Title 10 vs. Title 50: Military and Intelligence Authority Debate

Introduction: Wall's Thesis and Central Argument

This paper reviews Andru E. Wall's article Demystifying the Title 10–Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert Action, published in the Harvard National Security Journal. The hypothesis Wall presents at the outset 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). Wall further argues in his abstract that Congress should "revise its antiquated oversight structure" to more accurately reflect the military's "integrated and interconnected world" (Wall, 85).

Wall served as a legal consultant for the U.S. Special Operations Command Central between 2007 and 2009, and his insider's knowledge of the issue comes through clearly in his narrative. This is a unique study, and the author's thesis and concerns are spelled out thoroughly.

The Bin Laden Raid and the Title 10–Title 50 Problem

Wall begins by noting that Navy SEALs killed Osama bin Laden in May 2011 — an event that brought a sense of closure to many Americans, including those who lost loved ones in the terrorist attacks of September 2001. When the U.S. government made its formal announcement, it was CIA Director Leon Panetta who stated that the raid on bin Laden's hideout was a "covert Title 50" operation. Panetta noted that the chain of command placed him in the position of the president's representative, but that the man actually in charge of the operation was Vice Admiral William McRaven, head of the Joint Special Operations Command (Wall, 86).

In other words, although President Obama received considerable credit for authorizing the operation — he had the option of destroying the bin Laden compound with a drone strike but chose to deploy the Navy SEALs — it was McRaven who commanded the mission. Wall is concerned that this incident rekindled the "long-simmering debate" within the national security community over Title 10 and Title 50 of the U.S. Code, and the respective authorities associated with each. While both titles are part of the U.S. Code, Wall argues that Panetta's invocation of "Title 50" simply highlights the congressional oversight flaws the author had identified earlier.

As one observer noted at the time: "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).

Wall explains that ongoing confusion over the two titles has deep roots (87). "Title 10" has traditionally referred to Department of Defense (DOD) operations — above-board, transparent operations — while "Title 50" has been associated with intelligence agencies. The difficulty for Wall is that when a leader characterizes an operation as "Title 50," it conjures the image of a "dark and shadowy world." Those who advocate transparency for the American military prefer to keep soldiers' reputations "untarnished by association with the shadowy world of espionage" (Wall, 88). Wall uses the word "untarnished" because he worries that clandestine operations classified under "Title 50" could be seen as violations of the Geneva Conventions — for example, treating prisoners as spies rather than prisoners of war. Military personnel serving overseas could also conceivably lose the "moral high ground" when branded with a "Title 50" designation (Wall, 89).

Bureaucratic Rivalry and Intelligence Overlap

Another policy problem Wall raises involves "rice bowls" — military jargon for "programs, resources, and responsibilities" that bureaucrats "jealously guard" because doing so keeps their options open in matters of policy. Wall suggests that the CIA's rice bowl is Title 50, which positions the CIA as the lead agency for covert action. At the same time, the military — particularly special operations forces such as the Navy SEALs — is increasingly "expanding its human intelligence capabilities under the guise of Title 10 authorities" (Wall, 90), effectively encroaching on the CIA's domain.

Wall makes clear that the more the military expands its intelligence activities, the more the CIA's role is diminished. Beyond the question of authority, Wall warns that military operatives could be "unintentionally impeding or even exposing each other's human intelligence efforts" (91). When two American organizations simultaneously conduct intelligence-gathering activities, conflicting assignments and misunderstandings about command authority become a genuine operational risk (91). Wall's professional background places him in an ideal position to assess this concern, and his focus on Congressional obsession with determining which agency — military or intelligence — should conduct any particular mission is a recurring theme throughout the article.

Conclusion: Wall's Findings and Policy Recommendations

According to Wall, none of the confusion regarding the clash of authorities produced by Title 10 and Title 50 is the fault of the military or intelligence agencies. Rather, this conundrum of power and authority stems entirely from oversight ineptitude in Congress. As the author of a scholarly, military-related investigative piece, Wall leaves no stone unturned. His study is rigorously supported by 169 footnotes, and he addresses all of the questions and issues he raised at the outset of his lengthy narrative.

The strength of this study lies in the thoroughness of Wall's presentation. His literature review is methodical, and his insider's perspective lends the argument a credibility that purely academic treatments of the subject would struggle to match. If the review has a weakness, it is that Wall occasionally lapses into redundancy when revisiting the core Title 10–Title 50 distinctions. Nevertheless, Congress should act on — or at least openly discuss — Wall's many worthwhile suggestions for reforming its oversight structure.

Works Cited

Chesney, Robert. "Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate." Journal of National Security Law and Policy, Vol. 5 (2011).

Smart, Stephanie. "Event Summary: The bin Laden Operation — The Legal Framework." Retrieved September 16, 2012, from http://www.americanbar.org/...covert_action_event.authcheckdam.pdf.

Wall, Andru E. "Demystifying the Title 10–Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert Action." Harvard National Security Journal, Vol. 3 (2011).