Levin’s Fifth Question: Chain of Command under Title 10

I was planning on spending the morning using Twitter to juxtapose the Chuck Hagel confirmation hearing, the ongoing decline of the 9/11 trial into Kangaroo status, and the opening of the Rios Montt trial in Guatemala. Sadly, Twitter failed.

So instead, I began to read Hagel’s confirmation questionnaire.

And I’m particularly interested in the fifth question.

Section 162(b) of title 10, United States Code, provides that the chain of command runs from the President to the Secretary of Defense and from the Secretary of Defense to the combatant commands. Section 163(a) of title 10 further provides that the President may direct communications to combatant commanders be transmitted through the Chairman of the Joint Chiefs of Staff and may assign duties to the Chairman to assist the President and the Secretary of Defense in performing their command function.

Do you believe that these provisions facilitate a clear and effective chain of command?

I believe that having a clear and effective chain of command is essential to successful military operations, and that these provisions of law lay the foundation for such a chain of command.

In your view, do these provisions enhance or degrade civilian control of the military?

In my view, these provisions significantly enhance civilian control by codifying the placement of the President, as Commander-in-Chief, and his principal assistant for military matters, the Secretary of Defense, where they can best exercise civilian control of the military: in the top two positions of the military chain of command.

Are there circumstances in which you believe it is appropriate for U.S. military forces to be under the operational command or control of an authority outside the chain of command established under title 10, United Sates Code?

I believe that all military forces normally should operate under the chain of command established under section 162 of title 10, United States Code. However, in certain sensitive operations a temporary exception to that chain of command may be appropriate. I understand that only the President may approve such an exception and the President retains overall command responsibility, as also recognized in section 162. Any military personnel supporting such sensitive operations remain accountable to the military chain of command, including the Uniform Code of Military Justice. If confirmed, I will provide the President with my best advice regarding any operation where an exception to the established chain of command may be appropriate.

While I can’t tell how strongly Carl Levin–whose staffers I assume wrote these questions–objects to the practice or not, he seems to be asking about Obama’s practice (exercised under the Osama bin Laden raid and probably many other covert ops) of putting DOD personnel–usually JSOC–under Title 50 authority.

And while Hagel seems okay with the practice (remember, Hagel has presumably been overseeing some of these operations as a member of the President’s Intelligence Advisory Board), he does say two things.

First, the President must approve this Title 50 shell game. While I’m sure that’s meant to reassure Levin that the civilian Chain of Command remains intact, it also puts Obama solidly in the middle of this shell game.

Also Hagel insists that anyone involved in this shell game remains subject to UMCJ. Perhaps this is meant to address the danger of prisoner abuse (JSOC was one of the worst offenders as Levin, with his SASC report on abuse, knows as well as anyone). But I wonder if it presents an opportunity for better oversight than we’re getting over these operations right now?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

5 replies
  1. Jeffrey Kaye says:

    But I wonder if it presents an opportunity for better oversight than we’re getting over these operations right now?

    Precisely what presents “an opportunity for better oversight? I’m not sure what you’re referring to.

    Certainly the JCS had a big hand in the torture program in DoD. JPRA was under JFCOM (now disestablished… how convenient), and Levin knows (his report shows) that JPRA really did nothing without JFCOM approval. I have made this repeatedly clear in my writings on this subject, but it has either not been taken up by others, or some (not you) have a program of consciously obfuscating this point.

    JFCOM leaders were in touch with JCS on these matters, and approval flowed often through them. Rumsfeld is a convenient lightning rod because he was also culpable. The Pentagon brass got off scot free.

    Who is JSOC reporting to? Who do the descendants of TF-20 and TF-121 report to in the chain of command? It is difficult to get the answers to this question.

    For a very inside look at what went on with JSOC and torture, I posted the declassified “after-action reports” by Col. Steven Kleinman and JPRA’s Terrence Russell from their assignment in the torture cells run by TF-20 in Iraq in September 2003. Here’s the link to the my post on it, which includes ability to download the complete reports: http://my.firedoglake.com/valtin/2013/01/29/new-document-details-arguments-about-torture-at-a-jsoc-prison/

    I thought this an apropos link for this, and your subject matter in general, since legal docs and official statements are one thing, and an actual peek behind the scenes on these matters is something else entirely.

  2. earlofhuntingdon says:

    Yes, it would be useful to be reminded about to whom JSOC now reports. It’s no longer Mr. Cheney, and it’s unlikely to be Mr. Biden.

  3. emptywheel says:

    @Jeff Kaye: If JSOC didn’t report to Cheney (there’s good evidence they did, at least for their Iran stuff) they effectively report to Obama bc he has to sanction them working under CIA.

  4. greengiant says:

    Start from my having no facts other than secret executive orders were issued, contractors have and are being used, and those posted here that various joint service commands have been involved so that there is no reporting requirements to Congress as would be required under various intelligence laws.
    The logical continuation is that various administrations have used unknown arms of the executive/military and contractors to do a lot of work/damage. It is only logical that the administration is using various and different cut outs for Gitmo, drone wars, Libya, Syria, Pakistan, Mexico, etc,. The low level recruiting is probably done from the ranks of retired experienced special force types, who if they do bother to ask just exactly who is hiring them, might get any answer in reply. Recall Eugene Hasenfaus, the jump master who brought his own chute to Nicaragua.
    You do not need a physical “star chamber” to accomplish the same ends, you just need some secret “armies”. Those who care are probably tracking movements of no insignia military etc who are doing the technical work.

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