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When exceptions become the rule, 'forever wars' result

When exceptions become the rule, 'forever wars' result
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“These ‘forever wars’ have to end. I support drawing down the troops. But here’s the problem, we still have to worry about terrorism.” — President-elect Joe Biden.

When Biden takes his seat behind the Resolute desk, he will face the competing demands of ending America’s “forever wars” and simultaneously countering lingering threats of terrorism. Biden’s immediate predecessors chose to navigate these narrow straits by limiting the role of conventional U.S. forces in favor of drone strikes and the deployment of Special Operations Forces in secret, all under a permissive and expansive interpretation of what “war” actually means

With its dependence on secretive programs that lack critical safeguards of oversight and accountability, this “Goldilocks approach” has effectively worked to obscure the true political, human and financial costs of nearly two decades of war. 

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Congress has preserved some of the most problematic aspects of the “forever war”  in a nugget of legislative amber, 10 U.S. Code § 127e (known colloquially as 127e), a relatively obscure provision in law that provides the Department of Defense (DOD) with funds to support partner forces who, in turn, support U.S. counterterrorism operations. The authority dates to the period following 9/11, when defense officials sought, and were given, more flexibility for supporting partner forces that aligned with the U.S. against al Qaeda. Originally conceived in Section 1208 of the 2005 National Defense Authorization Act (NDAA) and given a $25 million budget, the program remains on the books but now enjoys an annual allotment of $100 million. 

In effect, 127e serves as a point of convergence between traditional security cooperation activities and authorized combat operations against terrorist groups, but with less oversight and fewer restrictions than apply to either. For example, although 127e is characterized as merely a fiscal authority, funding or material support authorized by the statute enables operations not otherwise possible against adversaries, or in locations not covered by an existing Authorization for Use of Military Force (AUMF), in which the likelihood of combat-equipped U.S. forces becoming involved in hostilities is significant.

On the other hand, because it has been recognized as an “operational” authority, 127e also remains sequestered from efforts to reform the security assistance enterprise, including recent requirements for monitoring and evaluating and more effectively coordinating with the State Department, thus sidestepping costly but valuable lessons learned from decades of practice. Even more troubling, the DOD has exempted 127e programs from basic human rights due diligence and vetting it applies to almost all other programs. This theoretically allows Special Operations Forces to train and purchase deadly weapons for units that have committed human rights violations, or even atrocity crimes, with taxpayer money. 

Not surprisingly, civilian and military leaders at the Defense Department long have embraced and actively championed the program, taking full advantage of its slippery dual nature. But exempting 127e programs and activities from sensible controls, while also increasing the 127e budget, has given the DOD an all-too tempting option of bypassing the conditions placed on conventional security cooperation and assistance programs and avoiding critical questions about U.S. military involvement in foreign conflicts. At $100 million annually, the program has ceased to represent a flexible tool for addressing urgent threats in exceptional circumstances, and now serves to undercut measures specifically designed to serve a much broader range of national interests.

Congress could just phase out the 127e program and require DOD to use the authorities and funding it already has been given to build partner capacity, e.g. by using the $1.18 billion authorized by Section 333 Building Partner Capacity program in fiscal year 2019 alone. Or, it could continue to provide Special Operations Forces with their own pot of money to support partner forces but close — or at least tighten — the loopholes that 127e provides on questions of American involvement in war and in matters of security cooperation.

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Congress has now helpfully clarified, through the 2021 NDAA (Section 1051), that the authority does nothing to relieve the executive branch of its obligations when introducing U.S. forces into hostilities, including hostilities that are “clearly indicated by the circumstances” as stipulated by the War Powers Resolution. Congress also should bring its oversight and expectations of 127e closer in line with most other DOD security cooperation programs, starting with a basic legislative requirement for at least some form of human rights due diligence in the selection of partners, and a clear restriction against supporting any groups who have committed gross human rights violations.

Ending the “forever wars” has become one of the rare policy positions that resonates across the political spectrum. Congress should take advantage of every opportunity it can to show that ending long-term wars means more than hiding them from view. 

Elias Yousif is acting director and program and research associate for the Security Assistance Monitor at the Center for International Policy, where he analyzes the impact of U.S. arms transfer and security assistance programs on international security, U.S. foreign policy, and global human rights practices.

Dan Mahanty is director of the U.S. program for the Center for Civilians in Conflict. He spent 16 years at the Department of State, where he was director of the Office of Security and Human Rights. He is an adjunct professor at Kansas University Center for Global and International Studies and a non-resident senior associate at the Center for Strategic and International Studies.