Senate Armed Services Committee Holds A Hearing To Examine U.S. Special Operations And Cyber Command

U.S. Special Operations Commander Gen. Bryan Fenton testifies before the Senate Armed Services Committee in the Dirksen Senate Office Building on Capitol Hill on March 07, 2023 in Washington, DC.

(Photo by Chip Somodevilla/Getty Images)

Why Congress Should Be Curtailing War Powers, Not Expanding Them

Our Constitution gives Congress, not the president, the constitutional power to declare war.

Last month, the House and Senate Armed Services committees held hearings to discuss the Department of Defense’s legislative asks and priorities regarding U.S. special operations forces. In those hearings, Department officials made clear that one of their top priorities for the upcoming legislative cycle is expanding an obscure security cooperation authority: section 1202 of the 2018 National Defense Authorization Act, which authorizes the U.S. military to work “by, with, and through” foreign partners to counter foreign adversaries like Russia and China.

In advocating for an expansion of section 1202, Department officials have reportedly promised that the authority would be “limited to noncombat operations.” Congress, however, should cast a wary eye on this promise and on the Department’s overarching request for broader authority.

Section 1202 is a provisional authority, in effect through 2025, that permits the Department of Defense to recruit, train, equip, and pay salaries to foreign militaries, paramilitaries, and even private individuals who are supporting U.S. “irregular warfare” operations — defined as “competition . . . short of traditional armed conflict” — against supposed malign state actors. By putting section 1202 partners on payroll, U.S. forces gain the ability to command them, directing them to achieve U.S. military objectives either alongside U.S. forces or in U.S. forces’ stead. As a result, the Department describes its relationship with section 1202 partners as one of “operational control,” and it refers to these partners as “surrogate forces.”

Surrogate forces can be a powerful tool: They are a force multiplier and can afford the Department of Defense access or credibility that American troops may not have in a foreign context. But working by, with, and through foreign partners carries serious risks, both of escalation and of unlawful combat.

In the past, security cooperation programs have pulled U.S. forces into combat with adversaries who are not clearly covered by any congressionally enacted authorization for use of military force (“AUMF”). This is especially true of surrogate force programs run under 10 U.S.C. § 127e, an established counterterrorism authority on which section 1202 is based. According to investigative reporting, the Department has used section 127e surrogate forces to pursue Boko Haram and various Islamic State affiliates in countries ranging from Cameroon to Egypt. Neither Boko Haram nor any Islamic State affiliate has been publicly disclosed as one of al-Qaeda’s “associated forces” or “successor forces” who can be targeted under the 2001 AUMF, per the executive branch’s interpretation of that authority. This raises questions about whether the Department has worked by, with, and through surrogates to target these or other organizations under yet‑undisclosed interpretations of the 2001 AUMF or the president’s constitutional authority — or worse, whether the Department has treated section 127e as a de facto AUMF.

Department of Defense officials have taken pains to distinguish section 1202 from its progenitor, section 127e. In a conversation in mid-2022, a current Department official assured me that section 1202 surrogate forces were not being commanded into combat like their section 127e peers. That same official, however, was unaware of any written Department policy that would prevent section 1202 programs from being used for combat. Other former and current Department officials with whom I spoke were similarly unaware of such a policy, and a public memorandum outlining the Department’s original procedures for implementing section 1202 contained no language prohibiting kinetic programs. (The memorandum was set to expire on August 3, 2022. The Department has not published a replacement policy, and the New York Times is now suing the Department under the Freedom of Information Act to obtain any such policy.) One current official with experience working on section 1202 programs said he would be “surprised” if the Department decided to promulgate a policy foreclosing combat because “you want to be flexible, in case you’re asked by [a lawmaker] or the president” to have surrogate forces undertake kinetic operations.

Nor are the weak limits in section 1202 itself — its definition of “irregular warfare” and its rules of construction — sufficient to prevent combat through surrogate forces. Although “irregular warfare” is defined as conduct “short of traditional armed conflict,” the Department of Defense views nontraditional or gray-zone conflict as encompassing “the full range of military and other capabilities,” including proxy and guerilla operations. As recently as last summer, a group of Department lawyers, writing in their personal capacity, assessed that the Department could run section 1202 programs in Ukraine to assist war efforts against Russia, so long as the United States did not itself “become embroiled in the ongoing conflict.”

The rules of construction similarly fail to guard against the use of section 1202 to engage in combat. Although one rule specifies that section 1202 is not itself an AUMF, it does not prevent the Department of Defense from using surrogate forces in furtherance of the president’s claimed authority to use force under Article II of the Constitution. The rule prohibiting the use of surrogates for operations that U.S. forces “are not . . . legally authorized to conduct themselves” suffers from the same defect, according to multiple Department of Defense officials with whom I have spoken. This is worrying because the Department of Justice’s Office of Legal Counsel (“OLC”) has interpreted Article II of the Constitution to allow the president to use force, without congressional authorization, whenever it is in the “national interest” and unlikely to produce a conflict of sufficient nature, scope, and duration to constitute “war in the constitutional sense.” Leading experts have criticized that OLC’s interpretation “provides no meaningful constraint” on the president’s authority to launch airstrikes or direct U.S. forces into low‑intensity combat. Indeed, recent presidents have relied on this interpretation of Article II to intervene in Muammar Gaddafi’s Libya and attack Bashar al-Assad’s military installations in Syria — without Congress’s prior approval.

If Department of Defense officials are telling Congress that section 1202 programs will not involve combat, they may be making a promise they cannot keep. Without real guardrails, mission creep or personnel turnover (including in the White House) could easily result in section 1202 surrogate forces being commanded into combat. There’s certainly an appetite to push the present boundaries: Just last week, a former Marine Corps official proposed using kinetic section 1202 programs to “target[] Chinese military assets” in the South China Sea.

To the extent that Congress wants to prevent section 1202 surrogate forces from being used like their section 127e counterparts, Congress needs to limit the authority, not expand it. Congress should add language to section 1202 that would prevent the authority from being used to implement expansive interpretations of the president’s authority to use force without congressional authorization. This could be a simple fix, accomplished by requiring section 1202 programs to support “ongoing and statutorily authorized” U.S. irregular warfare operations. Congress should also improve its capacity to oversee section 1202 programs, which are poorly understood by most members of the defense committees and largely concealed from members of the foreign affairs committees.

Our Constitution gives Congress, not the president, the constitutional power to declare war. It gives Congress the authority to create, fund, and regulate the military. As it stands, section 1202 is an overbroad authority that already risks degrading these constitutional prerogatives and removing decisions of war and peace from democratic debate and accountability. Contrary to the Department of Defense’s assertions and asks, expanding section 1202 would deepen these risks, widening the aperture for U.S. forces to engage in and direct combat in unauthorized, foreign wars.

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