Distinguishing Military Operations, Intelligence Activities & Covert Action
Title 10 and Title 50 are mutually supporting authorities that can be exercised by the same person or agency, yet congressional oversight is exercised by separate, often competing, committees and subcommittees. This dysfunctional division of congressional oversight of national security is the fundamental “Title 10-Title 50” challenge. Congressional committees exercise oversight and, importantly, authorize and appropriate funds based in part on whether they perceive an activity to be an intelligence activity or a military operation.
The question of whether an unconventional or cyber warfare activity is a military operation, an intelligence activity, or covert action is more precisely a question of congressional oversight: will the intelligence committees exercise primary oversight jurisdiction, or will the armed services committees? To answer this question, we will first define intelligence activities and identify the key elements that distinguish military operations from intelligence activities. We will then examine covert action, which is not synonymous with intelligence activities despite that persistent misperception, and we will learn why even unacknowledged military operations may be exempt from intelligence committee oversight. Our analysis of the relevant statutes will reveal that traditional military activities are not intelligence activities or covert action. A brief review of military and legislative history will show that military operations preparatory to anticipated conflict are traditional military activities, and that even unacknowledged operations by military personnel under military command and control may not constitute covert action.
A. Military Operation or Intelligence Activity?
Title 50 directs the President “to ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States,” yet there is no statutory definition of the term “intelligence activities.”121 The closest Title 50 comes to defining intelligence activities is its stipulation that the term includes “covert action” and “financial intelligence activities.”122 Other provisions in Title 50 appear to suggest that “military intelligence activities” and “tactical intelligence activities” are distinguishable from (rather than subsets of) intelligence activities.123 This distinction is supported by the statutory definition of the National Intelligence Program, which provides that it “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.”124
Executive Order 12,333 broadly defines intelligence activities as “all activities that elements of the Intelligence Community are authorized to conduct pursuant to this order.”125 The Intelligence Community includes elements from several government agencies, including the CIA, the Department of State, the Department of Treasury, the Department of Energy, and, naturally, DoD.126 Indeed, so many elements of DoD are also members of the Intelligence Community—and E.O. 12,333 gives those elements broad authority to carry out intelligence activities—that the statutory distinction between intelligence activities and military intelligence activities we saw in the preceding paragraph is nearly obviated.127
This jumble of defined and undefined terms leads to the confusion discussed throughout this Article about where to draw the line between intelligence activities and military operations. Yet the critical distinction emerges when E.O. 12,333 Sec. 1.10 assigns distinct responsibilities to the Secretary of Defense to: “(a) Collect (including through clandestine means), analyze, produce, and disseminate information and intelligence and be responsive to collection tasking and advisory tasking by the Director; (b) Collect (including through clandestine means), analyze, produce, and disseminate defense and defense-related intelligence and counterintelligence, as required for execution of the Secretary’s responsibilities.”128 The primary question, then, is whether the activity is being conducted in response to tasking from the DNI or the Secretary of Defense.
The foregoing suggests a two-part test to determine whether an activity is an intelligence activity or a military operation. An intelligence activity is: (1) conducted by an element of the intelligence community (2) in response to tasking from the DNI. If the activity in question fulfills both requirements, then it is an intelligence activity authorized primarily by Title 50. If the activity is conducted by a DoD element of the intelligence community pursuant to tasking from the Secretary of Defense, then it should be considered a military operation, or military intelligence activity, conducted under either Title 10 or Title 50 authority.129 If the activity is conducted by a DoD element that is not part of the Intelligence Community, then the activity is a military operation conducted only under Title 10 authority.
This discussion highlights why the Title 10-Title 50 debate is typically little more than a debate about congressional oversight. The Secretary of Defense possesses authorities under both Title 10 and Title 50. The armed services committees exercise oversight over all DoD activities and operations, including military intelligence activities, tactical intelligence activities, and other departmental intelligence-related activities. The challenge is that the intelligence committees also want to assert jurisdiction over the “intelligence-related” activities of the military.
As we saw in Part II, the intelligence committees purport to exercise broad jurisdiction over all intelligence-related activities, including those of the military, which in turn creates overlapping jurisdiction with the armed services committees and needlessly generates confusion over oversight and reporting requirements. While the intelligence committees may be justified in asserting jurisdiction over DoD activities authorized and funded under Title 50 authorities, the same cannot be said of DoD intelligence-related activities authorized and funded under Title 10 authorities. These Title 10 activities should be properly categorized as military operations subject to the exclusive oversight of the armed services committees.
B. Is the Military Operation a Covert Action?
The military operations discussed in Part III, unconventional and cyber warfare, are conducted by SOF and U.S. Cyber Command, respectively. Neither special operations nor U.S. Cyber Command are elements of the Intelligence Community, so if an unconventional or cyber warfare activity is conducted pursuant to tasking from the Secretary of Defense, then there can be little question it is a military operation. Military operations authorized and funded under Title 10 authorities are properly labeled military operations subject to the exclusive oversight of the armed services committees, even if those activities are related to intelligence gathering—so long as they are in response to tasking from the Secretary of Defense and remain under military direction and control. Yet Title 50 includes one provision that would place even military operations meeting these criteria under the jurisdiction of the intelligence committees: the intelligence committees retain jurisdiction over all covert action.
For all that is lacking in the Title 50 definition of intelligence activities, it does stipulate that the term includes “covert action.”130 Indeed, covert action is arguably the intelligence activity that generates the most attention and concern, especially from members of Congress. The very phrase conjures images of cloak-and-dagger intrigue and rogue actors manipulating foreign powers while possessing “a license to kill.” For most of American history, the term covert action was not statutorily defined—and had little reason to be—until Congress became concerned with oversight.
Indeed, President George H.W. Bush issued a signing statement calling Congress’s definition of covert action “unnecessary” and stated he would continue to consider the historic missions of the U.S. military in determining whether a particular activity constituted a covert action.131
Following the Iran-Contra affair, Congress statutorily defined covert action as “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.”132 Accordingly, covert action consists of three essential elements:
1. An activity of the U.S. government;
2. To influence political, economic, or military conditions abroad; and
3. Where it is intended that the role of the U.S. government will not be apparent or acknowledged openly.
This definition was included in the Intelligence Authorization Act for 1991.133 The accompanying Conference Report emphasized that Congress did not intend for the definition to expand or contract previous definitions of covert action; rather, the intent was to “clarify the understandings of intelligence activities that require presidential approval and reporting to Congress.”134
The Senate Report, which was not adopted in whole by the Conference Report, stressed that “the core definition of covert action should be interpreted broadly.”135 It is not clear that the Executive Branch shares Congress’s interpretation, nor are these congressional interpretations legally binding.136 Nevertheless, the first element, “an activity of the U.S. government,” naturally includes any activity by U.S. government personnel, as well as any activity by third parties acting on behalf of U.S. government
personnel and under their control.137 The second element—influencing political, military or economic conditions abroad—was intended by Congress (or at least the Senate intelligence committee) to include nearly all “activities to influence conditions” abroad; this purports to be an objective test, and it was not intended to require an articulable link to specific foreign policy or defense objectives.138 The third and “essential element of a covert action is that the role of the United States in the activity is not apparent and not intended to be acknowledged at the time it is undertaken.”139 The Conference Report stressed an activity is not covert action “unless the fact of United States government involvement in the activity is itself not intended to be acknowledged.”140
Importantly, “covert action” is a noun, which suggests that covert may be used as an adverb in situations that do not amount to covert action. Additionally, the statutory definition of covert action makes no distinction between kinetic activities (e.g., direct action like the operation to kill or capture Osama bin Laden) or nonkinetic activities (e.g., intelligence gathering). What turns a covert activity into “covert action” is its intended effect—influencing conditions abroad.
Returning to our analysis here, any U.S. military operation abroad would certainly meet the first and second element. The first element would be objectively met if the military operation was conducted by U.S. military personnel. Unconventional warfare could potentially require further analysis, but the existence of an unconventional warfare execute order141 would certainly suggest the pertinent third parties would be under some form of U.S. control. The second element would similarly be easily established, as it is difficult to imagine a military operation abroad that would not have some objective influence on conditions abroad (accepting the Senate intelligence committee’s view that the qualifiers “political, military, or economic” are intended to be all-encompassing). Indeed, it is difficult to understand why a military operation would be conducted abroad but for intent to influence conditions. The third “essential” element, then, is key: a military operation could be deemed covert action if it is not intended to be acknowledged.
Simple statutory interpretation suggests several points relevant to our analysis of the acknowledgement element. The first point is simply that acknowledgement must be “intended” at the time the operation is initiated. Circumstances change, but if the U.S. government intends to acknowledge its involvement at the time the military operation is planned and executed, then it is not covert action. The requirement of intention also removes any requirement of actual acknowledgement; whether the operation is actually acknowledged is immaterial, so long as acknowledgement was intended at the time the operation commenced. Second, operational security is distinguishable from attribution—concealment or misrepresentation do not imply or suggest lack of acknowledgement. Military personnel may take great pains to conceal their true identity, but that does not make an operation covert if the intent remains to acknowledge U.S. government involvement at some unspecified time. Third, the statute does not state when the operation must be acknowledged. The legislative history is silent on this point as well, which leaves considerable room for reasonable interpretation by the executive branch. Conceivably, an intention to acknowledge U.S. government involvement two years after the conclusion of the military operation still negates the “is not intended to be acknowledged” element. Fourth, Webster’s Dictionary defines “acknowledge” as “to admit to be real or true,” which implies it is in response to a query or question.142 The U.S. government need not promulgate a press release or make a formal announcement of its involvement in the military operation. Indeed, if the operation is conducted without detection, or if the U.S. government is never asked whether it was responsible for the operation, then the need to acknowledge would not be triggered. The courts generally interpret statutes in a way that gives effect to every word,143 which means the intent and acknowledgment elements should be considered independently. In other words, there may be intent to acknowledge without actual acknowledgement, just as there may not be an intent to not acknowledge (deny) that is not exercised because the operation is never discovered.
If a military operation fails any of the three requisite elements in the definition of covert action, it is not covert action. However, even if a military operation meets all three elements, the military operation may still not be covert action. After defining covert action, the statute next lists several exclusions. Covert action “does not include”:
(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;
(2) traditional diplomatic or military activities or routine support to such activities;
(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or
(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.144
Thus, even unacknowledged unconventional or cyber warfare activities are not covert action if they are a “traditional military activity” or if they could be considered “routine support” to a traditional military activity.
1. Traditional Military Activities are not Covert Action
While several of the activities excluded from the definition of covert action could apply to unconventional and cyber warfare depending on the context and actors involved, our analysis will focus on traditional military activities because of their greater relevance and implications for congressional oversight.145 The accompanying Conference Report explicitly excludes “traditional military activities” and “routine support” from the definition of covert action, before providing this crucial insight into what Congress intended:
It is the intent of the conferees that “traditional military activities” include activities by military personnel under the direction and control of a United States military commander (whether or not the U.S. sponsorship of such activities is apparent or later to be acknowledged) preceding and related to hostilities which are either anticipated (meaning approval has been given by the National Command Authorities for the activities and for operational planning for hostilities) to involve U.S. military forces, or where such hostilities involving United States military forces are ongoing, and, where the fact of the U.S. role in the overall operation is apparent or to be acknowledged publicly. In this regard, the conferees intend to draw a line between activities that are and are not under the direction and control of the military commander. Activities that are not under the direction and control of a military commander should not be considered as “traditional military activities.”146
The Conference Report test for traditional military activities suggests four elements. Traditional military activities are:
1. conducted by U.S. military personnel,
2. under the direction and control of a U.S. military commander,
3. preceding and related to anticipated hostilities or related to ongoing hostilities involving U.S. military forces, and
4. the U.S. role “in the overall operation is apparent or to be acknowledged publicly”
Elements 1 and 2 are relatively straightforward: traditional military activities must be conducted, directed, and controlled by U.S. military personnel. Element 2, military command and control, distinguishes traditional military activities from any situation in which special operations personnel are seconded to the CIA and operating under the direction and control of CIA personnel.147 The most recent example of such a scenario was the operation to kill or capture Osama bin Laden, which is discussed in the introduction to this Article. The chain of command, as described by Panetta, apparently ran from the President to the Director of Central Intelligence to the Commander of Joint Special Operations Command.148 As the operation was conducted under the direction and control of the CIA and was not (originally) intended to be acknowledged, the operation could not be considered a traditional military activity and was classified as covert action.
Element 2, or direction and control, will not necessarily be dispositive because the Secretary of Defense is authorized by law and executive order to conduct intelligence activities and military operations. As we saw in Part II, the Secretary of Defense’s statutory authorities are grounded in his Title 10 authorities as head of DoD (e.g., 10 U.S.C. §113), his Title 10 intelligence authorities (e.g., 10 U.S.C. § 137), his Title 50 intelligence authorities (e.g., 50 U.S.C. §403-5), and his delegated authorities contained in Executive Order 12,333 and elsewhere.149
Element 3 introduces the subjective terms “preceding and related to” and “anticipated” hostilities. These terms raise several questions: how far in advance does “preceding” include, how closely “related” must the activities and hostilities be, and does “anticipated” imply imminence or require a high probability of occurrence? With respect to the word “anticipated,” the Conference Report provides some clarity by stating that “anticipated” means “approval has been given by the National Command Authorities for the activities and for the operational planning for hostilities.”150 Such approval is evidenced by the existence of a Planning Order, Warning Order, or Execute Order issued at the direction of the Secretary of Defense.151 Thus, actual hostilities will be obvious and anticipated hostilities will be evidenced by an order of some sort, so any ambiguity with respect to element 3 will likely center on the phrase “preceding and related to.”
Congress did not define “preceding and related to,” but the Conference Report stressed that “the conferees intend to draw a line between activities that are and are not under the direction and control of the military commander.”152 This point is particularly illuminating as the Conference Report next suggests that unacknowledged “activities undertaken well in advance of a possible or eventual U.S. military operation” will be deemed covert action unless they can be considered “routine support” to the anticipated military operation.153
“Routine support” as defined by Congress includes “cacheing communications equipment or weapons, the lease or purchase from unwitting sources of residential or commercial property to support an aspect of an operation, or obtaining currency or documentation for possible operational uses, if the operation as a whole is to be publicly acknowledged.”154 The report continues:
The Committee would regard as “other-than-routine” support activities undertaken in another country that involve other than unilateral activities. Examples of such activity include clandestine attempts to recruit or train foreign nationals with access to the target country to support U.S. forces in the event of a military operation; clandestine effects to influence foreign nationals of the target country concerned to take certain actions in the event of a U.S. military operation; clandestine efforts to influence and effect public opinion in the country concerned where U.S. sponsorship of such efforts is concealed; and clandestine efforts to influence foreign officials in third countries to take certain actions without the knowledge or approval of their government in the event of a U.S. military operation.155
The Conference Report defines traditional military activities and stresses that military “direction and control” is a deciding factor. The Conference Report then defers to the Senate Report to further define “routine support” of traditional military activities, which then introduces the distinction between unilateral activities and the use of foreign nationals. Read in context, the “routine support” definition only applies to activities that are not under the direction and control of a military commander.156
To summarize, an essential element of covert action is lack of intended acknowledgement of the overall operation, so the existence of intended acknowledgement obviates any need for further analysis under the traditional military activities exception. The only time the military would need to concern itself with analysis under the traditional military activities exception is when the specific military operation is not intended to be acknowledged. In that situation, the next analytical step is to determine whether the specific unacknowledged military operation is a traditional military activity. If an unacknowledged activity is 1) conducted by military personnel, 2) under military direction and control, and 3) pursuant to an order issued or authorized by the Secretary of Defense, then the only remaining requirement to escape falling within the definition of covert action is that 4) the U.S. role in the overall anticipated military operation must be acknowledged. Notwithstanding this relatively straightforward analysis, military preparatory operations continue to raise congressional ire.
2. Military Preparatory Operations are Traditional Military Activities
Over the past ten years, members of the congressional intelligence committees repeatedly expressed frustration with what they see as DoD’s deliberate side-stepping of their oversight by renaming intelligence activities as “operational preparation of the environment.”157 These congressional concerns are most commonly raised in the context of intelligence activities conducted during the period preceding hostilities. This is the period where conflict is portended but not yet inevitable: when military forces begin making preparations for possible conflict. These preparatory operations are what the U.S. military calls “operational preparation of the environment,” or OPE.
In its report accompanying the Intelligence Authorization Act for 2010, HPSCI criticized DoD for frequently labeling its clandestine activities as OPE “to distinguish particular operations as traditional military activities and not as intelligence functions” and, implicitly, escape intelligence oversight.158 HPSCI opined that this practice made the distinction all but meaningless as DoD “has shown a propensity to apply the OPE label where the slightest nexus of a theoretical, distant military operation might one day exist.”159 HPSCI argues that this practice obfuscates the military operations from congressional oversight, yet our analysis in Part II revealed that oversight of OPE should still be exercised by the armed services committee.160
A fundamental concern of the intelligence committees is that DoD’s clandestine activities labeled as OPE “carry the same diplomatic and national security risks as traditional intelligence-gathering activities.”161 Where Title 50 requires that the intelligence committees be kept “fully and currently informed” of all intelligence activities, Title 10 does not have a corresponding requirement that the armed services committees be kept informed of all military operations. More importantly, the intelligence committees fear that DoD is skirting the formal Presidential approval and reporting requirements for covert action by evasively naming equivalent activities as OPE.162
Clandestine activities are generally distinguished from covert activities in that clandestine activities are conducted secretly, but if activity is discovered the role of the United States will ultimately be acknowledged.163 If the U.S. government intends to acknowledge the clandestine activities at some point, then they fail the third definitional element for covert action. If the U.S. government does not intend to acknowledge clandestine activities of the U.S. military, then the question becomes whether those clandestine activities are traditional military activities. If so, then the statutory covert action paradigm does not apply as a matter of law.
The Senate Select Committee on Intelligence expressed frustration in 2009 with what it viewed as overly broad interpretations of traditional military activities by the Executive Branch. In questions submitted to Admiral Dennis Blair, the nominee for Director of National Intelligence, and Leon Panetta, then the nominee for the position of Director of Central Intelligence, SSCI asked both nominees to distinguish “between covert action, military support operations, and operational preparation of the environment.”164 Blair responded that there is “often not a bright line between these operations” and, thus, they “must be very carefully considered and approved by appropriate authorities and they must be coordinated thoroughly in the field.”165
Panetta answered by correctly emphasizing that covert action is defined by statute to be actions “where the role of the U.S. will not be acknowledged” and “[t]raditional military activities are exempt from the definition.”166 Panetta opined that “the line between covert actions under Title 50 and clandestine military operations under Title 10 has blurred” and expressed concern that “Title 10 operations, though practically identical to Title 50 operations, may not be subjected to the same oversight as covert actions, which must be briefed to the Intelligence Committees.”167
When Panetta stated “the line between covert actions under Title 50 and clandestine military operations under Title 10 has blurred,” he seems to have meant that the activities in question appear increasingly similar—not that the statutory authorities to conduct the activities have blurred. General Michael Hayden emphasized this distinction during his confirmation hearings prior to becoming Director of the NSA: OPE and foreign intelligence gathering may appear similar in terms of “tradecraft” but the “legal blood line[s]” are different—“different authorities, somewhat different purposes, mostly indistinguishable activities.”168
The concern of the intelligence committees, then, is that the military is increasingly conducting activities that appear very similar to activities conducted by the CIA and other members of the intelligence community, yet those activities are not subject to the oversight of the intelligence committees. These secret military activities are not covert action because they are either intended to be acknowledged at some point or they are traditional military activities. The intended acknowledgement element is difficult to argue against, so the intelligence committees seem to be centering their arguments for oversight of the military’s secret activities by suggesting that these are not actually traditional military activities. Unacknowledged unconventional or cyber warfare may legally be conducted when directed by the President and Secretary of Defense in preparation for an anticipated conventional conflict, and those unacknowledged activities are excluded from the definition of covert action.169 Put another way, if the unconventional or cyber warfare activity at issue can be considered a “traditional military activity,” then it is not covert action; if the activity at issue is “routine support” to a traditional military activity,” then it is not covert action. Neither exclusion from the definition of covert action makes any reference to whether the activity at issue will be acknowledged by the U.S. government should its existence become public.
121 50 U.S.C. § 413(a)(1) (2006).
122 Id. § 413(a)(1), (f) (2006).
123 See 50 U.S.C. § 403-3(a) (2006), which expresses the sense of Congress that either the DNI or his Deputy should have experience with or appreciation of “military intelligence activities,” and 50 U.S.C. § 403-5(a)(3) (2006), which directs the Secretary of Defense to coordinate with the DNI to “ensure that the tactical intelligence activities of [DoD] complement and are compatible with intelligence activities under the National Intelligence Program.”
124 50 U.S.C. § 401a(6) (2006).
125 E.O. 12,333, supra note 10, § 3.5(g).
126 Both Title 50 U.S.C. § 401a(4) (2006) and Executive Order 12,333 define the Intelligence Community as including:
(A) The Office of the Director of National Intelligence.
(B) The Central Intelligence Agency.
(C) The National Security Agency.
(D) The Defense Intelligence Agency.
(E) The National Geospatial-Intelligence Agency.
(F) The National Reconnaissance Office.
(G) Other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs.
(H) The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Federal Bureau of Investigation, and the Department of Energy.
(I) The Bureau of Intelligence and Research of the Department of State.
(J) The Office of Intelligence and Analysis of the Department of the Treasury.
(K) The elements of the Department of Homeland Security concerned with the analysis of intelligence information, including the Office of Intelligence of the Coast Guard.
(L) Such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency concerned, as an element of the intelligence community. Title 50 U.S.C. § 401a(4) (2006). See also E.O. 12,333 supra note 10, § 3.5(h) (defining the elements of the Intelligence Community).
127 For example, the intelligence and counterintelligence elements of the Army, Air Force, Navy, and Marine Corps are part of the Intelligence Community, and E.O. 12,333 directs those elements to “[c]ollect (including through clandestine means), produce, analyze, and disseminate defense and defense-related intelligence and counterintelligence to support departmental requirements, and, as appropriate, national requirements . . . .” E.O. 12,333, supra note 10, at § 1.7(f)(1). Thus, E.O. 12,333 authorizes elements of DoD to conduct military (“departmental”) intelligence activities and national intelligence activities.
128 EO 12,333, supra note 10, at § 1.10. This distinction is reinforced in subsection (c) where the Secretary of Defense is given authority to “[c]onduct programs and missions necessary to fulfill national, departmental, and tactical intelligence requirements.”
129 The Secretary of Defense may direct DoD personnel to carry out intelligence activities in response to national intelligence requirements, or to meet the intelligence needs of the military. When DoD personnel conduct intelligence activities in response to national intelligence requirements, they do so primarily under Title 50 authorities (50 U.S.C. § 403–5(b)(1) (2006)) and pursuant to priorities and needs determined by the DNI (50 U.S.C. § 403– 1(f) (2006)). When DoD personnel conduct intelligence activities to fulfill military intelligence requirements, those intelligence activities are conducted under Title 10 authorities, e.g., 10 U.S.C. §§ 113, 164 (2006), and delegated authorities from the President and Secretary of Defense; if the DoD personnel are also members of the Intelligence Community (e.g., NSA) the activities are also conducted pursuant to Title 50 authorities (50 U.S.C.§ 403–5 (2006). These military operations are also sometimes referred to as “DoD Intelligence Related Activities” or “Tactical Intelligence and Related Activities (TIARA).” CONFERENCE REPORT ON THE INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 1991, H.R. REP. NO. 102-166 (Conf. Rep.) (July 25, 1991) at 21 [hereinafter Conference Report].
130 50 U.S.C. § 413(a)(1), (f) (2006). Statement on Signing the Intelligence Authorization Act, Fiscal Year 1991, in BOOK II PUB. PAPERS 1043–44 (1991). The use of Presidential signing statements is controversial. Some scholars view signing statements as an attempt to influence legislative history by creating “executive . . . history that is expected to be given weight by the courts in ascertaining the meaning of statutory language.” Marc N. Garber & Kurt A. Wimmer, Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 HARV. J. ON LEGIS. 363, 366 (1987). Nevertheless, the Constitution does envision a significant Presidential role in the legislative process, see, e.g., U.S. CONST. art. I, § 7, cl. 2, and some courts have relied on signing statements when interpreting legislation. See, e.g., United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989); Berry v. Dep’t of Justice, 733 F.2d 1343, 1349–50 (9th Cir. 1984); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661–62 (4th Cir. 1969). However, signing statements are probably entitled to no more consideration than other forms of “post-passage legislative history, such as later floor statements, testimony or affidavits by legislators, or amicus briefs filed by members of Congress.” Walter Dellinger, Memorandum for Bernard M. Nussbaum, Counsel to the President, The Legal Significance of Presidential Signing Statements (Nov. 3, 1993), 17 Op. O.L.C. 131, 134 (1993).
131 President Bush’s signing statement reads, in pertinent part:
I believe that the Act’s definition of “covert action” is unnecessary. In determining whether particular military activities constitute covert actions, I shall continue to bear in mind the historic missions of the Armed Forces to protect the United States and its interests, influence foreign capabilities and intentions, and conduct activities preparatory to the execution of operations.
132 50 U.S.C. § 413b(e) (2006). A year after its creation by the National Security Act of 1947, the National Security Council issued NSC Directive 1012, which established a policy of containment of the Soviet Union and redefined covert action. Originally drafted by George Kennan, then director of the State Department’s Policy Planning Staff, “NSC 1012 was the turning point for covert action, expanding it from propaganda to direct intervention.” NSC Directive 1012 defined covert action to include “propaganda, economic warfare; preventive direct action, including sabotage, anti-sabotage, demolition and evacuation measures; subversion against hostile states, including assistance to underground resistance movements, guerrillas and refugee liberation groups, and support of indigenous anticommunist elements.” The Directive stipulated that covert action was to be “so planned and executed that any U.S. Government responsibility for them is not evident to unauthorized persons and that if uncovered the U.S. Government can plausibly disclaim any responsibility for them.” This definition guided U.S. government actions for over forty years. TREVERTON, supra note 10, at 210.
133 Pub. L. No. 102-88, §§ 601-603, 105 Stat. 429, 441-445 (1991), as amended (codified at 50 U.S.C. § 413-414).
134 H.R. REP. NO. 102-166, supra note 129, at 28.
135 AUTHORIZING APPROPRIATIONS FOR FISCAL YEAR 1991 FOR THE INTELLIGENCE ACTIVITIES OF THE U.S. GOVERNMENT, THE INTELLIGENCE COMMUNITY STAFF, THE CIA RETIREMENT AND DISABILITY SYSTEM, AND FOR OTHER PURPOSES, S.R. REP NO. 102-85 (Sen. Rep.) (June 19, 1991) at 42. The Conference Report does reference the Senate Report’s explanation of the traditional military activities exception to covert action. H.R. REP. NO. 102-166, supra note 129, at 30.
136 Statements in committee reports may provide persuasive authority, but do not have the force of law. American Hospital Assn. v. NLRB, 499 U.S. 606, 616 (1991); TVA v. Hill, 437 U.S. 153, 191 (1978) (“Expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress.”).
137 50 U.S.C. § 413b(e) (2006). Under the control of U.S. government personnel includes “receiving direction and assistance . . . significant financial support or other significant forms of tangible material support . . . .”
138 At the time of this legislation, the working definition of “special activities” (a euphemism for covert action) in E.O. 12,333 included this element: “in support of national foreign policy objectives abroad.” The Senate Report rejected this element as written because it wanted to eliminate the arguable distinction between foreign policy and defense policy, which had been invoked by the executive branch. Id.
139 50 U.S.C. § 413b(e) (2006).
140 H.R. REP. NO. 102-166, supra note 129, at 29. The Report acknowledges that “it is not possible to craft a definition of ‘covert action’ so precise as to leave no areas of ambiguity in its potential application.”
141 JOINT PUBLICATION 5-0, JOINT OPERATION PLANNING (Dec. 26, 2006) at GL-9, GL-11 and I-25 [hereinafter JP 5-0]. An Execute Order is an “order issued by the Chairman of the Joint Chiefs of Staff, at the direction of the Secretary of Defense, to implement a decision by the President to initiate military operations.” Id. at GL-9.
142 Webster’s further explains: “ACKNOWLEDGE implies making a statement reluctantly, often about something previously denied.” WEBSTER’S UNABRIDGED DICTIONARY 17 (Random House, 2d ed. 2001). In the absence of a statutory definition, the courts will generally “construe a statutory term in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994).
143 Bailey v. United States, 516 U.S. 137, 146 (1995) (“[W]e assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning”); Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).
144 50 U.S.C. § 413b(e)(1)-(4) (2006) (emphasis added). The Conference Report that accompanied this statutory definition stated these exclusions “do not fall within the definition of covert action”:
1. activities where the primary purpose is to collect intelligence;
2. traditional counterintelligence activities;
3. traditional operational security programs and activities;
4. administrative activities (e.g., pay and employee support);
5. traditional diplomatic activities and their routine support;
6. traditional military activities and their routine support;
7. traditional law enforcement activities and their routine support; or
8. routine support to the overt activities of the U.S. government.
H.R. REP. NO. 102–166, supra note 129, at 28–30.
145 If the primary purpose of an activity is to collect intelligence, then presumably such activities would be considered “intelligence activities” under E.O. 12,333, and the intelligence committees would exercise oversight. However, defining an activity as a traditional military activity places the activity under oversight of the armed services committees. The congressional intelligence committees fear that the military prefers the less intrusive oversight of the armed services committees and, thus, incorrectly defines all military intelligence-related activities as traditional military activities.
146 Conference Report, supra note 129 (emphasis added).
147 In 1962, President John F. Kennedy issued National Security Action Memorandum 162, which assigned Army Special Forces (“Green Berets”) to support CIA covert paramilitary operations and even directed DoD to provide funding to those CIA-led operations. ROTHSTEIN, supra note 75, at 38. 148 See supra note 2 and accompanying text.
149 The Secretary of Defense may direct DoD personnel to carry out intelligence activities in response to national intelligence requirements, or to meet the intelligence needs of the military. When DoD personnel conduct intelligence activities in response to national intelligence requirements, they do so primarily under Title 50 authorities (50 U.S.C. § 403-5(b)(1) (2006)) and pursuant to priorities and needs determined by the Director of National Intelligence (50 U.S.C. § 403-1(f) (2006)). When DoD personnel conduct intelligence activities to fulfill military intelligence requirements, those intelligence activities are conducted under Title 10 authorities, e.g., 10 U.S.C. §§ 113, 164 (2006), and delegated authorities from the President and Secretary of Defense; if the DoD personnel are also members of the Intelligence Community (e.g., the National Security Agency) the activities are also conducted pursuant to Title 50 authorities (50 U.S.C. § 403-5 (2006)).
150 Conference Report, supra note 129, at 30. The “National Command Authorities” are the President and Secretary of Defense. JP 5-0, JOINT OPERATION PLANNING (Dec. 26, 2006) at GL-9.
151 JP 5-0, supra note 141, at GL-11 and I-25. The issuance of an Execute Order is no mere technicality. Execute Orders are typically preceded by Planning Orders and a planning phase, so the Execute Order signals the transition from planning to operations. A Planning Order is a “directive that provides essential planning guidance and directs the initiation of execution planning before the directing authority approves a military course of action.” Id.at GL-20.
152 Conference Report, supra note 129, at 30.
153 Id. The Conference Report then refers readers to the Senate Report, which states The Committee also recognizes that even in the absence of anticipated or ongoing hostilities involving U.S. military forces there could potentially be requirements to conduct activities abroad which are not acknowledged by the United States to support the planning and execution of a military operation should it become necessary. Whether or not other forms of support for the planning and execution of military operations could constitute ‘covert actions’ will depend, in most cases, upon whether they constitute ‘routine support’ to a military operation.”
S. REP. NO. 102-85, supra note 135, at 47. The Senate Report contained more restrictive language than what was included in the final Conference Report. For example, the Senate report found acknowledgement (or the lack thereof) to be a deciding factor, while the Conference Report rightfully concluded that the exercise of command and control is decisive. Compare Conference report, supra note 135, with S. REP. NO. 102-85 (1991) (Conf. Rep.). See also Gross, infra note 169, at 8. This issue was revisited in 2003 when the SSCI attempted to assert that unacknowledged operations in countries where U.S. military forces do not have an acknowledged presence would fall within the definition of covert action. The unclassified portion of the intelligence authorization act that passed the Senate in November 2003 did not include this controversial assertion and instead reaffirmed “the functional definition of covert action.” Kibbe, supra note 8, at 107.
154 Conference Report, supra note 129, at 30.
156 It is inconceivable that U.S. military personnel would conduct an activity overseas without the existence of an authorization order from the Secretary of Defense. Thus, the routine support provision seems intended to address those situations where non-military personnel are used to provide support to anticipated military operations. Read as such, Congress’s distinction between unilateral activities and those involving foreign nationals seems logical.
157 OPE is no longer defined in unclassified U.S. military publications, however it is considered “Pentagon-speak for gathering information in trouble spots around the world to prepare for possible missions.” Linda Robinson, Plan of Attack, The Pentagon Has a New Strategy For Taking on Terrorists-and Taking Them Down, U.S. NEWS AND WORLD REPORT (Aug. 1, 2005), http://www.usnews.com/usnews/news/articles/050801/1terror.htm.
158 House Permanent Select Committee on Intelligence, Report Accompanying the Intelligence Authorization Act for Fiscal Year 2010, 111th Congress, 2nd Session, at 10 (Jun. 25, 2009). This bill was passed by the House but not by the Senate. In fact, the House and Senate have failed to enact an intelligence authorization act for the past five years. The Intelligence Community is able to expend appropriations only because of the unique provision of 10 U.S.C. § 413 (2006), which pre-authorizes intelligence appropriations.
159 Id. at 11.
160 See, e.g., the written questions posed to General Keith Alexander by the Senate Armed Services Committee prior to his confirmation as Commander of U.S. Cyber Command.
161 HPSCI Report, supra note 158, at 11.
162 See 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., 2d Sess. 26–7 (May 18, 2006).
163 H.R. REP. NO. 101-725, pt. I (1990) (Conf. Rep.). DoD defines clandestine operation as An operation sponsored or conducted by governmental departments or agencies in such a way as to assure secrecy or concealment. A clandestine operation differs from a covert operation in that emphasis is placed on concealment of the operation rather than on concealment of the identity of the sponsor. In special operations, an activity may be both covert and clandestine and may focus equally on operational considerations and intelligence-related activities.” JP 1-02, supra note 115, at 89.
164 Here is the Committee’s complete question: “As you know, the Under Secretary of Defense for Intelligence has Title 10 and Title 50 authorities. The USD(I) was dual-hatted by DNI McConnell to serve concurrently as his Deputy Director for Defense. Yet, the USD(I) has, on occasion, asserted that this Committee does not have primary jurisdiction over his programs. This is of particular concern to this Committee as the USD(I) has interpreted Title 10 to expand “military source operations” authority, allowing the Services and Combatant Commands to conduct clandestine HUMINT operations worldwide. These activities can come awfully close to activities that constitute covert action.” Nomination of the Honorable Leon E. Panetta to be Director, Central Intelligence Agency: Hearing Before S. Select Comm. on Intelligence, 111th Cong., 1st Sess. 94 (2009); Nomination of Dennis C. Blair to be Director of National Intelligence: Hearing Before the S. Select Comm. on Intelligence, 111th Cong., 1st Sess. 116 (2009).
165 Blair, supra note 164, at 117.
166 Questions for the Record, Nomination of the Honorable Leon E. Panetta to be Director, Central Intelligence Agency: Hearing Before S. Select Comm. on Intelligence, 111th Cong., 1st Sess. 94 (2009), available at http://intelligence.senate.gov/090205/panetta_post.pdf.
168 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., 2d Sess. 116 (May 18, 2006). General Hayden continued, Id.
169 See generally RICHARD C. GROSS, DIFFERENT WORLDS: UNACKNOWLEDGED SPECIAL OPERATIONS AND COVERT ACTION (2009), available at http://handle.dtic.mil/100.2/ADA494716.
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