Major Sean B. Zehtab*
Introduction
Since September 11, 2001, and the beginning of the Global War on Terror, Department of Defense (DOD) operations and intelligence activities have operated under increasing oversight from a variety of internal and external actors. In the modern complex geopolitical environment, the military is increasingly called upon to use expertise in complex operations such as counter-terrorism and cyber operations. In response, Congress has overseen the use of this expertise directly or through other high-level officials removed from operational planning and execution.[1]
The future of conflict, as anticipated by the U.S. Army, is Multi-Domain Operations, which highlights both the importance and potential dangers of oversight.[2] Institutionally, the operating concept of Multi-Domain Operations involves employing multiple joint, whole-of-government and multi-national capabilities to gain advantage over an adversary.[3] In modern warfare, whatever advantage in any one domain (such as land or air) the U.S. military preserves, the advantage will not be decisive.[4] By incorporating and employing capabilities in other domains, such as cyber and space, as well as using information operations more robustly, the military will be better equipped to maintain overall advantage over adversaries.[5]
Recently, the Army has incorporated cyber and electromagnetic capabilities at the Brigade level.[6] Moreover, there is interest in empowering conventional commands to deploy capabilities such as special forces and cyber in tactical operations.[7] Finally, gathering open source intelligence has become both easier and more useful at the operational level.[8] All these developments in Multi-Domain Operations raise oversight concerns, since conventional units do not currently have the kind of oversight systems designed to ensure respect for the civil liberties of U.S. Persons,[9] and congress and high-level actors are too far removed from day-to-day tactical operations to provide effective oversight.
Oversight of military decision making is vital to preserving the civilian control of the military, safeguarding democratic accountability, and ensuring compliance with international law. Excessive or poorly structured oversight, however, can inhibit flexible and timely responses to national security threats and can needlessly interfere with the effective use of expertise by military professionals. Good oversight, then, is a structural balance that both ensures compliance and accountability and permits flexibility and the effective use of expertise by military professionals.[10] Achieving this balance has been an ongoing challenge, subject to extensive scholarly debate and practical evolution over the past decade.[11]
Unfortunately, the current oversight regime in tactical cyber and other clandestine operations is in many ways the worst of both worlds: it chills aggressive action and is not effective at ensuring respect for civil liberties. Over the past decade, oversight has tended towards being concentrated in various high-level entities and individuals, increasingly far-removed from the realities and necessities of the modern operational environment. Moreover, Congress has directly involved itself in military oversight, while important operational decisions are made by field commanders who lack the resources, expertise, and priorities to ensure the protection of the civil liberties of U.S. Persons. The result is, predictably, violations—scarcely deterred by a highly bureaucratic, far-removed, and overly politicized system of oversight.
For instance, a single cyber operation could require oversight from intelligence and intelligence-related entities and agencies, congressional reporting and interagency concurrence, and ordinary operational approval from the military approval authority. In addition to ineffectively ensuring compliance with domestic and international law, the bureaucratic work generated by the current oversight regime takes valuable time and attention away from focusing on the planning and execution of a mission.[12]
This article argues that the Command Operations Review Board (CORB) of the United States Special Operations Command (USSOCOM) provides a model of effective oversight that should be applied to the operational and intelligence contexts. The CORB, independent but with military experience, leanly staffed and closer to the action, effectively balances ensuring compliance with the need for flexible, timely operations, and has provided effective oversight of special operations. This model, if applied more generally in operations and intelligence, could mitigate the problems, measured in blood, treasure, and legal violations, associated with the trend towards redundant and ineffective oversight of these operations by high-level executive and legislative organizations.
The core concern of this article is oversight mechanisms of contemporary cyber and special operations. More traditional intelligence activities, such as counterintelligence, signals intelligence and human intelligence, conducted by DOD under the Secretary of Defense authorities colloquially referred to as “Title 50,” already have multi-layered, robust statutory and agency regulation, whereas operational activities, such as operational preparation of the environment,[13] information operations, and cyber operations, do not have the same robust oversight framework. Cyber and special operations are often conducted in a clandestine manner, facing similar oversight challenges as intelligence.[14] But while oversight is necessary, the trend towards greater congressional involvement[15] reflects a misplaced locus of oversight. It should take place at the operational, not legislative, level.
I. Background: What is Good Oversight?
Oversight is important because it ensures compliance and accountability.[16] However, too much oversight inhibits the ability of military and intelligence officials to use their expertise to accomplish necessary missions.[17] Fundamental to oversight is a basic set of principles: respect for the civil liberties of U.S. Persons; compliance with the law (both domestic and international); efficient use of resources; transparency to the public and civilian masters of the military; and end-state effectiveness of military operations towards achieving national security objectives.[18]
Former FBI General Counsel James A. Baker stressed the central importance of oversight: “[a]gencies must earn our trust every day by demonstrating their competence, by acting with integrity and impartiality, and by strictly adhering to the Constitution and laws of the United States. One way for the government to facilitate the public’s trust … is to make sure that there is appropriate oversight . . . .”[19] Baker identifies several reasons for oversight including ensuring that “taxpayers’ funds are spent appropriately and efficiently on programs and activities . . . .”[20] and to ensure that“agencies avoid mistakes and that appropriate action is taken when mistakes occur.”[21] These mistakes include intelligence failures and abuses of power, such as unlawfully gathering intelligence on Americans.[22]
Richard Whitaker, director of the USSOCOM CORB outlines two types of oversight: functional and independent.[23] Functional oversight is performed by the operational actor; it takes an introspective view of the operations and whether the activities comply with law, policy, and procedure.[24] Independent oversight is performed by actors from outside the organization engaged in the relevant activities.[25] Determining whether a given system of oversight is functional or independent helps to identify how the actors involved in oversight approach their roles.[26] Whitaker gives the example of an Inspector General from outside the unit performing oversight as independent, while oversight of operations through inspection and reporting within a particular command is functional.[27]
Oversight has two key components: the rules for oversight (laws, regulations, and process), and the individuals who carry out the oversight activities. With the rules established, different groups and actors must execute the oversight function; discussion of all of them would be beyond the scope of this Article.[28] The most relevant potential oversight bodies for this Article’s operational-level oversight proposal are military lawyers, high-level executive officials, and Congress, each of which has distinct advantages and disadvantages that should be considered.
A. Military Lawyers’ and Judge Advocates’ Involvement in Oversight
Lawyers and Judge Advocates have been instrumental in the development and execution of oversight of DOD activities.[29] The role Judge Advocates and lawyers play in advising commands, by its nature, is a form of oversight. For example, military lawyers conduct legal reviews of operations and targeting decisions during combat operations, providing valuable advice and perspective to commanders.[30] Judge Advocates are well suited to provide oversight because they are dual professionals, lawyers and military officers, with an independent professional responsibility to provide candid advice.[31] Commands rely on lawyers to ensure compliance with the law in planning and in execution of operations. Military lawyers focus on issues arising in operations, such as the law of armed conflict and other domestic and international legal requirements. Some activities, such as electronic surveillance involving U.S. Persons, require consultation with legal counsel.[32]
Not everyone thinks lawyers are a positive force for enabling operations. Stewart Baker, former General Counsel of the National Security Agency (NSA), takes the position that there are too many military lawyers involved in cyber warfare, inhibiting the implementation of a strategy.[33] Baker notes military lawyers “have raised so many show-stopping legal questions about cyberwar that they’ve left the military unable to fight, or even plan for, a war in cyberspace.”[34] Still, the inclusion of military lawyers adds respect and ensures compliance with domestic and international law in operational planning and execution.[35]
B. High-level DOD/Presidential Oversight
Under the “commander-in-chief” clause, the President is vested with the constitutional authority to supervise the armed forces[36] and has a general constitutional responsibility to “take care” that the laws are faithfully executed.[37] The President is also politically accountable through elections in a way that actors internal to DOD are not.[38] The ability to issue orders and direct appointments in order to effect policy and set priorities give the President authority to shape oversight procedures.[39] Some commenters, such as Samuel J. Rascoff, argue for more top-down oversight of the intelligence community by political appointees.[40] Others have countered that the history of Presidential oversight is a dubious one, in which the President has proved unwilling to intervene to prevent many egregious abuses, arguably including military detention and the Military Commissions.[41] More fundamentally, however, the primary disadvantage of Presidential oversight is the President’s inevitable reliance on the agencies to do most of the oversight, given the breadth and depth of activities of American military operations executed on a global scale.[42]
C. Congressional Oversight
Congress does have an important role in overseeing military activities. First, as a practical matter, Congress is perhaps the most accountable to the public and sensitive to the desires of the citizens, as it is subject to frequent elections.[43] Further, under the constitution, Congress is vested with the powers to “declare war”[44] and make laws and regulations pertaining to the armed forces.[45] It also holds the power of the purse and can wield its oversight and influence through appropriations to the DOD.[46]
One disadvantage is that Congress receives a large amount of written responses from congressional-relations personnel, but does not enjoy close day-to-day relationships with leaders conducting operations.[47] In addition, the existence of what Richard Posner calls “competitive oversight” between various committees with overlapping jurisdiction leads to a tendency to protect the agencies they oversee and exacerbates a lack of coordination in oversight.[48] Posner further describes congressional oversight in statutory rulemaking for intelligence as “micromanagement,”[49] while explaining that members of Congress and congressional staff lack the expertise in intelligence matters to provide meaningful oversight.[50] A recent survey revealed the average congressional staffer only serves 3.5 years.[51] Another weakness is the lack of staff to cover an enterprise as large as DOD—“a single Senate Armed Services Committee majority staffer is currently responsible for the majority staff’s oversight of U.S. Central Command, U.S. Southern Command, counter-narcotics, domestic preparedness, and foreign policy in the Middle East and South and Central America.”[52]
II. The Contemporary Oversight Environment: Trends Towards High-Level Review
Although there have been some positive developments in oversight over the past few years, particularly within DOD, there is a trend towards increased oversight at a high level, often involving Congress itself. This increased oversight has sometimes been beneficial, ensuring compliance with international and domestic law. However, in other instances, congressional interference has caused concrete harm. This Part first discusses recent oversight developments within DOD. Second, it discusses the framework of congressional oversight and particular instances in which it has been beneficial or harmful.
A. Intelligence Oversight Trends Within DOD
Responsibility for the conduct of operations is inherent in the chain of command as exercised by the Secretary of Defense through Combatant Commanders under the Goldwater-Nichols Act.[53] DOD does have civilian oversight in the form of the various Senate-confirmed Undersecretaries of Defense, each with functional and independent oversight responsibilities.[54] While the Undersecretaries help drive Presidential policy, they are still too far removed to effectuate the day-to-day oversight required to detect and prevent violation of law and policy.
The DOD recently updated its internal oversight procedures. DOD Manual 5240.01, also known as the intelligence oversight “Procedures,” and DOD Directive 5148.13, Intelligence Oversight, were released in 2016.[55] Responsibility for implementing intelligence oversight under DOD Directive 5148.13 falls to the DOD Component Heads, or designee, which include the commanders of the Geographic Combatant Commands, the Commander of the Defense Intelligence Agency, and the Military Services, by 1) conducting inspections, 2) developing intelligence oversight policy and guidance, 3) reporting and investigating questionable intelligence activities and serious or highly sensitive matters, and 4) appointing an Intelligence Oversight Officer.[56]
Further, a new addition to DOD Manual 5240.01 provides for review of certain intelligence activities involving U.S. Persons’ information by privacy and civil liberties officials in order to monitor civil liberties.[57] DOD Components must designate a senior military or civilian individual to serve as a Civil Liberties Official, adding the proper emphasis to this position.[58] Appointing a Judge Advocate would be a good option to serve as a Civil Liberties Official because of their legal education and experience. While certainly a positive development in oversight, it remains to be seen whether this increased bureaucracy will inhibit intelligence gathering and prevent identification of possible terrorists.
B. Congressional Oversight of DOD Operations
There are several congressional committees responsible for conducting congressional oversight. For most DOD activities, the Senate Armed Services Committee and the House Armed Services Committee are responsible for oversight. [59] For intelligence activities, congressional oversight occurs in the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.[60]
These committees authorize the funding of operations, constrain through conditions on expenditures, levy reporting requirements for certain operations, conduct investigations and inquiries, and leverage through advice and consent over nominations.[61] The policies and preferences of the congressional committees can have a concrete impact on operational and intelligence-gathering choices. In some cases, congressional oversight has been effective. Nevertheless, it is a troubling trend far-removed from operational realities. The following are examples of congressional oversight and the building of a separate oversight framework by the Armed Services Committees over a variety of operations.
1. Syria Train and Equip: Section 1209.
In 2015, Congress approved funds to train and equip “Vetted Syrian Opposition” groups, but attached numerous restrictions, including various reporting requirements.[62] This tight supervision reflects the political congressional skepticism of the train and equip strategy.[63] Moreover, the financials of the operation were tightly controlled by using funds from the Overseas Contingency Operations Fund, rather than a separate appropriation.[64]
The Vetted Syrian Opposition program also provides an example of Congress exercising oversight by compelling testimony. The Commander of U.S. Central Command testified before the Senate Armed Services Committee in September 2015[65] and said that only approximately five members of the Vetted Syrian Opposition, who had been trained by the U.S., were fighting in Syria. Skeptical Senators declared this testimony “divorced from reality” and condemned the operation entirely.[66] Negative press coverage of the operations followed almost immediately, and they were suspended shortly thereafter. Ultimately, the Obama Administration conceded that train-and-equip outside Syria was not working and reconsidered its strategy.[67] This was an example, then, of positive congressional oversight and dialogue leading to a more direct advise-and-assist effort within Syria, which was both more strategically effective and in line with the preferences of the American people.
2. Guantanamo Bay Prison Detainee Transfer.
Congress has also used reporting requirements tied to funding as a means of exercising oversight regarding the transfer of detainees held at Guantanamo Bay to other nations.[68] This oversight clashed directly with executive preferences in the case of detainee transfers in exchange of prisoners for captured U.S. Army soldier Private Bowe Bergdahl, which ignited a public backlash.[69] The case is an example of strong oversight, because the notification requirement in the relevant statute gives Congress sufficient time to scrutinize the transfer ex ante.
3. Sensitive Military Operations and DOD Cyber Operations.
Examples of operational oversight, as opposed to intelligence oversight, include congressional reporting requirements passed recently for sensitive military operations and cyber operations. For example, in the National Defense Authorization Act (NDAA) for Fiscal Year 2018, Congress mandated that DOD develop a plan to integrate strategic information operations and cyber-enabled information operations into operations against “malign actors.”[70] On the one hand, Congress is acknowledging and supporting the need for operational activities. However, like most sensitive operations, cyber-enabled information operations trigger extensive notification and oversight requirements. These oversight requirements limit DOD’s ability to think critically about structuring an operational plan. Here, oversight inhibits the ability of DOD to do what Congress has mandated in the realm of strategic information operations.
Following President Trump’s elevation of U.S. Cyber Command to a full combatant command, the FY 2018 NDAA implements oversight measures for the conduct of sensitive cyber operations and development of cyber weapons.[71] These oversight measures require notification to Congress within 48 hours after the conduct of new sensitive cyber operations and the development of cyber weapons.[72] There are exceptions for training and covert operations.[73] This requirement, and other reporting requirements such as that regarding sensitive military operations,[74] keep Congress informed and allow for timely oversight, supplementing the quarterly classified reports mandated in 10 U.S.C. § 484[75] for cyber-operations and 10 U.S.C. § 485 for DOD counterterrorism operations.[76] Together, these provisions will allow for Congress to keep pace with DOD, rather than respond to the formal reports generated every three months.
Though unlikely, Congress could attempt to take this oversight a step further with notification requirements prior to operations. This approach would risk creating a de facto congressional approval of operational activities. By any measure, such action would lead to a risk-averse culture in operations, leading to a loss of tactical advantage.
In addition to the reporting requirement, Congress seems to be especially concerned about the legal issues involved with cyber operations and cyber weapons.[77] In order to avoid the loss of tactical advantage and mitigate congressional regulation of cyber operations, the executive branch and DOD should strive to conduct better oversight over its operations and intelligence activities.
III. Invest in Oversight at the Operational Level
This Part argues that the USSOCOM CORB provides a model of effective oversight that should be applied more broadly to operational and intelligence activities. The CORB provides effective functional oversight by experts with the required operational knowledge to ensure compliance while understanding tactical and strategic needs. First, this Part offers a brief overview of the USSOCOM CORB. Then, it describes the ways in which oversight principles of the USSOCOM CORB could and should be applied to the operational and intelligence context.
A. USSOCOM Commander’s Operations Review Board: A Model for Effective Oversight
In USSOCOM, the Commander’s Operations Review Board (CORB) provides what is best characterized as functional oversight of the command’s operational and intelligence activities.[78] The CORB is a model that can serve as a basis for increased investment in oversight of both operations and intelligence.
Leveraging in-house expertise, the CORB provides oversight in the form of support to investigations and inquiries, inspections, and advice on command activities directly to the four-star USSOCOM Commander.[79] The CORB is separate from the operational headquarters staff; for example, it has its own attorney separate from the Office of the Staff Judge Advocate (the legal office for USSOCOM).[80] The U.S. Army Special Operations Command has a similar CORB specifically for Army Special Operations units.
The oversight provided by the CORB is best described as middle-out, responding both up and down the chain of command to the push-pull of oversight issues. Since the CORBs are in headquarters above the operational units, the oversight is intermittent in its inspections and retrospective when it comes to violations. While the CORBs are nearer to the action and provide better fidelity than DOD level or congressional oversight, more can be done if the resources were shifted and provided even lower to tactical action units.
B. Create an Operations Review Board at Major Commands for Better Oversight
While the rules and personnel described above bring operational oversight and intelligence oversight closer from a policy level, gaps remain at the operational and tactical levels. To address this gap, the DOD should invest in personnel embedded in the Inspector General at the Army Division (two-star) equivalent commands. Teams of at least four personnel added at this level could proactively provide oversight and compliance.
The independent oversight team within the command’s IG office could provide oversight in an area that is lacking—the day-to-day oversight of operational activities. The team would focus on operational activities instead of the routine complaints and violations by the command the IG fields on a daily basis. The head of the team should be an active duty senior field grade officer in the pay-grade of O-5 or O-6, an officer with approximately 20 or more years of service, preferably with command experience as an operational commander in the primary mission set of the command. Assistant personnel, two at a minimum, could be an O-4 and a senior non-commissioned officer with experience in the operational focus of the command. The importance of operationally savvy, senior personnel cannot be understated. Bringing the requisite experience will ensure credibility with the command and an ability to navigate inevitably difficult interactions when oversight violations occur.
Intelligence oversight should also be conducted by this team and could serve as the main intelligence oversight unit of action for the DOD Component Heads responsible for oversight of intelligence gathering activities.[81] Optimally, one of these personnel would be a team member who is an expert in the conduct of intelligence activities and can focus on the primary intelligence discipline the command conducts, such as SIGINT or HUMINT. Matching the operational focus matters because operations—information operations, special operations, and cyber—are often highly technical. Finally, the team should have a Judge Advocate in the rank of O-4 to address legal issues, act as legal advisor for inquiries and investigation, and provide advice and liaise with other command legal offices.
This new team would fill the gap left by the current oversight regime in a way current intelligence oversight officers and IGs cannot. The team would assist in providing better oversight in the conduct of intelligence missions and provide organic oversight if the Division headquarters is deployed as a joint task force[82] over special operations teams or intelligence activities. Currently, IG offices and other oversight positions are chronically under-resourced, reactive rather than proactive, and tend to focus on training, compiling reports, and staffing requests for approvals under the various intelligence oversight procedures. In addition, Intelligence Oversight Officers are usually filled by civilian personnel or are an additional duty for service members, not a separate career field.[83] Some units may conduct so many activities that require reporting and oversight that they justify additional oversight personnel in order to relieve the burden from the command.
Placing the new oversight team within the IG or the Division or two-star equivalent headquarters staff would be most appropriate, allowing it to maintain proximity to the decision-making and staffing apparatus with access to the commander. The Operations Review Board could assist in providing technical input to command investigations of violations; this small investment in oversight personnel would be more effective than additional regulation or adding equivalent numbers of congressional oversight staff. If oversight is emphasized and better incorporated into the operational planning and execution, an approach like this proposal could stave off the worst aspects of congressional oversight.
Conclusion
The trend of increased oversight via statute from Congress and high-level oversight entities does not necessarily further oversight goals. The best oversight over DOD operations would come from increased resources at the operational level, leveraging expertise and proximity to mitigate risk to civil liberties and assuage concerns that violations go unchecked within DOD. The Operations Review Board proposed in this paper, based on the USSOCOM CORB, is one alternative that should be pursued. Professional oversight personnel can assist in sharing the burden of the myriad inquiries from DOD oversight entities, the executive branch, and Congress. Ultimately, committing to a new approach of oversight nearer the action will also improve trust, and will in time lessen the burden on operational units from the growing number of oversight rules, reporting requirements, and other conditions.
* Judge Advocate, United States Army. Presently assigned to the United States Army Legal Services Agency. J.D., 2008, University Of Nebraska College Of Law; B.S., 2005, University Of Nebraska-Lincoln. This Article was submitted in partial completion of the Master of Laws requirements of the 66th Judge Advocate Officer Graduate Course.
Disclaimer: The views expressed here are the personal views of the author, and do not necessarily reflect those of the Department of Defense, the United States Army, or any other department or agency of the United States Government.
Image: “Cyber Warriors at Cyber City” by Georgia National Guard is licensed under CC BY 2.0.
[1] See generally Lawrence J. Trautman, Congressional Cybersecurity Oversight: Who’s Who and How it Works, 5 J. L. and Cyber Warfare 147 (2016) (describing the evolving framework of congressional oversight in the cyber context).
[2] See generally U.S. Army Training and Doctrine Command, Multi-Domain Battle: Evolution of Combined Arms for the 21st Century 2025-2040 (2017), http://tradoc.army.mil/MultiDomainOps/docs/MDB_Evolutionfor21st.pdf; see also U.S. Dep’t of Army, Field Manual 3-0, Operations 1-19 (2017) (“Relative positional advantage is something to gain, protect, and exploit across all domains. Combining positional advantages across multiple domains during each phase of operations provides opportunities for exploitation through maneuver.”).
[3] U.S. Army Training, supra note 2, at i (describing multi-domain battle objectives).
[4] Id. See General David Perkins, Multi-Domain Battle: The Advent of Twenty First Century War, Mil. Rev. 11 (2017), http://www.armyupress.army.mil/Portals/7/military-review/Archives/English/Multi-Domain-Battle-The-Advent-of-Twenty-First-Century-War.pdf?ver=2017-10-26-160929-763 (“Our adversaries are adapting their methods of warfare, while accelerating the modernization and professionalization of their combat forces. They seek to gain strategic advantage by offsetting the advantages we have enjoyed over the last twenty years . . . [T]hey are competing now below the threshold of open armed conflict while continuing to posture to more effectively engage in large-scale combat . . . .”).
[5] See Kevin M. Woods & Thomas C. Greenwood, Multidomain Battle: Time for a Campaign of Joint Experimentation, 88 Joint Force Q. 14, 16-17 (2018) (“[C]yber and space domains may become tomorrow’s most valued battlespace given U.S. force dependence on the electromagnetic spectrum and satellite-enabled intelligence and communications. The continued development of sophisticated cyber weapons and employment means—as well as the direct and indirect weaponization of space—could exacerbate this trend [of multi-domain battle].”); see also generally Jason Wesbrock, Glenn Harned, & Preston Plous, Special Operations Forces and Conventional Forces: Integration, Interoperability, and Interdependence, 6 PRISM 85 (2016) (describing trends towards operational independence between special operations and conventional forces).
[6] See Steven P. Stover, Army Developing Expeditionary Cyber-Electromagnetic Teams to Support Tactical Commanders, U.S. Army (February 7, 2018), https://www.army.mil/article/200262/army_developing_expeditionary_cyber_electromagnetic_teams_to_support_tactical_commanders.
[7] See U.S. Army Training, supra note 2, at 53, 56 (describing mission command and integration of special operations forces, cyber, and others).
[8] See U.S. Dep’t of Def., Dictionary of Military and Associated Terms 170 (2018). (“[O]pen-source intelligence—Relevant information derived from the systematic collection, processing, and analysis of publicly available information in response to known or anticipated intelligence requirements. Also called OSINT.”); see also U.S. Army, The U.S. Army Functional Concept for Intelligence: 2020-2040 26-27 (2017) (“OSINT provides insight into human terrain, including social media, search-engines, databases, governmental and nongovernmental organization information sites, biographical data, and publically available business, industry, and economic information. Analysts could use these data sources to perform social network analysis and identify the key personalities within a geographic area or region and to determine their sociological affiliation; civilian, military, law enforcement, government, or other. OSINT could also identify public sentiment to determine if the population is for or against a particular threat group and their narrative or to determine if the population is supportive of blue-force entities and their activities. Information available in the public domain will continue to grow and the importance of collecting, data-basing, understanding, and using this information will grow.”).
[9] See U.S. Army, supra note 8, at 12, 76 (mentioning oversight only twice in its 88 pages, once in the context of support to civil authorities for operations mostly dealing with disaster response). A U.S. Person, for purposes of intelligence and data collection, is (1) a citizen of the United States; (2) an alien lawfully admitted for permanent residence; (3) an unincorporated association with a substantial number of members who are citizens of the U.S., or are aliens lawfully admitted for permanent residence; or (4) a corporation that is incorporated in the U.S. See National Security Agency, Central Security Service, Frequently Asked Questions: Signals Intelligence (SIGINT) (May 3, 2016), https://www.nsa.gov/about/faqs/sigint-faqs.shtml#sigint4.
[10] See Margo Schlanger, Intelligence Legalism and the National Security Agency’s Civil Liberties Gap, 6 Harv. Nat’l. Sec. J. 112, 113 (2015) (“A good oversight system needs its institutions not just to support and enforce compliance but also to design good rules.”).
[11] See generally, e.g., Schlanger, supra note 10; Jeffery S. Brand, Eavesdropping on Our Founding Fathers: How a Return to the Republic’s Core Democratic Values Can Help Us Resolve the Surveillance Crisis, 6 Harv. Nat’l. Sec. J. 1 (2015); Philip Alston, The CIA and Targeted Killings Beyond Borders, 2 Harv. Nat’l. Sec. J. 283 (2011).
[12] In the author’s own experience in previous operational assignments, routine but important operational and intelligence activities are subject to oversight that takes valuable time and attention from focusing on planning and execution of missions.
[13] See Letter from James N. Miller, Under Secretary of Defense for Policy, to the Honorable Carl Levin, Chairman, Senate Armed Services Committee (October 23, 2013) (on file with the author) (defining operational preparation of the environment (OPE) as “the conduct of the activities in likely or potential areas of operations to prepare and shape the operational environment. It can include passive observation, area and network familiarization.”); see also Dictionary, supra note 8, at 184 (“[P]reparation of the environment — An umbrella term for operations and activities conducted by selectively trained special operations forces to develop an environment for potential future special operations.”).
[14] See Andru E. Wall, Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert Action, 3 Harv. Nat’l. Sec. J. 85, 102 (2011) (“The [HPSCI] 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.”) (internal quotations omitted); see also White House, Text of a Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate (December 11, 2017) https://www.whitehouse.gov/briefings-statements/text-letter-president-speaker-house-representatives-president-pro-tempore-senate-2/ (outlining locations and activities where military activity was currently being conducted).
[15] See Wall, supra note 14, at 122 (“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.”).
[16] See, e.g., James A. Baker, Intelligence Oversight, 45 Harv. J. on Legis. 199, 201 (2008) (“When it comes to conducting oversight of the United States intelligence community, then, it seems that our goals should include ensuring that the taxpayers’ funds are spent appropriately and efficiently on programs and activities that produce useable intelligence information; that intelligence activities are effective in protecting the United States and its interests from foreign threats; and that intelligence activities are conducted in a lawful manner at all times.”).
[17] Richard A. Posner, Uncertain Shield: The U.S. Intelligence System in the Throes of Reform 172 (2006) (arguing that micromanagement of intelligence activities by Congress inhibits their effectiveness).
[18] Walter J. Oleszek, Cong. Research Serv., R41079, Congressional Oversight: An Overview 5-6 (2010).
[19] Baker, Intelligence Oversight, supra note 16, at 200.
[20] Id. at 201.
[21] Id.
[22] See id.
[23] See Richard M. Whitaker, Intelligence Law, in Shane Reeves et al., U.S. Military Operations: Law, Policy, and Practice 517, 546, n. 109 (2015).
[24] See id. at 545-46.
[25] See id.
[26] See id.
[27] See id.
[28] This Article focuses on congressional and executive oversight of DOD activities and does not include relevant intelligence agencies under similar oversight (and other agencies oversight over DOD activities under Executive Order 12,333). Other oversight sources include the Article III courts and legitimate reporting on DOD activities. National security reporting, unfortunately, includes illegal leaking of classified information. See Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 205-243 (2012).
[29] See id. at 134.
[30] See id. at 122–60.
[31] See id. at 137.
[32] U.S. Dep’t of Def., DoD Manual 5240.01-M: Procedures Governing DOD Intelligence Activities 23 (2016). (“[D]efense Intelligence Component legal counsel will assess the reasonableness of collection and restrictions on the retention and dissemination of USPI [information that is reasonably likely to identify one or more specific U.S. persons] to ensure protection of Fourth Amendment rights. . .”).
[33] Stewart Baker & Charles Dunlap Jr., What Is the Role of Lawyers in Cyberwarfare?, ABA J. (May 2012) http://www.abajournal.com/magazine/article/what_is_the_role_of_lawyers_in_cyberwarfare (“Lawyers don’t win wars. But can they lose a war? We’re about to find out, and soon.”).
[34] Id.
[35] Goldsmith, supra note 28, at 130-31.
[36] See U.S. Const. art. II, § 2, cl. 1; see also Samuel J. Rascoff, Presidential Intelligence, 129 Harv. L. Rev. 634, 712–716 (2016).
[37] U.S. Const. art. II, § 3.
[38] See Samuel J. Rascoff, Presidential Intelligence, 129 Harv. L. Rev. 634, 713 (2016) (“By and large, intelligence agencies, notwithstanding the fact that they are quintessential executive agencies on the traditional administrative law metric, have successfully resisted politicization.”).
[39] See, e.g., Terry M. Moe & Scott A. Wilson, Presidents and the Politics of Structure, 57 L. & Contemp. Probs. 1, 18, (1994) (“Presidents politicize by using their appointment authority to place loyal, ideologically compatible people in pivotal positions in the bureaus, the departments, and, of course, the OMB and other presidential agencies whose job it is to exercise control.”).
[40] Rascoff, supra note 38, at 712–716.
[41] Baher Azmy, An Insufficiently Accountable Presidency: Some Reflections on Jack Goldsmith’s Power and Constraint, 45 Case W. Res. J. Int’l L. 23, 27-28 (2012)
[42] See Jennie W. Wenger, Caolionn O’Connell & Linda Cottrell, Rand Corp., Examination of Recent Deployment Experience Across the Services and Components 1 (2018) (“Between 9/11 and September 2015, 2.77 million service members served on more than 5.4 million deployments.”).
[43] Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881, 886 n. 19 (2016) (observing the extent to which congressional oversight increases during times of divided government, reflecting political accountability)
[44] U.S. Const. art. I, § 8, cl. 1.
[45] U.S. Const. art. II, § 8, cl. 12–14.
[46] Wright, supra note 43, at 938 (“Congress views the appropriations process as one of its most important forms of oversight.”) (citation omitted).
[47] Posner, supra note 17, at 199.
[48] Id. at 200.
[49] Id. at 172.
[50] See id. at 177.
[51] See Tressa Guenov & Tommy Ross, At a Crossroads, Part I: How Congress can Find its Way Back to Effective Defense Oversight, War on the Rocks (March 9, 2018) https://warontherocks.com/2018/03/at-a-crossroads-part-i-how-congress-can-find-its-way-back-to-effective-defense-oversight/.
[52] Id.
[53] See Whitaker, supra note 23, at 528-529; see also Goldwater-Nichols DOD Reorganizational Act of 1986, 10 U.S.C. §§ 161–166 (1985).
[54] See Cheryl Y. Marcum Et Al., Rand Corp., Department Of Defense Political Appointees: Positions and Process 5–6, 9–11 (2001) https://www.rand.org/pubs/monograph_reports/MR1253.html.
[55] U.S. Dep’t of Def., 5240.1-R Procedures Governing the Activities of DOD Intelligence Components That Affect United States Persons (Dec. 1982) (2017) was updated and incorporated into U.S. Dep’t of Def., 5240.01-M, Procedures Governing DOD Intelligence Activities (2016) and U.S. Dep’t of Def., Dir. 5148.13 Intelligence Oversight (2017).
[56] See U.S. Dep’t of Def., Dir. 5148.13, supra note 55 at 7–8.
[57] See U.S. Dep’t of Def., 5240.01-M, Procedures Governing DOD Intelligence Activities 10-21 (2016) (describing policies for the collection and retention of identifiable information on U.S. Persons for intelligence purposes).
[58] See U.S. Dep’t of Def., Instr. 1000.29, DOD Civil Liberties Program, (November 26, 2014) (requiring that the Chief Civil Liberties Official be a “Senior Service Member of civilian employee with authority to act on behalf of the Component Head.”).
[59] See United States Senate Committee on Armed Services, History, https://www.armed-services.senate.gov/about/history (last visited Oct. 25, 2017); see also House Armed Services Committee, Oversight and Investigations, https://armedservices.house.gov/subcommittees/oversight-and-investigations (last visited May 31, 2018).
[60] See H.R. Res. 658, 95th Cong. (1977) (establishing the House Permanent Select Committee on Intelligence as composed of members from several committees); see also S. Res. 400, 94th Cong. (1976) (establishing the Senate Select Committee on Intelligence).
[61] See Wright, supra note 43, at 887–88, 900–01, 938–39.
[62] FY 2015 NDAA Section 1209, Pub. L. No. 113-291 (2014) (as amended by FY 2016 NDAA, 129 Stat. 1050 Pub. L. No. 114–92 (2015)) and FY 2017 NDAA, Pub. L. No. 114–328 (2016). Id. Sec. 1209 states in part “(b) NOTICE BEFORE PROVISION OF ASSISTANCE.—Not later than 15 days prior to the provision of assistance authorized under subsection (a) to appropriately vetted recipients for the first time— (1) the Secretary of Defense, in coordination with the Secretary of State, shall submit to the appropriate congressional committees and leadership of the House of Representatives and Senate a report, in unclassified form with a classified annex as appropriate, that contains a description of— (A) the plan for providing such assistance.” Six requirements for the plan submitted are detailed in sub-section (c).
[63] Id. Sec. 1209(b)(1) and (c) require the submission of a detailed plan from the Secretary of Defense, in coordination with the Secretary of State, to Congress for the provisioning of assistance to the Vetted Syrian Opposition. Sec. 1209(d) requires a quarterly report updating Congress on the progress of the program.
[64] Id. Sec. 1209(f) details reprogramming requests for funds to be approved by the Armed Services Committees. See also Christopher M. Blanchard & Amy Belasco, Cong. Research Serv., R43727, Train and Equip Program for Syria: Authorities, Funding, and Issues for Congress 21-22 (June 9, 2015). FY 2018 NDAA, Pub. L. No. 115-91 Sec.1233(c) amends Sec. 1209(f) adding even more requirements detailing misuse of material provided to the Vetted Syrian Opposition in a reprogramming request.
[65] See Travis J. Tritten, Armed Services Committee to Austin: Claims of war progress ‘divorced from reality,’ Stars and Stripes, (Sept. 16, 2015), https://www.stripes.com/armed-services-committee-to-austin-claims-of-war-progress-divorced-from-reality-1.368438#.WcrnusiGPec.
[66] See id.
[67] See Michael D. Shear, Helene Cooper & Eric Schmitt, Obama Administration Ends Effort to Train Syrians to Combat ISIS, N.Y. Times (Oct. 9, 2015), https://www.nytimes.com/2015/10/10/world/middleeast/pentagon-program-islamic-state-syria.html?mcubz=3.
[68] See Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, div. C, title V, § 529, 128 Stat. 5, 131 (2014) (prohibiting using any appropriated funds to transfer or release Khalid Sheikh Mohammed from the Guantanamo Bay detention facility); National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, div. A, title X, subtitle D, § 1035, 127 Stat. 672, 851 (2013) (detailing procedures for the transfer of detainees at Guantanamo Bay to other countries under certain circumstances).
[69] See Eric Schmitt & Charlie Savage, Bowe Bergdahl, American Soldier, Freed by Taliban in Prisoner Trade, N.Y. Times (May 31, 2014) https://www.nytimes.com/2014/06/01/us/bowe-bergdahl-american-soldier-is-freed-by-taliban.html?mcubz=3; see also Jack Goldsmith, Was the Bergdahl Swap Lawful?, Lawfare (Mar. 25, 2015), https://lawfareblog.com/was-bergdahl-swap-lawful.
[70] See National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 1637 (2017) [hereinafter NDAA 2018] (“(a)(1) . . . The Secretary of Defense shall—
(A) establish processes and procedures to integrate strategic information operations and cyber-enabled information operations . . . including the elements of the Department responsible for military deception, public affairs, electronic warfare, and cyber operations; and
(B) ensure that such processes and procedures provide for integrated Defense-wide strategy, planning . . . including activities conducted to counter and deter such operations by malign actors.”).
[71] See White House, Statement by President Donald J. Trump on the Elevation of Cyber Command (Aug. 18, 2017) https://www.whitehouse.gov/the-press-office/2017/08/18/statement-donald-j-trump-elevation-cyber-command; Sean D. Carberry, Congress Wants Oversight of DOD Cyber Ops, FCW (June 9, 2017), https://fcw.com/articles/2017/06/09/hasc-cyber-weapon-oversight.aspx (“In a statement announcing the legislation, House Armed Services Committee Chairman Rep. Mac Thornberry (R-Texas) said that while programs need to remain classified, Congress still has a responsibility to conduct oversight ‘in order to protect our security and our essential freedoms at the same time.[’]”).
[72] See 10 U.S.C. §§ 130j(a); 130k.
[73] See 10 U.S.C. § 130k(c).
[74] See, e.g., 10 U.S.C. § 130f(a) (“The Secretary of Defense shall promptly submit to the congressional defense committees notice of any sensitive military operation conducted under this title no later than 48 hours following such operation.”).
[75] See 10 U.S.C. § 484(a) (2013) (“The Secretary of Defense shall provide to the congressional defense committees quarterly briefings on all offensive and significant defensive military operations in cyberspace carried out by the Department of Defense during the immediately preceding quarter.”).
[76] See 10 U.S.C. § 485(a)–(b) (amended 2016) (“monthly briefings outlining Department of Defense counterterrorism operations and related activities. . . (1) A global update on activity within each geographic combatant command . . . (2) An overview of authorities and legal issues, including limitations. (3) An overview of interagency activities and initiatives.”)
[77] See NDAA 2018, supra note 70, at § 1631 (mandating DOD provide legal reviews of the compliance of cyber weapons with the laws of war and other international law); id. at § 1632 (modifying quarterly congressional briefings on cyber warfare to include overview of legal authorities and issues).
[78] See generally U.S. Special Operations Command, Dir. 1–10, Oversight of Command Activities
(2009).
[79] See Whitaker, supra note 23, at 546 n. 109; see also U.S. Special Operations Command, Dir. 1–10, supra note 78.
[80] These observations are based upon the author’s experience with the CORB.
[81] See U.S. Dep’t of Def., Intelligence Oversight, supra note 55, at 1, 7–8 (setting forth the applicability of oversight rules to DoD Components.); see also U.S. Dep’t of Def., Intelligence Activities, supra note 55 at 5, 7 (setting forth the applicability of oversight rules to DoD Components.); U.S. Dep’t of Def., Dir. 5143.01 Under Secretary of Defense for Intelligence (USD(I)) 20 (2015) (defining “Defense Intelligence Components. All DoD organizations that perform National Intelligence, Defense Intelligence, and intelligence-related functions, including: the DIA, the NGA, the NRO, the NSA/CSS, and the intelligence elements of the Active and Reserve Components of the MILDEPs, including the United States Coast Guard when operating as a service in the Department of the Navy. The offices and staffs of the senior intelligence officers of the CCMD Headquarters are designated as Defense Intelligence Components in accordance with Reference (bb).”).
[82] Dep’t of Def., Dictionary, supra note 8, at 124, 131 (April 2018) (“Joint force — A force composed of elements, assigned or attached, of two or more Military Departments operating under a single joint force commander. See also joint force commander. (JP 3-0). . . . Joint task force — A joint force that is constituted and so designated by the Secretary of Defense, a combatant commander, a subunified commander, or an existing joint task force commander. Also called JTF. (JP 1).”).
[83] See, e.g. Dep’t of Defense Senior Intelligence Oversight Official, Policy—Procedures Governing DIA Intelligence Activities that Affect U.S. Persons, 7(f)(2), https://dodsioo.defense.gov/Library/dia_reg_60_4.aspx (last visited June 4, 2018) (the General Counsel must “[a]ppoint an Intelligence Oversight Officer as an additional duty . . . [who meets] the following criteria . . . a civilian employee in grade GG-11 or above, [or] a military officer in grade 0-4 or above.”).
Major Sean B. Zehtab
Judge Advocate, United States Army. Presently assigned to the United States Army Legal Services Agency. J.D., 2008, University Of Nebraska College Of Law; B.S., 2005, University Of Nebraska-Lincoln.