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forces to train and equip partners.Section The Secretary of Defense is authorized to simply is the broadest of these train-and-equip author- conduct or support.programs to provide ities, affording the department wide latitude to initiate training and equipment to the national programs in the countries and with the partners of its security forces of.foreign countries for the choosing.Section in Practice and the Potential 2 Counter-weapons of mass for Unauthorized Hostilities destruction operations.programs in at least 52 countries across Africa, Asia, 4 Counter-transnational organized Europe, and Latin America.Border Guard with night vision devices and small arms; a 7 Air domain awareness operations.and communications devices.They did not provision and sustainment of defense articles, training, authorize U.small-scale construction.It autho- and train partners on how to use that equipment.The kind of assistance the ity centered on costs and efficiency.forces engaging include running missions or combating adversaries.By tion and repairing equipment.S Defense hews to and works within these definitions.tions and evaluations of them.territory through reports, notifications, and briefings.And it works and persons.or the defense of U.forces in a given area.forces must be able to protect themselves when itself authorizes and more about how the authority can be confronted by adversaries.Throughout the ners are actively combating their own adversaries, who may war on terror, presidents have claimed a broad right to act not be covered by an AUMF.It is entirely predictable that in self-defense, including the collective self-defense of U.forces may encounter or even be threatened by these.Nothing in the Constitution permits the pres- In the Philippines, U.forces were explicitly prohibited ident to position U.forces predictably that it has an inherent constitutional authority to engage ended up exchanging fire with adversaries.foreign groups allied with the United States, without forces would rescue them.forces tions against common adversaries.forces on train-and-equip assignments to engage in prompted the United States to shift from large, traditional combat, despite the absence of congressional authorization.bases toward smaller, secretive sites located closer to poten- Nowhere is this more apparent than in the Philippines, where tial adversaries.the area.defense to rescue partners in Africa from adversaries not The secretary of defense testified that the ambushed team covered by the AUMF.Nor did suggested that U.Neither group existed on Septem- discovered a Russian threat while on assignment.forces were in places and against enemies Congress has not approved.forces would have been seeking congressional authorization.The department deployed to Niger and had the resources to undertake such could simply launch a program to train and equip foreign a risky mission in the first place.partners that are fighting that adversary, thus placing U.forces in a position where combat is likely to occur.military operations.forces engaging in combat.forces run in locations and in ways likely to expose U.Nevertheless, they have some potential to head took casualties in the field.As discussed, the targets off the base.To some extent, this limits the ensuing shoot-out.Congress organized hearings about the incident Department of Defense to partner with a foreign force that.forces can ing weapons of mass destruction, maritime and border be deployed.rules of engagement.The Philippines, for for other kinds of operations against state actors.instance, prohibited U.forces to disrupt ongoing peace talks.This notice does not give Ukrainian intelligence capacity.The program could not be Congress veto power, but it does give lawmakers the used to train and equip Ukrainian forces to combat Russian opportunity to raise concerns.One congressional over- proxies in the Donbas or Crimea.Although Leahy vetting has an imperfect track on norms, not law.to consult with the Department of State.These developed and planned with the Department of State.without considering foreign policy implications and The clearest reporting and notification requirements can legal constraints.Notifications must specify the country and try, not irregular forces or individuals.This requires the unit that will receive training and equipment.They also.ing law, 10 U.It also and-wait period.ical to understanding these threats and implications.Across four notifications from , evaluation, as well as list lessons learned.For instance, In recent years, Congress has enacted a series of addi- notifications do not always identify the specific partner tional laws requiring the Department of Defense to force that the Department of Defense intends to train and promptly report exercises of unit and collective equip.Amendments followed in , , an inherent right to defend.These reports, however, focus on logistical overseers.and partner forces have that the Department of Defense notify the congressional engaged in hostilities.defense committees when designating a partner force as.military footprint, presidents have submitted just 12 international legal bases for the use of United States mili- reports.forces deployed support of designated foreign partner forces.Bush dispatched U.forces outlining its policy for exercising collective self-defense.the use of military force under the notion of collective the circumstances that trigger the War Powers Resolution, self-defense of foreign partners.forces are luster.In a hearing, Rep.Without such an under- defense.Thus, the congressional overseers with shared regarding the geographic reach of the war on terror.president pro tempore of the Senate within 48 hours of any unauthorized introduction of U.to submit required reports.Neverthe- ute to U.its adoption.Furthermore, partner forces must be pursuing authority we have in our fight against terrorism.forces conduct- create shadowy proxy forces around the world.authorities and partner agree- which limits support to formal national security forces.The programs do not provide authorized under other laws.It does not provide any inde- mere enabling support to partner forces.Instead, they pendent authority for the Department of Defense to allow the United States to recruit the partner forces, train pursue additional counterterrorism objectives.Reflecting them, equip them, sustain them, and pay their salaries.military objectives chosen by U.involvement in running missions with there is a risk that U.These permit U.forces to join partner forces in the Section e in Practice and the Potential for field until the moment of final assault.The Department of Defense quickly real- position, they can end up in direct combat.In , U.ized that U.forces, though Afghans to fill these gaps.stationed meters behind their partner forces, ended Not so for the CIA.The Department of Defense enlisted up shooting and killing an adversary.But the two agencies had diverging mandates forces, controlling them, and at times engaging in combat and priorities, and in , the Department of Defense through and alongside them.After Out of the gate, the proposal was controversial.forces to military operations.forces] would not be legally authorized to of defense or the president.forces to engage in combat in a vant EXORD.forces to influencing a Danab Brigade in Somalia, before the AUMF covered situation without firing weapons.In practice, though, pursue the leaders of Boko Haram, a terrorist group that there is reason for concern that they are serving as de operates in West Africa.Many EXORDs do not specify the publicly identified as an associated force of al-Qaeda, and authority under which they are promulgated, and many thus a lawful target, under the AUMF.Researchers and reporters have uncov- that U.forces can has been run in an Indo-Pacific country as well.forces can lawfully engage in combat.forces might think that self-defense.It would imply that the Department of Defense has put Nothing in the EXORD would indicate whether they are U.forces in a position where unit self-defense has right or wrong.One staffer lamented that the against some or all potential adversaries.adversaries rather than entities that pose a threat to U.Finally, even in situations in which there is a plausible territory or persons.This appears to be the the short term, in a way that nevertheless expands U.case even for irregular forces: in September , U.operations and hostilities.The text of the provision is broad and vague, and the Beyond unit and collective self-defense, there is one stakeholders involved in managing other security cooper- other theory of constitutional self-defense that warrants ation programs — the Department of State, host countries, mention: the national-interest theory.The prevent the implementation of a program based on this first, which the Department of Defense appears to respect, unmoored doctrine.requires U.But U.One interagency engagement or oversight.Former Department of Defense assistance for a unit of a foreign security force.programs in such countries.forces to seek programs from the Leahy regime, no law prevents U.Nor is it involved in overseeing their implemen- high-level leaders been consulted at the outset, it is possi- tation.Although the Department of description of the support.Ques- used.As a congressional staffer Whatever value these reports and notifications may explained, the Department of Defense may take congres- have, most congressional offices do not receive them.The congressional reports and against whom the United States is at war.The Depart- reports and notifications tend to be classified and desig- ment of Defense has even policed the Department of nated as sensitive compartmented information SCI.Few staffers in combat in enables.forces will give and receive; the envisioned cost and of lawmakers take it upon themselves to coordinate with duration of the program; an assessment of how the program the committee offices and read the materials that their aligns with U.national security objectives; and an explana- staffers cannot.In , Congress enacted 50 U.Informal requests to the Department of State have fared Congress has legislated additional reporting require- no better.In , Congress security assistance it and the Department of Defense had required the Department of Defense to submit an unclas- provided in the African Sahel over the preceding three sified report on advise, assist, accompany missions to the years.No authorization for use of mili- Surrogate Forces to tary force clearly covers China, Russia, Iran, or North Korea.Neither the AUMF nor the AUMF, the authority Counter State Actors for the Iraq War, has been interpreted as allowing sustained hostilities against these potential adversaries.of collective self-defense allows U.forces or partners.Subsection i stipulates that threshold of armed conflict.short of traditional The Department of Defense has promulgated EXORDs armed conflict.forces rely on to states is a feature, not a bug.to deter and defeat U.revisionist powers and rogue regimes.To create and control partner forces that covers kill-or-capture missions and other small-scale.Yet, as expanded to cover information warfare.ations in the information environment.Operations in not provide Congress with timely updates.Government maintains as a de facto authorization for use of military force against diplomatic relations.But under Department of Defense to secure the approval of the the law as it is, Congress is ill-equipped to prevent or even secretary of state or other Department of State officials know about this kind of abuse.when there is no ambassador.E ach of the security cooperation authorities addressed in this report can be or has been interpreted to allow combat against adversaries, including those who fall beyond the scope of any congressional authorization for use of military force.Each of the authorities carries the potential for abuse, in the form of the Department of Defense using them as a springboard for hostilities or a de facto authorization for use of military force through partners.And for each authority, inadequate reporting leaves lawmakers unable to assess the risk of security cooperation leading to armed conflict.But it is impossible for the public and circumstances.The same secrecy that conceals the risks of these dinate, participate in the movement of, or accompany the provisions conceals any successes.It is far from clear that The current Congress should follow in the footsteps of Congress and the American people have knowingly its predecessors and reassert the balance of war powers endorsed U.Doing so will require or otherwise — in more than a dozen countries around substantial modification, if not outright repeal, of the the world.forces conduct hostilities.congressional neglect.The reforms fall into three categories: preventing design, text, or history suggests that the president may unauthorized hostilities; improving congressional and manufacture claims of self-defense by knowingly putting public oversight; and restating and enforcing the balance U.Similarly, nothing suggests that of war powers.the president may circumvent Congress by conducting hostilities through partner forces.forces into circumstances.Congress has several options for prevent- contested territory.defense in the War Powers Resolution.Any argu- U.forces work with and what adversaries they pursue.The Department of Defense would have to go to struck down in their entirety.Congress for the authority to work with specific partners Requiring a vote in favor of specific security coopera- in, for example, Honduras, Lebanon, or Mongolia.It would tion programs is just one of several ways that Congress have to convince Congress that deploying U.forces or can guard against unauthorized hostilities.This would reduce the likelihood of U.forces capable of working together in this manner.This small change would and Indonesia.forces are expansive view of constitutional self-defense.The United deployed, who they work with, and whether and against States could still invoke self-defense, but it would not be whom they engage in combat.able to build and command surrogate forces to that end.forces are deployed far from known adver- services and foreign affairs committees.Although the saries yet find themselves threatened.In this kind of White House has disclaimed the constitutionality of circumstance, U.seen, sudden attack.These provisions are on solid legal ground.This would either the House or the Senate to undo an agency action prohibit the Department of Defense from asking partner that Congress had otherwise empowered the agency to forces to conduct missions that U.forces cannot lawfully undertake.A prior-approval provision is cleanly distin- conduct.Second, Congress can establish basic require- guishable: unlike a legislative veto, a prior-approval provi- ments for the information that EXORDs must contain.sion does not attempt to exercise the legislative power to At a minimum, EXORDs permitting the use of force undo an agency action.Instead, it establishes a condition should specify the law under which force is authorized precedent for an agency to undertake an action.forces; 3 the legal authorities, operational cost.including EXORDs, have changed in the area; and 4 the Whether security cooperation authorities are repealed previously identified programmatic risks have material- entirely or reformed along these lines, the changes would ized or changed.Congress should also expand the brief- add much-needed guardrails to the current security coop- ing and notification regimes for sensitive and significant eration regime.They would not end security cooperation military operations, such that they capture information or leave U.allies high and dry.Instead, they would ensure on all activities that involve or rise to the level of a use of that Congress is consulted on where and how security force.Improving Congressional and meeting articulable benchmarks.These reporting, briefing, and notification regimes and Public Oversight should provide information not only to the congressional defense committees but also to the foreign affairs One of the most striking features of the current security committees.programs tion.prevented any semblance of public accountability.Beyond legislative action, Congress can act internally Congress should address these transparency shortfalls by to improve its security cooperation oversight.To start, the increasing congressional and public access to key infor- House should align its practices regarding access to sensi- mation on security cooperation.In late Congress has both legislative and nonlegislative , the Senate announced that each member would be avenues for improving its own oversight of security coop- allowed at least one personal staffer with SCI access.Relatedly, both the House and hostilities.At a minimum, this would require the Depart- Senate should set the expectation that staffers on the ment of Defense to provide information on 1 where U.Even if personal U.and partner force adversaries in a country, including staffers cannot view these materials themselves for lack whether such adversaries are covered by an authorization of SCI access, they can recommend that their members for use of military force; 3 whether applicable EXORDs go to the committee office to view them.permit U.forces to engage in combat against these Notwithstanding the heavy classification of many secu- potential adversaries, and on what legal bases; 4 whether rity cooperation notifications and reports, the public — and the envisioned partner forces are currently or imminently staffers without SCI access — should have access to at engaged in hostilities with these potential adversaries; 5 least some information regarding security cooperation whether the envisioned partner forces are or will be desig- activities.At a minimum, the public should be told where, nated as eligible for collective self-defense; and 6 the against whom, and under what authorities U.forces are risks identified in programmatic monitoring and evalua- engaged in hostilities through or with partners.The public tion.This information should be made available to should also be told how costly these hostilities are, in terms Congress before U.forces launch a program.of not only dollars but also lives lost by U.soldiers, partner To oversee ongoing programs, Congress should expand forces, and civilians.involvement in foreign conflicts.Without this information, Americans Restating and Enforcing cannot understand the scope or risks of the wars carried the Balance of War Powers out under these authorities, much less make demands of their representatives regarding them.The tional War Powers Resolution.Its authors could not have anticipated the department submitted two overdue reports, one on modern era of light-footprint warfare or the ever-growing EXORDs and another on civilian casualties.should continue to use this kind of mechanism to obtain Several legislative proposals, most notably the National overdue reports.Senate, attempt to inject new life into the War Powers Simply put, the lack of transparency on security cooper- Resolution.They also Defense pivots to great power competition and conducting work toward modernizing the War Powers Resolution by, irregular warfare against nuclear states.the public can secure greater transparency.But the NSRAA and NSPA do not go far enough.Neither bill refutes the specific theories of inherent power that executive branch lawyers have crafted and enlarged over the past several decades.Instead of allowing presidents to erode its war powers by articulating ever-expanding inter- pretations of what they may do without congressional authorization, Congress should denounce the collective self-defense and national-interest theories and withhold funding for activities conducted on those bases.Alongside passing the NSRAA or NSPA, such a step would be one of the strongest that Congress could take to reassert its vital role under the Constitution.T he war on terror is in its third decade.Americans who were not yet born on September 11 are fighting groups that did not yet exist on September January HBrandonSmith , Twitter, April 5, , a.Mark T.armed- Afghanistan, Iraq, Syria, and Somalia.The report contains no information about U.uses of force in Questions for Dr.See also Evolution, Transformation, and Sustainment: A documentcloud.Review of the Fiscal Year Budget Request for U.Elise M.March 2, , 12 Rep.And to my against Iran-backed militias in Iraq and the Iranian officials who understanding, we have been asking for at least a year.So you said it.The effective control test is documentcloud.foreign or nonstate group in its conduct of specific operations.Brennan Center interview, Department of Defense official, but U.forces have also referred to their relationship with these June Philippines,