What Does Niger Have to Do with the AUMF?

Recent events in Niger have called attention to the role of Congress in overseeing military deployments outside areas of active hostilities. As the Senate Foreign Relations Committee prepares to consider the value of updating or even replacing the 2001 Authorization for the Use of Military Force (AUMF) against al Qaeda and associated groups, it is worth considering how global extremism has evolved over the past 16 years and the types of congressional authorities the Department of Defense (DoD) relies on to today.

Q1: Several members of Congress have shared that they weren’t aware of U.S. military presence in Niger. What is the appropriate role of Congress in the oversight of foreign troop deployments?

A1: At best, the Constitution is ambiguous about the congressional role in the use of military forces abroad. Under Article I, the Congress is given the power to create a military and to declare its use in wartime. Yet Article II names the president as commander in chief and thus establishes a system whereby the executive and legislative branches share the power to use force. Furthermore, since the mid-twentieth century, the range of military activities outside the strict definition of declared war has broadened dramatically. Although the War Powers Resolution of 1973 requires the president to notify the Congress about combat deployments in a timely manner, notification of deployments under conditions where combat is not anticipated, nor war-like engagements intended, is up to the president’s discretion. As the branch of government that provides the resourcing necessary for the forces to operate, Congress has great influence over what the forces can do, but it does not have immediate or unified command authority over where and when those forces are deployed. And there is little agreement about the congressional role when nonwar deployments incur risk to forces from hostile groups.

However, Congress has long authorized the use of military personnel to deliver assistance to train, equip, advise, and accompany partner forces. These authorities were largely initiated as the so-called 1200 series of the 2006 National Defense Authorization Act and are now under Section 333 of Title 10. The latter contains a requirement for the secretary of defense to notify Congress of “the foreign country, and specific unit, whose capacity…will be built under the program, and the amount, type, and purpose of the support to be provided.” The military also conducts a range of authorized joint exercise and training programs with partner militaries and will occasionally deploy in support of military construction projects. Finally, DoD deploys units and individuals as part of the security elements for U.S. embassies abroad. In Africa, forces routinely rotate into Camp Lemonnier in Djibouti on a temporary deployment (TDY) basis and across the continent to assist peacekeeping forces, build counterterrorism capabilities, and mentor partner nation militaries. In Niger, it appears that U.S. forces are involved in several of the above-described efforts, from training missions to construction.

At issue is what the concept of “training” comprises. Special Operations Forces often conduct “accompany” missions to support host nation operations—often referred to as foreign internal defense (FID)—without the intention of direct U.S. kinetic engagements. For example, if an operational detachment is conducting border security training, those U.S. personnel might accompany a host nation unit on a routine patrol. The risk profile of the patrol, however, may vary considerably depending on the local environment.

Beyond periodic War Powers notifications and Section 333 notifications, individual members of Congress and the defense oversight committees may request and receive regular briefings on U.S. overseas military posture and personnel deployments, including the strategic rationale for those engagements. The annual posture hearings before the Armed Services Committees also afford opportunities to query combatant commanders and service chiefs about their ongoing activities.

To be sure, the scale and variety of the military’s overseas rotations can be a challenge to track comprehensively. It is therefore entirely appropriate and customary for members of Congress to require DoD and the administration to supply regular information about the disposition of U.S. forces around the globe and their strategic purpose. But it is also important to note that awareness of troop deployments and overall mission sets is not equivalent to notification for every movement within theater. Such a detailed degree of notification would be impractical and endanger operational security.

Q2: What is the appropriate level of public transparency for military deployments outside of declared war zones?

A2: Operational security is one of the primary concerns when releasing information about troop movements abroad. Yet democratic accountability for foreign policy dictates some level of transparency about the use of military forces. The American public has a right and a need to know when and where the capabilities to use violence are being applied in service to their interests so they can make informed civic choices. Such accountability is particularly important in non-wartime contexts where the military is not the lead element of U.S. power and where unintended escalation is possible if military capabilities are not used judiciously.

In general, it is possible to share information about the size and scope of military deployments, including their missions and activities, without a level of detail that compromises personnel safety or mission success. Moreover, the larger strategic rationale for using U.S. military capabilities abroad should almost always be a matter of public record. Nevertheless, there are also often credible reasons to limit access to information about military activities. In the African context, some discretion is warranted not only to deny extremists operational information about U.S. forces but also to be sensitive about the effects of a U.S. military presence on the regime’s political legitimacy, where a history of colonialism has sensitized the population to foreign interference.

Q3: Some have suggested passing a new Authorization for the Use of Military Force or amending the 2001 AUMF to improve congressional oversight of global counterterrorism operations. What provisions should a new AUMF include to avoid future gaps in oversight?

A3: The 2001 AUMF authorizes the use of force against al Qaeda, its adherents, and its affiliates. But the events in Niger provide a case study in the challenges with authorizing force to fight a named transnational extremist group with ambiguous command and control over its global adherents. Although many extremists in West Africa claim an affiliation with al Qaeda or the Islamic State, the closeness of their connections with those groups and their ability to threaten the United States are disputed. Furthermore, the internal dynamics of many of the militants currently or formerly associated with al Qaeda in the Islamic Maghreb and the Islamic State in the Greater Sahara have resulted in myriad splinter groups and rivalries, making the legal identification of enemy combatants extremely difficult—at the risk of becoming meaningless.

Thus, Congress could consider whether a threat-based authorization, on a case-by-case basis, may be more appropriate to the nature of extremist violence around the globe today. A new AUMF could require the administration to propose new deployments to confront terrorist groups based on an assessment that those groups pose a direct threat to the United States, its allies, or partners. The new authorization could require that the administration provide updated assessments every six months once combat forces are deployed. These assessments would provide Congress with the opportunity to review counterterrorism-related deployments as well as the justification for combatting a particular group in a particular geographic location.

Debate over a new AUMF could also consider whether accompany-type missions should be separated from training authorizations in a manner that requires War Powers or other notification, given the increase in risk to U.S. forces and the proximity to kinetic tactical operations.

Alice Hunt Friend is a senior fellow with the International Security Program at the Center for Strategic and International Studies in Washington, D.C.

Critical Questions is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

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Alice Hunt Friend