Congressional Oversight and the Niger Attack

President Donald Trump’s handling of military condolences has dominated the coverage of the Oct. 4 deaths of four U.S. Special Operations forces soldiers in Niger. However, there are a number of other unresolved questions that call for congressional inquiry and consideration. But that congressional inquiry needs to be done the right way. If done wrong, it  can hobble efforts to get at the truth.

Background

Already, lawmakers are demanding more answers. Last week, Sen. John McCain (R-Ariz.) threatened to issue subpoenas to the Trump administration over the timely provision of information to the Senate Armed Services Committee (SASC). He also accused the executive branch of having a “unicameral mindset” and complained “he hadn’t been properly informed by the Pentagon about the mission in Niger.” Meanwhile, Sen. Lindsey Graham (R-S.C.) said that up until now Congress has barely been informed about what U.S. Special Forces were doing in the country. “I’m concerned that we’re not regularly briefed about operations,” Graham said, “These four soldiers being killed and most people not knowing what they were up to is a game changer.” Following these complaints, Defense Secretary Jim Mattis visited Capitol Hill to address their concerns in private meetings with the senators.

Graham told reporters after the meeting that Mattis pledged to brief lawmakers more regularly on the status of operations like the one in Niger. “I will insist, as the war expands and as the rules change to be more aggressive, that Congress is informed more often so that Congress can exercise our constitutional authority whether or not we want to authorize this operation through the appropriations process.”

Of course, there is an appropriate and important role for congressional oversight here. As McCain quipped, “That’s why we’re called the Senate Armed Services Committee. It’s because we have oversight of our military. So we deserve to have all the information.” There are unresolved questions about the nature of the Niger mission. McCain and others may seek to update congressional authorization for U.S. operations in that region. There are also many appropriate questions about the facts and circumstances of this deadly attack: the quality of intelligence that preceded it, the adequacy of force protection resources, the reliance on contractors, the identity of the hostile actors (Chairman of the Joint Chiefs Gen. Joseph Dunford said Monday that the Pentagon’s initial assessment is that it was an ISIS-affiliated group), and the role of the host country or liaison forces. 

Authority for the U.S. military activity in Niger turns on a number of factors, including the nature of the mission, notifications to Congress, relevant force authorizations, and the Trump administration’ s legal theory for use of force under domestic and international law. The White House made only a terse reference to Niger in its most recent (June 2017) report by the president to Congress, consistent with the War Powers Resolution. The report said:

Lake Chad Basin Region. United States military personnel in the Lake Chad Basin continue to provide a wide variety of support to African partners conducting counterterrorism operations in the region. In Niger, there are approximately 645 United States military personnel deployed to support these missions.

White House Chief of Staff John Kelly gave a longer explanation last Thursday, saying, U.S. soldiers in Niger are “working with partners, teaching them how to be better soldiers; teaching them how to respect human rights; teaching them how to fight ISIS so that we don’t have to send our soldiers and Marines there in their thousands. That’s what they were doing there.”

Dunford offered more details on Monday during a press conference at the Pentagon. Roughly 800 U.S. soldiers are operating in Niger “to build the capacity of local forces to defeat violent extremism in west Africa,” he said. They are part of an “international effort” led by 4,000 French troops.

The Way Forward 

As lawmakers continue to learn more about the Oct. 4 incident and the broader Niger mission, oversight should be scaled appropriately. The need for congressional oversight does not necessarily mean this incident should trigger a full-blown, in-house congressional investigation. The scope and intensity of any inquiry should depend in part on the quality and quantity of information provided by the executive branch.

Most of the time, Congress can satisfy its oversight needs for factual information by relying on the executive branch investigative findings, provided Congress demands unvarnished truth. At other times, Congress may need to conduct its own fact-finding because it doubts the veracity, will, or scope of the executive branch response. Here, U.S. Africa Command (AFRICOM) ordered a full investigation of the incident. The FBI has also joined the investigation, the Wall Street Journal reported. Time will tell whether AFRICOM has the jurisdictional authority and political heft to carry a comprehensive lead role in the investigation.

Third, thoroughness and accuracy are more important than speed, as Dunford noted on Monday. High profile incidents involving the deaths of U.S. personnel tend to generate a great clamor for information immediately. McCain applied similar pressure to the Obama administration in the immediate aftermath the September 11, 2012 attacks on U.S. personnel in Benghazi, Libya, and SASC received a closed-door briefing featuring then-Defense Secretary Leon Panetta three days after the attack. From McCain’s perspective, early pressure accomplishes a number of goals. It signals seriousness of the committee’s purpose to the executive branch, establishes SASC jurisdictional authority to other committees, and generates media coverage by reference to potential “subpoenas.”

However, congressional pressure also risks the provision of inaccurate information. There is a reason it is called the “fog of war.” Investigations take time. There will be lots of components and people within the U.S. government that will have relevant information: AFRICOM, Joint Special Operations Command (JSOC), the Pentagon, various members of the Intelligence Community. A full accounting would likely also include some limited information from the White House Situation Room. There are likely important foreign sources of information too.

Congress can be unfair and unrealistic by expecting answers “now,” but also treating each piece of partial information that turns out to be false as an act of deception. Benghazi is a perfect example. Officials’ characterizations of events evolved as facts came in, but partisan incentives meant that those officials were never given the benefit of the doubt. Executive branch officials should move swiftly and competently to develop facts, but they should also choose accuracy overs speed even in the face of congressional impatience. “We in the Department of Defense like to know what we’re talking about before we talk, and so we do not have all the accurate information yet,” Mattis said last week. That is a prudent posture to take while the facts come in.

It is also important not to politicize the facts surrounding the attack. Rather, Congress, on a bipartisan basis, should evaluate the relevant information related to the mission, intelligence, operation, attack, response, and after-action. That will start with the information from the Defense Department, and expand to several other government agencies. At this point, without more, there is insufficient reason to believe that what occurred in Niger represents command failure by senior Pentagon or White House officials. Congress should express resolve in obtaining facts and candor, but should afford the executive branch a presumption of good faith until proven otherwise.

Finally, there are important policy debates for Congress to consider related to counterterrorism and the geopolitics of the U.S. presence in Niger. Is the U.S. military involved in combat operations in a region without sufficient legal justification or political support? When Dunford refers to the U.S. dealing with “global threats in Al Qaeda, in ISIS and other groups”—who are those “other groups” and does current congressional authorization for the use of force apply to them? Dunford also referred to “local tribal fighters that are associated with ISIS.” What legal standards define such an association and does that mean they are covered now by the 2001 congressional authorization to use force? He described “extremist elements that if we weren’t conducting operations our judgment is that they would plant[sic] — they have the capability to plant[sic] and conduct operations against the homeland.” What evidence is there that groups in Niger would threaten the U.S. homeland and is the determination that they “would plan” or would only have the “capability to plan and conduct operations against our homeland? Should Congress authorize military force with specificity to this threat and geography? What resources should Congress provide?

There is a crisis in confidence in congressional oversight and legislative performance. The attack on U.S. facilities in Benghazi was a legitimate subject of congressional oversight because of the issues it raised such as diplomatic security resources and policy, interagency crisis response, and the broader security deterioration in Libya. But Republican management of the investigation and the politicization of Benghazi was a disgrace. Nothing will do more to undermine Congress’ oversight function than rallying cries that “This is Trump’s Benghazi” in the absence of facts to support that allegation. Let’s develop those facts in a constructive and comprehensive manner.

Image: Getty/Chip Somodevilla

 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.