The (Steel) Rains Down in Africa

 

On October 4, 2017 in a village called Tongo Tongo, located 174 kilometers North of the Nigerian capital of Niamey, the highest-casualty event in Africa for American forces since the Mogadishu incident that inspired the movie “Black Hawk Down” took place. Four American Green Berets and four Nigerian soldiers were killed in an ambush set up by the Islamic State. This event shined a light on the fact that US forces were not only on the continent of Africa, but seemed to be engaged in direct action as well. The deaths of four elite soldiers caused inquiries as to why the United States was on the continent of Africa and under what authority they were there. The Trump administration, now tasked with managing the US military presence around the world, responded by stating the US was deployed to “train, advise, and assist Nigerian partner forces.”[1] While it is not a new or novel concept in the post-9/11 age for the citizenry of the United States to be unaware of clandestine operations around the world, it certainly is unusual for senators, such as Lindsey Graham to state, “I didn’t know there was 1,000 troops in Niger, this is an endless war without boundaries and no limitation on time and geography.”[2]

According to the Comptroller of the Department of Defense (DOD), approximately $44,827,000, before factoring in funds allocated through 10 USCS §127e, has been preliminarily allocated to U.S. Africa Command (AFRICOM) for the fiscal year of 2019.[3] The code 127e usurps the War Powers Resolution by circumventing the need for congressional approval of funds for specific operations. Very little is available to the public in terms of exactly what the funds are spent on, but according to General Raymond A. Thomas it provides “unique access and capabilities” to the Special Operations Forces (SOF) community.[4]

The issue here is not that the government seems to be waging a clandestine war on the African continent. Considering that the continent has some of the fastest growing economies,[5] it is in the interest of the United States to help stem the tide of terrorism and foster closer ties with the most resource and opportunity rich continent on the planet. This is especially true considering the fact that China is investing approximately $60 billion into the African continent.[6] Russia, in the same fashion as the preceding Soviet Union,[7] is investing heavily into Africa with money, weapons, and “advisors.”[8]

The United States on the other hand, is lagging far behind the two rival nations in terms of investment into Africa. The Brookings Institute stated that the U.S. Commercial engagement in Africa has not only ceased to increase but has actually decreased over the last five years. Therefore, it is through necessity that the United States is providing value to African nations with the greatest and most abundant export resource at its disposal: warriors.

Again, the issue isn’t that the US is engaged in a secret war on the continent, the issue is that the new modus operandi of the government seems to lean toward acquiring a large defense budget in support of American national security; support for necessary military expenditures like investing money into the F-35[9] as well as the added expenses of global clandestine operations that include activities in Africa. While the language of the transparency report of March, 2018 clearly stated that the United States is in Niger to provide training and support, there are numerous reports from service members that they are engaged in active hostilities on the African Continent.[10] If the fight for the preservation of order is as important as General Bolduc says,[11] then it would behoove the government to go through the proper channels of the legislative branch to acquire more funding than the meager amount currently being channeled into the continent.

It is an old habit of presidents to deploy US troops without a declaration of war from Congress in direct contradiction to the Constitutional separation of powers.[12] The justification has historically been that in actions that arguably do not warrant a declaration of war, the president need not rely on Congress to approve. Frustrated with the seeming circumvention of duly divided Constitutional powers Congress, during President Nixon’s term, passed the War Powers Resolution despite the direct veto of the president. The War Powers Resolution allowed the Commander in Chief of the military to place troops in various geographic locations, and indeed even into hostile zones so long as a few conditions were met. The Commander in Chief can utilize his Constitutionally vested authority to deploy troops so long as the authority is 1) exercised pursuant to a declaration of war, specific statutory authorization from congress, or a national emergency created by an attack on the United States, 2) report the activities to Congress, 3) withdraw all US forces within 60 days of a report, unless Congress approves continued action or is physically unable to meet.[13]  The arrangement has historically been that should Congress find the engagement distasteful, they can end the conflict after sixty days by cutting funding to an operation. The operation in Niger was a shocking revelation because it seems to have shown that even the War Powers Resolution is being side stepped, if not outright ignored by the executive branch to an extent. The executive branch seems to be sidestepping the War Powers Resolution by acquiring funds via 10 USCS §127e. 10 USCS §127e allows the Secretary of Defense to expend “up to $100,000,000 during any fiscal year to provide support to foreign forces, irregular forces, groups, or individuals engaged in supporting or facilitating ongoing military operations by United States special operations forces to combat terrorism.”[14] The language “combat terrorism” seems to be a deliberate introduction of language that would give the executive branch an unsupervised ability to allocate funds, especially since the Authorization for Use of Military Force, better known as Pub. L. 107-40 has been used to justify anti-terrorist activities since September 18, 2001.[15]

 

[1] https://assets.documentcloud.org/documents/4411804/3-18-War-Powers-Transparency-Report.pdf

[2] Volcovici, Valerie, ‘The answer we have now is not adequate’: Lawmakers are raising questions about the ambusth on US troops in Niger, Reuters.com  https://www.businessinsider.com/r-us-senators-seek-answers-on-us-presence-in-niger-after-ambush-2017-10

[3] Fiscal Year(FY) 2019 President’s Budget, Office of the Secretary of Defense, https://comptroller.defense.gov/Portals/45/Documents/defbudget/fy2019/Security_Cooperation_Budget_Display_OUSDC.pdf

[4]General Thomas, A. Raymond , Statement before the House Armed Services Committee; Subcommittee on emerging threats and capabilities, https://www.socom.mil/Documents/Posture%20Statements/2018%20USSOCOM%20Posture%20Statement_HASC%20Final.pdf

[5] Ebatamehi, Sebastiane, Top 10 Fastest Growing Economies in Africa 2018 https://www.africanexponent.com/post/9157-africas-largest-economies-in-2018

[6] Sow, Mariama, Figures of the week: Chinese investment in Africa, https://www.brookings.edu/blog/africa-in-focus/2018/09/06/figures-of-the-week-chinese-investment-in-africa/

[7] Bienen, Henry, Soviet Political Relation sin Africa, Internatinoal Security Vol. 6, No. 4 (spring 1982) https://www.jstor.org/stable/pdf/2538682.pdf?refreqid=excelsior%3Ab4f8fd5227f7b0555720d1c18f198080

[8] https://www.scmp.com/news/world/africa/article/2159622/how-russia-boosting-its-role-africa-weapons-investment-and

[9] https://www.gao.gov/products/GAO-18-321

[10]Morgan, Wesley, Behind the secret U.S. war in Africa, Politico.com, https://www.politico.com/story/2018/07/02/secret-war-africa-pentagon-664005

[11]Brigadier General Bolduc, C. Donald, The Pentagon Wants To Pull Special Operations Forces Out Of Africa. That’s A Huge Mistake, taskandpurpose.com, https://taskandpurpose.com/special-operations-forces-africa-plan/

[12] Id.

[13] http://www.loc.gov/law/help/war-powers.php

[14] https://www.gpo.gov/fdsys/granule/USCODE-2016-title10/USCODE-2016-title10-subtitleA-partI-chap3-sec127e

[15] https://www.npr.org/2017/10/30/560778907/the-future-of-the-presidents-authorization-for-use-of-military-force

Libya: The Progression of a Failed State—From Benghazi to the Rise of ISIS

It has been over three years since the Benghazi terrorist attack took place when Islamic militants attacked the American diplomatic compound in Benghazi, Libya, killing U.S. Ambassador J. Christopher Stevens, U.S. Foreign Service Information Management Officer Sean Smith, and two CIA contractors. Since its 2011 civil war which ultimately toppled Muammar Gaddafi, Libya has plunged into the chaos of a failed state. Libya is inundated by fighting among two rival governments — one in the capital, Tripoli, and the other in Tobrok — along with various tribal militias and the Islamic State.[1] That has left the country, along with its vast network of oil fields, open to the ravages of ISIS as the new hotbed for terrorist activity.[2]

For the last year Syria has been the epicenter and basis for the Islamic State’s self-professed caliphate, however ISIS’s footprint has not only expanded in the Levant, but also internationally to Saharan Africa as well. Libya has replaced Syria and Iraq as the top military priority, especially for Europeans. In the course of the last week the United States and France have reportedly conducted military operations in Libya against the Islamic State.[3] ISIS’s rapid expansion into Libya has caught many military intelligence experts by surprise. Coupled with the political stalemate involving Libya’s two governments having competing patrons — Tripoli supported by Qatar and Turkey, while Tobruk gets the nod from the West, Egypt and the United Arab Emirates — the political vacuum has enabled ISIS to gain large tractions of territory in Libya.[4]

It is estimated that ISIS dominates a 120-mile stretch of territory extending east along the coast, which is a significant achievement since this territory provides it with a relatively safe base from which to attract new recruits and plan attacks.[5]

The United Nations estimates that the group commands 2,000 to 3,000 fighters there.[6] U.S. intelligence officials estimate its fighting strength at 5,000 to 6,000 men.[7] Finally French sources claim that ISIS commands over 10,000 fighters.[8]

Current airstrikes in Libya and the small amount of U.S. Special Operations ground forces are still currently operating under the authority set forth by the decade old 2001 Authorization for the Use of Military Force (AUMF).[9] Section 2 specifies that:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.[10]

However passing a new AUMF has proved both politically and militarily contentious. Congress had the opportunity to pass a new AUMF to combat ISIS in February 2015 when President Obama sent a version to Congress.[11] [12] Republican lawmakers promptly dismissed the draft authorization as too restrictive and democrats criticized it for not repealing the still-used 2001 AUMF. The 2001 AUMF was not repealed, and a new one to combat ISIS was never passed.

During the week of February 14, 2016 President Obama authorized an attack on an ISIS training camp in Libya, targeting high-value asset, Noureddin Chouchanein, a Tunisian terrorist who facilitated the flow of foreign fighters across North Africa.[13]

“The president authorized this strike,” Pentagon spokesman Peter Cook told reporters. The following exchange between Pentagon spokesman Peter Cook and reporter was especially forthcoming:

Reporter: “But Peter, under what authority was this strike carried out? There is no AUMF for ISIS in Libya; no Americans were killed in the two attacks in Tunisia. Under what authority?”
Cook: “Well, again, we’ve struck in Libya previously, under the existing…authorization for the use of military force,”
Reporter: “In 2001, against Al Qaida?”
Cook: “Yes, specifically. And this — in our targeting of Chouchanein this instance. And we believe that this was based on — was legal under international law.”
Reporter: “But you’re saying that you’re using the 2001 AUMF against Al Qaida to go after ISIS in Libya?” the reporter followed up.
Cook: “Specifically, again, as a — the use of military force against ISIL is authorized by the 2001 Authorization for the Use of Military Force, specifically. Just as it was — as we used it in our previous strike in Libya.”[14]

Given their loose affiliation and spawn from Al Qaeda it is understandable how security law experts can rationalize the use of the 2001 AUMF as their legal authority to continue to conduct limited operations in Libya. However if the situation ever calls for significant boots on the ground, as some experts have called for, under a new Presidential administration a new AUMF with limited scope might be possible and more effective in combating and defeating the Islamic State.

 

Anthony Christina is a 3L and a Resident Student Blogger with the Journal of Law and International Affairs at the Penn State University-Dickinson School of Law.


 

[1] http://www.usatoday.com/story/news/world/2016/03/03/soldiers-fight-stop-isils-expansion-libya/80950372/

[2] http://foreignpolicy.com/2016/02/18/how-much-of-libya-does-the-islamic-state-control/

[3] http://www.aljazeera.com/indepth/opinion/2016/03/isil-gains-libya-case-intervention-isis-160301090505840.html

[4] Id.

[5] http://foreignpolicy.com/2016/02/18/how-much-of-libya-does-the-islamic-state-control/

[6] http://www.cbsnews.com/news/libya-safe-haven-isis-3000-fighters-un-warns/

[7] http://www.militarytimes.com/story/military/2016/02/04/new-intel-shows-isis-force-declining-iraq-syria/79819744/

[8] http://foreignpolicy.com/2016/02/18/how-much-of-libya-does-the-islamic-state-control/

[9] https://www.gpo.gov/fdsys/pkg/PLAW-107publ40/html/PLAW-107publ40.htm

[10] Id.

[11] http://www.huffingtonpost.com/2015/02/11/obama-aumf-congress-isis_n_6660208.html

[12] http://www.huffingtonpost.com/entry/congress-isis-war_us_566f47cae4b0fccee16f938b

[13] http://cnsnews.com/news/article/susan-jones/dod-obama-again-used-2001-aumf-against-al-qaida-go-after-isis-libya

[14] Id.