War Powers

The Scope of the Endless War After One Year Under Trump

By Sarah Grant, Jack Goldsmith
Friday, January 19, 2018, 2:38 PM

“We don’t know exactly where we’re at in the world militarily and what we’re doing,”  Sen. Lindsey Graham, one of the Senate’s most knowledgeable military experts, about U.S. global counterterrorism operations last October. In this post we try to figure out where we’re at and what we’re doing. (It’s not easy; if we get anything wrong, please let us know.)

The occasion for the analysis is the one-year anniversary of President Trump’s tenure as the third commander in chief in the more than 16-year war that began on 9/11. Our aim is to explain in general terms where (and from where) the United States is fighting terrorists abroad, with what intensity, with what results, and under what authorities. We also sketch how the armed conflict has morphed under President Trump, who has the Obama-era , , and for U.S. counterterrorism operations.

Our framework for analysis is Trump’s Dec. 11, 2017 to Congress, “consistent with the War Powers Resolution” (WPR), which lists the countries and regions where there are “military operations in support of United States counterterrorism efforts.” We start with the legal authorities listed in the WPR letter, and then consider what the public record suggests about the scope and consequences of U.S. combat actions in pursuit of its counterterrorism objectives.

We note at the outset some significant caveats and limitations on the analysis. First, the WPR letter reports that a “classified annex to this report provides further information.” Among other things, that means that it is quite possible that “military operations in support of United States counterterrorism efforts” are taking place in a manner and in countries other than those listed in the unclassified letter. Relatedly, the WPR letter, like the WPR, applies to certain activities of “United States Armed Forces” and does not include activities, for example, of the Central Intelligence Agency. One or both of these exclusions from unclassified WPR reporting might cover alleged U.S. airstrikes in Pakistan, most recently in , but we do not further speculate about such excluded matters. In addition, we do not discuss non-combat military activities, including the numerous and in which the military is involved. And finally a caveat to the caveat: When it comes to operations conducted predominantly by , the line between noncombat and combat activities is not always clear.

These caveats mean that the scope of U.S. counterterrorism operations is almost certainly broader, perhaps much broader, than what the WPR letter indicates. Focusing on just the counterterrorism operations described by the WPR letter, however, the United States is engaged in hostilities in at least seven countries: Afghanistan, Iraq, Syria, Yemen, Somalia, Libya, and Niger. (As described below the U.S. has deployed combat-equipped forces for counterterrorism operations in many more than seven countries.) The list largely mirrors the countries referenced in , but in most of these countries U.S. military operations scaled up in President Trump’s first year.

  1. Legal Basis

The WPR letter’s stated legal authorities for the armed conflict against al-Qaeda, the Taliban, associated forces, and, since August 2014, the Islamic State (ISIS), are the and authorizations for the use of military force (AUMF), the president’s Article II commander-in-chief power, and his “constitutional and statutory authority to conduct the foreign relations of the United States.” On this front, there is no change from the Bush and Obama administrations. The letter does not specify which authorities apply in which contexts, but we speculate below. (See for the executive branch’s most complete statement of why it believes the 2001 and 2002 AUMFs are properly construed to apply to the armed conflict against the Islamic State.)

 

  1. The WPR Letter’s Listed Countries and Regions

Below we list the countries where, according to the WPR letter, “the United States has deployed United States combat-equipped forces to conduct counterterrorism operations and to advise, assist, and accompany security forces of select foreign partners on counterterrorism operations.” We also briefly summarize what the public record says about U.S. counterterrorism operations in those countries.

  1. Afghanistan

Following a “surge” , there are currently more than . (The Pentagon acknowledged that it had previously operating in the country.) An additional may soon join them. The majority of U.S. forces is to mission, which consists of training, advising, and assisting the Afghan National Defense and Security Forces, as covered by . Pursuant to the 2001 AUMF, a smaller number are engaged in counterterrorism operations, focused on denying safe haven to and defeating the Taliban, al-Qaeda, ISIS-K, and associated forces, and are also (with an extra dash of authority from Article II) protecting U.S. and allied forces and interests.

The most recent U.S. airpower statistics released by show a decline in 2017 of the total number of combat sorties flown. However, the number of sorties with at least one weapon release doubled from 2016 and the total number of weapons released tripled. Thus while the number of flights has declined, the number of strikes has sharply increased. These changes reflects the Pentagon’s relatively new , the to allow U.S. troops to target more hostile forces and embedded U.S. trainers at lower levels in the Afghan military to enable them to call in air support. From January to September of 2017, the documented 466 civilian casualties (deaths and injuries) from airstrikes, approximately 175 of which were attributable to international military forces. have been killed in Afghanistan since Jan. 20, 2017, most recently on .

  1. Iraq and Syria

Data released publicly by the Pentagon in November indicate that the U.S. has nearly and as part of , i.e. the conflict against the Islamic State. These figures should perhaps be taken with a grain of salt given the regular rotation of units and the possibility that the numbers who deploy for only short periods of time. In President Trump’s first year in office, these U.S. forces conducted ground and in conjunction with Iraqi government forces, Syrian opposition forces, and coalition partners against ISIS, al-Qaeda, and affiliated groups. Like the before it, the Trump administration s provide sufficient statutory authorization for these operations.

The total number of in Iraq and Syria in 2017 was slightly lower than in 2016. But once again, the number of weapons released increased (by a third), to nearly 40,000 for the year, reflecting intensive fighting beginning in October 2016 to retake and from ISIS control. Activity was the highest during the summer months, followed by a , during the last three months of the year, upon completion of major combat operations against ISIS. Efforts to oust ISIS from Iraq and Syria during 2017, resulting in the of the land the group once occupied. Since Jan. 20, 2017, there have been in Iraq and Syria, two under hostile conditions. We cite no specific number of civilian casualties from airstrikes because tallying them is —the military is accused of , but it claims that data are exaggerated.

The military also conducted and forces, allegedly on grounds of self-defense and defense of rebel groups with which the United States is working. And on April 6, U.S. aircraft in Syria in response to a chemical weapons attack by the Syrian regime on Syrian civilians in Idlib Province on April 4. President Trump sent a WPR letter to Congress on April 8 that claimed for the action under Article II, but his administration did not further explain its reasoning. (Note that President Obama in August and September 2013 threatened to use force in Syria in response to the regime’s use of chemical weapons, and claimed the legal authority to do so “without specific congressional authorization,” but then .)

The U.S.-led coalition last weekend to now reorient towards building a Kurdish militia-dominated “Border Security Force” of 30,000 personnel, prompting an immediate denunciation by the Syrian government, Russia, Iran, and . And on Wednesday, Secretary of State Rex Tillerson at Stanford that the administration intended to keep approximately 2,000 troops in Syria indefinitely in order to prevent the revival of ISIS and counter Iranian presence and influence in the region. The legal basis for a long-term troop presence in Syria, not in furtherance of active operations against ISIS, and without the consent of the host nation, is not at all clear.

  1. Yemen

Also under the banner of the 2001 AUMF, President Trump has continued against al-Qaeda in the Arabian Peninsula (AQAP) and, , ISIS elements. In the specifically authorized by the Trump administration, a January 29 raid on an AQAP facility in Bayda Province, Navy SEAL Ryan Owens became the first U.S. servicemember killed in the conflict in Yemen. Since then, U.S. troops have conducted additional ground operations both unilaterally and with partner-nation forces. The Pentagon more than 120 airstrikes during 2017, compared to .

More , the United States continued in 2017 to to the Saudi air campaign against the Iran-backed Houthi rebels, which has contributed to an . Pentagon officials have indicated that the U.S. targeting support for Saudi airstrikes, after from the Joint Combined Planning Cell in August 2016. The , on the other hand, has expanded in the last year. The domestic legal basis for U.S. support for the fight against the Houthis . Notably, in November, the House of Representatives, in a 366-30 vote, expressing its concerns about the fight against the Houthis and that “Congress has not enacted specific legislation authorizing the use of military force against parties participating in the Yemeni civil war that are not otherwise subject” to the 2001 AUMF, i.e. parties other than AQAP, ISIS, and associated forces.

  1. Jordan

Approximately 2,300 U.S. troops are to conduct security and counterterrorism operations alongside Jordanian forces. That number is down from . Jordan is a in Iraq and Syria and provides additional support to Syrian opposition groups. President Obama first of the mission in June 2013, pursuant to his Article II authority. Given the current counter-ISIS (and possibly counter-AQ) focus of the mission, the 2001 AUMF may also apply.

  1. Lebanon

President Trump’s WPR update did not include an entry on Lebanon, but there is one in the December 2017 letter. The letter states that (as the ) there are currently 100 U.S. troops in Lebanon to provide training and support to Lebanese military forces in their counter-ISIS operations in the Lebanon-Syria border region. The 2001 AUMF, as it has come to be interpreted, may cover this mission. In December, U.S. Ambassador to Lebanon Elizabeth Richard a military aid package worth over $120 million to enhance Lebanon’s “capability to conduct border security and counterterrorism operations.”

  1. Turkey

In his to Congress, President Obama reported the deployment of combat aircraft and personnel to Turkey to participate in the counter-ISIS campaign, pursuant to authority under the 2001 AUMF. In President Trump’s first year, the United States continued to conduct counterterrorism operations in Iraq and Syria out of Incirlik Air Base in Turkey, despite over the United States’ support for Kurdish militias, which Turkey considers a national security threat. In a sign of how fraught the relationship between the NATO allies has become, the Turkish state news agency in July 2017 of 10 U.S. military outposts inside Syria. And in August, Turkish-backed Syrian opposition fighters operating in northern Syria. Turkish government forces were not involved and there were no casualties, but nonetheless the incident is a clear indication of the fractured nature of the counter-ISIS coalition.

  1. East Africa Region

President Trump’s referred to U.S. military presence in Somalia, Kenya, and Djibouti, with operations focused on Somalia. The Trump administration that began under the by the number of troops in Somalia, from 200 to 500 troops. The forces conduct and against and elements that President Obama officially as an “associated force” of al-Qaeda in November 2016. They also Somali government and (AMISOM) efforts, perhaps (we do not know for sure) pursuant to under the 2001 AUMF. In March, Trump parts of Somalia where al-Shabab forces are an “” in which U.S. forces have to carry out , with less high-level scrutiny. At least in part a result of that decision, 2017 was a in Somalia (this includes both manned aircraft and drone strikes, but AFRICOM press releases do not distinguish between them). A Navy SEAL was in a joint U.S.-Somali raid on an al-Shabab compound, marking the first American combat death in the country since the 1993 “Black Hawk Down” incident.

The U.S. military presence in Kenya was not reported in and the government has not further elaborated. However, it has been reported that U.S. troops have worked with Kenyan forces the and al-Shabab in Somalia.

The United States first deployed combat forces to Djibouti in 2003 pursuant to the 2001 AUMF and President Bush’s Article II authority, as reported in the to Congress. Camp Lemmonier in Djibouti is the U.S.’s in Africa, and hosts the that counterterrorism, counterpiracy, and assistance operations in neighboring Somalia and elsewhere in the region.

  1. Libya

In each periodic WPR letter since , the president has reported U.S. air operations against al-Qaeda and in Libya, conducted on the of the 2001 AUMF. There were only 12 U.S. in 2017 compared to 497 in 2016. This sharp decrease is almost certainly attributable to the centered around Sirte in December 2016. However, in in December, Deputy Secretary of State John Sullivan called Libya “perhaps our greatest counterterrorism challenge in Africa” and said that President Trump, Secretary of State Rex Tillerson, and Defense Secretary Jim Mattis recently met with the Libyan prime minister to discuss the way forward on the counterterrorism mission, among other issues. Sullivan’s comments likely reflect the , al-Qaeda, and other extremist groups elsewhere in the country.

  1. Lake Chad Basin and Sahel Region

There are approximately 800 U.S. troops deployed to Niger to in conjunction with the Nigerien armed forces against (AQIM) and associated forces. President Obama of U.S. forces to Niger in 2013 to “provide support for intelligence collection and ... facilitate intelligence sharing with , and with other partners in the region.” He asserted at the time that he ordered the deployment pursuant to his constitutional authority as commander in chief and chief executive. The U.S. mission in Niger was on intelligence, surveillance, and reconnaissance support. Nevertheless, four U.S. special forces troops were in an ambush by al-Qaeda militants. A few weeks later, Defense Secretary Mattis that the ambushed troops were operating under a Title 10 “train and advise” authorization, but also said he believed the force presence in the region was covered by the 2001 AUMF. In November, the United States and Niger to allow the U.S. military to fly armed drones in support of offensive counterterrorism operations, eventually based out of a .

President Obama also announced the deployment of forces to in 2015, and at the time he relied on Article II. Ongoing operations in Cameroon, Nigeria and are to the against AQIM and . A special forces mission in Mali in June when one soldier was allegedly killed by other members of his team. Deputy Secretary of State Sullivan indicated in that Benin has also sought U.S. assistance in its counterterrorism efforts.

  1. Cuba

There are no combat operations in Cuba or anywhere near it. But the Guantánamo Bay military detention facility is listed in the WPR letter because it continues to hold , most without charge in U.S. military commissions, under the authority of the 2001 AUMF and Section 1021 of the .

Military commission proceedings are active in three cases involving a total of seven detainees: (9/11 attacks); (USS Cole bombing); and (law of war violations in Afghanistan and Pakistan). In December, the chief prosecutor of the military commissions against Riduan bin Isomuddin, the alleged leader of an al-Qaeda affiliate in southeast Asia, but the charges still require approval from the military commissions convening authority before pretrial proceedings can commence.

A new habeas petition brought last week on behalf of 11 detainees of their continued detention without charge during the Trump administration, that Trump’s pledge to “keep all remaining detainees in Guantánamo, regardless of their individual circumstances” exceeds his authority under the 2001 AUMF and is unconstitutional in its arbitrariness. Still pending before the D.C. Circuit is a from detainee Moath Hamza Ahmed al-Alwi that challenges his continued detention on the grounds that the original conflict in Afghanistan authorized by the 2001 AUMF has ceased, and that the United States can therefore no longer hold him as a combatant in that conflict.

  1. Philippines

This is a new addition to the list, and we are not sure why. It seems to be simply a recognition of a state of affairs that existed during the Obama administration rather than the heralding of a significant change in policy. From 2002 until 2015, the U.S. military of several hundred special forces troops in the Philippines to support counterterrorism operations, under the construct of and . Since JSOTF-P deactivated in 2015, a smaller number of U.S. forces have to advise and assist Philippine security forces. Bilateral have also continued, as has the U.S.’s to the Philippines. The Trump administration has the Obama administration’s approach, if somewhat more focused on capacity building after the between Philippine government forces and ISIS-linked militants over the summer.

  1. Conclusion

Over four years ago, and nearly a dozen years after the 9/11 attacks, President Obama gave a that seemed to portend the end of the U.S. armed conflict against al-Qaeda and associated forces. He noted that the “Afghan War is coming to an end,” that the core of al-Qaeda “is a shell of its former self,” and that while groups like al-Qaeda in the Arabian Peninsula “must be dealt with,” in the years to come “not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States.” He pledged to work with Congress to “refine, and ultimately repeal, the AUMF’s mandate.” And he famously pronounced that “this war, like all wars, must end” because that’s “what history advises” and what “our democracy demands.”

The end of the war, of course, never came. The Islamic State grew out of the ashes of al-Qaeda in Iraq. It declared itself a worldwide caliphate in June 2014, the United States began using force against it that summer, and by September of that year, the Obama administration had interpreted the 2001 and 2002 AUMFs to apply to the Islamic State. The threats from al-Qaeda and associates, as well as the Taliban, also persisted. In its , in December 2016, the Obama administration described a much broader war than the one described in its , just after Obama’s speech. As noted above, President Trump has mostly intensified this conflict, surging troops and loosening restrictions on airstrikes in several places.

But might the wars that began on Sept. 11, 2001 finally be winding down with the “” of the Islamic State in Iraq and Syria? Count us as skeptical. 

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