Part III: The Muddy Middle: A New Framework for Use of Force

(Editor’s Note: This is the final of three articles on how the lines have blurred between U.S. military operating procedures for use of force in hot war zones versus outside areas of active hostilities and how the executive branch and Congress might better govern operations going forward. The first and second articles outlined how and why standards have evolved since 9/11 and the consequences for military operations and civilian casualties.)

If the United States is to develop a sustainable counterterrorism strategy that takes the country off a permanent war footing while keeping the pressure on international terrorist organizations, it will need to develop a clearer and more rigorous framework for the use of force across the range of non-traditional battlefields where it conducts counterterrorism operations.

Such a framework should allow for adaptable approaches to keep pressure on our terrorist adversaries for years to come, while simultaneously setting consistent baseline standards for the use of force, clarifying sometimes opaque operational constructs in order to constrain unilateral U.S. uses of force, and more intentionally governing advise-and-assist operations. This framework will become even more important if the United States ends the “forever war” in Afghanistan, Iraq, and Syria. If and when that occurs, American involvement in these countries likely will not entail a full U.S. departure but may look more like U.S. operations in Yemen, Somalia, or the Sahel.

We don’t know the full details of the current lethal strike framework, given the lack of transparency from this administration. But if the Trump team – or potentially its successor – were to establish a more rigorous framework for the new operational reality, it might incorporate at least the following pillars:

  • Retain a consistently high bar for the unilateral use of force, both as a threshold matter regarding when strikes can be taken and as a means of preventing civilian casualties in these operations.
  • Maintain a strong policy commitment to preventing civilian casualties and conduct rigorous evaluation of U.S. operations to ensure we are meeting this standard.
  • Clarify the policy and domestic legal constraints of collective self-defense to help inform under what circumstances, if any, the United States is willing to use force to protect partner forces. Such a clarification should begin by addressing how the U.S. military defines an imminent threat and to what extent it must threaten U.S. versus partner forces to trigger use of force in self defense. It should also address whether and how collective self defense may apply when the attackers pose a threat but are not forces that would otherwise be covered under the AUMF (i.e., could not legally be made the target of offensive strikes). Any such clarification of the concept should be transparent enough to allow congressional overseers and, if possible, the American public to understand the legal and policy basis for striking a wide range of militants that may threaten deployed U.S. forces and their partners, but not the United States directly.
  • Create country- or region-specific plans outlining the contours of advise-and-assist operations and stipulating the rules of engagement for targeted strikes, including when the U.S. military might use lethal force solely in defense of its partners. These plans would be tailored to the strength and operating scheme of the enemy, the capabilities of our partners, the level of U.S. involvement, the geopolitics of a particular location or enemy group, and policymakers’ tolerance for risk. These plans would also allow for deployments of military advisors and the provision of other U.S. assistance (e.g., intelligence, logistics, transportation) within an established risk framework that policymakers could periodically adjust.
  • Stipulate the role of senior policymakers – up to and including cabinet officials – in overseeing all operations versus what oversight tasks are more appropriately delegated to operational commanders. Such a considered look would allow for a new model in which policymakers can regularly grapple with the strategic elements of counterterrorism operations while allowing operational commanders sufficient authority to act with agility in pursuing dynamic terrorist threats.
  • Differentiate the legal and operational distinctions between advise-and-assist operations and combat operations. The line between the two has increasingly blurred over the past couple years. Creating distinctions between the two concepts would help produce valuable policy frameworks for governing each, and also inform decisions about when to put U.S. forces in harm’s way.

The Vital Congressional Role

If the Trump administration has a framework that deals with these issues, it should be transparent about it. If not, it should develop one. Congress can help drive this process. It should not wait for the administration to define concepts such as collective self-defense or to differentiate the legal and operational distinctions between advise-and-assist operations and combat operations. Rather, Congress should exercise its Article I responsibilities and consider legislation that addresses these issues. Indeed, given that we have seen very little evidence that the Trump administration is grappling with these policy issues surrounding the use of force, congressional engagement may be the only thing that starts this process moving. At the very least, hearings on the use of force could help move this process forward.

As Congress continues to review the 2001 Authorization for the Use of Military Force and consider an updated authorization that reflects the current nature of the struggle, lawmakers should evaluate ways in which a new statute could better reflect the operational nature of the current fight. For example, Congress might consider inserting restrictions on the deployment of combat troops or caps on the number of U.S. forces that may be deployed to a given campaign without congressional consent. Congress also could include automatic sunsets for any future AUMF, expand reporting requirements, and close loopholes in the War Powers Resolution to tighten terms such as “hostilities,” over which the executive branch and a majority of Congress disagree. Such provisions would help ensure that, as the struggle continues, U.S. operations remain within certain parameters and do not slip into a deeper conflict without congressional approval. Congress also should expand its oversight of security cooperation and similar programs – including Section 127e –  that might expose U.S. forces to situations in which collective self-defense becomes necessary.

Even as we have made tremendous strides against al-Qaida and ISIS, the fight continues and our challenge remains. The threat environment has changed, and U.S. operations have evolved in response. We may not have wanted to land in this muddy middle between peace and war that we currently find ourselves in, but this is the reality of the current moment in the counterterrorism fight. U.S. frameworks for governing that fight must evolve too, both so that the United States can continue to pressure those who threaten Americans, and so that we can do so in a way that wisely reflects the lessons learned of the past 18 years.

IMAGE: An Afghan National Army officer, right, informs his U.S. Army counterparts from the 4th Brigade, 3rd Infantry Division, left and center, about ANA troop movements May 6, 2013, while pursuing Taliban fighters in Babus, Afghanistan. American and NATO soldiers and marines were serving as advisors as Afghan troops took on primary responsibility in military operations. (Photo by Robert Nickelsberg/Getty Images)

 

About the Author(s)

Luke Hartig

Executive Director of National Journal's Network Science Initiative and Fellow, International Security Program at New America. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Director for Counterterrorism Operations in the Office of the Secretary of Defense. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow him on Twitter (@LukeHartig).

Stephen Tankel

Stephen Tankel is an associate professor at American University, an adjunct senior fellow at the Center for a New America Security, and the author most recently of With Us and Against Us: How America’s Partners Help and Hinder the War on Terror. Follow him on Twitter (@StephenTankel).