On May 3, 2011, the day after Osama bin Laden was killed, Leon Panetta, then director of the Central Intelligence Agency, appeared on “PBS NewsHour” and described the raid as a “Title 50” operation – an operation performed under the section of the U.S. Code authorizing the CIA’s activities – over which he had exercised overall “command.” For many, Panetta’s statements were confusing; the mission had been executed by U.S. Navy SEALs and other special operations forces from the military’s Joint Special Operations Command (JSOC), and, by Panetta’s own account, the operation had been led throughout by JSOC Commander Adm. William McRaven.

On Sept. 30 – nearly five months after The New York Times reported that President Barack Obama had authorized the targeted killing of American-born imam Anwar al-Awlaki – two Predator drones, flying over northern Yemen, fired Hellfire missiles at a vehicle carrying al-Awlaki and three other suspected al Qaeda members. All four were killed in the strike, which U.S. officials described as a special operation carried out under the direction of the CIA.

The bin Laden raid and the al-Awlaki strike are two of many post-9/11 operations in which CIA and Department of Defense (DoD) personnel have worked together both in the planning stages and in the field. They are two of the highest-profile killings of al Qaeda combatants, and are emblematic of a trend that has come under increasing scrutiny from policy and legal analysts: the convergence of the nation’s military and intelligence functions, which has happened, post-9/11, at a clip that has outpaced the ability of the nation’s political, legal, institutional – and, some argue, moral and ethical – frameworks to describe and accommodate it.

The bin Laden raid and the al-Awlaki strike are two of many post-9/11 operations in which CIA and Department of Defense (DoD) personnel have worked together both in the planning stages and in the field. They are two of the highest-profile killings of al Qaeda combatants, and are emblematic of a trend that has come under increasing scrutiny from policy and legal analysts: the convergence of the nation’s military and intelligence functions, which has happened, post-9/11, at a clip that has outpaced the ability of the nation’s political, legal, institutional – and, some argue, moral and ethical – frameworks to describe and accommodate it. They are at the heart of the debate over what this convergence means, and what can be done to place it on a solid legal and moral foundation.

 

A History of Convergence

The convergence of military and intelligence activities didn’t happen overnight. Robert Chesney, a professor at the University of Texas School of Law, points out in his 76-page primer on the subject, “Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate,” that after being separated from the military by the National Security Act of 1947, the CIA – a civilian agency created to serve primarily as a collector of human intelligence (HUMINT) – has evolved along with the military, first in parallel and then cooperatively. From its beginning, the CIA interpreted its grant of authority – which included the broadly worded “other functions and duties as the National Security Council may from time to time direct” – to include covert activity. After several infamous episodes in the 1960s and 1970s, including the CIA’s involvement in assassination plots against foreign leaders such as Fidel Castro, Presidents Gerald Ford and Jimmy Carter placed constraints on the agency’s activities – including an explicitly worded ban on “assassination” by executive branch employees. As the DoD began to refine and expand its own intelligence collecting capabilities, however, the CIA continued to explore what are called, in today’s parlance, “kinetic” operations – firing weapons and killing enemies – in circumstances considered inappropriate or inconvenient for the use of the military.

After the African embassy bombings of 1998 and the suicide bombing of the USS Cole in 2000, the Clinton administration’s lawyers concluded that killing a person who posed an imminent threat to the United States would be an act of self-defense, rather than an assassination, and the administration began to advance the idea of authorizing the CIA to use lethal force against an enemy who posed such a threat.

In March 2001, the George W. Bush administration’s National Security Council directed the CIA to begin drafting new lethal force authorizations. The first known exercise of this authorization occurred on Nov. 3, 2002, when the CIA fired a missile from a Predator drone, killing Cole bombing mastermind Qaed Salim Sinan al-Harethi and five colleagues in a vehicle 100 miles east of the Yemeni capital of Sanaa. The strike opened the door for an expanded CIA role in the post-9/11 campaign against al Qaeda – a campaign that, Chesney points out, has never been limited to the military’s efforts in Afghanistan; there has always been a covert element to the conflict, with unacknowledged operations inside and outside of Afghanistan.

“The CIA has played a central role in this shadow war,” Chesney wrote, “serving not only as a source of HUMINT and covert logistical support for the actions of the military but also as a warfighter – a veritable combatant command – in its own right.”

In “CIA Shifts Focus to Killing Targets,” in the Sept. 1, 2011, edition of The Washington Post, reporters Greg Miller and Julie Tate describe this role as a “fundamental transformation” of the CIA into a paramilitary organization with kinetic operations managed through a National Counterterrorism Center (CTC) that continues to grow and consume a larger share of the agency’s budget. Miller and Tate quoted a former official who expressed wonderment at the CIA’s transformation into “one hell of a killing machine.”

“The CIA has played a central role in this shadow war,” Chesney wrote, “serving not only as a source of HUMINT and covert logistical support for the actions of the military but also as a warfighter – a veritable combatant command – in its own right.”

As CIA drone strikes have become commonplace – according to a December 2011 Washington Post article by senior national security writer Karen DeYoung, about 300 strikes over the past three years in Pakistan, an average of one every three days, have killed an estimated 1,350 to 2,250 people – the evolution of the Joint Special Operations Command, or JSOC, has continued at its own pace.

A subcommand of the U.S. Special Operations Command (SOCOM), JSOC is a collection of special operations units assigned, sometime in 2003 or 2004, to conduct a global campaign against al Qaeda. Within a few years, these Special Forces (the existence of JSOC, interestingly, has never been officially acknowledged by the Pentagon) and counterterrorism specialists from the CIA were regularly sharing information and personnel, blending into hybrid units that wore civilian clothes, traveled in civilian vehicles, and worked in the field to gather intelligence and conduct operations, in Afghanistan and beyond. Miller and Tate quoted a senior U.S. official who had just returned from a tour of Afghanistan: “‘You couldn’t tell the difference between CIA officers, Special Forces guys and contractors … They’re all three blended together. All under the command of the CIA.’”

In April 2011, when Obama announced that CIA Director Panetta was his nominee to become the next Secretary of Defense, and that Army Gen. David Petraeus, the former commander of military forces in both Iraq and Afghanistan, was his nominee to head the CIA, there were no serious arguments against the qualifications of either man for either position. Despite the lack of substantive criticism, the move seemed fraught with symbolism about the converging paths of the two agencies.

But what does it symbolize? Any answer to that question requires a host of issues – legal, ethical, strategic, and institutional – to be explored more fully than they have been by Americans and their leaders.