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Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate


Robert Chesney


University of Texas School of Law

October 17, 2011

Journal of National Security Law and Policy, Vol. 5, p. 539, 2012
University of Texas Law, Public Law Research Paper No. 212

Abstract:     
One of the most striking features of the post-9/11 era has been the convergence of military and intelligence operations. Nothing illustrates the trend better than the CIA‟s emergence as a veritable combatant command in the conflict with al Qaeda, though it manifests as well through the expansion of clandestine special forces activities, joint CIA-special forces operations, and cyber activities that defy conventional categorization. All of which obviously is important from a policy perspective. Less obviously, it also has significant legal implications.

I do not refer to questions such as who lawfully may be targeted or what computer network operations amount to “armed attack,” though those are of course important matters. Rather, I am concerned here with America‟s domestic legal architecture for military and intelligence operations. That architecture is a half-baked affair consisting of a somewhat haphazard blend of decision-making rules, congressional notification requirements, and standing authorizations and constraints relevant to particular agencies. Convergence has a disruptive impact on key elements in that framework, especially those that rely on categorical distinctions that convergence confounds (like the notion of crisp delineations among collection, covert action, and military activity).

My first aim in this article is to map that impact as thoroughly as can be done through the public record, drawing attention to and disaggregating issues that have bedeviled government lawyers behind closed doors for some time. My second aim is normative, as I suggest a modest set of changes to the existing legal framework meant to improve democratic accountability and compliance with the rule of law in such operations, while preserving the benefits convergence generates.

Number of Pages in PDF File: 92

Keywords: covert action, traditional military activity, operational preparation of the environment, oversight, CIA, JSOC, convergence, cyber

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Date posted: October 18, 2011 ; Last revised: March 22, 2012

Suggested Citation

Chesney, Robert, Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate (October 17, 2011). Journal of National Security Law and Policy, Vol. 5, p. 539, 2012; University of Texas Law, Public Law Research Paper No. 212. Available at SSRN: http://ssrn.com/abstract=1945392 or http://dx.doi.org/10.2139/ssrn.1945392

Contact Information

Robert Chesney (Contact Author)
University of Texas School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
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