The Joint Special Operations Command, or JSOC, is the official executive agent for counterterrorism, reporting directly to the president and secretary of defense through the Joint Chiefs of Staff. JSOC kills people, mostly in war zones. Since 9/11, JSOC's assets, called "special missions units," have been unleashed into the world, and, on the basis of a series of still-secret executive orders, given the authority to pursue members of the Al Qaeda terrorist network wherever they go, and kill or capture them as determined by a specific set of criteria.
Within actual physical battle spaces, like Iraq and Afghanistan, the legal right to use lethal force is not questioned. Outside of battlefields (or in the case of Pakistan), the law is much murkier, and the United States government says next to nothing about what it believes the United States has the right to do. The CIA, through presidential findings, has focused its resources on locating Al Qaeda leaders and using assets like drones to kill them. JSOC has focused, much more effectively, on degrading the Al Qaeda network ... the people who train, finance, and equip the leaders and operators. They have pursued these folks across the globe, and they've captured and killed many of them, occasionally without the knowledge or permission of host countries ... occasionally with their cooperation.
After 9/11, the physical battlefield for counterterrorism was declared by the Bush administration to be global, because terrorists do not respect national boundaries and because Al Qaeda, in particular, wants to establish a global caliphate. (It is Al Qaeda, in other words, that has created this battlefield, not the U.S.) For the most part, the Obama administration agrees with this interpretation, and by all accounts, continues to sanction JSOC's ability to track, target, and locate terrorists anywhere, anytime.
It has been impossible for critics to challenge JSOC's right to do this, because JSOC's missions have always been low-profile, and because the government will acknowledge next to nothing about the existence of the special missions units. For all intents and purposes, there is nothing of interest going on in special, hardened facilities in Qatar, at Pope Air Force Base in North Carolina, or in Colorado Springs, Colorado. Nothing underground at Ft. Belvoir. If you think the state secrets privilege has been overused, you ain't seen nothing yet.
Today, in a move that will catch the attention of JSOC's commander, Adm. William McRavin, his incoming chief of staff, BG Kurt Fuller, and his legal adviser, the Center for Constitutional Rights and the American Civil Liberties Union have challenged JSOC's right to engage in targeted killings outside the battlefield. They're basing their challenge on the public acknowledgment of JSOC's existence by two presidents, on the acknowledgment by a presidential adviser that lists of human targets, some including U.S. citizens, exist, and on an acknowledgment by the director of national intelligence that Yemen is a place where these targets could be "gone after." (He used the words "go after.") If the U.S. needs this capacity, JSOC is all it has. The CIA cannot do what JSOC does unless the CIA radically changes missions. The Obama administration knows this.
The legal questions here I will leave to the lawyers. Suffice it to say ... this is a lawsuit that JSOC has been expecting for a while, and one that will test the creativity of the administration's ability to integrate the principals of American democracy with the reality of terrorism (or with its theory of terrorism) in the modern world. JSOC, now an unacknowledged but not covert entity, has become a proxy of sorts through which people figure out how they feel about national security policies after 9/11.
Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.