Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert Action." The hypothesis that is presented at the outset of the article is that even though Congressional leaders have attempted to "redefine military preparatory operations as intelligence activities," those efforts are "legally and historically unsupportable" (Wall, 2011, p. 85). Moreover, the author expresses in the Abstract that Congress should "revise its antiquated oversight structure" to more accurately reflect the military's "integrated and interconnected world" (Wall, 85). Wall, who served as legal consultant for the U.S. Special Operations Command Central between 2007 and 2009, certainly has the experience and the insider's knowledge of this issue, and it comes through in his narrative. This is a unique study and the author's thesis and concerns are spelled out thoroughly.
The author begins the piece noting that Navy SEALS killed Osama bin Laden in May, of 2011, which is public knowledge and in fact brought a sense of closure to many Americans, including those that lost loved ones in the terrorist attacks of September, 2001. But when the U.S. government made the announcement (well after President Obama had gone on television that Sunday night in May), it was the head of the CIA, Leon Panetta making the statement that the raid on bin Laden's hideout was a "covert Title 50" operation. Panetta noted that the chain of command in this instance put him in the position of the president's representative but the man who was actually in charge of the operation was Vice Admiral William McCraven, the head of the Joint Special Operations Command (Wall, 86).
In other words, even though Obama was given a lot of credit for authorizing the operation (he had a choice of just blowing the bin laden compound up with a drone missile but he went with the Navy SEALS) the man in charge of killing bin Laden was McCraven. So what is the problem in that regard? Wall is concerned that the "long-simmering debate" that has been going on within the national security community has been re-kindled in this instance. The issue is over "Title 10" vs. "Title 50" and the authorities that deal with those two titles. Panetta invoked "Title 50" but Wall wants to know why Panetta did so. Both of the titles are part of the U.S. Code but Wall's point is that the Panetta statement simply brings up the congressional oversight flaws that the author mentioned earlier.
["…The bin Laden operation could have been carried out under Title 10 or Title 50, and the mere involvement of the military does not exclude it from the realm of Title 50" (Smart, 2011).]
There has been ongoing confusion over the two titles, Wall explains (87). "Title 10" has traditionally referred to the Department of Defense (DOD) operations (above board, transparent operations) while "Title 50" has alluded to intelligence agencies. The rub for Wall is that when a leader states that an operation is "Title 50" the image of a "dark and shadowy world" comes to mind. Those who advocate "transparency" for the American military prefer to have soldiers' reputations "untarnished by association with the shadowy world of espionage" (Wall, 88). That word "untarnished" is used by Wall because he worries that clandestine operations ("Title 50") could be seen as in violation of the Geneva Conventions (e.g., treating prisoners as spies rather than the POWs). Also, military personnel serving overseas could conceivably lose the "moral high ground" when they are branded with "Title 50" (Wall, 89).
Another policy problem Wall mentions refers to "rice bowls" (military jargon for "programs, resources and responsibilities"); bureaucrats "jealously guard" their rice bowls because that keeps their options open in matters of policy such as CIA policies. Wall suggests that the CIA's rice bowl is Title 50, which makes the CIA the lead agency for covert action on the one hand. On the other hand, the military is stealing from the CIA's rice bowl because the military (think the Navy SEALS) is more and more "expanding its human intelligence capabilities under the guise of Title 10 authorities" (Wall, 90).
Wall makes very clear that the more the military expands its use of intelligence the more the CIA's role is diminished. According to Wall, it's not just a matter that the CIA will be giving up authority in matters of covert operations, but it is also possible that military operatives could be "unintentionally impeding or even exposing each other's human intelligence efforts" (91). What worries Wall and others is the obvious fact that when two American organizations are both conducting intelligence-gathering activities, there can be conflicting assignment and misunderstandings as to who is really in charge (91). In this respect, Wall is most concerned about (and his professional career places him in an insider's position to know) the Congressional obsession over who does any particular mission -- the military or the intelligence agencies.
How well does the author explain his research and do his findings back up his thesis and his goals? Wall is extremely thorough in his narrative, and if anything, he reviews certain particulars vis-a-vis Title 10 vs. Title 50 differences and dynamics with redundancy. Wall carefully explains the role of the President of the United States vs. The role of Congress when it comes to using the military and waging war. He also summarizes the debate over war powers (the clash between Congressional authority and presidential authority found within various interpretations of the U.S. Constitution). On pages 99-100 Wall breaks down the roles of each title and shows the reader -- by putting a narrative microscope on the precise language that authorizes various kinds of intelligence and military policies and actions -- the bigger picture.
To wit, if the Department of Defense is supposed to be operating under the guidelines of Title 10, then is seems a possible overlapping of security responsibilities (and a potential conflict of authority) to also give the DOD responsibilities under Title 50. That is exactly Wall's point. He does a good job of alluding to the theoretical collision of authority (within the intelligence genre) when he points out that while Title 50 clearly "defines and delineates authorities within the intelligence community (e.g., the NSA and "Defense Intelligence Agency"), the authority to create policy is also in the hands of the Under Secretary of Defense for Intelligence. The authorization for the Under Secretary to "…collect (including through clandestine means), analyze, produce, and disseminate information and intelligence [as well as] defense and defense-related intelligence and counterintelligence" came from Executive Order 12,333 (Wall, 99).
In page after page of this lengthy scholarship, Wall digs deeply into the issues of authority and sifts through the potential points of confusion over Title 10 and Title 50. Again and again he returns to the salient theme of this paper: congressional oversight "…and its attendant internecine power struggles" is the culprit for any confusion that exists between Title 10 and Title 50. Wall is clearly imploring the reader to place blame where it belongs. Blame Congress, he asserts, but don't blame the DOD or the specific intelligence-gathering agencies.
One of the main points of contention that Wall presents is that the executive branch can use the blurred distinction over Title 10 and Title 50 to avoid Congressional oversight of planned covert activities. Under Title 10 "…there is no requirement to notify Congress" of planned activities; but intelligence activities that are carried out under Title 50 must be verified by presidential findings and reported to Congress (Wall, 102). And while Congressional oversight of military activities "is straightforward" (the House and Senate Armed Services Committees have full jurisdiction over "all aspects of DOD"), Wall reports that Congressional oversight of "intelligence activities is considerably more complex" (Wall, 104).
Hence, the author offers (from an insider's knowledge and experience) a pivotal suggestion to the U.S. Congress: in order to put an end to the Title 10 -- Title 50 debate, why not reform and reconfigure the process of oversight? Congress should be asking "who is funding the activity" and "who is exercising direction and control"? This suggestion from Wall actually is a follow up to the 9/11 Commission's recommendation -- to align congressional oversight with "statutory authorities" and to reform its "bifurcated intelligence authorization and appropriations functions" (108). And by doing so Congress could dispense with the current "dysfunctional" oversight, Wall explains.
Meanwhile Wall takes great pains to paint a picture of shifting policies in terms of how the terrorist attacks in September, 2001 -- and the subsequent "war on terror" -- helped put in motion some of the more glaring shifts of authority (Title 10 vs. Title 50). After the terrorist attacks the U.S. was determined to push the Taliban out of leadership positions in Afghanistan, so the CIA sent a paramilitary officer to Afghanistan with $9 million in cash. That money was disperses to various "Afghan warlords" -- basically buying their cooperation and loyalty so they would fight with the CIA and Special Forces to drive the Taliban out.…