The al-Aulaqi Strike and Military-Intelligence Convergence

Greg Miller has a story for the Washington Post discussing the al-Aulaqi strike from the perspective of CIA-military "convergence."  It's a topic near and dear to my heart.  'm close to finishing off a lengthy article titled "Military-Intelligence Convergence and the Law of the Shadow War," the main purpose of which is to provide a thick descriptive account of the convergence phenomenon and its disruptive impact on the domestic legal architecture governing military and intelligence activities.  I'll have to spend some time today working Greg's story into my draft, as it so perfectly illustrates these issues. First, it documents convergence at several levels.  It depicts technical convergence, as well as mission convergence, in that the CIA and the military have established nearly identical phyiscal capacities to carry out lethal operations in the Yeman/Somalia region.  It also depicts organizational convergence int that the story indicates that both CIA and military drones were used in this case.  And it at least hints at the legal complexities all of this raises:

The attack on Aulaqi ... was carried out under CIA authority that allowed for greater latitude in conducting lethal operations outside conventional war zones.

This picks up a theme traceable in reporting that goes back at least to November 2010, when the first stories emerged suggesting that JSOC might prefer to operate in Yemen under color of Title 50 authority (as we would later see in the bin Laden operation, for example) on the theory that this would provide greater legal discretion to act without host-state consent (of course, host-state consent appears not to have been an issue in the al-Aulaqi strike, judging from the many reports indicating that the Saleh administration has been trumpeting its role in helping to locate al-Aulaqi in this instance).  Such claims have raised questions about just what sort of legal analysis might undergird such a claim.  My assessment, which I defend at length in the forthcoming paper, is that any difference between the CIA and JSOC with respect to discretion to act without host-state consent most likely is not so much a matter of law as it is a matter of controlling policy guidance, expressed in the form of findings (governing covert action) and execute orders (governing military operations under color of the AUMF, at least) that may differ in terms of the latitude they permit.  I'm happy to hear from anyone who takes a different view of the matter, though, either now or after I've posted the draft.