities, not mutually-exclusive authorities; these statutory authorities may even be exercised simultaneously by personnel under the command and control of the Secretary of Defense. Labeling some intelligence activities “Title 50” activities while labeling similar activities “Title 10” activities creates a distinction where the law does not. Importantly, the statutes make distinctions based on direction, control, and funding—not on nomenclature.

B. Congressional Oversight

Confusion over Title 10 and Title 50 authorities has more to do with congressional oversight and its attendant internecine power struggles than with operational or statutory authorities. Operators, be they special operations forces (SOF) operating under Title 10, CIA agents operating under Title 50, or NSA personnel operating under both Title 10 and Title 50, know from whence their authorities are derived. The operators recognize dual lines of authority and are primarily concerned with coordination and deconfliction. To outsiders looking in, such as a Senator in

Washington, DC, the activities performed by SOF and CIA operatives, especially during periods preceding possible or anticipated conflict, may appear virtually indistinguishable. Yet similarity in no way vitiates their dual lines of authority, nor does it create great challenges for operators.

A former general counsel of the CIA, Jeffrey H. Smith, spoke of what he perceived as a “dichotomy between Title 10 and Title 50” that gives “executive branch lawyers and members of Congress . . . headaches.”54 These headaches arise, Smith stated, during debates over military activities called “preparation of the battlefield,” which are activities typically carried out by military personnel “in close collaboration with the U.S. intelligence community.”55 We will examine these activities more closely in Parts III and IV. Smith, however, summarizes the issue as such: if the activity is defined as a military activity (“Title 10”) there is no requirement to notify Congress, while intelligence community activities (“Title 50”) require presidential findings and notice to Congress.56 The natural inclination for executive branch lawyers, according to Smith, is to prefer the Title 10 paradigm to obviate congressional notification requirements.57

This perception—that the Executive Branch is deliberately trying to avoid congressional oversight—naturally riles the intelligence committees. In its report accompanying the Intelligence Authorization Act for Fiscal Year 2010, the House Permanent Select Committee on Intelligence noted “with concern the blurred distinction between the intelligence-gathering activities carried out by the Central Intelligence Agency (CIA) and the clandestine operations of the Department of Defense.”58 The Committee accused DoD of labeling its clandestine activities as operational preparation of the environment (OPE) in order to justify them under Title 10 and avoid oversight by the intelligence committees “and the congressional defense committees cannot be expected to exercise oversight outside of their jurisdiction.”59 The Intelligence Committee apparently perceives an oversight lacuna, yet no such lacuna exists. Rather, all activities conducted under Title 10 authorities are subject to oversight by the armed services committees and, for example, commanders of special operations forces regularly brief the armed services committees on their clandestine activities.

As illustrated by the featured image above, the congressional intelligence committees exercise oversight of intelligence activities, while the armed services committees exercise oversight jurisdiction over military operations.60 The congressional oversight is not coterminous with statutory authorities, as Title 10 includes authority for the Secretary of Defense to engage in both intelligence activities and military operations. Congressional oversight overlaps when non-DoD elements of the intelligence community provide support to military operations and in the unlikely or at least rare instance where the President directs elements of DoD to conduct covert action.61

Oversight would also overlap with respect to intelligence activities carried out by an element of the intelligence community in support of a military operation authorized under Title 10.

Congressional oversight of the military is straightforward: both the Senate and House Armed Services Committees exercise jurisdiction over all aspects of DoD and matters relating to “the common defense.”62 Defense authorization bills originate in the armed services committees, where they must be approved before consideration by the full Senate or House. Problems arose in the wake of 9/11 as DoD expanded its intelligence capabilities in order to support ongoing military operations, and the intelligence committees correspondingly sought to expand their jurisdiction in an attempt to bring all military intelligence collection efforts within their purview, which created clashes with the armed services committees and the Executive Branch and generated debates over appropriate congressional oversight.

Congressional oversight of intelligence activities is considerably more complex. The National Security Act of 1947, which created the CIA, did not include statutory congressional oversight provisions. For nearly thirty years, Congress exercised little oversight of intelligence activities. This changed dramatically, however, following revelations in 1974 by then New York Times reporter Seymour Hersh that U.S. intelligence agencies engaged in domestic spying.63 The Church Committee’s subsequent investigation “did nothing less than revolutionize America’s attitudes toward intelligence supervision.”64

The Senate established its Select Committee on Intelligence (SSCI) in 1976 and the House followed suit a year later with its Permanent Select Committee on Intelligence (HPSCI). The era of benign neglect was over, replaced instead by dynamic if often dysfunctional congressional oversight. In 1980 Congress mandated for the first time that the Director of Central Intelligence and the heads of all other U.S. departments and agencies “involved in intelligence activities” keep the intelligence committees “fully and currently informed of all intelligence activities.”65 This provision was repealed in 1991 and responsibility for informing the congressional intelligence committees of all intelligence activities, including anticipated activities, was placed directly on the President.66

The intelligence committees exercise broad oversight of the intelligence community. They exercise exclusive authorizing powers for the CIA, the Director of National Intelligence, and the National Intelligence Program.67 They share jurisdiction of DoD intelligence components with the Senate and House armed services committees.

While the jurisdictions of the Senate and House intelligence committees are nearly identical, HPSCI exercises broader jurisdiction in two significant respects: HPSCI uses a much broader definition of intelligence activities and adds oversight of “sources and methods.”68 SSCI exercises jurisdiction over “intelligence activities,” while HPSCI exercises jurisdiction more broadly over “intelligence and intelligence-related activities . . . including the tactical intelligence and intelligence-related activities of the Department of Defense.”69 The House gives “intelligence and intelligence-related activities” this all-encompassing definition:

[The] collection, analysis, production, dissemination, or use of information that relates to a foreign country, or a government, political group, party, military force, movement, or other association in a foreign country, and that relates to the defense, foreign policy, national security, or related policies of the United States and other activity in support of the collection, analysis, production, dissemination, or use of such information.70

Thus, the House of Representatives via a rule change gave HPSCI oversight of “intelligence-related activities” including “tactical intelligence” and other military information collection activities for which congressional notification is not statutorily mandated. This would be understandable if HPSCI controlled authorizations for those military activities, but it does not. All authorizations for these military activities originate in the House Armed Services Committee and House rules do not provide for their review by the intelligence committee. In fact, just the opposite occurs as all intelligence authorization bills passed by the intelligence committees must then clear the armed services committees before being considered by the full House.

Intelligence committee oversight is weakened by the bifurcated authorization and appropriations processes. Because most appropriations for intelligence activities are included as a classified section of the annual defense appropriations bill, “the real control over the intelligence purse lies with the defense subcommittees of the House and Senate Appropriations Committees.”71 The 9/11 Commission recognized how “dysfunctional” this arrangement is in practice and recommended the establishment of a single joint intelligence committee with authorizing and appropriating authorities.72 Congress, to its detriment, has not adopted this recommendation.

Intelligence committee oversight is further weakened by the failure to enact an intelligence authorization bill for five of the past six years. Title 50 prohibits the expenditure or obligation of appropriated funds on intelligence or intelligence-related activities unless “these funds were specifically authorized by Congress for such activities.”73 Congress meets this “specifically authorized” provision through the use of a catch-all provision inserted into the defense appropriations acts.74 Over the past 30 years, Congress enacted an intelligence authorization bill prior to the start of the fiscal year on just two occasions—1983 and 1989.

Congress could end the Title 10-Title 50 debate by simply reforming its oversight of military and intelligence activities and align oversight with the statutory authorities. Rather than focus on what the activity in question looks like (what is being done), Congress should simply ask who is funding the activity and who is exercising direction and control; oversight should be aligned in the House and Senate and should correspond to funding, direction and control. Congress should adopt the recommendations of the 9/11 Commission—align congressional oversight with statutory authorities and reform its bifurcated intelligence authorization and appropriations functions—and thereby eliminate most real and perceived Title 10-Title 50 issues. With the crux of the Title 10-Title 50 debate exposed as dysfunctional congressional oversight, this article now turns to explaining why some military and intelligence activities look alike, yet remain distinguishable.

Foot Notes:

1 Transcript available at panetta_05-03.html (last visited Sept. 8, 2011).

2 Admiral Vern Clark, former Chief of Naval Operations of the U.S. Navy, Professor John Radsan, a former assistant general counsel for the CIA, and Professor Gregory McNeal, a former Department of Justice lawyer, were asked “what is Title 10 authority?” and “what is Title 50 authority?” during a panel discussion at a law school symposium on national security law. Admiral Clark phrased the debate as one “about the line between covert and overt” (an issue we will examine in Part IV of this paper), yet his articulation of this concern focused on military transparency and public perceptions about the military. Professor Radsan framed the debate in terms of defined roles for the military and intelligence communities, while Professor McNeal opined that military lawyers advising special operations forces are often confused about the legal basis for their actions. National Security Symposium: The Battle Between Congress & The Courts in the Face of an Unprecedented Global Threat: Legislation Panel: Discussion & Commentary, 21 REGENT U.L. REV. 331, 347 (2009) [hereinafter “National Security Symposium”].

3 See, e.g., comments by James A. Lewis of the Center for Strategic and International Studies:
You have intelligence authorities, Title 50, and you have military authorities, Title 10. Well, what does the commander of Cyber Command do? Does he get to pick and choose between them? You need some way to say, “This kind of thing is military, you have to use the military decision chain,” versus, “this kind of thing is intelligence, you have to use the intelligence decision chain.” I’m not sure they’ve worked through all of that. Interview by Greg Bruno with James A. Lewis, Director, Techn. & Pub. Policy Program, Ctr. for Strategic & Int’l Studies, (Dec. 28, 2009), available at

4 “Authorities” is a term commonly used by government lawyers and military personnel to describe statutory and delegated powers. For example, Title 10 of the U.S. Code created the 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. 10 U.S.C. § 113(b). Title 10 later created U.S. Special Operations Command (USSOCOM) and lists several tasks or missions that USSOCOM “shall be responsible for, and shall have the authority to conduct.” 10 U.S.C. § 167. The President, in his role as Commander in Chief, may delegate through the Secretary of Defense additional responsibilities or “authorities” to USSOCOM, just as the Secretary of Defense may delegate certain of his statutory authorities to USSOCOM. These statutory and delegated responsibilities fall under the general rubric of “authorities.” If the Commander of USSOCOM wants to conduct a given activity, he must first determine whether he possesses the statutory or delegated authority to use assigned personnel and resources to conduct the activity in question. Double-Tongued Dictionary defines “rice bowl” as: “in the military, a jealously protected program, project, department, or budget; a fiefdom. Etymological Note: Perhaps related to the Chinese concept of the rice bowl as a metaphor for the basic elements required to live, as seen, for example, in the iron rice bowl, employment that is guaranteed for life.” Dictionary definition of “rice bowl”, DOUBLE-TONGUED DICTIONARY, (last visited Feb. 9, 2010). For an example of usage, see “Gingrich pledged ‘to cooperate in any way I can on a bipartisan basis in really rethinking all of this’ because the effort is ‘going to require not only reshaping the rice bowls at the Pentagon but breaking a few of them.’” Fred Kaplan, In House, Bipartisan Drive is Growing to Slash Defense, BOSTON GLOBE, Jul. 29, 1990, at 2. See also “Attempting to take the moral high ground in a debate that in the past has been characterized by high emotions as each service sought to protect its own ‘rice bowls.’” Army Seeks Moral High Ground In Briefing to Roles Panel, 184 DEFENSE DAILY 53 (Sept. 15, 1994).

5 The U.S. military consistently ranks at the apex of most-trusted institutions in the United States. This trust is critical to America’s all-volunteer military and some even suggest the trust disparity between Congress and the military is one reason why Congress is loath to publicly attack military policies. David Hill, Respect for Military Surges, THE HILL (Jul. 18, 2006), A 2009 Gallop poll found 82% of Americans have a “great deal” or “quite a lot” of respect for the U.S. military, versus only 17% who felt the same way about Congress. Lydia Saad, Congress Ranks Last in Confidence in Institutions, GALLOP (July 22, 2010),

6 In the words of Admiral Clark: This line that exists [between covert and overt] is part of our good standing in the world. We have carefully tried to keep the military out of the covert world . . . . The covert side has appropriately resided within the CIA. We want the citizens, when they look at men and women wearing the cloth of the nation, to know that is who they are. National Security Symposium, supra note 2, at 347.

7 “Secret operations” includes both covert and clandestine operations, which are terms this article will explore in greater detail in Parts III and IV. Professor Robin Williams argues “our cultural values do greatly affect our willingness as a nation to engage in unconventional warfare and do affect our policies and strategies in dealing with the widespread threats posed by infiltration and subversion on the part of hostile powers in many parts of the world.” Robin M. Williams Jr., Are Americans and Their Cultural Values Adaptable to the Concept and Techniques of Unconventional Warfare?, 341 ANNALS AM. ACAD. POL.& SOC. SCI. 82, 83 (1962), available at Professor Williams suggests that “many Americans have come to think of unconventional warfare . . . in connection with the premeditated use of deception, subversion, and terror” and, thus, view unconventional warfare as incompatible with American values.

8 Jennifer D. Kibbe, The Rise of the Shadow Warriors, 83 FOREIGN AFFAIRS 102, 113 (March/April 2004), available at

9 For a discussion of the term “rice bowls,” see supra note 4.

10 EXEC. ORDER NO. 12,333, 46 Fed. Reg. 59941 (Dec. 4, 1981), amended by EXEC. ORDER NO. 13,470, 73 Fed. Reg. 45,325 (July 30, 2008) [hereinafter E.O. 12,333], and 50 U.S.C. § 403-4a. During the Cold War, intelligence collection was organized by source and lead agency. The CIA was primarily responsible for human intelligence (HUMINT); the National Security Agency (NSA) was primarily responsible for signals intelligence (SIGINT); and the National Geospatial Intelligence Agency was primarily responsible for overhead imagery intelligence (IMINT). As one intelligence expert explains: “There was, perhaps, a certain logic to that organization during the Cold War. With one overwhelming target—the Soviet Union—the various “INTs” were asked, in effect, what they could contribute to understanding the puzzle of the Soviet Union.” GREGORY F. TREVERTON, INTELLIGENCE FOR AN AGE OF TERROR 6 (2009). Treverton points out that on the analytic side, this organization permitted competition, of sorts, as the CIA focused on the national and political aspects of intelligence, while the Defense Intelligence Agency and service intelligence elements “naturally focused more on military dimensions of problems that cut across the military and political.” Id. at 50. There is an ongoing debate over whether organizing intelligence collection in this manner remains appropriate to respond to the threats of the 21st century.

11 To those on the CIA’s side, human intelligence collection efforts would see “a quantum improvement in capability” if “lanes” across the intelligence community were enforced. John MacGaffin, Clandestine Human Intelligence: Spies, Counterspies, and Covert Action, in TRANSFORMING U.S. INTELLIGENCE 79, 91 (Jennifer E. Sims & Burton Gerber, eds., 2005). The term “deconfliction” is commonly used in military and intelligence circles to refer to processes or coordination intended to ensure that various operations or activities do not interfere with each other.

12 The Pentagon’s efforts to create a human intelligence capability separate from and seemingly parallel to the CIA’s human intelligence capabilities is seen as encroaching “on the CIA’s realm.” ALFRED CUMMING, CONGRESSIONAL RESEARCH SERVICE, COVERT ACTION: LEGISLATIVE BACKGROUND AND POSSIBLE POLICY QUESTIONS 3 (2009). See also Eric Schmitt and Thom Shanker, Threats and Responses: A CIA Rival; Pentagon Sets Up Intelligence Unit, N.Y. TIMES, Oct. 24, 2002, at A1, available at

13 During confirmation hearings for General Michael Hayden after he was nominated in 2006 to become Director of the CIA, Senator Olympia Snowe opined that as the military seeks to “further expand and encroach in areas . . . [such as] clandestine forces, paying informants, gathering deeper and deeper into human intelligence, I think that this is going to be a serious—potentially—contest if the CIA does not regain its ground and reclaim its lost territory.” Nomination of General Michael V. Hayden, USAF to be Director of the Central Intelligence Agency: Hearing Before the S. Select Comm. on Intelligence, 109th Cong., 2nd Sess. 50 (2006) [hereinafter Hayden Nomination].

14 The DoD controls about 80% of the intelligence budget, which presumably only includes DoD agencies that are also part of the intelligence community; most of the 80% is spent on spy satellites and overseas listening posts. Mark Mazzetti, Nominee Promises Action as U.S. Intelligence Chief, N.Y. TIMES Jul. 21, 2010, at A16, available at

15 General Hayden correctly noted “that what DoD is doing under title 10 authorities and what CIA does under title 50 may be indistinguishable to the naked eye . . . get kind of merged so that the actions are actually on the ground, in reality indistinguishable, even though their sources of tasking and sources of authority come from different places.” Hayden Nomination, supra note 13, at 50–51.

16 National Security Symposium, supra note 2, at 348–49.

17 Id. at 349.

18 Professor McNeal may be confusing or merging statutory authority with delegated authorities such as rules of engagement (ROE). For example, in the hypothetical McNeal presents, it is theoretically possible that the CIA drone (operating under Title 50 authority in support of a Title 10 military operation) may be operating under different ROE than the special operations unit it is supporting. The CIA rules of engagement may provide that a target can be attacked if X+Y exists, while the military ROE may require X+Y+Z, i.e. the CIA ROE may be more or less permissive than the military ROE. But rules of engagement are policy directives, not statutes, so their characterization as a “Title 10” or “Title 50” issue is inaccurate and misleading.

19 Challenges do arise when special operations forces (SOF) operate with CIA personnel, as happened in Afghanistan in late 2001 and in Iraq in early 2003. Operators may ask when tasked with a particular mission: “am I conducting this mission under Title 10 or Title 50 authorities?” The question, however, is generally one of fiscal authorities rather than operational authorities. Are CIA funds or DoD funds being used to pay for the operation? If the CIA is paying a particular Northern Alliance commander to employ his forces in furtherance of U.S. military objectives, is that a Title 10 activity or a Title 50 activity? Can SOF employ indigenous forces trained and equipped by the CIA under Title 50 authorities in furtherance of SOF’s Title 10 missions? These are important questions that require close examination of the relevant operational orders and fiscal authorities.

20 James E. Baker, National Security Process: Process, Decision, and the Role of the Lawyer, in NATIONAL SECURITY LAW 911, 913 (John Norton Moore & Robert F. Turner, eds., 2d ed.2005).

21 The President is vested with executive power by Article II, Section 1 of the U.S. Constitution; Section 2 adds commander-in-chief powers.

22 U.S. CONST. art. II, § 1.

23 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). Note, however, that “sole” does not mean the Supreme Court will not on rare occasions conduct its own inquiry to ensure that Presidential assertions that particular actions are grounded in these powers, are so in fact. In Youngstown, President Truman contended that his Constitutional commander-in-chief authorities permitted the seizure of steel mills in the United States, but the Supreme Court held: “we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).

24 THE FEDERALIST No. 64 (John Jay).

25 See, e.g., Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948); Totten v. United States, 92 U.S. 105, 106 (1876) (The President “was undoubtedly authorized during the war, as commander-in-chief, to employ secret agents to enter rebel lines and obtain information respecting the strengths, resources, and movements of the enemy.”).

26 In the Prize Cases, the U.S. Supreme Court held that determinations of belligerency and threats to national security are questions to be decided by the President. Prize Cases, 67 U.S. 635, 670 (1863).

27 U.S. CONST. art. I, § 8, cls. 1 & 11–13.

28 50 U.S.C. §§ 1541–1548 (1973).

29 Two key provisions in the War Powers Resolution link the President’s authority to deploy military forces for reason of national security with Congress’s power of the purse: the President must notify Congress when troops are deployed equipped for combat, 50 U.S.C. § 1543(a)(1), after which Congress has sixty days to authorize the deployment or the President must terminate the use of force. 50 U.S.C. § 1544(b).

30 CONGRESSIONAL RESEARCH SERVICE, WAR POWERS RESOLUTION: PRESIDENTIAL COMPLIANCE 2 (2002). It is worth noting that President Nixon’s veto centered on two Constitutional concerns: the provision under which funding would be automatically cut off if Congress fails to act within 60–90 days after Presidential notification (§ 1544(b)), and the provision permitting Congress to direct cessation of the deployment by passage of a mere concurrent resolution, which normally does not have power of law. President Nixon believed that only an affirmative act of Congress could override the President’s decision to deploy military forces under his Commander-in-Chief authority. Letter from President Richard M. Nixon to the House of Representatives, Veto of the War Powers Resolution (Oct. 24, 1973), available at

31 Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2051 (2005).

32 Michael Bahar, Axes of Power: Predicting the Reception of Assertions of Presidential War Powers In the Courts, 58 NAVAL L. REV. 1, 1 (2009).

33 See generally JOHN YOO, CRISIS AND COMMAND: A HISTORY OF EXECUTIVE POWER FROM GEORGE WASHINGTON TO GEORGE W. BUSH (2009); JOHN YOO, THE POWERS OF WAR AND PEACE (2005); Phillip Bobbitt, War Powers: An Essay on John Hart Ely’s War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath, 92 MICH. L. REV. 1364, 1373 (1994); Henry P. Monaghan, Presidential War-Making, 50 B.U. L. REV. 19 (1970); Eugene V. Rostow, Great Cases Make Bad Law: The War Powers Act, 50 TEX. L. REV. 833 (1972); John Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167 (1996).

34 Harold H. Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255, 1282 (1998). See also JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 3–5 (1993); LOUIS FISHER, PRESIDENTIAL WAR POWER 3–12 (1995); MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 80–84 (1990); HAROLD H. KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 74–77 (1990); Bruce Ackerman, The Emergency Constitution, 13 YALE L. JOURNAL 1029, 1046–56 (2004); Raoul Berger, War-Making by the President, 121 U. PA. L. REV. 29, 39–47 (1972).

35 FISHER, supra note 34, at 11.

36 Jack Goldsmith, The Accountable Presidency, THE NEW REPUBLIC (Feb. 1, 2010),

37 Id.

38 Id.

39 National Security Act of 1947, Pub. L. No. 235 (1947).

40 50 U.S.C. §§ 1–2420.

41 10 U.S.C. §§ 101–18505. Laws pertaining to the National Guard were transferred to Title 32.

42 Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. No. 99–433 (1986).

43 10 U.S.C. § 113(b) (2006). Title 10 specifically states that DoD is part of the executive branch, which removes any doubt about the President’s authority over the department under both section 1 (executive power) and section 2 (Commander-in-Chief power) of Article II of the U.S. Constitution. See 10 U.S.C. § 111 (2006). 44 10 U.S.C. § 113(b) (2006).

45 10 U.S.C. §§ 161, 162, 164, 165, 166, 166a, 166b, & 168 (2006). In practice, the combatant commanders communicate with the Secretary of Defense via the Joint Staff. Although the Chairman of the Joint Chiefs of Staff is not technically or legally in the chainof- command, his statutory role is that of advisor to the President and Secretary of Defense. The Chairman of the Joint Chiefs of Staff has a staff of several thousand personnel, the Joint Staff, through which all operational orders and communications to and from the Secretary of Defense flow.

46 10 U.S.C. § 167(j) (2006).

47 50 U.S.C. § 403–5 (2006).

48 Id. at § 403–5(b)(5) (2006). See also supra note 10.

49 10 U.S.C. § 137 (2006); Pub. L. No. 107–314 (2002).

50 E.O. 12,333, supra note 10, at 1.10.

51 See 50 U.S.C. §401a(5) (2006). Intelligence activities are further stove-piped. Following the passage of the National Security Act of 1947 and continuing through the end of the Cold War, the U.S. national security establishment maintained a distinction between military or tactical intelligence and national or foreign intelligence. In the context of the Cold War, this distinction made sense. Domestic, foreign, and military intelligence were three separate categories with separate legal authorities and executing agencies. The Director of Central Intelligence leads and directs national intelligence collection activities under authorities found in Title 50. The Intelligence Community components of DoD often collected foreign intelligence in response to national tasking under Title 50 authorities, but they also collected tactical intelligence for military commanders.

52 See 50 U.S.C. §403-5(a) & (b) (2006).


54 Jeffrey H. Smith, Keynote Address: Symposium: State Intelligence Gathering and International Law, 28 MICH. J. INT’L L. 543, 546–47 (2007). It should be noted that Smith was CIA General Counsel from May 1995 to September 1996. As such, his perspective very much reflects the national security mindset of the mid-1990s, which changed dramatically after the 9/11 attacks.

55 Id. at 546.

56 Smith considers it “a curiosity of our legal history that findings and notice to Congress are required even in the most minor of covert actions, whereas no such requirement governs the use of our military forces.” Id. Others express a similar envy of what they perceive to be DoD’s easier operations approval process: “When the CIA acts, it requires a presidential ‘finding’ sent to Congress; yet the military can be authorized simply through the chain of command from the president as commander in chief.” TREVERTON, supra note 10, at 13.

57 Smith, supra note 54, at 547.

58 House Permanent Select Committee on Intelligence, Report to Accompany the Intelligence Authorization Act for Fiscal Year 2010, H.R. REP. NO. 111-2701 (Jun. 29, 2009) at 50.

59 Id.

60 Senate Select Committee on Intelligence (SSCI); House Permanent Select Committee on Intelligence (HPSCI); Senate Armed Services Committee (SASC); and House Armed Services Committee (HASC).

61 “No agency except the Central Intelligence Agency (or the Armed Forces of the United

States in time of war declared by the Congress or during any period covered by a report from the President to the Congress consistent with the War Powers Resolution, Public Law 93-148) may conduct any covert action activity unless the President determines that another agency is more likely to achieve a particular objective.” E.O. 12,333, supra note 10, at ¶ 1.7(a)(4).


63 Loch K. Johnson, The Church Committee Investigation of 1975 and the Evolution of Modern Intelligence Accountability, 23 INTELLIGENCE AND NAT’L SECURITY 198, 198–225 (2008).

64 Id. at 199.

65 Intelligence Authorization Act for 1981, 94 Stat. 1981, Pub. L. 96-450 (1980), repealed by Intelligence Authorization Act for 1992, 105 Stat. 441, Pub. L. 102-88 (1991). While a detailed examination of the Constitutional permissibility of this statute is beyond the scope of this essay, it is worth noting that this provision was prefaced with the following caveat: “To the extent consistent with all applicable authorities and duties, including those conferred by the Constitution upon the executive and legislative branches of the Government.”

66 Intelligence Authorization Act for 1992, 105 Stat. 441, Pub. L. 102-88 (1991). The caveat regarding Constitutionality was deleted and the statute now provides: “The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity.” 50 U.S.C. § 413 (2010).

67 The National Intelligence Program is defined as: [A]ll programs, projects, and activities of the intelligence community, as well as any other programs of the intelligence community designated jointly by the Director of Central Intelligence and the head of a United States department or agency or by the President. Such term does not include programs, projects, or activities of the military departments to acquire intelligence solely for the planning and conduct of tactical military operations by United States Armed Forces.

50 U.S.C. § 401(a) (2010). For a brief overview of intelligence nomenclature, see supra note 48.

68 Authority to “review and study on an exclusive basis the sources and methods of entities” in the intelligence community was added in January 2001. House Rule 3(l), added by H.Res. 5, 107th Cong. (Jan. 3, 2001). Sources and methods is a catch-all phrase used by the intelligence community that eludes to how and from whom information is gathered. 69 HOUSE RULES, Rule X, 11(b)(1)(B) (2009).

70 Id. at Rule X, 11(j)(1). This definition applies to covert and clandestine activities. Title 50 does not define “intelligence activities,” although it does state that the term “includes covert actions . . . and includes financial intelligence activities.” Section 413a of Title 50 sets forth a generalized reporting requirement for intelligence activities other than covert actions, while Section 413b delineates detailed reporting and Presidential approval requirements for covert actions (“findings”). Executive Order 12,333 defines intelligence activities as “all activities that elements of the Intelligence Community are authorized to conduct pursuant to this order.” E.O. 12,333, supra note 10.

71 Jennifer Kibbe, Congressional Oversight of Intelligence: Is the Solution Part of the Problem?, 25 INTELLIGENCE AND NAT’L SECURITY 24–49, 29–30 (2010). This process protects national security by sheltering intelligence budgets from public view, but it also dilutes the role of the intelligence committees. Kibbe points out that “the structure of the system precludes the defense subcommittees from conducting stringent intelligence oversight . . . [as] the $75 billion intelligence budget comprises around 10 to 12 percent of the defense budget” and, thus, garners “very little attention.”


73 50 U.S.C. § 414 (2010).

74 The catch-all provisions read similar to this one for fiscal year 2009: Funds appropriated by this Act, or made available by the transfer of funds in this Act, for intelligence activities are deemed to be specifically authorized by Congress for the purposes of section 504 of the National Security Act of 1947 (50 U.S.C. 414) during fiscal year 2009 until enactment of the Intelligence Authorization Act for Fiscal Year 2009. Consolidated Security, Disaster, and Continuing Appropriations Act of 2009, § 8080, Pub. L. 110-329 (Sep. 30, 2008).