War Powers

No Airstrikes in Iraq for the Moment...But Perhaps a Combat-Support Mission for SOF?

By Robert Chesney
Wednesday, June 18, 2014, 12:37 AM

An important story tonight in the Wall Street Journal, outlining the first fruits of the Obama administration's review of its options vis-a-vis Iraq and ISIS:

The White House and Pentagon now hold a more skeptical view of the possible effectiveness of speedy airstrikes and instead are considering deploying U.S. special operations forces to provide intelligence and battlefield advice to the Iraqi military, the U.S. officials say.

Such an effort, the officials hope, would allow Iraqi forces to mount a counterattack. Officials said Mr. Obama could follow up increased training and advising of Iraqi forces with airstrikes if deemed necessary, but that outcome isn't a sure thing.

If the administration goes the SOF route as described above, it will no doubt be made clear that the mission does not authorize direct participation in combat and instead will be limited to enhancing the capacity of the Iraqis to plan and conduct operations themselves (and, as the article goes on to suggest, to gather intelligence that could flesh out a target list that might later be used in connection with US airstrikes after all).  That approach will do much to quiet the domestic law questions that would likely arise with direct participation in hostilities in the form of airstrikes (see here for my earlier comments on that issue vis-a-vis the airstrike option, and here and here for Jack's).  But should it squelch such discussions entirely?

On one hand, Foreign Internal Defense (FID) missions are bread-and-butter for Special Operations Forces (SOF) (see here for an overview specific to Iraq prior to 2012), and do not normally present serious domestic law questions in terms of the Constitution's separation of powers.  From a domestic law authorization perspective, a combination of Title 10 authorities contemplating such missions and the President's Article II authority to conduct US foreign policy and to orchestrate run-of-the-mill overseas military deployments normally precludes such questions.  But what about when the deployment occurs in a hot combat zone, and the FID function encompasses operational planning at a granular level in support of host nation forces? Obviously the War Powers Resolution comes into the discussion then, as illustrated by the ongoing SOF mission in Uganda, where operators are working closely with host nation forces to develop intelligence and conduct operational planning in the effort to suppress the Lord's Resistance Army (see here for a discussion).  Is that all there is to say about it, though, on the domestic law front?  I think probably so, but the tight nexus with the host nation's combat activities certainly makes it a more difficult question than a generic FID mission.