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?

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

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Emptywheel Twitterverse
bmaz @erinscafe The furry picture should lead all reports though.
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bmaz @billmon1 @TheBradBlog Ooof. Hope you have enough coffee and/or bourbon.
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bmaz @billmon1 @TheBradBlog Sure. But that is exactly why the patina of "legality" is so illusory in this discussion.
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bmaz @billmon1 @TheBradBlog And that applies to torture, extrajudicial killing, banksters, illegal surveillance, and a whole host of issues.
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bmaz @billmon1 @TheBradBlog The problem, as with so much is the political acts that beget such use/nonuse of discretion.
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bmaz @billmon1 @TheBradBlog Right. Failure to prosecute/hold accountable for Senate incursion is technically legal as prosecutorial discretion.
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bmaz RT @WSJ: At 79, Jerry Lee Lewis just released his 41st studio album. Listen here: http://t.co/rAJMtCwvpX http://t.co/IVJYFJ10VM
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bmaz RT @AntonioFrench: Bob McCulloch and Attorney General Holder should be launching investigations into who is leaking this info. Police? Atto…
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bmaz @mtracey @billmon1 As SSCI Chair, it was her duty to make the case, and she did, lack of vocal support from others, and non-SSCI depressing
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bmaz @billmon1 Even assuming you get past that as to DOD action, which is dubious, there is still issue of §1117+§1119 liability for civilians
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bmaz @billmon1 I agree as to seriousness. But disagree that characterization as combatants is legally correct without a battlefield+imminence.
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bmaz @shenebraskan @billmon1 Yeah, sorry about that. But even in a constant sea of depressing, certain things just stand out.
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