Cyberspace is a unique operating domain, which permeates to every level of humanity to include our p

  

Cyberspace is a unique operating domain, which permeates to every level of humanity to include our personal lives. In a minimum of 600 words, describe what challenges to the legal issues regarding cyber operations pose for cyber intelligence activities?Attached are the resources recommended for research; however, other sources may be used if it can enhance the overall answer to the question.
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_crs_cybercrime___conceptual_issues_for_congress__2015_.pdf

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Military-Intelligence Convergence and the Law
of the Title 10/Title 50 Debate
Robert Chesney*
Leon Panetta appeared on PBS Newshour not long after the raid that
1
killed Osama bin Laden. He was the Director of the Central Intelligence
Agency at that time, and during the course of the interview he took up the
question of the CIA’s role in the attack. It had been “a ‘title 50’ operation,”
he explained, invoking the section of the U.S. Code that authorizes the
2
activities of the CIA. As a result, Panetta added, he had exercised overall
3
“command.”
This surely confused at least some observers. The mission had been
executed by U.S. Navy SEALs from Joint Special Operations Command
(JSOC) after all, and both operational and tactical command seemed to have
4
resided at all times with JSOC personnel. But for those who had been
following the evolution of the CIA and JSOC during the post-9/11 period,
Panetta’s account would not have been surprising. The bin Laden raid was,
from this perspective, merely the latest example of an ongoing process of
convergence among military and intelligence activities, institutions, and
authorities.
* Charles I. Francis Professor in Law, University of Texas School of Law. Special
thanks to Suzanne Spaulding, and thanks as well to participants at workshops at Vanderbilt
and New York University including Norman Abrams, Philip Alston, Diane Marie Amann,
David Golove, Monica Hakimi, Peter Margulies, Michael Newton, Deborah Pearlstein,
Richard Pildes, Harvey Rishikof, Christopher Slobogin, Stephen Vladeck, Matthew
Waxman, Benjamin Wittes, and Ingrid Wuerth. I am also grateful to William Banks, David
Barron, David Donatti, Chris Donesa, Louis Fisher, Jonathan Fredman, Martin Lederman,
and A. John Radsan for their comments.
1. CIA Chief Panetta: Obama Made ‘Gutsy’ Decision on Bin Laden Raid, NEWSHOUR,
May 3, 2011, available at http://www.pbs.org/newshour/bb/terrorism/jan-june11/panetta_0503.html.
2. Id. Title 50 is a section of the U.S. Code addressing a range of security topics,
including the standing authorities of the CIA. Title 10, in contrast, is a section of the Code
devoted exclusively to the armed forces. Reflecting this distinction, the argot of national
security lawyers uses “Title 50 authority” and “Title 10 authority” as shorthands for the
notion that there are distinct spheres of intelligence and military operations and that each is
subject to a distinct set of standing statutory authorizations and constraints.
3. Id.
4. Nicholas Schmidle, Getting Bin Laden: What Happened That Night in Abbottabad,
THE NEW YORKER, Aug. 8, 2011, http://www.newyorker.com/reporting/2011/08/08/110808
fa_fact_schmidle. Panetta was quick to add during his NewsHour interview that Admiral
William H. McRaven, Commander of JSOC, had maintained actual command during the
raid. See supra note 1.
539
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The convergence trend is not a post-9/11 novelty. It has much deeper
roots than that. The trend has accelerated considerably over the past
decade, however, thanks to an array of policy, budgetary, institutional, and
technological developments. And as the trend accelerates, it is becoming
increasingly clear that it has profoundly important implications for the
domestic law architecture governing military and intelligence activities.
That architecture is a complex affair, including what might be described
as “framework” statutes and executive branch directives generated in fits
and starts over the past forty years. Ideally, it serves to mediate the tension
between the desire for flexibility, speed, and secrecy in pursuit of national
defense and foreign policy aims, on one hand, and the desire to preserve a
meaningful degree of democratic accountability and adherence to the rule
of law, on the other. Of course, the legal architecture has never been
perfect on this score, or even particularly close to perfection. But the
convergence trend has made the current architecture considerably less
suited towards these ends.
First, it reduces the capacity of the existing rules to promote
accountability. The existing rules attempt to promote accountability in two
ways. They promote it within the executive branch by requiring explicit
presidential authorization for certain activities, and they promote
accountability between the executive branch and Congress by requiring
notification to the legislature in a broader set of circumstances.
Convergence undermines these rules by exposing (and exacerbating) the
incoherence of key categorical distinctions upon which the rules depend,
including the notion that there are crisp delineations separating intelligence
collection, covert action, and military activity. As a result, it is possible, if
not probable, that a growing set of exceptionally sensitive operations – up
to and including the use of lethal force on an unacknowledged basis on the
territory of an unwitting and non-consenting state – may be beyond the
reach of these rules.
Second, the convergence trend undermines the existing legal
architecture along the rule-of-law dimension by exposing latent confusion
and disagreement regarding which substantive constraints apply to military
and intelligence operations. Is international law equally applicable to all
such operations? Is an agency operating under color of “Title 50” at liberty
to act in locations or circumstances in which the armed forces ordinarily
cannot? These questions are not in fact new, but thanks to convergence they
are increasingly pressing.
Government lawyers are well aware of these issues, and in fact have
5
been grappling with them for much of the past decade, if not longer. For
5. See John Rizzo, National Security Law Issues – A CIA Perspective, Address
delivered at a conference of the American Bar Association Standing Committee on Law and
National Security (May 5, 2010), available at http://www.abanet.org/natsecurity/
multimedia/WS_30274.mp3 (noting that “this discussion has been going on inside the
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541
many years, however, public reference to them was quite limited. The most
important early post-9/11 example came in 2003, when The Washington
Times reported that the Senate Select Committee on Intelligence was
quietly attempting to expand its oversight authority in order to encompass
certain clandestine military operations in response to concern about the
6
expanding role of special operations units in the war on terrorism. That
effort failed in the face of fierce pushback from the Pentagon and the Senate
7
and House Armed Services Committees, but not before drawing at least
some attention to the disruptive impact convergence even then was having
8
on the accountability system.
In more recent years, the media has begun to pay more sustained
attention, frequently noting that the complications associated with
convergence impact question of substantive authority as well as
accountability. In 2010, for example, The Washington Post reported that a
fierce interagency debate was underway in connection with “which agency
should be responsible for carrying out attacks” online, with the CIA
categorizing certain attacks as covert actions which are “traditionally its
turf” and the military taking the position that such operations are “part of its
mission to counter terrorism, especially when, as one official put it, ‘al9
Qaeda is everywhere.’” And the same Washington Post story indicated
that the Justice Department’s Office of Legal Counsel had produced a draft
opinion in spring 2010 “that avoided a conclusive determination on whether
computer network attacks outside battle zones were covert or not,” but that
nonetheless concluded that “[o]perations outside a war zone would require
the permission of countries whose servers or networks might be
10
implicated.” Subsequent stories about the use of lethal force in Yemen
have also raised the issue of host-state permission, suggesting that JSOC
but not the CIA would be obliged to act only with such permission, and that
as a result JSOC units might at times prefer to operate under color of the
11
CIA’s authority (as happened in Pakistan with Osama bin Laden, and
12
again in Yemen with Anwar al-Awlaki).
executive branch for many years . . . this is not a post-9/11 phenomenon”). See also
Matthew Dahl, Event Summary: The bin Laden Operation – The Legal Framework (May 25,
2011), available at http://www.americanbar.org/content/dam/aba/administrative/law
_national_security/covert_action_event.authcheckdam.pdf).
6. Bill Gertz, Congress To Restrict Use of Special Ops.: Presidential Finding Would
Be Required, WASH. TIMES, Aug. 13, 2003, at A1.
7. See Jennifer Kibbe, The Rise of the Shadow Warriors, FOREIGN AFFAIRS 102, 107
(Mar./Apr. 2004).
8. See id. Kibbe deserves substantial credit for her early identification of the
convergence issue and its disruptive impact on the accountability system.
9. See, e.g., Ellen Nakashima, Pentagon Is Debating Cyber-Attacks, WASH. POST,
Nov. 6, 2010, at A1.
10. Id.
11. See, e.g., Julian Barnes & Adam Entous, Yemen Covert Role Pushed: Foiled Bomb
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These accounts give a sense of the range of legal questions that
convergence generates, as well as the debates that surround them within the
government. And that in turn is enough to frame the investigation that
follows.
I proceed in two parts, beginning in Part I with a descriptive account of
the convergence trend itself. Part I opens with a focus on events in the
1980s and 1990s that presaged the accelerated convergence of the post-9/11
period. Attempts by the military to develop within the special forces
community capacities quite similar to those of the CIA are described in Part
I.A, and CIA flirtations with the use of deadly force against terrorists are
described in Part I.B. Against that backdrop, Part I.C. then explores how
convergence has manifested over the past decade, with an emphasis on the
CIA’s kinetic turn, JSOC’s parallel expansion, the development of hybrid
CIA-JSOC operations, and the emergence of cyberspace as an operational
domain.
Readers already familiar with the convergence phenomenon may wish
to skip ahead to Part II, which examines the impact of convergence on the
13
domestic legal architecture relevant to such activities. Part II.A. clarifies
what I have in mind when I refer to a domestic legal architecture, as it
traces the emergence and growth of standing rules relating to (i) the internal
executive branch decisionmaking process, (ii) information-sharing between
the executive branch and Congress, and (iii) substantive authorizations and
prohibitions relating to certain types of activity. The remainder of Part II
analyzes the impact of convergence on each of these rules, demonstrating
the manner in which convergence creates new problems for (and
exacerbates existing problems in) the existing legal architecture. The key
issues include: the increasingly large and significant set of military
operations that are not subject to either presidential authorization or
legislative notification; lingering suspicion with respect to what law if any
Plot Heightens Talk of Putting Elite U.S. Squads in CIA Hands, WALL ST. J., Nov. 1, 2010,
at A1; Greg Miller, CIA will Direct Yemen Drones, WASH. POST, June 14, 2011, at A1;
Siobhan Gorman & Adam Entous, CIA Plans Yemen Drone Strikes: Covert Program Would
Be a Major Expansion of U.S. Efforts To Kill Members of al Qaeda Branch, WALL ST. J.,
June 14, 2011, at A8; Greg Miller & Julie Tate, CIA Shifts Focus to Killing Targets, WASH.
POST, Sept. 1, 2011.
12. Jennifer Griffin & Justin Fishel, Two U.S.-Born Terrorists Killed in CIA-Led
Drone Strike, FOXNEWS.COM (Sept. 30, 2011), http://www.foxnews.com/politics/2011/09/
30/us-born-terror-boss-anwar-al-awlaki-killed/.
13. Many of the operations at issue in the convergence context, such as the use of
drones to kill, raise a host of international law issues. See, e.g., Philip Alston, The CIA and
Targeted Killings Beyond Borders (New York University Public Law and Legal Theory,
Working Paper No. 303, 2011); Robert Chesney, Who May Be Killed? Anwar al-Awlaki as a
Case Study in the International Legal Regulation of Lethal Force, 13 Y.B. OF INT’L
HUMANITARIAN LAW 3 (2010). Those questions are beyond the scope of this paper. This
paper does, however, address whether there is variation in domestic law with respect to
whether and when U.S. government entities must comply with certain bodies of international
law (though without regard to what those bodies of international law happen to require).
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restrains the CIA’s use of lethal force; confusion with respect to whether
and why the CIA might be at greater liberty than JSOC to conduct
operations without host-state consent; and the difficulty of mapping the
existing architecture onto operations conducted in cyberspace. I embed my
recommendations for reform within the analysis at each step along the way.
To summarize, I offer four recommendations.
Enhance Accountability within the Executive Branch. The current legal
architecture requires presidential approval for “covert action” programs, but
the situation is complicated with respect to unacknowledged military
operations. An unacknowledged military operation must be authorized by
the President or at least the Secretary of Defense if it is collateral to an
anticipated overt military operation that is not yet imminent but for which
operational planning has been authorized – a sweeping set of circumstances.
But no such approval is required if the operation is collateral to ongoing
hostilities. This makes sense if the unacknowledged operation occurs in the
combat zone. If it occurs on the territory of another state outside the “hot”
battlefield, however, the risks are sufficient to warrant extension of the
requirement of presidential or at least secretarial authorization. Notably,
press accounts indicate that former Secretary of Defense Robert M. Gates
had insisted upon such an approach for lethal operations outside the hot
battlefield, as a matter of policy. At a minimum, that policy should be
codified. Better still to extend it to all unacknowledged military operations
outside the combat zone. The degree of accountability involved should be
commensurate with the risks, and in light of convergence there is little
reason to calibrate that judgment differently for the military than for the
CIA, at least not outside combat zones.
Enhance Information-Sharing with Congress. Operations constituting
“covert action” must be reported to the House and Senate Intelligence
Committees; by contrast, the unacknowledged military operations discussed
above are not subject to this requirement. A separate law requires
notification to Congress when the armed forces are deployed in
circumstances involving a likelihood of hostilities, but given the strict
interpretation of “hostilities” adopted in relation to the conflict in Libya it
seems clear that a considerable amount of unacknowledged military activity
might escape notification to Congress under that regime as well. An effort
was made in 2003 to close this gap by requiring unacknowledged military
activity to be reported to the Intelligence Committees when activity occurs
outside the geographic confines of a state where the United States has an
overt combat presence. The effort failed in the face of resistance from the
Pentagon and the House and Senate Armed Services Committees. It should
be revived, but with notification being made to the Armed Services
Committees, subject to an option for close-hold notifications, based on the
Gang of Eight model. All such notification scenarios should be modified,
however, to include participation by the chief majority and minority
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counsels of the relevant committees (creating, in effect, a “Gang of Twelve”
system).
Clarify Substantive Constraints on Title 50 Operations. It should be
made clear that all U.S. government agencies comply with the law of war in
any operation to which the law of war applies, regardless of whether the
operation is categorized as a Title 10 or a Title 50 activity and regardless of
which particular agency carries it out. This is not necessarily a change from
current policy, but it would help to address concerns that critics have raised
with respect to whether the CIA conforms its drone operations to law of war
standards. On the other hand, it would not be appropriate to adopt a similar
express commitment vis-a-vis international law’s treatment of state
sovereignty, given lingering uncertainty with respect to whether and when
international law prohibits one state from conducting espionage, covert
action, or other operations within another state’s territory in the first place.
Clarify Authorization and Accountability for Cyberoperations.
Operations in cyberspace tend to defy categorization by type (collection,
covert action, or military activity) or geographic location. This causes
problems on all the dimensions mentioned above, while also raising
difficult questions regarding when an agency has the affirmative authority
to conduct such operations in the first place. Legislation can resolve much
of this uncertainty by (i) clarifying that the military has standing authority
to conduct computer network attacks (unacknowledged or otherwise) when
acting in a defensive capacity or under color of a statutory authorization for
the use of military force, and (ii) providing timely notification to the House
and Senate Armed Services Committees of such operations when they have
or are likely to have significant consequences outside a theater of combat
operations.
I. THE CONVERGENCE TREND
The notion of “convergence” between military and intelligence
activities would likely have seemed strange prior to the second half of the
twentieth century. The U.S. military was no stranger to the business of
intelligence after all. On the contrary, it had engaged in the collection and
analysis of intelligence throughout American history, at least during times
of armed conflict, and during World War II had developed the Office of
Strategic Services (OSS) as the very embodiment of a “military”
organization devoted to the full spectrum of “intelligence” activities.
But the center of gravity shifted in the late 1940s when the Truman
administration and Congress began reorganizing the national security
establishment to suit the imperatives of the Cold War and America’s
newfound status as the predominant Western global power. To be sure,
executive branch departments had often exercised intelligence functions in
the past, but prior to 1946 there had never been a free-standing agency, let
alone a civilian one, intended to be distinct from the military establishment
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and capable of relatively disinterested analysis, reporting directly to the
President, devoted to collection, analysis, and covert action. Thus it was a
significant novelty when President Harry S. Truman ordered the creation of
the Central Intelligence Group in 1946 as a civilian successor to the OSS
14
and when Congress the next year transformed that body into the CIA.
Over the following decades, the CIA became the predominant
institution associated with human intelligence, or HUMINT, collection,

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