“The term “covert action” means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include . . . (2) traditional . . . military activities or routine support to such activities.“
Retired Army Lt. Gen. William G. Boykin—who is the former commander of the U.S. Special Forces Command, the former deputy undersecretary of defense for intelligence and who, in the 1990s, worked with the CIA—told CNSNews.com in a video interview last week that he believes it is a reasonable supposition that the U.S. was supporting or planning to support the Syrian rebels via Benghazi, Libya.
June 27, 2012 – Ron Paul warns of the ongoing U.S. government’s covert support of the terrorist insurrection against the Syrian government and offers a short history of the quagmires and blowback that U.S. interventions abroad have brought about.
ADM “Ace” Lyons, Former Commander in Chief of the U.S. Pacific Fleet, the largest single military command in the world, states, “The Muslim Brotherhood has penetrated every level of the US government.”
Rep. Frank Wolf called a press conference outside the capitol to discuss his sponsorship of H. Res. 36, which would create a special congressional committee to investigate the failures that contributed to the deadly jihadist attack in Benghazi, Libya last year. He was joined by Family Research Council’s Lt. Gen. Jerry Boykin, former Deputy Undersecretary of Defense for Intelligence and former member of Delta Force. Boykin represented Special Operations Speaks, a group of ex-special forces operators who came together to write a letter to Members of Congress, urging them to commit to getting to the bottom of what happened in Benghazi, and to end the administration’s cover-up. Finally, the Center for Security Policy’s Frank Gaffney spoke about the implications of the attack in Libya on America’s national security and foreign policy in the Middle East/North Africa region.
“US President Barack Obama has signed a secret order allowing the CIA and other American agencies to support rebels seeking to overthrow the Assad regime, a US government source told Reuters. Obama reportedly gave the order, known as an intelligence “finding”, earlier this year. The presidential finding also provides for US collaboration with a secret command center operated by Turkey and its allies. The full extent of the assistance the “finding” allows the CIA to give the Syrian rebels is unclear. It is also unknown precisely when Obama signed the order.” The report of Obama’s authorization for covert rebel support comes amidst continued fighting between Syrian government troops and rebels over control of Aleppo, the country’s economic capital. Thousands of people have fled the city, while the government and rebels continue to release conflicting reports on the extent of their control over the city. Asia Times Online correspondent Pepe Escobar told RT that the leak’s timing was intended to distort the true nature of Washington’s covert operations on the ground in Syria.
“This intelligence finding signed by Obama – that’s the code for a secret order – this was signed six months ago. So the fact that Reuters has only been allowed now to report about it proves that there have been high deliberations in Washington: ‘should we let people know about what they already know?’”
“In fact, the Washington Post two weeks ago had already reported about it, and when the CIA wants to leak something in the US, they usually go to the Washington Post. The CIA and Mossad, on the ground [in Syria], side by side working with the Qataris, the Turks, the Saudis and a swarm of jihadis coming from everywhere, but especially from across the border in Iraq,” he argues.
Escobar says the leak was intended to make it look as though Washington was leading the Syrian campaign from behind the scenes, when in fact the US is “leading from the front lines alongside al-Qaeda-style Jihadists, Qatari intelligence, and Turkish logistics.” 
Current use of the presidential finding stems from the so-called Hughes-Ryan amendment to the Foreign Assistance Act of 1974, which prohibited the expenditure of appropriated funds by or on behalf of the Central Intelligence Agency for intelligence activities “unless and until the President finds that each such operation is important to the national security of the United States and reports, in a timely fashion, a description and scope of such operation to the appropriate committees of Congress” (section 662). This was intended to ensure that clear responsibility for such action was attributable to the President and that Congress was always made aware of such activities. Due to the sensitivity of their content, presidential findings are almost always classified.
The most recent change to exercise of findings occurred in the Intelligence Authorization Act of 1991, which introduced increased flexibility in the reporting requirement: findings are to be “reported to the intelligence committees as soon as possible” after being approved “and before the initiation of the covert action authorized by the finding.” As such, presidential findings are one of the primary means through which the intelligence committees exercise their oversight of the government’s intelligence operations.
America champions the rule of law and must maintain that moral stance in its international dealings and retain the clarity of an unambiguous chain of command. The Abbottabad raid on Osama bin Laden’s compound highlighted the dangers and vagaries of departing from the traditional military chain of command. The Secretary of Defense was taken out of the chain and the CID Director was inserted. In contrast, the rescue of a U.S. citizen in Somalia was carried out secretively but not covertly by joint forces under military command, maintaining individual Servicemember protections that may be forfeit in the gray zone of questionable legality. National authorities should reconsider the rejection of the 9/11 Commission’s recommendation that DOD be responsible for paramilitary covert actions, and when DOD acts in that capacity, the operation should be carried out as a traditional military operation with a military chain of command.
Recent media reports have Pentagon officials considering “putting elite special operations troops under CIA [Central Intelligence Agency] control in Afghanistan after 2014, just as they were during last year’s raid on [Osama bin Laden’s] compound.”1 This shell game would allow Afghan and U.S. officials to deny the presence of American troops in Afghanistan because once “assigned to CIA control, even temporarily, they become spies.”2 Nearly simultaneously, Department of Defense (DOD) leaders were warned to “be vigilant in ensuring military personnel are not inappropriately utilized” in performing “new, expanding, or existing missions,” ensuring the force is aligned against strategic choices “supported by rigorous analysis.”3 Placing Servicemembers—uniformed members of the Army, Navy, Marine Corps, and Air Force—under CIA control demands such rigorous analysis. The raid on bin Laden’s compound provides a framework.
n his May 1, 2011, televised address, President Barack Obama reported “to the American people and to the world that the United States ha[d] conducted an operation that killed Osama bin Laden.”4 President Obama initially detailed little beyond noting that he had directed “the[n] Director of the CIA [Leon Panetta], to make the killing or capture of bin Laden the top priority of our war against al Qaeda” and that the operation, carried out by a “small team of Americans” was done “at [his] direction [as President].” In the following days, senior executive branch officials garrulously provided explicit details, from the now-iconic White House Situation Room photograph to intricate diagrams of the Abbottabad compound and the assault force’s composition. Most noteworthy was Panetta’s unequivocal assertion the raid was a covert action:
Since this was what’s called a “Title 50” operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way, that direction goes to me. And then, I am, you know, the person who then commands the mission. But having said that, I have to tell you that the real commander was Admiral [William] McRaven because he was on site, and he was actually in charge of the military operation that went in and got bin Laden.5
Despite his self-effacing trumpeting of Vice Admiral McRaven’s role, Panetta’s comment highlights that critical confusion exists among even the most senior U.S. leaders about the chain of command and the appropriate classification of such operations.
Openly describing the raid as both a “covert operation” and “military operation,” Panetta asserted he was the “commander,” describing a chain of “command” that went from the President to Panetta to McRaven. Panetta’s public comments are problematic, as is describing a chain of command that excludes the Secretary of Defense and purports to route command authority through the CIA director. Title 50 is clear:
The term “covert action” means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include . . . (2) traditional . . . military activities or routine support to such activities.6
The administration did the opposite, making patently clear the raid’s nature and, in exhaustive detail, the precise role of the United States. Instead of categorizing it as a covert action under the director’s “command,” the President could have conducted the raid as a covert action under the Secretary of Defense instead of the CIA director, or under his own constitutional authority as Commander in Chief and the Secretary’s statutory authorities, classifying it as a traditional military activity and excepting it from the statute’s coverage. As a traditional military activity, there would have been no legal limits on subsequent public discussion. Alternatively, conducting the raid as a covert action within a military chain of command removes the issues the director raised in asserting command authority over Servicemembers. The decisionmaking process remains shrouded, but conducting a raid into a sovereign country targeting a nonstate actor using military personnel and equipment under the “command” of the CIA director and classifying it as a covert action raises significant legal and policy questions. Such decisions threaten the legitimacy and moral authority of future U.S. actions and demand a rigorous examination of those associated risks.
The Abbottabad raid illustrates the post-9/11 security environment convergence of DOD military and CIA intelligence operations.7 While dead terrorists attest to this arrangement’s efficacy, many directly challenge the legal and policy framework behind current DOD-CIA cooperation. The discourse focuses largely on distinctions between Title 10 and Title 50 and the legal basis for conducting apparently overlapping military and intelligence operations beyond the battlefields of Iraq and Afghanistan. Notwithstanding the potentially misleadingly simple labels of Title 10 and Title 50, these complex issues lack clear answers. Many argue the legacy structure ill equips the President to effectively combat the threat. But tweaking that structure carries risk. Thus, correctly classifying and structuring our actions within that framework are critical. The law of war is designed to protect our nation’s military forces when they are engaged in traditional military activities under a military chain of command; spies conducting intelligence activities under executive authority have no such protections. This distinction rests on a constitutional, statutory, treaty, and doctrinal framework underpinning the military concept of command authority.
U.S. power relies on moral and legal legitimacy. Exclusive state control over the legitimate use of armed force remains viable domestically and internationally only where exercised within an accepted framework. Thus, employing DOD forces in a nontraditional manner entails significant risk. The policy implications of classification and structure are neither semantic nor inconsequential, and must be understood by senior decisionmakers; likewise, individual Servicemembers must understand the practical effects. A rigorous risk analysis should therefore inform any deviation, however permissible under domestic law.
This article focuses on the risks associated with both using military personnel to conduct kinetic covert action and using them without a military chain of command. Those risks inform the recommendation to change practice, but not the law. Specifically, the author rejects melding distinct operational military (Title 10) and intelligence (Title 50) authorities into the often mentioned Title 60. Properly classifying actions—either under the statute as a covert action or exempted from the statute as a traditional military activity—ensures the correct command structure is in place.8 Ultimately, the analysis argues for revisiting the previously rejected 9/11 Commission recommendation to place paramilitary covert action under DOD control.9
This article first outlines current and likely future threats and then explains the critical terms of art related to covert action and, against that lingua franca, examines why kinetic military operations should be either classified as traditional military activities or kept under a military chain of command. Analyzing the relevant constitutional, statutory, treaty, and doctrinal elements of command, this article illustrates that a raid conducted like the Abbottabad raid, while legally permissible, is best conducted as a traditional military activity.
Changed Character of the Battlefield and Enemy
In the decade since 9/11, DOD and CIA elements have become “operationally synthesi[zed].”10 A senior intelligence official recently noted that “the two proud groups of American secret warriors had been ‘deconflicted and basically integrated’—finally—10 years after 9/11.”11 The direct outgrowth is the increased reliance on special operations forces (SOF) to achieve national objectives against a “nimble and determined” enemy who “cannot be underestimated.”12 While the United States fought wars on geographically defined battlefields in Iraq and Afghanistan and beyond, the underlying legal structure remained constant. In the wars’ background, leaders, advisors, academics, and others argued about the structure of the appropriate legal and policy framework. Post-Iraq and post-Afghanistan, the United States must still address other threats, including those that al Qaeda and their associated forces present.
The threats have migrated beyond a battlefield defined by sovereign nations’ borders. When asked recently in “how many countries we are currently engaged in a shooting war,” Secretary of Defense Panetta laughed, responding, “That’s a good question. I have to stop and think about that . . . we’re going after al Qaeda wherever they’re at. . . clearly, we’re confronting al Qaeda in Pakistan, Yemen, Somalia, [and] North Africa.”13 The unresolved legal and policy challenges will likely increase in complexity on this geographically unconstrained battlefield. Remaining rooted in enduring principles is critical. DOD conduct of kinetic operations beyond traditionally recognized battlefields raises significant legal and policy concerns, especially where the U.S. Government conducts them without knowledge or consent of the host nation, as apparently happened with the Abbottabad operation.14 Properly categorizing and structuring these operations, while vexing for policymakers and their lawyers, carries much greater stakes for the Servicemembers executing them.
The Need for a Lingua Franca
Colloquial usage refers to DOD authorities as Title 10, and the CIA’s as Title 50. That is technically inaccurate and misleading since DOD routinely operates under both Titles 10 and 50.15 Instead of Title 10, this article uses the term military operations; instead of Title 50, it uses CIA operations or the more specific covert action. All three terms require clarification.
CIA operations are all CIA activities except covert action. Covert action is the narrow, statutory subset of Presidentially approved, CIA-led activities.16 Unfortunately, colloquially, covert action “is frequently used to describe any activity the government wants concealed from the public.”17 That common usage ignores the fact that a traditional military activity, notwithstanding how “secretly” it is executed, is by statute not a covert action. DOD defines a covert operation as one “planned and executed as to conceal the identity of or permit plausible denial by the sponsor,” where “emphasis is placed on concealment of the identity of the sponsor rather than on concealment of the operation.”18 While not in conflict with the statutory definition, the DOD definition is incomplete; it fails to recognize the President’s role and ignores the exception of traditional military activities.19 Practitioners should use the statutory definition.
The concept of clandestine operations further blurs colloquial and doctrinal imprecision.20 DOD activities “may be both covert and clandestine . . . focus[ing] equally on operational considerations and intelligencerelated activities.”21 Appropriately, DOD officials assert that, absent a Presidential covert action finding, they “conduct only ‘clandestine activities.’” 22 They characterize clandestine activities as those “conducted in secret but which constitute ‘passive’ intelligence information gathering.”23 Interchanging the terms and mixing them with intelligence functions is inaccurate and dangerous; practitioners must draw clear distinctions. The sponsorship of a covert action is hidden, not the act itself. The specific acts of the U.S. Government in influencing a foreign election (for example, posters, marches, election results, and so forth) would be visible, but not the covert sponsorship of those acts. For clandestine acts, the act itself (for example, intercepting a phone call) must remain hidden. The CIA and DOD can conduct clandestine operations without Presidential approval, whereas covert action triggers statutory requirements for a Presidential finding and congressional notification. Some have argued DOD’s “activities should be limited to clandestine” activities, as this would ensure military personnel are protected by the law of war,24 a critical point examined in detail later.
Military operations are DOD activities conducted under Title 10, including activities intended or likely to involve kinetic action. Pursuant to an order issued by the Secretary of Defense, they are conducted by military personnel under DOD command and in accordance with the law of war. They specifically exclude DOD’s intelligence activities (for example, the Joint Military Intelligence Program); like the CIA’s, those intelligence activities are conducted pursuant to Title 50.
Statutorily assigned responsibility helps distinguish between CIA operations and military operations. Although the President can designate which department, agency, or entity of the U.S. Government will participate in the covert action, the statute implicitly tasks the CIA as the default lead agency: “Any employee . . . of the [U.S.] Government other than the [CIA] directed to participate in any way in a covert action shall be subject either to the policies and regulations of the [CIA], or to written policies or regulations adopted . . . to govern such participation.25
Executive order 12333 (EO 12333) makes that default tasking explicit:
The Director of the [CIA] shall . . . conduct covert action activities approved by the President. No agency except the [CIA] (or the Armed Forces of the United States in time of war declared by the Congress or during any period covered by a report from the President to the Congress consistent with the War Powers Resolution. . . .) may conduct any covert action activity unless the President determines that another agency is more likely to achieve a particular objective.26
The statute, coupled with EO 12333, unequivocally places all covert action squarely under the CIA’s control; the narrow exception for DOD is currently inapplicable. While the Executive order expressly tasks
the director with conducting covert action, it does not task the Secretary of Defense.27
Default CIA primacy and the absence of statutory specificity in defining traditional military activities create risk when DOD conducts kinetic covert action.
The Unique Nature of Traditional Military Activities
One practitioner described traditional military activities’ exclusion from covert action’s definition as “the exception that swallows the rule.”28 But while DOD-CIA operational convergence blurs the issue, the exception need not swallow the rule. Functionally, anything done by a uniformed member of a nation’s armed forces is a “military” activity; the nuanced requirement is to understand which are traditional military activities. That definition can be consequential, functional, or historical—or a combination of some or all three approaches. The statute’s legislative history provides the best clarification, noting the conferees intended that:
“Traditional military activities” include activities by military personnel under the direction and control of a United States military commander (whether or not the U.S. sponsorship of such activities is apparent or later to be acknowledged) . . . where the fact of the U.S. role in the overall operation is apparent or to be acknowledged publicly.
In this regard, the conferees intend to draw a line between activities that are and are not under the direction and control of the military commander. Activities that are not under the direction and control of a military commander should not be considered as “traditional military activities.”29
That nonstatutory definition frames the follow-on analysis. That functional and historical definition turns on who is in charge.
Activities under the “direction and control of a military commander” meet the requirement to be excepted from the statute; those with a different command and control arrangement are not traditional military activities. “Command” is unique to the military and the definition appears to draw a bright line rule; but the CIA director blurred the line by asserting “command” over a DOD element.30 The confusion questions the necessary nature and scope of leadership by a “military commander.” What level or rank of command is required? Must the chain of command from that military commander run directly back to the Commander in Chief solely through military channels? Must it run through the Secretary of Defense? Can it run through the director if there is a military commander below him? Given Goldwater-Nichols,31 what about the geographic combatant commander? In short, what does the wiring diagram look like? These questions highlight three baseline possibilities as depicted in the figure below.
Chain of Command Possibilities
Part 1A of the figure reflects DOD’s Title 10 chain of command, illustrating the broadest historical, functional, and consequential definition of traditional military activity. The clear chain is rooted in the uniquely military concept of command and the President’s constitutionally defined role as Commander in Chief. It clarifies congressional oversight responsibility, results in unquestioned jurisdiction, and forms the basis of the strongest legal argument for combatant immunity. Part 1B represents the President as chief executive, exercising oversight and control of the CIA under Title 50. This hierarchy lacks the legal command authority exercised over military personnel in 1A. Finally, part 1C represents the paradox created by the covert action statute’s attempts to overlap the parallel structures of 1A and 1B; it is often described as Title 60.
The current Congressional Authorization for the Use of Military Force allows the President to “use all necessary and appropriate force” to prevent “future acts of international terrorism against the United States.”32 This statutory grant of power creates the paradox: here, where the Senate vote was 98 to 0 and the House vote was 420 to 1, the President’s executive authority (as Commander in Chief and chief executive) is greatest,33 the exercise of those powers blurs the clear lines of parts 1A and 1B of the illustration. Merging the two, although permissible under the covert action statute, creates risk.
Consequently, questions about the nature and structure of the chain of command demand rigorous scrutiny and cannot be left to ad hoc arrangements. Defining military command determines whether or not the activity is a traditional military activity and therefore not under the ambit of the statute. The criticality of this categorization is twofold: it is the core of the state’s monopoly on the legitimate use of force and cloaks Servicemembers in the legal armor of combatant immunity.
Chain of Command, or Control?
Since George Washington’s Presidency, the Secretary of War (later Defense) has served without interruption as a Cabinet member. The President’s role, enshrined in the Constitution, is clear: “The President shall be Commander-in-Chief of the Army and Navy of the United States.”34 With the Secretary of Defense, this embodies the Founders’ vision of civilian control of the military. The Secretary of Defense’s appointment requires the “Advice and Consent of the Senate.”35 While the President can relieve him and replace him with an inferior officer (that is, the Deputy Secretary of Defense), Senateconfirmed executive branch officials are not fungible. He cannot interchange officials individually confirmed to fulfill separate and unique duties—something James Madison warned about in Federalist 51.36
Longstanding U.S. practice is an unbroken chain of command from the President, through his Secretary of Defense, to a subordinate uniformed commander. Even GoldwaterNichols’s37 streamlining the military warfighting chain of command to run from the President through the Secretary and directly to the unified combatant commanders did not alter that fundamental practice.38 Combatant commanders simply replace Service chiefs. The civilian leader between the Commander in Chief and his senior uniformed commander remains unchanged—a specific individual confirmed by the Senate to execute statutory duties. The inviolate concept of civilian control of the military and the Senate’s Advice and Consent requirement make assertion of any executive authority to “trade out” duties between Cabinet officials implausible. The President can place military personnel under CIA control, but control is not command.
Command is the inherently military “privilege” that is “exercised by virtue of office and the special assignment of members of the US Armed Forces holding military grade.”39 In fact, under the Army regulation, “A civilian, other than the President as Commander-in-Chief . . . may not exercise command.”40 Goldwater-Nichols allows the President to exercise command through his Secretary of Defense. Command rests on constitutional and statutory authority (including the Uniform Code of Military Justice) and the customs and practices of the Service. Removing military personnel from that hierarchy— illustrated in part 1C of the figure—changes their fundamental nature. This is Panetta’s assertion: he was in “command” 41 of the raid on Osama bin Laden’s compound.
itles 10 and 50 define the specific duties of the Secretary of Defense42 and Title 50 the CIA director’s.43 The duties are neither identical nor interchangeable. In Title 50, Congress explicitly states that DOD shall function “under the direction, authority, and control of the Secretary of Defense” in order to “provide for their unified direction under civilian control.”44 Placing the Services under the Secretary of Defense is necessary to “provide for the establishment of [a] clear and direct line of command.”45 Congress is equally clear in Title 10, granting the Secretary complete authority over DOD: “there shall be a Secretary of Defense, who is the head of the [Department], appointed . . . by the President, by and with the advice and consent of the Senate.”46 The statute allows the Secretary to “perform any of his functions or duties, or [to] exercise any of his powers through” other persons, but only persons from within DOD.47
Two caveats exist to the Secretary of Defense’s “authority, direction, and control”: the Secretary’s authority is “subject to the direction of the President” and the 1947 National Security Act.48 The latter covers DOD personnel within the National Foreign Intelligence Program (NFIP). The former appears to be an exception that swallows the rule. But even in empowering the President to limit his Secretary’s authority, Congress did not specifically authorize any change to the fundamental command of military forces. Likewise, in defining the director’s limited authorities over military personnel, Congress maintained the military command structure over military operations.
Congress neither allows the director command nor control of DOD operational assets, nor did it grant the President a caveat like that with the Secretary of Defense’s authority.49 Although the director’s duties include the transfer of “personnel within the NFIP,” which includes DOD personnel, such transfers are limited to personnel within DOD’s Joint Military Intelligence Program (JMIP).50 SOF are not part of the JMIP. When DOD does transfer any JMIP personnel to the CIA, the director must “promptly” report that transfer to both the intelligence oversight and Armed Services Committees of both houses.51 Transfers between other executive branch elements trigger no such requirements. Congress only intended CIA control over DOD intelligence assets and was clearly concerned about even that. Goldwater-Nichols reinforces this analysis.
Goldwater-Nichols codifies geographic combatant commanders’ nearly inviolable command authority: “all forces operating within the geographic area assigned to a unified combatant command shall be assigned to, and under” his command.52 Two exceptions supplant that authority. Servicemembers assigned to U.S. Embassies (for example, the Defense Attaché) are under the Ambassador’s control and the Defense Intelligence Agency’s command. For those Servicemembers, diplomatic protections have replaced law of war protections, but the Secretary of Defense remains in the chain of command. The second exception, carved from GoldwaterNichols’s “unless otherwise directed by the President” language, covers DOD participation in covert action.53 Goldwater-Nichols’s silence on the Secretary of Defense remaining in the chain of command indicates Congress did not intend to change the default hierarchy. DOD recognized that point by defining combatant command as being “under a single commander” and running “through the Secretary of Defense.”54 All these say nothing about covert action.
The statute and EO 12333 put the director “in charge” of the conduct of covert actions.55 CIA “ownership” means any non-CIA employee supporting a covert action “belongs” to the CIA. However, the CIA lacks DOD’s legal command structure and no CIA official possesses the command authority inherent in an officer’s commission.56 The CIA can only be in charge, not in command. The director cannot give a lawful order that would be legally binding on Servicemembers. The Constitution unequivocally grants Congress the authority to “make Rules for the Government and Regulation of the land and naval Forces.”57 Those rules, the Uniform Code of Military Justice, never contemplated CIA personnel exercising command authority over Servicemembers. The CIA’s ownership of covert action is limited. Exclusive CIA control fails elsewhere; the statute authorizes the President to task “departments, agencies, or entities”58 to conduct covert action. The implication is that DOD can conduct a covert action exclusively. EO 12333 specifically envisions that.59 Placing DOD elements under CIA control to conduct a kinetic operation is arguably unnecessary.
This chain of command is constitutionally enshrined, codified, and ratified through longstanding practice; even if Congress had explicitly authorized the President to reroute it, doing so creates risk. First, it removes the law of war’s protections upon which Servicemembers conducting kinetic operations rely. In such an event, Servicemembers must be made aware they are no longer protected. Second, as a state practice, realigning military personnel under a nonmilitary framework to conduct kinetic activities creates precedential risk for U.S. allies. Such a decision must be fully informed at all levels.
Chain of Command: International Law Context