“JUST SECURITY” By Brian Finucane
“Congress enacted the War Powers Resolution over President Nixon’s veto in 1973 to reassert its constitutional prerogatives with respect to war and peace in the final stages of the Vietnam War. The system is obviously broken.
Section 4(a) of the Resolution establishes reporting requirements to prevent the president from taking the country to war in secret. In the absence of a declaration of war or other statutory authorization, the president is subject to multi-tiered obligations to report on certain triggering activities of U.S. armed forces within 48 hours to Congress.”
_______________________________________________________________________________
‘Monday, Oct. 4th marked the fourth anniversary of the attack on U.S. forces at Tongo Tongo, Niger by ISIS-Greater Sahara that killed four U.S. soldiers. The attack surprised not only the American public but also members of Congress, many of whom were apparently caught unawares by U.S. armed forces engaging in ground combat in Niger or Africa more generally.
But why were members of Congress taken by surprise? After all, as a former U.S. official told Crisis Group (where I work), Special Operations Command Africa (SOCAF) “had been doing s**t like Niger for years,” meaning partnered operations that involved going on patrols and sometimes engaging in combat. Such “advise, assist, accompany” operations are one of the ways U.S. armed forces work “by, with, and through” partners. These operations were sometimes conducted in connection with a statute – 10 U.S.C. §127e – that authorizes the Pentagon to spend appropriated funds in support of foreign counterterrorism forces. According to a second former official, in practice the Pentagon used 127e to create “clear, unambiguous proxies of the United States,” which U.S. forces could then partner with on combat operations. In the aftermath of Tongo Tongo, this official was stunned that Congress failed to appreciate what “by, with, and through” meant in practice despite the fact that U.S. special operations forces had been engaged in such dangerous operations for many years.
What explains Congress’s surprise that U.S. armed forces were engaging in combat in Niger and the more general disconnect between U.S. military operations and congressional oversight? In significant part it’s due to the lack of prior executive branch reporting under the early warning system established by the 1973 War Powers Resolution. As described in a new Crisis Group report, Overkill: Reforming the Legal Basis for the U.S. War on Terror, U.S. armed forces in Africa on “advise, assist, and accompany” missions with local partner forces sometimes appeared to have engaged in hostilities (for example exchanging fire with enemy forces, taking casualties, launching airstrikes) without clear statutory authority. Under the War Powers Resolution, the president is required to report such hostilities to Congress within 48 hours unless already authorized by statute. But the White House never submitted the required reports and thus Congress never received the clear warnings that the United States might be sliding toward conflicts in a number of African countries. In this piece, I offer details of the incidents in question, suggest possible reasons for the absence of reporting, and propose steps to increase transparency in U.S. military operations going forward.
War Powers Hostilities Reports: Law and Executive Branch Implementation
Congress enacted the War Powers Resolution over President Nixon’s veto in 1973 to reassert its constitutional prerogatives with respect to war and peace in the final stages of the Vietnam War. Specifically, Congress sought to forestall any president from taking the country to war without congressional authorization or even without congressional awareness (as had apparently been the case for aspects of the war in Indochina, such as the bombing of Cambodia).
To this end, Section 4(a) of the Resolution establishes reporting requirements to prevent the president from taking the country to war in secret. In the absence of a declaration of war or other statutory authorization, the president is subject to multi-tiered obligations to report on certain triggering activities of U.S. armed forces within 48 hours to Congress. First, she must report when U.S. military forces are introduced into “hostilities” (which the executive branch interprets narrowly, to include exchanges of fire with hostile forces and airstrikes) or introduced into situations of imminent hostilities. Such hostilities reports are the focus of this essay. Second, even if U.S. forces are not engaging in hostilities, the president must report the introduction of “combat equipped” forces into a country (which the executive branch reads as forces equipped with crew-served weapons such as machine guns requiring more than one person to operate and mortars). Third, the president must also report a substantial enlargement of such combat equipped forces in a country where such forces are already present.
Notably, under Section 5(b) of the 1973 Resolution, the submission of a report under the first of these scenarios – introduction of U.S. forces into hostilities or situations of imminent risk – also starts a 60-day clock for the withdrawal of U.S. armed forces from such hostilities unless Congress declares war or otherwise enacts specific statutory authorization for the use of force.
If Congress has already authorized the use of force under a statutory authorization, the executive branch reads the War Powers resolution not to require reporting of activities within 48 hours under the provisions described above, though such actions might be included in periodic reports the White House submits to Congress every six months.
After the enactment of the War Powers Resolution, the Chairman of the House Foreign Affairs Committee asked the Secretary of State how the executive branch intended to implement the new law, specifically the reporting requirements of Section 4. In an Oct. 7, 1974 letter, Secretary Kissinger explained that “Secretary [of Defense] Schlesinger and I have agreed that our respective legal counsels will be jointly responsible for bringing immediately to our attention cases where it would be appropriate for us to recommend to the President that a report be submitted to the Congress pursuant to Section 4 of the War Powers Resolution.”
Kissinger further explained:
[The] Office of the Secretary of Defense instituted an arrangement whereby the Legal Adviser to the Chairman of the Joint Chiefs of Staff informs the Department of Defense General Counsel of all troop deployment actions routed through the Chairman’s office which could raise a question as to whether a report to the Congress is required. In implementation of that arrangement a written instruction was promulgated establishing a War Powers Reporting System within the Operations Directorate of the JCS. Arrangements have been made for [the State] Department’s Legal Adviser to receive the same information as is supplied to the DOD General Counsel. Consultations between the two departments’ legal counsels will be arranged as needed.
Whether the arrangements for reporting hostilities to Congress as described by Kissinger formally remain in place is unclear based on publicly available information. Congress should want to know.
Missing War Powers Reports from the “War on Terror” in Africa
As noted in Crisis Group’s recent report and other prior public reporting (including an overview by Politico’s Wesley Morgan), since 2015 U.S. armed forces, often on advise, assist, and accompany missions, appear to have engaged in several incidents that, absent statutory authorization, would seem to fall within the ambit of hostilities for purposes of the War Powers Resolution in at least five African countries and without clear statutory authority. Although the White House reported on other hostilities during this time period, none of the incidents described below were reported by the president within 48 hours to Congress. Nor was any of this fighting widely understood to be authorized at the time by the 2001 Authorization for the Use of Military Force (2001 AUMF), the principal statutory basis for so-call the “war on terror.” In some situations, however, as with Al-Shabaab in Somalia and al-Qaeda in the Islamic Maghreb (AQIM), the executive branch would declare the group to be an “associated force” covered by the AUMF sometime after the incident occurred. In other situations, it is unclear whether the executive branch subsequently determined that the 2001 AUMF somehow authorized these combat incidents. In many cases, these incidents only came to light years later when journalists reported on U.S. service members receiving medals for valor or injuries sustained in combat.
Consider a few examples of such hostilities:
Before the Tongo Tongo Attack
Somalia: Beginning in 2015, U.S. armed forces were reported by various media outlets to have engaged in ground combat and conducted airstrikes against al Shabaab foot soldiers. A Green Beret was awarded a Silver Star for his actions alongside Somali and Kenyan forces during one particularly intense firefight against Al Shabaab in July 2015, including for “contributing to 173 enemy killed and 60 more wounded.” The Pentagon characterized some of these actions as having been taken in the “collective self-defense” of partner forces. Although the Obama administration had previously explained in 2015 that it was targeting members of al Shabaab who were also part of al-Qaeda (and tended to be high-ranking figures in al Shabaab), such a theory would not explain combat against al Shabaab foot soldiers. It was only in late 2016 that the Obama administration announced the group as a whole was covered by the 2001 AUMF.
Mali: In November 2015, U.S. special operations forces in Bamako rushed to the Radisson Hotel after gunmen linked to AQIM seized the building and hostages, including a number or American citizens. Both Army and Marine special operators received awards for valor in subsequent battle at the hotel during which U.S. forces exchanged fire with the jihadists while rescuing hostages. Although the jihadist attack on the hotel was widely reported in the press, the Pentagon initially denied that U.S. military personnel were directly involved in rescue operations.
Tunisia: In February 2017, according to an award citation quoted by the New York Times, U.S. marines accompanying Tunisian partners “got into a fierce fight against members of Al Qaeda in the Islamic Maghreb” along the Tunisian-Algerian border. A former U.S. official who confirmed the incident to Crisis Group, described one marine being shot during the battle when a bullet ricocheted under his body armor. The official also noted that U.S. intelligence, surveillance, and reconnaissance (ISR) aircraft was overhead during the fighting.
Cameroon: In a 2017 incident in northern Cameroon described in the recent Crisis Group report, U.S. Navy SEALs accompanied a Cameroonian partner force to a compound flying an ISIS flag. While the SEALs took up overwatch from some 300m away, the Cameroonian troops approached the compound and called upon its occupants to present themselves. An unidentified man emerged from the compound with an AK-47, and a Cameroonian soldier tried to fire upon him, but the soldier’s gun reportedly jammed. Acting in what a former official characterized as “collective self-defence” of the Cameroonian forces, a SEAL sniper shot and killed the man with the AK-47.
These hostilities in Somalia, Mali, Tunisia, and Cameroon all occurred prior to the attack on U.S. forces at Tongo Tongo, Niger in October 2017. Although both current and former officials told Crisis Group that the Tongo Tongo attack was a watershed moment in terms of U.S. military operations in Africa, it was not the first or last time U.S. armed forces engaged in counterterrorism-related hostilities in A
After the Tongo Tongo Attack
Niger: Also described in the new Crisis Group report, a few months after the Tongo Tongo attack, U.S. forces engaged in what one former official described as a “big battle” with a different ISIS affiliate, the Islamic State in West Africa Province (ISIS-WAP), which is a splinter of Boko Haram. In December 2017, U.S. Green Berets accompanied local Nigerien forces, when they became involved in fighting in the Lake Chad region of southeastern Niger bordering Nigeria and Chad. Although U.S. forces were a few hundred meters back from the forward line of troops, they nonetheless engaged in combat, including by providing supporting mortar fire. The Trump administration publicly reported the incident in cursory fashion in March 2018, and, after questioning by The New York Times, provided a brief statement.
Mali: In 2018, according to the Military Times, U.S. forces with a military observer group attached to the U.N. mission in Mali came under attack and several servicemembers were injured by jihadists in Timbuktu. During the jihadist assault, which involved rockets, mortars, and car bombs, U.S. troops assembled and protected several dozen Malian civilians while armed only with their pistols. One of the U.S. service members who survived the attack told the Military Times, “the severity [of the incident] was so, so played down.”
Possible Breakdowns in War Powers Reporting
Although the Department of Defense may have provided classified briefings or reports under statutory requirements other than the War Powers Resolution to the House and Senate Armed Services Committees in connection with some or all of these incidents, the White House did not submit any of the required hostilities reports under the War Powers Resolution. Because briefings and reports provided by the Pentagon to its own committees are typically classified and limited to those defense committees, such communications are not an adequate substitute for the much more widely-distributed and typically public hostilities reports under the War Powers Resolution. In interviews with Crisis Group, congressional staff and former U.S. officials noted that even if some committee staff or members had been informed of some aspects of these incidents, both the fact that U.S. forces were engaged in combat and the legal significance of these hostilities may not have been readily apparent. One former official cited the danger of important facts getting buried in such briefings or reports. Certainly after the Tongo Tongo attack, Senator Tim Kaine (D-VA) who sits on both the Senate Foreign Relations and Defense Committees and is one of the most engaged members of Congress on war powers, appeared taken aback by what he had learned about the true nature of U.S. military operations in Africa.
It is difficult to know why the White House failed to report the incidents to Congress as required under the executive branch’s own definition of hostilities. The difficulty in ascertaining that information is due in part to the many links in the War Powers reporting chain between U.S. special operations forces deployed in Africa and the President in the Oval Office.
There are at least three possible explanations.
First, there could have been a breakdown of communication within the executive branch, either internal to DoD or between DoD and the State Department, with respect to information relating to the introduction of U.S. forces into hostilities. According to one former official interviewed by Crisis Group, any time U.S. forces on an “advise, assist, accompany” mission in Africa fired a weapon off the range, the incident was reported to AFRICOM headquarter for War Powers reporting purposes. Whether or not this occurred in every instance is challenging to verify, though this former official stated that the commander of AFRICOM was aware of both the 2017 sniping incident in Cameroon and the battle latter that year against ISIS-WAP in Niger. There could have been a failure by AFRICOM to timely report hostilities to the Legal Adviser to the Chairman of the Joint Chiefs of Staff. Even if the relevant information reached the appropriate officials at the Pentagon, a former official told Crisis Group that the only clear guidance from former Secretary of Defense Mattis with respect to Africa was “to keep Africa off the front page.” In this context, the Pentagon may have sought to avoid highlighting that U.S. armed forces were in combat on the continent.
A second possibility is that at least some actors in the executive branch wanted to avoid reporting hostilities as that could have triggered the 60-day clock under the War Powers Resolution for the withdrawal of U.S. armed forces. There is some precedent for this. Despite multiple U.S. servicemembers being killed by hostile fire in El Salvador during the 1980s, the Reagan administration never filed a single hostilities report for the country despite a lawsuit brought by members of Congress. (See this comprehensive database of reports compiled by Tess Bridgeman and colleagues.)
A third potential explanation is that some officials within the executive branch, especially those closest to the operations as they were conducted, believed the 2001 AUMF covered all terrorism-related hostilities regardless of the jihadist group(s) involved, and thus did not understand the War Powers Resolution’s reporting requirements as relevant in the first place.
Whatever the reason, the absence of reporting under the War Power Resolution meant that neither the American public nor the Congress were fully aware of the extent to which U.S. armed forces were engaging in combat in Africa.
Fixing the Warning System
The system is obviously broken. There is no other way to characterize a system that has resulted in the kinds of surprises described above. But in order to understand how to fix it, the executive branch, Congress, and the public must first know what exactly is broken and why. Congress is best positioned to get to the bottom of this problem. The foreign relations and defense committees should seek answers from the Departments of State and Defense as to why hostilities reports were not filed within 48 hours in connection with the incidents described above.
If information regarding hostilities was not shared within the executive branch as specified in the Kissinger letter, Congress should determine where that breakdown occurred. If officials within the executive branch reached a considered judgment at the time of these incidents that no War Powers report was legally required, either because the 2001 AUMF provided statutory authority for the hostilities or for some other reason, Congress should suss out those legal theories. If it turns out that expansive and after the fact interpretations of the 2001 AUMF were used to cover these incidents, that is yet another reason for Congress and the administration to replace the 2001 statute with a narrowly tailored authority that clearly specifies where and against whom the U.S. military is authorized to use force.
In any case, looking forward, Secretary of State Blinken and Secretary of Defense Austin should follow the examples of their respective predecessors, Kissinger and Schlensiger, and publicly explain how they intend to ensure “full and timely” compliance with the reporting requirements of the War Powers Resolution.
Conclusion
The War Powers Resolution was enacted in part to prevent any president from taking the country to war in secret. If the executive branch fails to report hostilities as required under the Resolution or under any successor statute such as the National Security Powers Act, there is a great risk that the United States will inadvertently and unwittingly slide into new conflicts as ostensibly “advise, assist, and accompany” operations cross the line into combat. The effectiveness of war powers reforms will depend in part on rigorous reporting. They will also require that use of force authorizations be narrowly tailored so that the executive branch cannot point to them as a reason for not reporting hostilities in new parts of the world. Congress should focus on both priorities, sending the executive branch a signal that it is serious about timely and rigorous war powers reporting under current law, and embarking on the overdue task of reforming the 2001 AUMF.”
ABOUT THE AUTHOR:
Brian Finucane (@BCFinucane) is senior adviser with the U.S. Program at the International Crisis Group. Prior to joining Crisis Group in 2021, he served as an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State.
Commentaires