Irregular Warfare Podcast - Who’s Watching the Watchmen? Congressional Oversight of Irregular Warfare

Episode Date: August 25, 2023

Be sure to visit the Irregular Warfare Initiative website to see all of the new articles, podcast episodes, and other content the IWI team is producing! Irregular warfare, by its nature, includes activities that distinguish it from those traditionally conducted by conventional forces. But if congressional oversight is designed with the latter in mind, does this create gaps in oversight of irregular warfare? If so, what can Congress do to address the problem? Our guests on this episode are Dr. Oona Hathaway, director of the Yale Law School Center for Global Legal Challenges, and Dr. Thomas Campbell, professor at Chapman University’s Dale E. Fowler School of Law and a former member of Congress. They discuss the complexities of the congressional Authorization for the Use of Military Force, the unique considerations surrounding Title 10 and Title 50 activities, and the responsibilities of various committees in overseeing these actions. They conclude by sharing their insights on what this means for both practitioners and policymakers. Intro music: "Unsilenced" by Ketsa Outro music: "Launch" by Ketsa CC BY-NC-ND 4.0

There's not really any political benefit to be had from taking these votes. And particularly where the president says, look, I've got all the authority I need. I'm going to just sort of take action. And, you know, you can try to stop me if you want. There isn't really an incentive to act. It's worse because the committees that Ona's described, that spoke to, do not share information with the members of Congress who are not in those committees. So the fundamental question is, if it's a war,

what is the constitutional obligation to obtain congressional approval? Welcome to episode 86 of the Irregular Warfare podcast. I'm your host, Matt Mullering, and I'll be joined by my co-host, Laura Jones. Today's episode, we are joined by Dr. Una Hathaway and the Honorable Tom Campbell, where we talk about congressional oversight of irregular warfare. In this episode, our guests discuss the difficulties of conducting congressional oversight of irregular warfare. They unpack the complexities of the AUMF, the separation of Title X and Title 50, and the responsibilities of various committees

in overseeing these actions. After that, they discuss the differences in these authorities and their interaction with war powers and how this affects operations in irregular warfare. Finally, our guests give their insight on what this means for practitioners and policymakers alike. Dr. Una A. Hathaway holds the Gerald C. and Bernice La Trobe Smith Professorship of International Law at Yale Law School. She directs the Yale Law School Center for Global Legal Challenges and is esteemed member of the Advisory Committee on International Law for the U.S. Department of State. Hathaway's impressive career includes serving as special counsel to the General Counsel of the U.S. Department of Defense, authoring numerous legal articles, and co-writing The

How a Radical Plan to Outlaw War Remade the World. Dr. Thomas Campbell held a distinguished career in Congress, serving as a United States Congressman for multiple terms from 1989 to 1993 and 1995 to 2001. His impactful tenure included contributions to both national and California state legislative bodies. Alongside his congressional roles, he served as dean of the Fowler School of Law at Chapman University, and prior to that served as a law professor at the Haas School of Business at the University of California, Berkeley, and a professor of law at Stanford University. You are listening to a special series of the Irregular Warfare Podcast, a joint production

of the Princeton Empirical Studies of Conflict Project and the Modern War Institute at West Point, dedicated to bridging the gap between scholars and practitioners to support the community of irregular warfare professionals. Here's our conversation with Dr. Una Hathaway and Honorable Tom Campbell. Una, Tom, thank you for joining us on the Irregular Warfare podcast. Thanks for having us. Delighted to be here. Thanks, Matt. Ona, in your article, Congressional Oversight of Modern Warfare, you highlight the shortcomings of the current oversight structure. Could you provide an overview for our listeners of the

main issues you identified and how they impact congressional oversight? Yeah, so this piece, which I should say, I co-authored with then students, now lawyers, Tobias Kuhn, Randy, Michelle, and Nicole Ng. And in this article, what we look into is how does a congressional oversight mechanism work for modern warfare? And by modern warfare, we're talking about warfare that doesn't involve lots of troops on the ground, but things like cyber war includes special operations like

footprint warfare includes partnered operations. These are the kind of increasingly the way in which war is waged in the modern era. And what we were interested in is looking at how does Congress oversee these forms of warfare? And what we ended up discovering was that the problem was not so much the failure to be informed about what was happening on the ground. There's lots of reporting, you know, for instance, if cyber is reported pretty extensively to the armed services committees. But what we discovered was that the right hand didn't always know what the left hand was doing in Congress. So there's different operations reported to different committees. And then those committees don't necessarily talk to each other. And they also don't talk to other members of Congress. And so you may have a cyber operation reported to

Armed Services Committees, but the House Foreign Affairs Committee and Senate Foreign Relations Committee don't know anything about it. And meanwhile, the intelligence committees might not know about what's happening in cyber either. So part of the problem is not just like lack of information going to Congress, but lack of information being shared among people within Congress. So those are the kinds of things that we started trying to dig into. Tom, I'd like for you just before we get really into the meat of the questions, if you could just provide us a general overview and a pulling back of the curtain of what it's like to be a member of Congress and if you witnessed firsthand these different silos of information and what it was like really on the ground in the House. I'm happy to, Laura. I'd start by saying it's even worse than Ona described the constitutional obligation to obtain congressional approval?

And I hope we can return to that. But whether it's war or not in the constitutional sense, statutory requirements for reporting do exist. And the statutory requirement will be to report Title X matters to the Armed Services Committee and Title 50 to the Intelligence Committee, virtually nothing to the Foreign Relations Committee. I served on the Foreign Relations Committee, and I'll be very candid, the reason I got on the Foreign Relations Committee was largely because it did not have any power. That's to say I was out of favor with the leadership, and the leadership rewards members who are more loyal. I'm not saying I was in any sense disloyal to my country, but I was not a 100% reliable vote for the Republican leadership. And that has tremendous consequences for the siloing that Una describes, because if you're not on the committees, you're not going to get the

intelligence, the information. So for the day-to-day member of Congress who is not on intelligence and not on armed services, I served for five terms and I served on the Judiciary Committee, Foreign Relations, Small Business, Banking, and Financial Regulations. And that's a common mix, you might say, none of which were considered to be the essential committees, nor, to be very blunt for a moment, the committees that generated campaign contributions. If you were really favored by the leadership, you would be appointed to Ways means or appropriation. Now, if it's a constitutional requirement to get congressional approval, that is a very troubling consequence. If now we're speaking about the president's actions, which are within his authority as commander-in-chief that are not war,

as the founders intended, then it's a different matter entirely. And Congress can specify which committees are entitled to have this information and exclude the rest of us. I'll end by just one last comment, which was they did need my vote every year for the CIA appropriation. So every member of Congress has to vote on the appropriation bill. And a member of Congress who was not on these committees, such as myself, was on that occasion and that occasion only allowed to go into the secure room in the Capitol and look at the CIA budget or the intelligence budget, I should say, for CIA and our other intelligence agencies. And I'll just again tell my own personal experience. I went in alone, of course. I put all of my electronic devices out, kept outside and so forth. And I

made a point to look at the last page only to know how much was being spent this year and compare it with last year. I did not wish to know anymore because I was afraid that I might in a town hall meeting or in an interview inadvertently say something that was confidential or top secret, even worse. So there's a self-imposed constraint there, was there not, that because of the danger of inadvertent disclosure, I did not inform myself even to the degree of detail that I might have. Taking that introduction and kind of applying it to a specific use case, in your piece, Ona, you mentioned the 2017 Tonga Tonga attack that killed four third group special forces soldiers, Staff Sergeant Brian Black, Staff Sergeant Jeremy

Johnson, Staff Sergeant Justin Wright, and Sergeant David Johnson in Niger. As an example of how a lack of oversight leads to confusion from the tactical to the congressional level. Could you explain the incident and how it exemplifies the current failures of congressional oversight? Yeah, I mean, this is a really tragic event. And, you know, I'll say when it happened, members of Congress were taken aback that we even had forces on the ground in Niger. Nobody really knew that we had American special forces soldiers working in Niger. And the only reason it came out was because of this tragedy. So basically what was happening was that there was 11 American special forces soldiers who were traveling with a small Nigerian convoy,

and they were ambushed by fighters who were heavily armed. And it's a really tragic story that unfolded. It's even possible to see video online, though I don't recommend it. And seven months later, in May 2018, the Pentagon produced this very long classified report, 6,000 pages on the incident, but just released a very small bit of information to the public, just eight pages summarizing the events. It opened the door, it kind of briefly pulled back the curtain on the kinds of operations that are happening around the world that we don't normally hear about because they don't result in these kinds of terrible tragedies. But it's increasingly the face of U.S. warfare around the world. There's these light footprint operations, many of them between the equip missions. This was a train and equip mission where they're engaging in training. They're going alongside the forces that they might be training and equipping. And sometimes they're directly involved in combat. And much of this

is not directly authorized by Congress. And I think it helped, you know, many recognize that this was happening that Congress didn't really realize about it. I mean, even John McCain, who was a SASC chairman at the time, you know, he said he knew very little about U.S. Special Forces presence in Niger. I mean, he was probably the most informed member of Congress at the time on U.S. military operations abroad. So, you know, that was just an example of how little Congress really understood about what's going on. Ona used the phrase authorized by Congress, and that, of course, is totally appropriate, but it's not really authorized by Congress if the only information to Congress is to the appropriators or, in this instance,

to the subcommittee of appropriations that might deal with intelligence or deal with armed services, because that's the hammer that Congress has. If you don't tell us, if you don't abide by our instructions and report language in the appropriations bills, then we might cut you off next year. That's very different from the constitutional obligation to get the approval of Congress in advance before going to war. So what Una describes is indeed the reality, but note the power of a very limited number of members of Congress, even if they were informed. So Una observes that they were not informed. These who were supposed to be did not know about our activities in Niger. But even if they had, they're not giving Congress's authority. At best, they are saying you are abiding by what you promised to do last year as bargaining against us cutting your appropriations next year or putting an appropriation rider in next year. So the siloing is indeed the problem. the problem. Yeah, and I'll just add to that briefly. I mean, part of what was so interesting to me as I dug into this episode and just more generally kind of how these kinds of operations

are overseen by Congress, what I hadn't fully appreciated is exactly what Tom is sort of starting to open up is that there's so many different committees who potentially own a piece of this. And what's so striking when you're talking for this article, my co-authors and I spoke to a lot of staffers in Congress about, you know, what do you know? How do you learn about it? What kind of information do you have? What do you feel like you need to be able to do your job more effectively? And again and again, we were hearing that it's not that this information isn't shared with somebody at Congress. You know, various elements of our operations in Niger had been briefed to different committees, but no one really

kind of understood everything that was going on. And they didn't have the capacity to put the pieces together to understand kind of what kinds of vulnerabilities we might have and the role that these operations in Niger were playing in the kind of overall military operation, because there's no one who actually serves across all these committees who's kind of in the position to be able to put those pieces together. Now, on the executive branch side, what you have is you have the National Security Council for the very purpose of solving this problem, right? They recognized a long time ago, back in 1947, that this was a problem. And so what they did on the executive branch side

is to create a National Security Council, where basically the heads of all the agencies to work on national security matters meet together on a regular basis to talk about national security priorities. But there's nothing like that on the congressional side. I would just want to have a quick follow up and press the issue just a little bit more and say, how much of this is perhaps willful ignorance on the part of the members of Congress not actively seeking out that information or trying to build those bridges between silos in terms of just we're happy with the status quo? And how much is actual structure, or is it really a convenient use of that structure? Well, I'll offer an answer, but I'd love to hear Ona's on it as well. It's a

self-imposed burden, a self-imposed restriction. The politics, Laura, are very clear. If you voted yes in favor of a military operation or can be construed by an opponent at the next campaign to have voted in favor, you're vulnerable. If you voted no, and it turns out to have been a tremendous success, you're slightly vulnerable. But if you don't vote at all, you're invulnerable. So all of the political incentives are not to vote. Yeah, I agree with that completely. And, you know, what you see is in talking to staffers, you know, they recognize that for their members, there's not really any political benefit to be had from taking these votes. And particularly where the president says, look, I've got all the authority I need. I'm going to

just sort of take action. And, you know, you can try to stop me if you want. There isn't really an incentive to act. It's not really the sort of thing that one can fundraise on. It's more likely to hurt you than it is to help you if you take a vote regardless, as Tom just said. And on top of that, for members of Congress, there's also this kind of turf war I discovered from talking to people. Like the intelligence committees don't necessarily want to have information shared with armed services. Armed services doesn't necessarily want to have information shared with intelligence committees, and neither of them wants to share anything with the House Foreign Affairs Committee or Senate Foreign Relations Committee. They all want to kind of have their turf and protect their turf and their oversight responsibilities. And there may not be an incentive to share that

information. And I think that's part of the reason that while Congress solved this problem for the executive branch back in 1947, it hasn't solved the problem for itself. And you might think that's kind of mysterious. Why wouldn't they do that? And I think at least part of the reason for that is that they don't see political benefit to it. And they worry that members of other committees, if they get information that's relevant to their oversight responsibilities, might start meddling. So to move on to kind of the meat of the conversation and to get down into a little bit of the details, Ona, I want to start with you about how current structure was relevant in kind of a 20th century warfare dynamic, not necessarily as modern war emerges. talked the complexities of how 21st century warfare or modern warfare, however you want to frame it, adds burdens and pressures onto the system that exists currently. And, you know, the struggles of a congressional system trying to keep up with the pace of technology, right, or policy trying

to keep up with technology. Yeah, I mean, I think there's a lot of reasons that this problem has gotten so much more significant. Like, if you think back to sort of traditional warfare, you know, significant numbers of boots on service members getting killed. You're going to have people getting injured. You're going to have all these costs that are associated with that kind of deployment of force. There's a kind of checking function that's built into traditional warfare functions, which is the public necessarily is going to know about it. It's kind of hard to hide that. And, you know, they're going to be skeptical of it and they're more likely to hold their members to account for it. I mean, we saw the protests, of course, in the Vietnam War, you know, that sort of more traditional warfare. We had a lot of people, you know, being conscripted, forced to go to the front and fight, and the kind of political upheaval that that caused. But nowadays, if you've got, you know,

U.S. service members, for instance, operating drones, they're sitting in Nevada operating their drones anywhere in the world. Or you have a light footprint operations where, you know, there's relatively few U.S. forces at risk. Thank goodness, you know, all this is great. Or you have cyber operations where somebody's just sitting at a keyboard planning a cyber operation that is going to be part of a warfare operation. Members of Congress, of course, don't necessarily know anything about it unless they're briefed on it. And there's no natural mechanism to provide some control and constraint on that kind of warfare. So it's much easier for the executive branch to keep that information to itself, not share it with Congress. It's much easier to carry out those

operations without letting the American people know about it or let Congress know about it. And so I think that it makes it much more difficult to have Congress actually play its traditional constitutional role, which of course, we haven't mentioned this, but it is Congress in the Constitution that has the obligation to declare war. This is not simply a reflection on the increased complexity of the nature of war beyond the 18th century when the Constitution was written. It is also a reflection of the consequences of premature or perhaps any disclosure of what we're up to. And you see that, at least in part, reflected in the War Powers Resolution, where, at least in the most executive scholars who favor the executive's point of view, the president gets to do whatever the president

wants for 60 days so that you don't have the danger of tipping off the enemy, which you would if you were disclosing all of the preparatory work that you did prior to, let us say, the invasion of Grenada or the invasion of Panama or the bombing of Libya or the bombing of Syria. So it's not simply that there are a thousand other ways of going to war than our framers intended to or anticipated. It's also that the consequences are huge. My best illustration is the invasion of Grenada. So Maurice Bishop was leader of the New Jewel movement in Grenada. He was elected on a radical. Socialist might be too kind a word for it. Closely allied to Fidel Castro, invited in Cuban construction engineers to build an airport with a runway far too long for any tourist purposes. So suppose the president informed the relevant committees of Congress in advance that we were going to invade Grenada to replace the airport and replace Maurice Bishop.

Certainly, the president knew that substantially in advance of the actual operation, at least I hope so. But had he done so, we would have been in war with Cuba and the Soviet Union because immediately Castro would have allied himself with Grenada and the Soviet Union with Castro. Tom, you actually wrote a letter to Bill Clinton while you were in Congress discussing war powers in Bosnia. Can you talk a little bit about what were some of the issues you were dealing with, kind of in a conflict that is seen as the transition point, I think, to a lot of the aspects that we later see in the global war on terror? The moment when war begins is sometimes complicated, but not this time,

not bombing Belgrade. So I was on the House International Relations Committee, is what it was called then, Foreign Affairs Committee now. I was on that committee, and we were bombing Belgrade from high altitude. Former President Jimmy Carter was quite critical of President Clinton for the collateral damage from such high altitude bombing. That's to say, put a much more human term on it, killing innocent civilians in Yugoslavia. And we had testimony from Secretary of Defense Cohen, from the legal advisor to the State Department, and from Madeleine Albright, the Secretary of State herself. And I asked Madeleine Albright, Secretary Albright in particular, and as well as the legal advisor, are we at war and are we in hostilities?

And I was careful to preface my question so I wasn't setting a trap for anybody that the War Powers Resolution uses the word hostility. So that's why I'm asking this question. I'm not trying to trap you. Are we engaged in hostilities? Secretary Cohen said, yes, we're engaged in hostilities, but whether it's war or not, I really am not qualified to say. He then corrected it to say that he did not mean to agree that we were in hostilities. He then corrected it to say that he did not mean to agree that we were in hostilities. The legal counsel for the State Department did the same and then sent a correction letter to the committee. And Madeleine Albright, Secretary Albright, actually gave the following answer, which I'm paraphrasing from memory, but I don't repeat it out of disrespect for her, God rest her soul, but rather for noting her disrespect for Congress. When I asked her in live open testimony, are we engaged in war in Yugoslavia? And I noted the bombings, the daily sorties, the fact that the soldiers were being paid combat pay, that there had been a couple of POWs actually taken. The Reverend Jesse Jackson negotiated to release them. All of that was happening. And she replied to me, you're the law professor, you figure it out.

And that is a disrespectful answer to admittedly a very insignificant member, but nevertheless of an equal branch. So that's when I wrote to President Clinton and asked that he abide by the War Powers Resolution, because this was hostilities, whatever you would call war. The War Powers Resolution had finessed that by using the word hostilities. And we were certainly engaged in hostilities. My question to Secretary Albright was, is dropping bombs on the capital of a country engaging in hostilities? And may I say, this was before President Obama came to office, and President Obama's legal advisor gave a different twist on it, that it's not hostilities if U.S. troops are not at risk. Another prevarication, I'll be strong in my words, think about the

perverse nature of that interpretation. So then all an enemy has to do to tie us up in constitutional knots is to kill an American service member, because then now hostilities are triggered by that definition. So don't use that definition. It creates a perverse incentive to kill American service members. So President Clinton ignored my request, and then the bombing went on. On the 61st day after the War Powers Resolution time went out, I brought a privileged motion to the floor of the House. I brought two privileged motions, one to declare war and the other to command the withdrawal of United States troops as quickly as their safety would compel. President Clinton did not change his attitude, so we went into court two days later and brought the case that attempted to invoke the War Powers Resolution.

Curious point, the leader of the Democrats in the House at the time, Dick Gebhardt, introduced a third resolution that was not to approve the activity, but to say whatever has been done so far, we approve, but nothing going forward. That was the Gebhardt Resolution. If it's war, declare it. If you want to withdraw, withdraw it. And he said, well, it's okay what's happened so far. And that failed on an evenly divided vote, 214 to 214, with the Speaker voting in favor. So the result being that Congress never approved the use of force in hostilities in Yugoslavia. I think there's so much in what Tom just said that I thought I might unpack a little bit of it. And all of it, I think just there's so much in that scenario that he described that I think helped explain some of the problems we're still facing today. One of them is the way in which executive branches sort of treated the term hostilities as a sort of infinitely expandable term. And the reason that that becomes so important is that the way the War Powers

Resolution works, which is the law that was passed in the 70s after Congress discovered that the Nixon administration was engaging in secret bombing in Cambodia, where it was kind of trying to reassert its constitutional authority and created this legal structure through legislation known as War Powers Resolution, where basically it requires whenever the president introduces services into hostilities or puts them at risk of hostilities, they have to notify Congress. And then within 60 days, if Congress hasn't approved the ongoing participation in hostilities, then the president is obligated to withdraw troops or can get an additional 30 days for the purposes of bringing them home.

But the problem with the War Powers Resolution is it uses this term hostilities rather than war, and it never defines the term. Now, there's lots of debate about exactly why that is, but if you look at the debates at the time, my read of it is that part of the reason they didn't define hostilities is that they understood that to be pretty clear, that hostilities was something less than war. And so that it was sort of if you were close to getting involved in war, that is, you're involved in hostilities, that's when you have to kind of start notifying Congress, get Congress involved, you know, let Congress know what's happening. And it was part of the justification for the veto by President Nixon was that it was an impingement on his authority in cases where it wasn't war in the

constitutional sense. And this has created all kinds of problems. So not just in the Kosovo context, which Tom was just describing, it also was, as he alluded to, the basis for President Obama to decide that he could keep engaging in military operations in Libya. We all recall that following Gaddafi, the U.S. participated in a NATO-led operation, which led to the end of the Qaddafi regime and was many months of bombing in Libya. And that was a case where the legal advisor for the State Department testified before the Senate Foreign Relations Committee that that was not hostilities. You know, again, despite the fact that we were dropping tons of armaments on Libya and led to change in regime, that that was not hostilities. And that has really undermined the

capacity of the War Powers Resolution to actually provide any significant check on the president's power. The other thing I wanted to briefly mention, too, is that the situation that Todd described and the case that he ultimately filed also illustrates another problem, which is that the courts just are not playing a role here. The courts just don't actually step in ever. They always find some justiciability reason not to get to the merits of the question. It's either standing or it's a political question or it's moot or some other reason that they're not going to reach the merits of the matter. So even when any normal person looking at the law says, wait a minute, this is clearly a violation of the War Powers Resolution, there's just no way to enforce that because the president has the

power to act. Congress can't do anything other than maybe withdraw funds down the road. But if they vote for a new withdrawal of funds that's subject to potential veto by the president, and the courts won't step in and say, hey, wait a minute, president, you're breaking the law because they say it's a political question, they can't get involved. And so you create this situation that's basically a setup for unlawful military operations. And that's just a pathology that happened in Kosovo, happened in Libya, and it happens over and over and over again. I'd like to add to Ona's point, which I appreciate very, very much from personal experience, which is not widely known. I've said it publicly a few times, but I don't think it's ever been published. So we filed our lawsuit. The House voted on all

three resolutions, voted not to go to war, voted not to withdraw the troops, and voted not to approve what had been done under Congressman Gebhardt. So no approval from the House. Now, since it takes two houses to approve going to war, the fact that one house is not approved should be sufficient to handle ripeness issues, standing issues. What is not widely known is that was on the 62nd day we brought our lawsuit. The bombing went on for 73 days. from the district judge's law clerk. And the district judge's law clerk said, the judge wants to know if you're inclined to drop your case now because the bombing stopped. I've never heard of this. Maybe it happens. I'm not a litigator. But I've never heard of a judge calling up one of the parties and saying, maybe you ought to drop your case. Boy, was that trying to avoid making a decision. So that's a bit of a shock. And I've added to the record that that's what happened in that instance. So I want to fast forward us just a little bit to go from the 90s to the post 9-11 world, right? So

after 9-11 happened, we had the AUMF, you know, the Authorization for the Use of Military Force, which was somewhat vague, but, you know, in the context of the time seemed relatively specific. And then it just kind of seemed to umbrella and umbrella over 20 years. And within that umbrellaing and that spreading of the AUMF, we saw this convergence of Title 10 and Title 50, you know, direct combat and military activities and intelligence activities together. So can you both kind of please talk about life under the AUMF? And was this Congress again, kind of seeing we offered approval, and now our hands are tied after that? Yeah, I mean, I think that's such an important point. And, you know, so just for your listeners,

in case they're not familiar with it. So just very shortly after the 9-11 attacks on September 18th, 2001, Congress voted an authorization for use of military force. And it authorized the president, and here I'll quote just because I think it's helpful to hear the language. It says, the president has 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. That's basically the entire operative phrase. Now, if you read that, you think, okay, you know, that authorizes the use of military force against the people who carried out the attacks on 9-11 or those who harbored them.

Now, does it authorize military operations against a group that doesn't exist yet in a country far, far away from the country where the group that planned the 9-11 attacks was taking place? You would not think so. And yet today, that same authorization, that same language is the basis for all of our counterterrorism operations taking place in the Middle East today, including Somalia, including Syria, including Iraq, of course, including Afghanistan. So all around the Middle East, we're engaging in ongoing operations based on that authorization, that same authorization. How did that happen?

That happened because lawyers working for the executive branch have interpreted this extremely broadly. And they've read into it a term that doesn't actually appear in the language that I just read to you because it doesn't appear in the AOMF at all, which is they've read it to apply to quote-unquote associated forces. So that is forces that are associated with those responsible for the 9-11 attacks. And they've used that terminology to expand this authorization to lots of other groups that are associated with al-Qaeda, which is the group that was ultimately found had been responsible for the 9-11 attacks. Now what's happened is Congress has sort of rested on its laurels for all the political reasons we discussed earlier. Congress doesn't really want to take any more votes. And so it has let this authorization kind of stay on the books and be the basis for counterterrorism operations now, more than two decades later, that really were not contemplated

by those who voted for this authorization. And I think the reason for it is, again, just those political reasons. But I think it does a disservice to our military troops because they're acting under an authorization that by any reasonable reading doesn't actually encompass what we're doing in the world today. There's two other aspects that are worth noting to everything Ona said, with which I completely agree. First is that it's not needed to rely on the AUMF. So President George H.W. Bush went to Congress and got a specific authorization from Congress for Desert Storm. So you can go in in a specific in advance, lay it out there, and Congress deliberated. We had days of debate and voted in favor. And the other example is President Obama took the view that when Assad had crossed the red line in Syria and made use of chemical weapons, his statement I assigned to my students, it's remarkably good constitutional law and admirable. It's just a shame he didn't follow it.

But his statement was, I think we should get involved. I think we should bomb or attack Syria, punish them for this. But we also are a constitutional democracy. And I must put this question to Congress. That's what he said. And so having made the case for intervention in Syria, he then withdrew and said, I've got to give it to Congress. Well, intervening in that was Tony Blair taking the matter to Parliament. And in the UK, they voted it down. So President Obama was then somewhat stuck, having said it has to go to Congress, but afraid that Congress might not vote yes. And so he withdrew the request from Congress and backed off from doing what he originally had said, and he was right in saying was necessary. So my two points to Onas are, yes, AUMF has been contorted, distorted, expanded far beyond its intent or even its words. It doesn't need to be, and the constraints are political. Yeah, just to add to that, when I was working at the Department of Defense in 2014-2015, I was special counsel to the general counsel of the DOD. And at that time, a question came up as to whether the president

had the legal authority to engage in military operations against ISIS under the 2001 Authorization for Use of Military Force. Now, ISIS was a group that didn't exist on 9-11. It came into existence after 9-11. It was an outcropping of Al-Qaeda in Iraq after the U.S. invasion of Iraq a couple of years after the 9-11 attacks. And there was the question, you know, can we shoehorn operations against ISIS in Syria into reports, basically reporting use of military force against ISIS in northern Syria, which suggested that the view of his lawyers at the time was that it didn't fit within the existing authorization because then it wouldn't have to be war powers reported. And what the president ended up doing was he went to Congress and asked for an AUMF. He asked for an ISIS AUMF. And there was a hearing that I, if you look closely at the video, you can see me sitting in the back behind my boss.

They held a hearing where the president asked for an AUMF, but unlike in the case that Tom was just describing, where they had asked Congress for authorization to use military force against Assad for the chemical weapons attacks. In this case, what the president said was, I have all the illegal authority I need, but I would like you to authorize it anyway. You know, the U.S. is strongest when political branches speak together and that it would be best to authorize this military operation, but effectively, like, I'm going to do it whether you authorize it or not. And no surprise there that what Congress did was nothing, because why should they take on the political cost of voting in favor of a new authorization for use of military force to go after ISIS if the president's going to do it anyway? But they were so scared that they weren't going to get the authorization and felt like it was important enough that they just weren't willing to admit that they didn't have the authority already. didn't have the authority already. So that's the kind of unfortunate political legal dynamic that gets generated that leads us to this place where here we are 20 years later relying on this authorization past just days after the 9-11 attacks to do all kinds of things that were never imagined

back in 2001. I want to add a bit on the possible middle ground, which would be giving authorization but have a time limit, so have an expiration date. And that was suggested many, many times. The difficulty, the criticism is, well, then you're giving the enemy a date for when the U.S. troops will be withdrawn, and that's a terrible thing to do in a combat situation. That answer is a bit too facile. It's probably, if it's done as a matter of routine, that yes, you can go ahead against the 9-11 perpetrators and check back with us in a year and a half, and we'll give you more authority. And it's known that we'll always give you AUMF or whatever the equivalent is, but with a time limit. Then the enemy would not really infer that this means we're going to withdraw in a year and a half. That would have been a middle ground, and I think that's still viable. And it's very hard to vote. Onus says, you think

the Congress would have voted yes. I'm totally with you. It's very hard to vote no on giving the authority to go to war when we're already at war, when we're already effectively in war. So much so that the framers of the War Powers Resolution were careful to say, don't infer that an appropriation is approval, because appropriations go through, and the executive branch will frequently say, well, that constitutes approval. They wouldn't approve the money otherwise. And I saw this in actual play in the Kosovo instance, where the appropriations were up for additional replenishment of our cruise missiles. So we had depleted our cruise missile inventory. And so there was a supplemental appropriation that went through. And I spoke on the floor saying that this

is a separate issue entirely from are we approving the war? But boy, you should have heard the arguments the other way. How dare you fail to give bullets for our guns? It's unpatriotic. So you get into it and it's very hard to withdraw from it. That's why an automatic time limit might be a beneficial improvement. I completely agree with that. And, you know, and I think that if we've learned anything from the last 20 years, it's that Congress should never again vote through an authorization for use of military force without a sunset, or what now is often referred to as a reauthorization requirement. Absolutely. At the time they voted this authorization through and then in 2002 voted the authorization for use of military force against

Iraq, no one imagined that those were still going to be operative 20 years later. And, you know, I think you just can't count on the language to do the work for you because the lawyers are creative and there's no one to stand up against them. And so what you need is just a hard and fast, you know, this expires two years, three years, four years, five years, whatever it is, like some concrete sunset, at which point, you know, whoever's president at the time is going to have to come back and ask for a reauthorization from Congress. Because otherwise you get a situation like this where we're still operating under an authorization that just a few members of currently serving members of Congress voted in favor of. And that's just not good for our democracy.

I wanted to go back a little bit and make sure that we hit kind of the convergence between Title 10 and Title 50 authorities in operations and the complexities of having, you know, a uniformed theater commander who can take off a Title 10 hat and put on a Title 50 hat, especially, you know, when it comes to authorizing over-the-horizon drone strikes and things like that, and how that further obscures and complicates the issue of oversight. Yeah, I can say a little bit about this, you know, so just to remind your listeners, sort of Title 10 is armed services, you know, DOD operations, and Title 50 is intelligence operations tends to be associated with CIA operations and not exclusively. And

one of the challenges that we see is that there's a kind of blurriness in sort of what is Title X and what's Title 50. And what, as you mentioned, drones is sort of a good example of that because you've had various points where you actually have the exact same operator working on Title 10 and Title 50 operations. It's just the chain of command shifts, but it's like the exact same drone, exact same operator, just a different command structure above them. And so the challenges there is, you know, who's being reported to in Congress, you know, is it reported to intelligence committees or isn't reported to armed services committees and who's keeping an eye on it? What are the constraints on it? What are the limitations on the ability to engage in these operations? And again, we interviewed a bunch of members

of Congress and this is something that came up several times is that they were noting that like it wasn't always clear to them what was a Title 10 and what was a Title 50 operation. And then that created challenges in terms of which committee is responsible for this. And is it being reported to the appropriate committees? And does it create the capacity for the executive branch to sort of determine where they want to report by designating something as a Title 10 or Title 50 operation. Now, I'll say the Obama administration tried to shift more of the drone operations over to the Title 10 side, in part because the kind of oversight structure is a little bit more robust. And then the Trump administration kind of shifted it back over to Title 50, at least that's my understanding. And I don't know exactly what the Biden administration's doing if they're trying to shift it back yet again. But there is this capacity to toggle that these modern warfare operations make possible. Same thing is true in cyber, obviously, and in special operations or kind of light footprint operations, certainly in train and equip operations. You know, you have some CIA-financed operations. You might have a train-and-equip operation financed by DOD and by CIA operating in the same country at the same time that may or may not know what's going on in the other.

And so it creates all kinds of problems around potential deconfliction, but also problems around oversight and capacity to kind of know, for Congress to know what's going on. But even within the executive branch, it creates potential problems of conflict between different kinds of programs. Building on that comment, because I think that this is something that really kind of came clear to me from Ona's article, is you mentioned how specific programs for irregular warfare and intelligence often overlap, but only a few members have access to both intel and defense programs. And that poses huge issues with how different communities compete with each other. And a great example you give in the program is how you had these 127 echo programs for Department of Defense, then sometimes a very similar and sometimes competing CIA programs. Can you share with our audience like what those structural problems you

discussed as far as just how many few people there are and why that competition happens? Yeah, I mean, I think part of the challenge here, so there's a whole series of different provisions that provide for oversight that often are overseeing kind of different programs that are very close cousins to one another. So 127 ECHO programs are reported to HASC and SAS, so the Armed Services Committees, and these require notification within 15 days or 48 hours if there's extraordinary circumstances of these programs, which are effectively kind of these train and equip programs. But you may have a very similar kind of program happening that's

funded by the CIA and that's being reported to intelligence committees. And you don't know for sure that the 127E programs, that there's any visibility into that by the intelligence committees and vice versa. And so you have potentially competition between the different agencies over who's going to run these different programs. And then that translates into competition and also lack of visibility across the different congressional committees over these programs. And, you know, I think that even the scope of these train and equip and partnered operations is not widely understood and the kinds of vulnerabilities that this creates for us. Because in addition to all these oversight issues that we're talking about, you know, these train and equip missions and these partnered operations create real possibilities

that we're operating with and supporting groups that it's not clear we can always ensure that their actions are consistent with law of armed conflict and with human rights obligations. And while we have some obligations to ensure human rights obligations are met for when we're partnering with state actors, increasingly the U.S. government is partnering with non-state actor groups, both on the Title X and Title 50 sides. And it's very hard to vet those groups. It's very hard to know that they're capable of complying with Geneva Convention's obligations. I think that the Brennan Center did this really great report called Secret War,

and people were sort of shocked to discover that there were all these programs, these partnered operations happening. But they're happening all over the place. And I think Congress, and we started with this, the 127E program, that's the Niger program, that was a partnered operation. And I think that's increasingly the face of warfare. And it's a piece of warfare that people just don't adequately have their mind wrapped around because they're so secretive. The information is very closely held. And even members of Congress, very few of them really fully understand how these authorities are being used and how many countries we're operating in. I have very little to add to

Ona's expertise, which is superior by far to mine in this area. But I will just quickly add that to the extent of the train and equip operation, it's closest to the president's inherent authority to engage in foreign relations and farther away from the Congress's explicit authority to equip the armed services of the United States. So from a constitutional point of view, train and equip is an area where Congress can want to be informed, but a weaker constitutional premise for demanding that. Well, and this is one of the challenges, I'll just say. Like, that's, where is that line? And how do we define, for instance, hostilities? I mean, I think that's something that when we talk about war powers reform, like, how much do you fold these kinds of operations into the kinds of things that Congress has to be informed about? And how much

control does Congress have outside of its appropriations authority? Because, of course, it could control it through appropriations. And these are, of course, programs that are authorized in MIS 127E. These programs have been created by Congress. But, you know, I think that Tom's right to raise this question of like, when we're talking about these programs, there's real questions. It's like, if they're truly just trained and equipped operations, that may fall within the president's powers, commander in chief. And, you know, but if they're lethal operations where U.S. forces are accompanying on combat operations like the Niger incident, does that cross over the line? When does it cross over the line? As we move towards trying to adapt our legal structures to address what warfare really looks like in the 21st century, those are the kinds of questions we have to start asking.

So thank you guys both for this discussion. the kinds of questions we have to start asking. So thank you guys both for this discussion. What key implications of the oversight challenge highlighted in your article should professionals, practitioners, and elected officials be aware of? One thing that I'll mention for your listeners is that Tom and I are working on a report on war powers reform together, and that should hopefully be public in the fall. And it makes some concrete suggestions for reform to the war powers legislation that, you know, we think would be really important to kind of getting Congress back into the picture. So, you know, I think that there has to be a form of war powers reform, you know, among other things, defining hostilities. For instance, we talked about, you know, ending the AMFs and putting in place sunsets for those that remain. These kinds of changes are really essential. And in this report, we also make recommendations for internal reforms at Congress, because I think there's lots of these reports out there for war powers reform that sort of the burden here and actually can solve the problem, not just through legislation, which, you know, they have to get the agreement of the president for, but through internal reforms, through reorganizing their own committees,

through sharing information across committees, through potentially creating a congressional national security council to put in place an umbrella structure for sharing information, similar to what the executive branch has. And so I think part of the message that I would want to get across, and I think, you know, as part of our shared project, is this is not just a matter of getting legislation through, but it is in Congress's hands to be able to solve a lot of these problems on its own. You know, some of these problems are very much of Congress's own making, and Congress can fix those problems if it wants to. But if it wants to, of course, is subject to all the challenges that we've talked about, you know, it requires a kind

of political will. But, you know, I'm hopeful that Congress would see how important it is to reassert its constitutional authority and create structures so that we don't engage in uses of military force that aren't constitutionally authorized and that don't serve the best interests of the United States. My advice would be to the third branch, so it perhaps is a little bit unanticipated in your question, Matt, but my strong advice is that none of this is going to work if the third branch continues to abstain. So we have a legitimate dispute between the first branch, Congress, the second branch, the president and executive, and the third branch is not playing the umpire role between the two. And let's put some spine in the judiciary.

judiciary shouldn't be involved in political questions. I will say two of the most admirable decisions in my lifetime where the judiciary got 100% involved in political matters was Brown versus the Board of Education and United States versus Nixon. So the judiciary ended segregation in America. Maybe it would have eventually happened. I'm not sure it would eventually have happened. We know that states were holding back and that Congress was holding back. And it took the judiciary to make the most politically impactful decision in the mid-20th century. And U.S. versus Nixon. Oh, my goodness, we're dealing about conversations in the Oval Office and the president's assertion of, how can I be a leader in the world and leader in our country if my conversations are subject to this fellow Archibald Cox or Leon Jaworski, who wants to get the tapes. And the Supreme Court ruled eight to nothing that, no, you are a subject to the law. So that's my plea. C'est cri de coeur. It's very fundamental to who I am and what I've

done in my life that the courts have the courage to patrol the derogations of separation of powers between the other two branches. Ona, Tom, thank you so much for joining us in the Irregular Warfare podcast. This was a really great conversation. Thank you very much. Thank you so much for having us. It's been a lot of fun. Thank you again for joining us for episode 86 of the Irregular Warfare podcast. We release a new episode every two weeks. In the next episode, we'll have a special crossover episode with Foreign Policy, where Foreign Policy editor Ravi Agarwal and Dan Wong look inside the U.S.-China tech war.

After that, Adam and Julia talk with Ross Babbage and Brigadier General Tyra David Stilwell about Chinese political warfare. Be sure to subscribe to the Irregular Warfare podcast so you don't miss an episode. The podcast is a product of the Irregular Warfare Initiative. We are a team of all volunteer practitioners and researchers dedicated to bridging the gap between scholars and practitioners to support the community of irregular warfare professionals. You can follow and engage with us on Facebook, Twitter, Instagram, YouTube, or LinkedIn.

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thanks again and we'll see you next time