Tuesday, October 18, 2011

Chesney on the Military-Intelligence Convergence

To understand law and security in the post-9/11 years, historians will need to move beyond broad questions of the impact of war and security on domestic law, and to unpack the labyrinth of the intersection between domestic law and the law of armed conflict.  In doing so, Robert Chesney, University of Texas School of Law, is a very helpful guide.  In his new paper:  Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate,  Journal of National Security Law and Policy, 2011, Chesney sets the origins of a convergence in military and intelligence operations in the context of Truman administration efforts to reshape American national security during the early Cold War years.  In that respect, the paper reinforces the importance for legal history of Truman-era national security policy, a point raised in Stephen Griffin's recent paper.  Here's Chesney's 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.