By J. Robert Kane
Covert action is making its name again. Back on the strategic foreign policy stage, covert action is a way to achieve diplomacy without direct military confrontation. Kinetic operations by way of targeted killing have become a hot (and disputed) topic. Even though Presidents Ford in 1976, Carter in 1978 and Regan in 1981 signed Executive Orders to ban political assassinations, the U.S. has engaged in targeted killings through drone strikes to kill enemy combatants on the battlefield. Signature strikes that target behavior patterns and personal networks often result in increased collateral damage, namely to civilians. Some of these actions are overt while others are covert, or at least clandestine in some nature. So, who does these things? Is it the military, CIA or even both?
The answer to the purview of this comes down to law. More specifically, to the debate between authority in U.S. Title 10 and 50. The debate is widely and often invoked to address when the military is taking over actions or missions within the domain of the intelligence operations of CIA.
Title 10 describes the legal authority for military operations regarding the DoD’s organizational structure.
Meanwhile, Title 50 captures CIA’s authority to conduct its intelligence operations and covert action.
The legal stipulations of military versus CIA legal authority are a little more complex, but the two catchall designations are what matter in the larger scope. And that is how practitioners interpret it.
However, the differentiation in the purview between military and CIA operations is not always clear. As changes to the way we fight become more complex and dynamic with each operation, DoD and CIA officers constantly attempt to find themselves in the correct lane for engaging in their respective operations.
Perhaps the easiest example of this was when CIA found the potential for the Predator drone in aerial surveillance. CIA undoubtedly assumed that the aircraft would fall into its own designation. The debate went on between CIA and DoD. Even though the UAV was classified as an aircraft, CIA contended that it was only a platform to collect imagery intelligence. CIA won.
Once CIA tried to weaponize the UAVs by incorporating Hellfire missiles into their framework, DoD fought CIA again. This time, the Air Force made the argument regarding Title 10 versus Title 50. Already established to be an aircraft, a weaponized UAV would fall under Title 10 as the purview of the military. Being weaponized, the Predator was no longer just an imagery intelligence collection asset but more of a kinetic killing machine. Its job was not just to pick up and track high-value targets as much as it was to send warheads to foreheads. This time the Air Force and DoD won.
So, the designation for military or CIA control of drone warfare is not black or white. It exists in the grey zone.
That is why drones remain a tricky topic for use regarding both surveillance and kinetic operations. It is still a working and developing decision of who calls the shots and who owns the infrastructure.
When it comes to boots-on-the-ground operations regarding both kinetic and non-kinetic operations, the debate becomes even more contested. Because of its charter, CIA is the only agency responsible for and charged with covert action. Action abroad in this context has always been part of CIA’s history: some of it good, other parts bad.
However, sometimes the military conducts operations that to the naked eye would appear to be consistent with covert action. The big difference is that these operations that may well be clandestine are not covert or designed to be plausibly deniable.
If a U.S. military operation goes sideways, the U.S. Government is forced to acknowledge it. And contrary to popular belief, that includes higher tier units such as Delta Force, DEVGRU, and others.
Kinetic covert action protocols on the ground are only deniable if under the sanctions of CIA. Meaning they would have to have been performed in a paramilitary context by the Special Activities Division (SAD), including Ground Branch, Global Response Staff …
The U.S. military cannot and does not perform covert action.
However, that is not the end of the discussion. Within the bounds of Title 10, the DoD has found a way to get close to covert action without crossing the line.
The closest the U.S. military gets to covert action is called the Operational Preparation of the Environment (OPE). OPE consists of clandestine intelligence collection that may have a more distant relation to military action. Because OPE exists in a pseudo-covert action context, DoD has won legal jurisdiction of it by arguing that a theoretical, distant military operation might one day exist as a result of its being.
It goes beyond traditional military operations but doesn’t legally cross the line into covert action by CIA. It does, however, get close.
Everyone from DoD, CIA and even ODNI knows that the delineation is not clear. They argue, they fight, and they come up with some sort of consensus. But while there might not be a distinct line in the ground differentiating CIA and DoD authority, there is a grey line or a buffer zone at the very least.
However, this grey line possesses ambiguity that can have very adverse implications for the national security community. Such ambiguity makes it difficult, if not impossible, for intelligence officers to conduct intelligence operations in their field of work if the collection of such intelligence is proscribed.
If the military continues to conduct clandestine intelligence in the form of OPE, leaders at both DoD and CIA will need to prescribe more delineated instructions for how and by who such intelligence will be collected. This goes beyond mere turf wars that happen all of the time within the intelligence community. It gives instructions as to who can operate in this capacity when covert action is not conducted but is on the borderline of being touched.
The DoD argument for OPE that such intelligence may need to be collected via clandestine means for the potential exploitation in a future, theoretical military operation will not suffice. It only provides legitimacy to the military in conducting such operations but does not provide a way for it to complement or work along CIA.
Many of the covert operations undertaken by CIA are not very different from military OPE. The functions hold many of the same premises. The only difference is that DoD has made the argument for OPE’s potential value as to why it should be considered a military operation in accordance with Title 10 and not the covert action provisions of Title 50.
Accordingly, the functions of both DoD and CIA should complement one another as opposed to working against each other in the case of further jurisdiction debate. Leaders need to delineate the roles the processes should play in each agency while also proscribing intelligence requirements that can be satisfied according to each service.
There is no reason the DoD should not be able to conduct OPE. It is not covert action and does not fall exclusively into CIA’s charter. But it does border it.
That means there needs to be much more synchronization between DoD and CIA to facilitate intelligence collection on adversarial capabilities and intentions to fulfill intelligence requirements that are desperately needed.
However, the issue does not stop only with senior leadership. It has ramifications for operations officers at CIA and military officers, equally as well. While both cohorts know their jobs and the functions that are to be executed fairly well, operations such as that of OPE provide particular challenges that are still not widely understood. That is particularly the case because it is not firmly established in doctrine or proscribed to the legality of one agency or the other.
An operations officer at CIA who is tasked with clandestine human intelligence collection may be blindsided by OPE operations undertaken by the military that may disrupt or interfere with general Agency operations. Military intelligence collection may confuse Agency personnel as to their requirements as to whose prerogative or official duties the intelligence collection may involve. Further, intelligence collection of this sort in the same area of operations may interfere with CIA sources and asset networks that may inadvertently become shared with that of the military. Sources can quickly become compromised if they are not handled correctly, and too many asset handlers without adequate synchronization will do precisely that.
Likewise, many military officers are unaware of OPE and what it entails. It is not widely discussed, taught, or even presented to military officers in a way to educate them on what is encompassed by the military’s clandestine intelligence collection. Further, it is a discipline that is shared with a select few military personnel and officers who are not acquainted with it may also interfere with its operation. Conventional military hierarchies have become somewhat risk-adverse to date (for good reasons and bad) that their executive judgment (based on collective ambiguity relating to intelligence collection of this sort) may either interfere with or disrupt OPE collection efforts. The absence of clear guidance as to clandestine intelligence functions within the military can cripple the intelligence apparatus and needs to be further described in doctrine to allow for its potential and avoid interference of it inadvertently.
Summarily, the role of covert action between the DoD and CIA is rather clear. The Title 10 versus 50 debate has been exhaustively discussed in the literature and among practitioners. But where the line becomes grey has not. This is a problem for both DoD and CIA. Both agencies need to comprehensively describe the role of clandestine intelligence collection in both agencies. This is particularly true with OPE where the line is not delineated, education efforts are virtually nonexistent, and jurisdiction boundaries are more or less ambiguous. To facilitate the most successful and operationally safeguarded operations of this nature, DoD and CIA need to find a more delineated and prescribed approach to clandestine intelligence collection to fulfill the intelligence requirements that they need to satisfy.
J. Robert Kane studies intelligence and terrorism. He is an intelligence officer and researcher who has studied Middle Eastern and Russian targets. In addition to research funded by the U.S. Government, he has conducted studies at New York University, Northwestern University and the University of Chicago.
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