'Operational Preparation of the Environment': 'Intelligence Activity' or 'Covert Action' by Any Other Name?

4 Am. U. Nat'l Security Law Brief 21 (Winter 2013)

21 Pages Posted: 13 Mar 2014

See all articles by Joshua Kuyers

Joshua Kuyers

Public International Law & Policy Group - Virginia Office

Date Written: 2013

Abstract

Seemingly ambiguous terms like "Operational Preparation of the Environment" (OPE), "intelligence activity," and "covert action" can be confusing and are often misused. These terms are legal terms of art and part of the larger legal framework that authorizes and provides for executive and congressional oversight of military and intelligence operations. Given the increasing number of mixed CIA-DoD operations and the blurring of the "traditional" distinction between military and intelligence operations, establishing clear definitions for these terms and then using them appropriately is crucial for the national security of the United States.

A significant portion of this legal framework is found in Title 10 and Title 50 of the United States Code. Unfortunately, given both the plain language and the various interpretations of these statutes, many terms within these statutes are inherently ambiguous. This ambiguity has become further exacerbated due to the convergence of military and intelligence personnel and operations and DoD’s classification of some of its activities such as OPE. When combined with the reality of the current “armed conflict” against al Qaeda and its affiliates, the intricacies of the Title 10/Title 50 debate and the military-intelligence convergence provide a challenging set of legal and policy issues regarding exactly when and under what circumstances the DoD must receive presidential authorization and when it must notify the proper channels of congressional oversight.

This paper seeks to provide a certain level of clarity to the Title 10/Title 50 debate, particularly with regard to the DoD’s use of OPE. Section IIA defines OPE and demonstrates its utility in the fight against al Qaeda and its affiliates. Section IIB describes the broader legal framework and clarifies the key terms in the Title 10/Title 50 debate, such as “intelligence activity,” “covert action,” and “traditional military activity.” Section IIC recognizes the potential congressional oversight issues facing the DoD due to the blurring of Title 10 and Title 50 authorities. Section III places OPE within the Title 10/Title 50 framework and emphasizes that DoD’s classification of OPE as a traditional military activity is consistent with its authority.

Keywords: operational preparation of the environment, intelligence activity, covert action, Title 10, Title 50, national security law, intelligence law, intelligence oversight, congressional oversight, executive authority, central intelligence agency, CIA, Department of Defense, DoD, special operations forces

JEL Classification: K33, N40

Suggested Citation

Kuyers, Joshua, 'Operational Preparation of the Environment': 'Intelligence Activity' or 'Covert Action' by Any Other Name? (2013). 4 Am. U. Nat'l Security Law Brief 21 (Winter 2013). Available at SSRN: https://ssrn.com/abstract=2398500

Joshua Kuyers (Contact Author)

Public International Law & Policy Group - Virginia Office ( email )

3600 North Vernon Street
Arlington, VA 22207
United States

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