WASHINGTON: Rep. Mac Thornberry’s new bill has been depicted just as a demand that the executive branch notify Congress about drone strikes, but there’s much more to the “Oversight of Sensitive Military Operations Act,” introduced Thursday by the House Armed Services Committee vice-chairman.
[Click here to read the full text of Rep. Thornberry's Oversight of Sensitive Military Operations Act]
To start with, the bill would apply equally to any kind of “lethal operation or capture operation conducted by the armed forces” outside Afghanistan. (The raid that killed Bin Laden was, for legal reasons, technically commanded by the CIA, even though military personnel carried it out, so it wouldn’t have been covered: Intelligence agencies are overseen by the House and Senate intelligence committees, not by the Armed Services committees).
“It does not limit it to any part of the military or to any particular technology,” Thornberry made clear to me in a Friday interview. The thoughtful Texan has indeed been pushing lately to streamline the legal authorities for special operations, both raids and – a subtler but arguably more important issue long-term – missions to train up foreign forces around the world.
Second, the requirement to notify Congress after the fact is the part of the statute that the White House will probably have the least trouble with. After all, it simply says that “the Secretary of Defense shall promptly submit… notification in writing…following such operation” (my italics).
No, the big deal comes three pages later, where the bill requires a report to Congress “containing an explanation of the legal and policy considerations and approval processes used” by the Pentagon and the White House to approve a target. That would include classified Justice Department memos that Congress has been struggling to see, or at least a thorough summary of them.
“I just introduced it Thursday, and so I don’t know what their reaction would be,” Thornberry said of the White House and the Pentagon. “I suspect that the administration will not be very happy about providing the legal authorities – and policy considerations and process considerations.”
Thornberry submitted the bill last week with 29 co-sponsors, 26 of them Republicans – from House Armed Services Committee chairman Buck McKeon on down – but the three Democrats include the committee’s ranking member, Adam Smith; James Langevin, ranking member on the emerging threats subcommittee that Thornberry chairs; and Hawaii’s Colleen Hanabusa, widely considered one of the more liberal Democrats.
The GOP:Dem ratio among co-sponsors “is solely a function of how fast the emails got around,” Thornberry said, because he started recruiting Republicans right away but held off on buttonholing Democrats until he’d gotten the okay from Smith and Langevin, the relevant ranking minority members. “The numbers don’t reflect the opinion about it.”
Thornberry is hopeful for bipartisan support and said he would “absolutely” have introduced the same bill under a Republican administration. “I believe that Congress did not ask all of the questions it should during the George W. Bush administration,” he said. “This oversight structure sets up something that will last regardless of the President, regardless of what party controls Congress, because it’s a framework consistent with what the Founders set up.”
‘Congress will never be in position, nor should it be, to make operational decisions – ‘OK, you should capture that person, you should kill that person’ – that’s not our role,” Thornberry said. And for operations in Afghanistan or other warzones declared by a future declaration of war or “specific authorization for the use of force,” the bill doesn’t require notifying Congress at all: In a major military operation, killing and capturing occur constantly. “If it’s a larger scale military conflict,” said Thornberry, “we understand the military can’t come running over to us over every few seconds.”
For operations outside a Congressionally-declared warzone, however, Thornberry’s bill would require the Executive Branch to lay out its general legal and policy framework for deciding whom to kill and capture in advance of any operations, then notify Congress “promptly” after each specific strike, and finally wrap it all up with quarterly briefings.
“You kind of have a before-during-and-after scheme of oversight,” Thornberry said. “That gives us the opportunity to complain about it if we don’t think that it’s justified, or if we believe that some operations are outside the bounds or even [just] a bad idea….Then we have opportunities to restrict funding or to change the authorization or to have a closed hearing on the matter. If [we] have the information, then Congress has a number of tools to use.”
“Under this framework, it lets Congress push back,” Thornberry summed up.
“Only Congress can get down in that kind of policy debate with an administration,” he added – not the legislative branch: “The courts can’t do that, only Congress can conduct the oversight,” he said. “There’ve been some bad ideas put forward of some court that would approve operations.”
Besides protecting Congress’s constitutional role against encroachment by either the executive branch or the courts, Thornberry’s been accused by at least one commentator of trying to expand the defense committees’ jurisdiction at the expense of the intelligence committees’. Currently it’s the House and Senate intelligence panels that get briefed because it’s the CIA that runs the drone strikes, although there has been talk of moving them under military control. Whatever turf-grabbing maneuvers may be going on behind the scenes, the actual text of the Thornberry bill doesn’t take anything away from the intelligence committees’ oversight of intelligence agencies: It only adds an oversight process over Defense Department operations for the armed services committees and their defense appropriations counterparts.
“Thornberry’s bill deals with Title 10 [defense] exclusively. Intel ops are covered under Title 50 [intelligence],” said one committee staffer. “Part of this effort is assuring oversight parity” between the defense committees and the intelligence committees.