October 12, 2016
This is Part III of a four-part series on the underlying issues surrounding the potential split of the NSA and Cyber Command.
The Title 10 versus Title 50 debate has long surrounded the way intelligence and covert activity is conducted in accordance with the law. A key issue surrounding intelligence and war fighting efforts is the blurring of lines clearly identified in statutes. For example, intelligence organizations are barred from spying domestically on American citizens.
As the discussions of a potential split between the National Security Agency and US Cyber Command continue to swirl, what would an empty-nested NSA, freed from its child organization, CYBERCOM, look like?
Title 10 of the United States Code outlines authorities for the military and war fighting, while Title 50 stipulates the authorities of intelligence community organizations such as the NSA.
In some instances, lines involving military intelligence collection or operations can be easy to blur to the common observer. A former NSA worker told C4ISRNET on condition of anonymity that some NSA personnel became uncomfortable with the militarization of their activity, as the agency is supposed to be independent and equally serve all branches in military and combatant commands. Integrating CYBERCOM distorts this in a way that subverts the mission and doesn’t do favors for CYBERCOM, the source added.
Operation Neptune Spear, the operation to kill Osama bin Laden conducted by members of the now-famed SEAL Team 6, exemplifies the shifting roles within these authorities. While conducted by the military, the operation fell under the command of the CIA and was conducted as a covert operation, allowing plausible deniability by the United States if things went wrong.
The ex-NSA worker described the Special Operations Command relationship with the CIA as a parallel here, adding that the key difference is the CIA is not integrating with these forces like the NSA and CYBERCOM; SOCOM is not wholly dependent on CIA to conduct its mission, whereas CYBERCOM is wholly dependent on the NSA.
Moreover, the source was sure to stress the fact that intelligence serves all the military; it is not integrated together in an operational sense. The NSA, as an intelligence organization, serves both cyber and non-cyber missions for military forces on a global scale, though CYBERCOM has, to some degree, become the NSA’s operational arm, the source contended.
Robert Chesney, a law professor at the University of Texas, pointed out to C4ISRNET that there is nothing in existing law that says CYBERCOM could not conduct a Title 50 operation. In fact, the president can make specific designations to that degree triggering specific covert action authorities, he said.
Chesney added that the Defense Intelligence Agency often times will conduct covert action, and if the president wants to designate a military organization to conduct activity as to not be acknowledged officially by the U.S. government not related to an armed conflict, this mirrors covert action.
A former government official who dealt with many national security issues, speaking to C4ISRNET on condition of anonymity, emphasized that just because an organization — including Title 10 forces — doesn’t operate openly, it does not mean they are conducting covert action. Militaries have always engaged in deceptive behavior, the source said, adding the Title 10 versus Title 50 debate has persisted for decades and government lawyers will continue to wrestle with it.
Similar questions arose with the advent of air power, the former government official said.
When it comes to current cyber operations, however, retired Gen. Jennifer Napper, formerly of CYBERCOM, does not think there is the potential for the blurring of lines. Providing an example in the physical world to justify her position, she said in the fight against the Islamic State group, Title 10 forces are allowed to use UAVs for surveillance.
“The same thing needs to be done in cyber where the Title 10 forces can use the tools that are given to them for their intelligence gathering,” she said. “Remember the large organizations like the NSA are designed for national security so there are national security issues — that’s not a tactical appliance or application.”
The debate between these statuary and operational constructs will continue into the future as new concepts and technologies are developed.
With the continued debate surrounding a CYBERCOM-NSA split, what are the practical prospects of such a decision? More on this in Part IV.
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