The Obama administration seems poised to order that all kinetic attacks on al Qaeda or affiliated bad guys be conducted by elements of the United States military, knee-capping the Central Intelligence Agency's paramilitary capability and effectively ending its drone program in Pakistan.
Obama and his aides want to reorder a national security architecture developed on the fly after 9/11, one that made sense back then and which makes less and less sense today. They want to create a more sustainable framework for future administrations engaged in counter-terrorism activities outside warzones. And they're interested in fostering accountability, which will, in theory, reduce the number of innocents killed in these types of strikes.
What the administration is not especially interested in is Congressional oversight. They also are not concerned about law. Officials believe that their actions — with the possible exception of targeting American citizens — are well protected by modern understandings of the president's enumerated powers, of the powers that Congress granted to the president after 9/11, and under international law.
I'm going to use the phrase "drone program" from now on because that's how these counter-terrorism initiatives are known to the public, but drones with missiles attached to them make up a small part of the programs subject to review.
In fact, depending upon who does what with the programs, fewer members of Congress are going to know about operations. Right now, the CIA's targeted killing program in Pakistan is a controlled access program chartered by the Director of National Intelligence and subject to rigorous oversight by the two Congressional intelligence committees. These committees know virtually everything there is to know about the Pakistani program.
The extra-territorial targeting by the Special Operations Command, in contrast, is something that the intelligence committees know little about. The Armed Services Committees know more, but the programs are chartered under something called a "waived SAP," — a "special access program" that requires only oral briefings be given to a small group of members of Congress. Certain sensitive activities aren't briefed at all. Special reconnaissance missions into denied areas are not considered to be significant intelligence operations, especially if they are conducted in accordance with an anticipated future overt military campaign. (True!).
The reason why Congress doesn't know a lot about the non-Pakistani elements of the drone program is that the military controls information flow. It has the right to keep operations secret. It is does not have an obligation to inform Congress unless its action crosses over a fuzzy line separating clandestine intelligence collection and covert action from "traditional military activities," a phrase which is deliberately very broad.
If, for example, the Joint Special Operations Command secrets a team into Iran and taps into an Iranian military communications cable, the notification matrix will be small and after the fact. After all, conflict with Iran, overt conflict, is anticipated. JSOC is simply preparing the battlefield for a future war, god forbid. If the CIA does it, Congress gets notified in a finding. Syria: The Obama administration signed a covert action finding because the CIA is taking the lead in providing covert assistance. Is the military helping the Syrian rebels? If they are, Congress probably doesn't know about it. Oversight and accountability are categorically different, although this point is often lost in the secrecy wars. In the administration's view, the military chain of command is a more accountable environment for such complicated legal and technical operations. It is more flexible and easier to hold to account. Every soldier or sailor reports to someone up the chain of command; mistakes will matter more, and so targeting will be more judicious. Judge Advocate Generals are responsible not to commanding officers but to the rule of law itself; the military generates an extraordinary amount of after-action reviews and paperwork and net assessments of its failures.
The military can also be more flexible when it comes to redesigning structures to allow for more accountability. It can resource these missions more easily, and better integrate them into counter-terrorism policy. SOCOM, after all, is the executive agent for external counter-terrorism. That's what it does.
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