Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military. Bobby Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary. Whether this is an important step or not depends on one’s starting point, of course; I agree with Bobby that it is a big deal and a welcome step – though if one’s view is that all these operations are unlawful, or that they require judicial oversight, or something else, then you won’t be much moved.
Seen within the framework of US law and oversight of overseas use of force operations, however, this is an important step. A couple of observations; see Bobby’s post for a detailed discussion. First, this legislation is with respect to operations conducted by the US military; it does not cover CIA activities. Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; it does not alter existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations. These limitations run to several different things.
Counterintuitive as many might find it, the CIA is subject to far greater oversight, and at a far higher level of government, in its conduct of Title 50 covert activities than the US military is in its conduct of armed operations under Title 10. There are good reasons why the military is not subject to direct oversight in essentially tactical decision-making in its traditional military activities once a decision has been made to commit to the use of force. These decisions have long been understood to be within the discretion and responsibility of commanders who have the expertise to carry them out. Oversight through the Armed Services committees is robust, including its closed sessions, but is not considered the same as that which Title 50 requires for covert activities. However, the expansion of the US military into clandestine activities – which might or might not meet the legal definition of “covert” under Title 50 and so trigger those oversight functions – has raised new questions as to whether Armed Services committees oversight, traditionally conceived for conventional conflicts, keeps Congress sufficiently informed and permits sufficiently timely oversight in the case of activities carried by JSOC. (more…)