My friend Bobby Chesney has responded at Lawfare to my previous post arguing that Title 50 does not provide the CIA with a public-authority justification to kill Americans overseas. He disagrees with both of the limits on presidential authority to authorise covert action I discussed. I will address the Article II question in a separate post; in this post I want to discuss the “traditional military activity” (TMA) exception to Title 50’s definition of “covert action.” Here is what Bobby writes:
CIA Drone Strikes Don’t Qualify as TMA: As an initial matter, I think one part of his argument depends on a mistaken assumption regarding the meaning of TMA, and that drone strikes do indeed constitute covert action within the meaning of Title 50. The TMA exception to covert action has a complicated and often-misunderstood history, which I recount in detail in this paper (pp. 592-601 especially). The concept was the subject of extensive negotiations between the White House and Congress, ultimately resulting in the following agreement. An activity that otherwise would qualify as covert action would instead count as TMA, thus avoiding the requirement of a written presidential finding and reporting to SSCI and HPSCI, if the following conditions were met.
1) was commanded and executed by military personnel, and
2) took place in a context in which overt hostilities either were
(a) ongoing, or
(b) “anticipated (meaning approval has been given by the National Command Authorities for [i] the activities and for [ii] operational planning for hostilities).”
The CIA drone strike program as a general matter almost certainly does not satisfy this test, especially the first prong. This is why it has been long considered by both the Bush and Obama administrations to be covert action, not TMA. If the covert-action statute is capable of conferring the benefits of the public-authority justification, then, it does so here.
I think this response elides the difference between two different situations: (1) where the military wants to use force covertly against al-Qaeda; and (2) where the CIA wants to use force covertly against al-Qaeda. As Bobby’s article brilliantly explains, the TMA language was included in Title 50 because neither President Bush nor the military wanted a presidential finding — with its attendant reporting requirements — to be required every time the military engaged in a covert action. They wanted, in other words, the military to have the right to covertly engage in its traditional warfighting activities without having to acknowledge it was doing so. After much negotiation, Congress ultimately agreed to carve out a category of military actions that would not qualify as “covert actions” for purposes of Title 50, even when not acknowledged: namely, actions that satisfied the two requirements Bobby quotes. The TMA exception thus permits the military to use force covertly against al-Qaeda without a presidential finding as long as the action in question is commanded and executed by the military (check) and takes place in the context of ongoing hostilities (check).
The TMA functions very differently in the context of covert action by the CIA. There is no question that the military is authorised to engage in the kind of activities against al-Qaeda that, when done covertly, may fall under 50 USC 3093. The military is always authorised to use force against enemy combatants in an armed conflict. The AUMF is simply the latest example of such authorisation. The CIA, however, is in a completely different situation. For all the reasons I discussed in an earlier post, the AUMF does not authorise the CIA to use force against al-Qaeda at all. So the primary question is not whether the CIA can use force against al-Qaeda covertly, but where the CIA gets its authority to use force against al-Qaeda in the first place.
The most obvious answer is, of course, 50 USC 3093…