This article was first published at Just Security.
“We’re not at war in Africa, but our partner forces are.” So said a former Department of Defense official who I interviewed as a part of my research into the Department of Defense’s security cooperation authorities.
If U.S. forces are not at war in Africa, why have they launched a steady stream of airstrikes in Somalia in recent months? Why have U.S. forces ended up in firefights in countries ranging from Mali to Tunisia to Kenya? Why were four U.S. servicemembers killed in Niger in 2017, as they conducted a kill-or-capture mission with their Nigerien partners?
The reality is that Department of Defense-led security cooperation — work “by, with, and through” foreign partners — has led to U.S. forces engaging in combat across the globe. Some of these hostilities have involved groups covered by the 2001 Authorization for Use of Military Force (AUMF), as interpreted by the executive branch to permit the use of force against al-Qaeda, the Taliban, and also their “associated forces.” But some of the hostilities stemming from security cooperation have involved groups like Boko Haram in Cameroon and Abu Sayyaf in the Philippines, neither of which has been publicly identified as an associated force covered by the AUMF. In such cases, working with partner forces has enmeshed the United States in military conflicts never approved by Congress.
As I explain in the Brennan Center for Justice’s newest report, Secret War: How the U.S. Uses Partnerships and Proxy Forces to Wage War Under the Radar, the Department of Defense has leveraged three overbroad and poorly overseen security cooperation authorities — 10 U.S.C. § 333, 10 U.S.C. § 127e, and § 1202 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018 — to take the reins on U.S. war-making and subvert the constitutional balance of powers.
Background: The Shifting Balance of War Powers
By its text, the Constitution gives Congress the power to declare war and create, fund, and regulate the military. The Constitution also requires Congress to oversee military affairs with particular scrutiny and regularity, so as to prevent the dangers of a military inclined to “exceed the proper limits.” Barring circumstances in which the president must use force to “repel sudden attacks” on U.S. territory or persons, the Constitution affords the president no authority to make war without congressional authorization. In the words of President James Madison, “the executive has no right, in any case to decide the question, whether there is or is not cause for declaring war.” The president’s sole right is “the right of convening and informing Congress.”
Since the beginning of the Cold War and increasingly so since 9/11, the executive branch has strayed from this constitutionally established balance of war powers. Executive branch lawyers have issued legal opinions claiming an expansive presidential prerogative to use force without congressional authorization. They have interpreted statutory authorities in ways that defy apparent textual limitations. And they have argued that certain hostilities, which are sufficiently “episodic,” can be concealed from rather than reported to Congress — despite the disclosure requirements of the 1973 War Powers Resolution, which was enacted during the Vietnam War to curb unauthorized uses of force. The result is the modern phenomenon of secret war: U.S. military operations that are unauthorized by Congress and unknown to many of its members, let alone the public.
Two specific sources of authority for secret war are already the subject of much discussion: the 2001 AUMF, which four successive presidents have stretched far beyond its text and even Congress’s knowledge, and the covert action statute, which has enabled the CIA to undertake kinetic operations. A third source, however, has slipped under the radar.
As I explain in Secret War, the Department of Defense’s security cooperation authorities — most notably §§ 333, 127e, and 1202 — have allowed U.S. forces to train, equip, and pay salaries to foreign partners. By building relationships with the partners of its choosing, and then claiming an expansive right to “defend” its partners or even command them into combat, the Department of Defense has assumed the power to pursue the adversaries that it wants, where it wants, without congressional authorization. And when the Department of Defense uses force through or on behalf of its partners, it rarely informs key decision-makers in Congress or members of the public.
10 U.S.C. § 333: The Global Train-and-Equip Authority
Commonly known as the global train-and-equip authority, 10 U.S.C. § 333 allows the Department of Defense to transfer military equipment, service that equipment, and train partners on how to use it. The authority is nonoperational, meaning that these activities all take place on a base. Nevertheless, U.S. forces deployed to run § 333 programs can end up in combat.
The executive branch’s broad reading of constitutional self-defense — the president’s authority to use defensive force without prior congressional approval — has the potential to transform nonoperational train‑and-equip programs into active engagements with adversaries. By establishing training bases in volatile parts of the Philippines and then invoking “unit self‑defense,” or the right to protect U.S. forces in the vicinity, the Department of Defense engaged in combat not only against Abu Sayyaf, a terrorist organization, but also against local separatist groups. In Somalia, U.S. forces deployed to train part of the Somali National Army invoked “collective self-defense,” or a highly contested power to protect foreign partners without congressional approval, to launch airstrikes against al‑Shabaab forces even before the group was recognized as a legitimate target under the 2001 AUMF. Nothing in § 333 prevents the Department of Defense from setting up camp in the “hotbed” of terrorist activity or pairing with partner forces who will predictably come under attack.
Furthermore, nothing in § 333 prevents U.S. forces deployed for a train-and-equip program from leaving base if the Department of Defense has issued an “execute order” (EXORD) allowing them to conduct operations. This is precisely what happened in Niger in 2017, when a team of Green Berets and their Nigerien trainees were ambushed while conducting a kill-or-capture mission. Although the soldiers were in Niger on a § 333 assignment, a capacious EXORD — described to me by a former Department of Defense official as “kind of pursuant to the [2001] AUMF” — allowed them to pursue unspecified terrorist targets. Congressional leaders were taken aback by the ambush, shocked that the U.S. forces Department of Defense officials said were deployed “in a train and advise role” were also conducting risky operations. At the time, Congress did not have a full list of the Department of Defense’s EXORDs. It still doesn’t, despite having enacted a law requiring the Department of Defense to disclose such a list.
10 U.S.C. § 127e: The Counterterrorism Proxy Force Authority
Unlike § 333, 10 U.S.C. § 127e is an explicitly operational authority. It allows U.S. forces to provide “support” to foreign partners who in turn are “supporting” authorized U.S. counterterrorism operations. Nowhere in the statute is the support that U.S. forces can give or receive defined. But in practice, U.S. forces have provided their § 127e partners with salaries, on top of the standard training and equipment. Particularly when these partners are on an American payroll, U.S. forces can exercise “operational control” over them; these partners can be directed into combat or assigned non‑kinetic missions to achieve U.S. military objectives. In other words, § 127e partners are proxy forces, commanded by the Department of Defense.
The Department of Defense has run § 127e programs in a staggering array of African and Asian countries, the breadth of which far exceeds known activity under the 2001 AUMF: Afghanistan, Cameroon, Egypt, Iraq, Kenya, Lebanon, Libya, Mali, Mauritania, Niger, Nigeria, Somalia, Syria, Tunisia, and Yemen, as well as a yet‑undisclosed country in the Asia-Pacific region. According to public reporting and my conversations with former and current Department of Defense officials, U.S. forces directed their § 127e partners in a number of these countries to pursue groups that have never been disclosed as lawful targets under the AUMF, such as Boko Haram, the Islamic State in the Greater Sahara, and the Islamic State – Sinai Province. (As I discuss elsewhere, it is far from clear that the AUMF automatically covers the Islamic State of Iraq and Syria’s geographically diffuse affiliates. Al-Qaeda’s affiliates, like al-Qaeda in the Arabian Peninsula, had to be separately identified as lawful targets.) This seemingly unauthorized combat raises the possibility that § 127e, which on its face only provides additional resources for otherwise authorized counterterrorism operations, has been used as its own authorization for use of military force through partners — or has served as a means of implementing dubious interpretations of the 2001 AUMF and constitutional self-defense.
The legal justifications for § 127e programs, and even the full extent of the hostilities conducted through § 127e partners, are unknown. Information on § 127e programs and the combat they involve is highly classified and rarely shared with congressional decision-makers on the foreign affairs committees, who are responsible for matters of war and peace. And the lawmakers who are read into these programs — members of the congressional defense committees — have publicly questioned how forthcoming the Department of Defense has been about its § 127e activity. In interviews, staffers supporting these lawmakers sharply criticized the adequacy of the Department’s disclosures. The public, of course, is told nothing.
Section 1202: The “Irregular Warfare” Proxy Force Authority
Section 1202 of the NDAA for FY 2018 is a recently enacted authority that mirrors § 127e, allowing U.S. forces to provide support to foreign partners who are supporting U.S. “irregular warfare” operations. Designed with an eye toward great-power competition, § 1202 enables the creation and command of proxy forces to counter “near-peers” like Russia and China, as well as “rogue states” like Iran and North Korea.
This new authority should raise even more concern than §§ 333 and 127e — despite the fact that the Department of Defense officials I spoke with were unaware of any § 1202 program involving combat. According to one official, all of the Department of Defense’s § 1202 programs as of mid-2022 were geared toward information warfare and intelligence‑gathering. But that could change. The same official noted that each of the programs, several of which targeted Russia, was based on a theory of constitutional self-defense. Those theories could support low-level combat, just as they have in the Philippines and Somalia. This time, though, the combat could be against a nuclear state, not a regional terrorist group.
Congress is poorly positioned to stop expansive or dangerous uses of § 1202. As with § 127e, key leaders in Congress receive sparse information about § 1202 programs. Aside from the president’s good judgment, little stands in the way of the Department of Defense directing proxies into combat against, say, Russian separatists in Eastern Europe or Iran-backed militias.
Looking Forward
Department of Defense-led security cooperation, particularly under §§ 333, 127e, and 1202, is in dire need of reform and effective oversight. Congress should consider repealing these broad authorities and instead providing individualized authorization for work with foreign partners, as it has done in enacting programs like the Ukraine Security Assistance Initiativeand the Indo‑Pacific Maritime Security Initiative.
If §§ 333, 127e, and 1202 remain on the books, Congress should ensure that it has a role in approving individual programs or at least ensuring that programs do not involve or lead to unauthorized hostilities. Congress should also revamp the notification and reporting regimes relevant to §§ 333, 127e, and 1202, to ensure that it has a clear and regularly updated understanding of where U.S. forces are, who they are working with, and whether there is a risk that they will end up in combat, directly or through proxies. Secret War details these and other reforms.
Security cooperation as a means of pursuing U.S. military objectives is likely to become even more common in the future. The White House’s just-released National Security Strategy promises to “increase cooperation and support to trusted partners” in the counterterrorism context and to “redouble our efforts to deepen our cooperation with like‑minded partners” in the great-power context. The Department of Defense’s National Defense Strategy, published last week, has an entire section entitled “Anchoring Our Strategy in Allies and Partners and Advancing Regional Goals.”
Congress and the public cannot afford to delay a serious reassessment of the Department of Defense’s security cooperation authorities. The longer we wait, the more likely it is that the executive branch will involve U.S. forces in conflicts that are unauthorized and unnecessary, and that carry a dangerous risk of escalation.
