Just Security Obtains Overseas Troop Counts That the Pentagon Concealed from the Public

[A note from Just Security’s Ryan Goodman and Kate Brannen: Last April, Just Security filed Freedom of Information Act (FOIA) requests with the Department of Defense (DoD) seeking U.S. troop numbers in Afghanistan, Iraq, and Syria. Although DoD had routinely reported such numbers for over a decade, across both the George W. Bush and Obama administrations, the Trump administration abruptly reversed the practice in December 2017, and began redacting these figures from quarterly manpower  reports.

After DoD failed to respond to our requests, Just Security sued the U.S. government in October to obtain the data, as well as any information that showed why these records were kept hidden from the American public. The Project on Government Oversight also filed its own FOIA requests and complaint.

Through these efforts, we have finally obtained records that provide a fuller picture of the United States’ troop commitments in Afghanistan, Iraq, and Syria over the last three years. During his confirmation process, Defense Secretary Lloyd Austin also made a pledge to restore transparency when it comes to U.S. troop deployments.

In addition to obtaining previously undisclosed troop level data, Just Security obtained records detailing the Department of Defense’s 2017 decision to  conceal precise numbers . That said, DoD heavily redacted several of its documents, claiming the information, including the reasoning behind changing its disclosure practices, remains classified. In the interest of democratic accountability, Just Security is releasing all of the records as a public resource.

Here, our legal team from the Peter Gruber Rule of Law Clinic and the Media Freedom & Information Access Clinic at Yale Law School, describes the process of obtaining the records, details the new information they provide, and recommends policy changes to ensure the public’s access to precise, consistent troop level data.]

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I. Background on Goodman v. Department of Defense

Department of Defense’s 2017 redaction of troop levels for Afghanistan, Iraq, and Syria

Both as a candidate and as president of the United States, Donald Trump repeatedly promised that he would end America’s “era of endless wars” and bring U.S. troops home. In the lead-up to the 2020 election, Trump reiterated these promises and announced plans to withdraw troops from Afghanistan, Iraq, and Syria. But, while claiming credit for curtailing America’s involvement in these countries, the Trump administration took active steps to conceal troop level data for the three countries from the public, making it infeasible for the public to verify whether the government was keeping its word.

DoD has routinely disclosed overseas troop levels to the public since 1950. And for more than a decade, Republican and Democratic administrations alike had publicly disclosed the number of troops serving in Afghanistan, Iraq, and Syria—typically on a quarterly basis—through the Defense Manpower Data Center’s (DMDC) quarterly manpower reports (sensitive personnel, such as special operations forces, may be excluded from the figures). Reports dating back to 1950 are available on the DoD website. These regular, proactive disclosures provided journalists and the public with a consistent source of information about America’s military commitments abroad. Decades of archived official troop-level disclosures remain publicly available on the DMDC website.

In late October 2017, then-Defense Secretary Jim Mattis publicly announced that DoD was adjusting its troop accounting practices to simplify its methodology and improve public transparency. DoD said at the time that U.S. military success “depends on the support of the American people,” and that the accounting “changes will help us enhance the trust the public has placed in the department.”

However, as the Trump administration committed thousands of additional troops to Afghanistan, and as the media noted significant discrepancies between troop numbers acknowledged by Pentagon officials and DMDC reports, DoD suddenly redacted the DMDC troop numbers. Trump publicly stated, “We will not talk about numbers of troops or our plans for further military activities.”  Since DoD’s policy change, it has only irregularly provided official troop number disclosures to the public, often at moments of political expediency.

Following DoD’s policy changes, Congress added a provision to the Fiscal Year 2019 National Defense Authorization Act (NDAA), Section 595, requiring the defense secretary to make the quarterly “top-line” troop numbers for Afghanistan, Iraq and Syria available on its website. Nonetheless, DoD has not complied with Congress’s mandate and continues to redact troop numbers for the countries on the DMDC website.

Just Security’s FOIA Requests & Litigation

Just Security filed two Freedom of Information Act (FOIA) requests on April 21, 2020 for the redacted troop numbers and records explaining the reasons behind DoD’s troop level accounting changes.

Specifically, the first request (“Numbers Request”) sought the following quarterly troop numbers for Afghanistan, Iraq, and Syria since December 2017: (i) the number of military and DoD Appropriated Fund civilian personnel on permanent assignment, (ii) armed forces personnel on temporary duty or deployed in support of contingency operations, and (iii) the Force Management Levels (FMLs), another troop level metric that has historically reflected the number of troops authorized to be deployed.

The second request (“Documents Request”) sought records explaining DMDC’s criteria for calculating troop levels and DoD’s decision to redact numbers for Afghanistan, Iraq, and Syria from DMDC reports.

After receiving no response from DoD, Just Security filed a lawsuit in the U.S. District Court for the Southern District of New York seeking to compel disclosure of the requested records. Over the course of the ensuing litigation, DoD disclosed over 175 pages of records, a number of which are heavily redacted:

  • On Nov. 23, DoD disclosed the quarterly numbers of troops permanently assigned to Afghanistan, Iraq, and Syria from December 2017 to September 2020.
  • On Dec. 11, DoD produced 20 pages of heavily redacted documents responsive to the request for explanatory records, and claimed that the redacted information was withheld under FOIA Exemption 1, which applies to properly classified information related to the national defense. DoD also claimed that the temporary troop numbers and FML figures were classified and therefore properly withheld under Exemption 1.
  • On Jan. 6 and 11, DoD made supplementary disclosures totaling 156 pages. For the first time, DoD publicly released the unclassified versions of quarterly troop level deployment reports to Congress required by Sec. 1267 of the FY 2018 NDAA (“Sec. 1267 reports”). These reports include what they describe as “publicly disclosed approximate numbers” of U.S. troops deployed to Iraq, Syria, and Afghanistan, although DoD had never previously made these numbers publicly available on its website, and has refused to provide at least some of these numbers to reporters when asked. The classified annexes, though heavily redacted, were also released.
  • DOD also produced redacted documents concerning changes made to its “force management construct”—or the internal figures the Department uses to manage, account for, and report force levels.
  • In a declaration accompanying DoD’s summary judgment papers (“Williams Declaration”), Acting Under Secretary of Defense for Policy Thomas Williams, explained DoD’s decision to withhold certain portions of the requested information under FOIA Exemption 1. This explanation is, itself, the subject of heavy redactions. The declaration also sheds light on Mattis’s 2017 decisions to amend DoD’s troop level accounting and transparency policies.
  • On Feb. 19, DoD responded by letter to several outstanding questions posed by Just Security the month before. The letter describes DoD’s criteria for calculating DMDC’s permanent and temporary figures, asserts that precise “top-line numbers” of deployed personnel are classified, and provides a rationale for failing to comply with the requirement in the Fiscal Year 2019 NDAA requirement that it post top line troop numbers on its website. The letter also explains that DoD’s DMDC figures, its Section 1267 estimates, and its force management construct are distinct and separate figures in terms of their purposes and their computation criteria.

II. Insights from DoD’s FOIA disclosures

DoD’s disclosures thus far reveal several insights about U.S. troop commitments in Afghanistan, Iraq, and Syria throughout the Trump era.

DoD’s supplementary disclosures provide the public with consistent, quarterly estimates of top-line troop levels for the three countries that have been redacted from official reports since December 2017. These estimates, while not the precise numbers, still show that the Trump administration failed to reduce troop levels in Iraq for much of Trump’s presidency or to complete a full withdrawal from Syria, despite the president’s promise that “they’re all coming back.”

Just Security’s efforts also reveal that Mattis sought to establish a force management construct that more accurately enumerated overseas troop levels within DoD, but also affirmatively restricted the public’s access to those numbers, even though they had been reported to the public for over a decade through the DMDC reports. These policy changes raise additional concerns about DoD’s commitments to public transparency.

Disclosure of Section 1267 reports reveals estimated quarterly troop counts

DoD disclosed unclassified quarterly reports to Congress on U.S. personnel deployed in support of Operation Inherent Resolve and Operation Freedom’s Sentinel that are required by Section 1267 of the FY 2018 NDAA, along with redacted versions of the reports’ classified annexes. The Section 1267 reports provide the first public insight into consistent reporting, by quarter, of DoD’s own estimates of overseas troop numbers for the three countries since December 2017. Expressly excluded from the estimates are “certain military personnel deployed for sensitive missions.”  While the reports describe the incorporated estimates as “publicly disclosed approximate numbers,” many of these figures have not previously been made available to the public.

Estimated U.S. troop presence in Syria

The Section 1267 approximate troop levels for Syria are particularly noteworthy because since August 2018, DoD has rarely provided troop levels for the country. It’s worth noting that a large contingent of the troops deployed there have been U.S. Special Operations Forces. DoD has publicly expressed its hesitance to disclose U.S. troop levels for Syria (although occasionally, unnamed Pentagon officials would disclose estimates for Syria to the press). The records obtained by Just Security now provide, for the first time, an official, consistent account of DoD’s own troop number estimates over the last three years.

Sec. 1267 Reports provide an inadequate substitute for past transparency practices

Even though the Section 1267 troop estimates are unclassified and DoD describes them as “publicly disclosed numbers,” DoD has not proactively disclosed the approximations to the public, and has not provided an explanation for why it has declined to do so. Rather, DoD has provided troop numbers at its discretion during press briefings or at the request of journalists. In some cases, DoD has even declined those requests, despite claiming that it “consistently provides approximate troop counts to members of the media upon request.”

In their letter, DoD points to its quarterly Inspector General reports to Congress regarding the status of Operation Freedom’s Sentinel and Inherent Resolve and in its semi-annual Enhancing Security and Stability in Afghanistan reports as sources of publicly disclosed approximate troop levels. However, a review of these reports reveals that since December 2017, DoD has not consistently disclosed approximate troop levels for Iraq and Syria therein. In particular, before the Trump administration began publicly broadcasting its efforts to withdraw U.S. troops from Iraq in the fall of 2020, the reports generally did not include troop-level approximations for Iraq. Even the most recent reports include no troop-level approximations for Syria.

DoD has also offered no criteria for its calculation of Section 1267 troop level estimates. Rather, it appears that DoD has broad discretion in calculating and reporting these numbers, raising questions about how accurately they capture troop levels.

Disclosure of precise, quarterly counts of permanent troops

The government also produced the precise numbers of military and DoD civilian personnel permanently assigned to Afghanistan, Iraq, and Syria by quarter from December 2017 to September 2020 (see Table 2). These numbers are now available to the public for the first time.

The data reveal that troops on temporary or short-term assignments comprise the vast majority of American servicemembers deployed to the three countries.

Overclassification at the Department of Defense

We now know that DoD has classified the same precise troop numbers for Afghanistan, Iraq, and Syria that it had disclosed for years through DMDC during the Obama and Bush administrations.  In addition to the precise troop totals, the numbers of temporary troops, which comprise the vast majority of troops in these three countries, are also classified. DoD’s new assertion that these numbers are classified reflects what many have described as a culture of secrecy that has descended upon today’s national security bureaucracy.

DoD has not explained why the total troop numbers for Afghanistan, Iraq, and Syria now need to be classified, when they were released to the public consistently just over three years ago. As for the temporary troop numbers, DoD’s only public rationale for  is relayed in a declaration by the acting deputy under secretary of defense for policy accompanying the agency’s summary judgment papers. It states, “reporting of precise figures deployed” to Afghanistan, Iraq, and Syria “could reasonably be expected to cause serious harm to national security,” and that Mattis was concerned that the “public reporting of precise troop figures advantaged the enemy by providing specific information about how many troops [the U.S. was] sending into specific theatres of operation.” (However, the unredacted portions of the declaration do not substantiate this asserted risk. National security experts have questioned whether troop-level disclosures actually lead to any operational risk. These redactions seem particularly excessive given that permanent troop levels are unclassified and estimated total troop levels are unclassified.

Indeed, DoD’s long history of disclosing top-line war zone troop levels to the public through late 2017 contradicts its national security rationale for its current redactions of the same information. DoD has not asserted—nor is it apparent—that any change in conditions has elevated the national security risk of disclosing troop levels assigned to the three countries.

Mattis’ broader changes to troop accounting improved internal flexibility, but inhibited public transparency

Finally, the disclosures shed light on changes DoD made to its “force management construct”—or the figures by which the Department “manages, accounts for, and reports force levels.”

The records show that DoD replaced its previous construct, known as the Force Management Level (FML), with a new construct that counts broader categories of troops. In August 2017, DoD publicly announced at a press briefing changes to its force management practice, noting that it would now include troops on temporary missions that had been excluded under FML. The disclosed records clarify what changes DoD actually adopted and why. They also show that DoD’s changes impeded public transparency, even though the Department framed the changes as bringing more accuracy to troop-level accounting.

DoD replaced FML, which had historically functioned as a troop cap, with a new construct, under which troops are characterized and counted as either Baseline Forces or Temporary Enabling Forces (TEF). Under DoD’s new construct, Baseline forces include all forces that must be counted toward the presidentially authorized force level and comprise those “conventional forces necessary to carry out the mission.” For instance, in Afghanistan, Baseline Forces are forces necessary to support Operation Freedom Sentinel’s NATO and counter-terrorism missions. Temporary Enabling Forces (TEF) are “those forces required for short-duration missions, to vary based on operational conditions,” and they also “conduct relief-in-place/transfer of authority, temporary duty, and short-duration missions not routinely required to support the core mission.”

As DoD noted at the time of the announcement, Mattis believed the old FML construct “did not present a sufficiently accurate or complete picture of the level of troops in Iraq, Syria, or Afghanistan in reporting both to Congress and to the public.” DoD’s disclosures reveal that the new construct sought to “increase operational flexibility to counter emergent threats and simplify and improve accounting rules.” Accordingly, the new Baseline forces figure accounts for certain forces that were excluded from FML counts, such as “specialized military forces focused on retrograde operations” and specialized personnel deployed by combat support agencies.

While the new force management construct might have ushered in greater accuracy and transparency within the Department of Defense, it led to a loss of public transparency. Mattis’s policy changes affirmatively ended the Department’s practice of making proactive, regular disclosures of precise troop numbers to the public. Reflecting this new change, a 2017 Action Memo on the implementation of the new force management construct for Afghanistan states that DoD “will not provide day-to-day updates” on force levels and will instead “only disclose a Public Approximate Number.” As noted, however, DMDC stopped publishing troop numbers for Afghanistan, Iraq, and Syria altogether.

DoD’s troop-accounting secrecy enables military officials to more easily mislead the public about the state of overseas conflicts, even if that was not the intended purpose. Trump’s former special envoy to Syria, Jim Jeffrey, publicly acknowledged that his team even relied on opaque troop-level figures to mislead leadership in the White House. He stated in a November interview: “we were always playing shell games to not make clear to our leadership how many troops we had [in Syria.]”

Transparency is an indispensable component of  democratic accountability. Voters need to know whether their government is executing its stated policies, and  the number of U.S. troops deployed oversees to confront today’s threats is directly relevant to the public’s evaluation of national security issues. DoD’s changes to troop-level transparency have substantially inhibited the public’s capacity to exercise oversight of  choices by their elected representatives that implicating the gravest matters of war and peace and, in particular, the solemn decision to place American troops in harm’s way.

III. Reinstating troop-level transparency

The troop-level data obtained through the FOIA request still only provides an approximate, imprecise representation of U.S. troop commitments in Afghanistan, Iraq, and Syria. DoD’s 2017 troop accounting policy changes replaced a straightforward enumeration and reporting system with an opaque force management construct under which the Department now classifies top-line troop numbers. In order to reestablish transparency to America’s overseas troop commitments, Congress and the Biden administration should facilitate public disclosures of top-line troop counts and reinstate the quarterly reporting of troop numbers for Afghanistan, Iraq, and Syria.

Committing Biden administration officials to top-line troop level transparency

During his recent confirmation hearings, Defense Secretary Lloyd Austin signaled his public commitment to top-line troop-level transparency in his responses to Sen. Richard Blumenthal’s Questions for the Record. Asked whether he would “commit to following the law and restoring the regular reporting of top-line troop numbers to the American public?” Austin replied, “Yes.” Discussing DoD transparency more broadly, Austin stated,

I believe that public transparency regarding military operations and the civilian leadership’s decision making on defense matters is critical to ensuring our defense policies are accountable to the American people.

Upcoming confirmation hearings for DoD appointees provide members of Congress with additional opportunities to hold Austin and his incoming team to this pledge.

Legislating top-line troop level transparency

Section 595 of the FY 2019 NDAA requires the secretary of defense to make quarterly, public disclosures of country-level, top-line troop numbers.

However, the provision lacks adequate mechanisms for compelling compliance. An amendment to the FY 2021 NDAA proposed by Rep. Jason. Crow (D-CO) would have established substantial incentives for adherence to the troop level disclosure requirement by making “25% of travel funds for the Office of the Secretary of Defense” contingent on compliance thereto. While the Crow Amendment was not included in the final version of the bill, it should serve as a model for strengthening Section 595’s transparency requirements.

In its Feb.19 letter, DoD explained its rationale for failing to comply with section 595, asserting that top-line troop levels for Afghanistan, Iraq, and Syria are classified and therefore exempt from Section 595’s disclosure requirements. To support this proposition, DoD points to Section 122a of Title 10, which mandates that reports “required by law to be submitted to Congress by the Secretary of Defense, or any element of the Department of Defense” to be made available to the public, but exempts those reports containing classified information. However, the disclosures required by Section 595 are not reports to Congress. Rather, Section 595 states that the Department “shall make publicly available, on a quarterly basis, on a website of the Department the top-line numbers of members of the Armed Forces deployed for each country.”

Furthermore, although the defense secretary may waive Section 595’s requirements with regard to “sensitive military operations” defined by 10 U.S.C. § 130f(d),  that section of the statute states explicitly that “the term ‘sensitive military operation’ does not include any operation conducted within Afghanistan, Syria, or Iraq.” Because the definition of “sensitive military operation” expressly excludes Iraq, Syria, and Afghanistan, the requirements cannot be waived for those countries.

There is no reason for DoD to refuse to report top-line numbers for Afghanistan, Iraq, and Syria, consistent with the law..

As a result of Just Security’s FOIA requests and a subsequent lawsuit, the public now has access to estimated quarterly U.S. troop level data for Afghanistan, Iraq, and Syria, as well as records illuminating the Trump administration’s 2017 policy changes that concealed precise troop counts from the American people.

While FOIA has served as an important tool for pressing back on these changes, it is no substitute for a considered policy of proactive disclosure on the part of elected officials.  Congress and the new Administration must now act to reestablish, and adequately safeguard, the public’s right to access accurate, regularly updated troop level data.

Image: US soldiers in Bradley tanks patrol an area near Syria’s northeastern Semalka border crossing with Iraq’s Kurdish autonomous territory, on January 12, 2021. Photo by Delil SOULEIMAN/AFP via Getty Images

 

About the Author(s)

Sam Aber

Sam Aber (@samuel_aber) is a second-year J.D. Candidate at Yale Law School, where he is a member of the Media Freedom and Information Access Clinic.

Nicole Ng

JD candidate at Yale Law School (class of 2022).

Phil Spector

Visiting Lecturer in Law at Yale Law School, previously senior adviser to the Legal Adviser at the U.S. Department of State

Brandon Willmore

J.D. Candidate at Yale Law School (class of 2021). Follow him on Twitter (@bwillmore5)