Enabling Unconventional Warfare to Address Grey Zone Conflicts

Enabling Unconventional Warfare to Address Grey Zone Conflicts

Jennifer A. Obernier and Frank N. Sanders

Abstract

The United States currently finds itself in several grey zone conflicts - political, economic, informational, or military conflicts where normal diplomacy has proven insufficient, but the conflict occurs short of a conventional war. In these situations, Unconventional Warfare (UW) has rarely been a first - or second or third - choice among options to influence a foreign power and achieve U.S. foreign policy and national security goals.  However, UW provides the U.S. with the capability to deal with a foreign adversary without having to own the foreign terrain and the associated entanglements after the conflict is over.

UW is conducted by the Department of Defense primarily with Special Operations Forces (SOF) to enable a resistance movement or insurgency to coerce, disrupt, or overthrow a government or occupying power.  UW looks a lot like covert action in the eyes of our legislators, but without the oversight processes that provide a balance between executive independence and congressional oversight.  Without clear roles for the executive and legislative branches, there is inherent unease within both branches to use UW to achieve U.S. foreign policy goals. At best, the executive branch views UW as an ill-defined military mission encumbered by significant legislative concerns.  At worst, legislators see UW as the next embarrassing military flap waiting to happen because of a lack of oversight. Even when the Defense Department is able to overcome these concerns, there is no clear and timely legislative path for gaining authorization and funding for UW missions.

Introduction

In this paper, we explore how the similarities between covert action and UW activities have led to a negative perception of UW and lengthy delays in its use. We then offer three actions to overcome these perceptions and enable the use of UW as a timely foreign policy option: creating a statutory definition of UW; proactively establishing congressional oversight and reporting mechanisms; and creating a specific legislative mechanism for acquiring authorization and appropriations.

The Root of Congressional Unease with UW

Covert action was defined in statue in 1991 as activities of the United States government to influence political, economic, or military conditions abroad, where it is intended that the role of the U.S. government will not be apparent or acknowledged publicly.^[3] On the surface, UW does not seem very different – both covert action and UW are intended to influence a foreign power – especially when both are most often conducted through clandestine means. However, Congress explicitly excluded military activities such as UW from the statutory definition of covert action, noting that a military activity that supports an overall military operation that is apparent or will be publicly acknowledged is not covert action, even if the military activity itself will not be acknowledged.^[4],[5]^,[6] Congress deliberately excluded activities such as UW from the statutory definition of covert action, but more than 25 years later, confusion remains.  Though ‘deniable’ covert actions and ‘unacknowledged military operations’ are legally distinct activities, there is often little difference in the practical execution and inherent political risk of covert action and UW.

Adding to legislative confusion over UW, the only law that currently cites UW is 10 U.S.C. § 167(g), which grants U.S. Special Operations Command (USSOCOM) authority to “train, man, and equip” for specific activities, including UW. However, 10 U.S.C. § 167 is not an operational authority to conduct UW, it does not define the activities that comprise UW, nor identify oversight and reporting mechanisms.

The lack of statutory definition causes an information disadvantage for Congressional overseers.^[7] In fact, Congress often has to ask those that they are supposed to oversee ‘what is unconventional warfare?’ To add to the confusion, the Defense Department and Army Special Forces have never settled on a consistent definition and have redefined UW three times in the last eight years.^[8],[9],[10]

In contrast to UW, covert action is tightly regulated by both the executive and legislative branches through explicit oversight requirements defined in law, to include the need for a presidential finding, notification of Congress, and oversight of the activities by the Intelligence Committees through regular reporting requirements.^[11] There are no similar processes to govern UW in statute or Defense Department policy, creating the perception that UW is not well regulated.

Further, UW and covert action both use clandestine means or ‘tradecraft’ to conceal their activities.  This similarity has led the Intelligence Committees to believe that they should oversee UW activities as well as covert action, since both use tradecraft and share the political risks inherent in clandestine activities. UW by default is overseen by the Armed Services Committees, with no clear articulation in statute of a role, if any, for the Intelligence Committees. As a result, there is the perception among the Intelligence Committees that SOF are skirting Congressional oversight by categorizing UW as a “traditional military activity” not subject to Intelligence Committee oversight.^[12]

Congress’ unease with UW has had direct consequences on the timely use of this foreign policy option. In a May 2014 speech at West Point, President Obama called for a broadening of our tools to address crises where direct, unilateral U.S. military action is untenable.^[13] In particular, the President called out the crisis in Syria, signaling an administration decision to support Syria’s moderate opposition by providing training and equipment through SOF – a classic example of a UW mission. This mission was eventually authorized and funded by the close of 2014, but only after more than a year of debate after it was initially proposed by the Defense Department in fall 2013.^[14]

While news reports indicate the Obama administration was concerned about pursuing the training and equipping of the Syrian moderate opposition before all chemical weapons in Syria were secured, there are also reports the Pentagon was reticent to pursue this option as it was perceived to be an ill-defined commitment.^[15]  In hindsight, it’s possible that a clear statutory definition and Congressional oversight mechanisms might have accelerated the debate within the Defense Department, Obama administration, and Congress that lasted more than a year, and provided U.S. SOF additional time to build capability within the Syrian moderate opposition.

The Way Forward

The first step in building a level of comfort with UW is defining it in statute. This would provide a structure for building mutual understanding of the capability and necessary trust between the executive branch, military and Congress.  A statutory definition of UW affords Congress an ex ante control on the development of UW capabilities. Currently, the Defense Department lacks clear left and right boundaries on the missions they might be asked to undertake under the umbrella of UW and appropriators have no way to evaluate the capabilities the Defense Department is developing to support a UW mission. Defining UW in law would also force a public debate necessary for democratic transparency.  Similar debates surrounded covert action in the late 1980s and early 1990s, and as was noted by W. Michael Reisman^[16] and expounded upon by James Baker in Regulating Covert Action, “The urgent policy question is which emerging legal and administrative arrangements best equip the United States for its world role while preserving its democratic values.”^[17]

A statutory definition would also prevent the U.S. military from continuously evolving the definition of UW. The shifting military definitions have reinforced the perception that the military changes the definition in order to expand its activities under the guise of “traditional military activities” and avoid Intelligence Committee oversight.

There are counterarguments to defining UW in law.  The primary one is that such a definition would become restrictive and would limit the President’s executive authority and the Defense Department’s flexibility and agility to address evolving threats and adversaries.  Similar arguments were raised regarding the definition of covert action in the 1991 Intelligence Authorization Act.^[18]  The subsequent twenty plus years of covert actions suggest executive freedom of action has not been overly constrained by a statutory definition.  James Baker further noted that the law “pertaining to covert action permits and prohibits, most of all it regulates its use by creating substantive thresholds triggering statutory and executive processes for authorizing and then appraising covert activities. These processes are intended to ensure that the means to effect covert actions are lawful, but also that the policy choices are sound and effective (emphasis added).”^[19] Whether UW is ultimately defined in law or not, the debate surrounding its inclusion in U.S. code would advance the discussion about all options available our U.S. foreign policy decision-makers.

The second step in enabling UW is establishing clear Congressional oversight mechanisms.  Though UW is not subject to oversight by the Intelligence Committees, it is subject to oversight by the Armed Services Committees, as are all military activities. What is not clearly defined is an oversight governance structure within the Defense Department and a reporting mechanism for keeping the Armed Services Committees informed. The Armed Services Committees have tacitly acknowledged there is no distinct oversight or reporting mechanism by including language in the authorization to train and equip the Syrian rebels that requires notification prior to commencement of the program, explanation of how the train and equip mission fits within the larger U.S. strategy, and a report on performance of the program every 90 days.^[20]

In 2007, Joel Meyer noted the advantages of retaining oversight of UW in the Armed Services Committees and a similar argument for oversight of traditional military activities has been noted in 2010 House Report on cyber activities.^[21] Retaining oversight of UW under the Armed Services Committees provides consistency with oversight of other SOF activities; it also aligns oversight with statutory authority. Further, since 2014, the Committees have provided oversight of the military’s “sensitive military operations” - a traditional military activity using clandestine methods - demonstrating their capability to oversee a traditional military activity that, when undertaken by other agencies of the U.S. government, is considered covert action.^[22]

Existing oversight and reporting mechanisms for 1208 programs^[23] and special access programs^[24] provide a start point for designing necessary reporting mechanisms, and the Armed Services Committees could receive a regular report on UW activities. However, part of the angst in Congress, and particularly the Intelligence Committees, is that the level of reporting required for activities expensed through intelligence-designated funds (such as the Military Intelligence Program or National Intelligence Program) exceeds the typical details associated with other funding categories like USSOCOM’s appropriation, the Major Force Program-11 (MFP-11).^[25],[26] To mitigate Intelligence Committee concerns about deconfliction and unnecessary duplication with other military, intelligence, or covert action activities, reports to the Armed Services committees on UW activities could also be provided as information to the chair and ranking members of the Intelligence Committees. This approach provides a bridge that retains functional oversight in the Armed Services Committees but creates a mechanism for the reporting of the type of information that satisfies the Intelligence Committees.

The final step in enabling UW is establishing a specific legislative pathway to acquire authorization and a funding mechanism for a UW campaign. This would provide the Defense Department a clear and timely pathway for pursuing UW and would further enhance Congressional oversight by providing a “follow-the-money” tool to monitor how UW funds are spent and how well the programs perform.

In the table below are three possible legislative pathways for a UW campaign that account for the need to address both an authorization and a funding mechanism or appropriation for a UW campaign. An authorization specifies what Defense Department money can be spent on and can also include spending thresholds.  An appropriation allocates the funds for the activities, which is a constitutional requirement.

In the first pathway, Congress approves a standing authorization tied to a specific annual appropriation for UW. In the second, Congress approves a standing authorization that allows the Secretary of Defense to expense UW activities from a pre-existing Defense appropriation. In the third possible pathway, Congress approves an authorization and appropriation for each individual UW activity.

Table 1: Possible Authorization and Appropriations Models for UW.

An example of the first pathway is the existing covert action contingency fund.  The Congressional authorization for CIA to conduct covert action is granted in 50 U.S.C[27] and there are indicators that the classified appropriation, known as the Covert Action Contingency Fund, includes specific annual appropriation amounts for covert action.^[28]

The second pathway is drawn from activities authorized through Section 1208 of U.S. Public Law 113-291.  Colloquially known as 1208 activities, Public Law 113-291 is a standing Congressional authorization for the Defense Department to train foreign forces to conduct counterterrorism operations on behalf of the U.S. However, 1208 activities do not have a separate appropriation, but rather are expensed out of an existing appropriation, USSOCOM Major Force Program-11.

In the third pathway, there is no standing authorization or specific funding mechanism and thus Congressional action must approve both. The recent mission to train and equip Syrian moderate opposition through section 1209 of U.S. Public Law 113-291 provides an example of this pathway, where Congress authorized the conduct of the activity, as well as the reprogramming of an unrelated Defense appropriation for the purposes of expensing the 1209 activities. While other models do exist, a key nuance is that Congress does not typically appropriate Defense Department funds specifically for the purpose of training and equipping a foreign force. Provisioning a foreign force has typically required separate authorizations and appropriations.^[29]

The Congressional record and extensive debate regarding the Defense Department mission to support the Syrian opposition in countering the Islamic State suggests Congress would not likely establish a standing authorization and appropriation for UW activities,^[30] although proactively establishing a statutory definition and oversight mechanisms might make this a viable option in the future. This leaves pathways 2 and 3.  As noted previously, a yearlong debate surrounded Congress’ eventual approval of an authorization and reprogramming to train and equip the Syrian opposition through a section 1209 program, during which time the Syrian moderate opposition continued to be attrited by the Syrian regime and the Islamic State.^[31] This suggests an UW authorization and funding mechanism similar to pathway 3 is not timely enough.

A plausible way forward would be legislation that creates a standing authorization to conduct UW activities, but requires the Defense Department to expense the UW activities against a larger appropriation (pathway 2). This approach provides two advantages. First, the authorization would spell out the details Congress will expect prior to a crisis environment. This prescriptive legislation would allow the Defense Department to understand the details it must report to Congress in order to expense funds for UW activities. Second, it signals to the Defense Department the level of fidelity that will be required in the management of the execution of the activities. The timing of reports, required report details, and established performance metrics would allow the Defense Department to create the processes and tool needed to provide the Congressionally mandated details in a timely and efficient manner.

Conclusion

Changes to the law governing UW would force a public debate necessary for democratic transparency.  Similar debates surrounded covert action in the late 1980s and early 1990s, and as was noted by Jim Baker in Regulating Covert Action, “the urgent policy question is which emerging legal and administrative arrangements best equip the United States for its world role while preserving its democratic values.”^[32]

A statutory definition of UW, oversight procedures, and UW-specific authorization and appropriation mechanisms are all essential steps for providing transparency to Congress and there-by enabling the timely execution of UW missions with the full backing of the executive and legislative branches. This three-prong approach provides transparency by defining what the activity is, proactively establishing governance structures for the activity, and building necessary bookkeeping to track the money spent on the activity. These proactive steps should provide the mechanism for minimizing the time between an administration decision conduct to UW and the actual employment of a SOF.

The demand for UW options is going to increase: instability continues to spread across the globe, with terrorists finding new safe havens in ungovernable areas, foreign powers threaten regional stability, and resurgent, aggressive nation states are challenging international norms. The Defense Department is the only U.S. agency that has the capacity to deal with multiple or large scale missions to provide support to resistance movements. UW may not be the appropriate solution to a specific foreign policy dilemma – but not even considering UW as an option because we lack certainty in what UW is and we have not had the foresight to build appropriate oversight structures is untenable and does a disservice to the foreign policy community, Congress, SOF, and ultimately, the nation.

End Notes

^[1]  U.S. Department of Defense, “Special Operations,” Joint Publication 3-05, July 16, 2014. http://www.dtic.mil/doctrine/new_pubs/jp3_05.pdf

^[2] National Security Act of 1947, Sec. 503(e), 50 U.S.C. § 413b(e).

^[3] National Security Act of 1947, Sec. 503(e), 50 U.S.C. § 413b(e).

^[4] House Report 102-166: Conference Report on H.R. 1455, the Intelligence Authorization Act for Fiscal Year 1991, July 25, 1991.

[5] see Jennifer D. Kibbe, “Covert Action and the Pentagon,” Intelligence and National Security, vol. 22, no. 1, p 57-74, 2007. http://www.tandfonline.com/doi/abs/10.1080/02684520701200806

[6] see Robert Chesney, “Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate,” Journal of National Security Law and Policy, vol. 5, no. 2, p. 539, 2012. http://jnslp.com/2012/01/24/military-intelligence-convergence-and-the-law-of-the-title-10title-50-debate-3/

^[7] Amy B. Zegart, “The Domestic Politics of Irrational Intelligence Oversight,” Political Science Quarterly vol. 126, no. 1, p. 1–25, 2011. 

^[8] Department of Defense, Department of Defense Directive 3000.07 Irregular Warfare, December 1, 2008. Note the August 28, 2104 updated Irregular warfare directive did include a UW definition that matched the Department of the Army, ATP 3.05-1.

^[9] Department of the Army, “Unconventional Warfare,” ATP 3.05-1, 2013.

^[10] U.S. Department of Defense, “Special Operations,” Joint Publication 3-05, July 16, 2014. http://www.dtic.mil/doctrine/new_pubs/jp3_05.pdf

^[11] National Security Act of 1947, Sec. 503(e), 50 U.S.C. § 413b(e).

^[12] House Report 111-186: Intelligence Authorization Act for Fiscal Year 2010.

^[13] “Transcript of President Obama’s Commencement Address at West Point” New York Times, May 28, 2014. http://www.nytimes.com/2014/05/29/us/politics/transcript-of-president-obamas-commencement-address-at-west-point.html.

^[14] Barbara Starr, “Pentagon Proposes Training Moderate Syrian Rebels,” CNN.com, September 19, 2013. http://www.cnn.com/2013/09/18/politics/us-syria-training/

^[15] Adam Entous, “Obama Close to Authorizing Military Training of Syrian Rebels,” Wall Street Journal, May 27, 2014. http://www.wsj.com/articles/obama-close-to-authorizing-military-training-of-syrian-rebels-1401198550

^[16] W. Michael Reisman, Regulating Covert Action, Yale Univ Press, 2011.

^[17] James E. Baker, “From Cold War to Long War: Covert Action in U.S. Legal Context”, in Strategic Intelligence Volume 3: Covert action behind the veils of secret foreign policy, ed Loch K. Johnson, Praeger Security International, 2007.

^[18] W. Michael Reisman, Regulating Covert Action, Yale Univ Press, 2011.

^[19] James E. Baker, “From Cold War to Long War: Covert Action in U.S. Legal Context,” in Strategic Intelligence Volume 3: Covert action behind the veils of secret foreign policy, ed Loch K. Johnson, Praeger Security International, 2007.

^[20] Jonathan Weisman, “House Expected to Vote on Training Syrian Rebels to Fight ISIS,” New York Times, September 16, 2014. http://www.nytimes.com/2014/09/17/us/politics/house-expected-to-vote-on-training-syrian-rebels-to-fight-isis.html

^[21] Joel T. Meyer, “Supervising the Pentagon: Covert Action and Traditional Military Activities in the War on Terror,” Administrative Law Review vol. 59, no. 2, April 1, 2007, p. 463–78. http://www.jstor.org/stable/40711988

^[22] National Defense Authorization Act for Fiscal Year 2014.

^[23] Support to Military Operations to Combat Terrorism, 10 U.S.C. § 1208.

^[24] Special Access Programs: Congressional Oversight, 10 U.S.C. § 119.

^[25] Jordana Mishory, “Lawmakers Claim SOCOM budget is Not Conducive to Oversight”, Inside the Pentagon, August 8, 2013.

^[26] House Report 113-113, 113^th Congress, Department of Defense Appropriations Bill, 2014.

[27] National Security Act of 1947, Sec. 503(e), 50 U.S.C. § 413b(e).

^[28]  L. Britt Snider, The Agency & The Hill: CIA's Relationship with Congress, 1946-2004, 2008, p 164.

^[29]  For example, see International Security Assistance Act of 1977, where congress specifically mandated that “none of the funds made available under this section may be used for military, guerrilla, or paramilitary activities in any country.”

^[30] Christopher M. Blanchard and Amy Belasco, “Proposed Train and Equip Authorities for Syria: In brief,” Congressional Research Service, December 3, 2014.

^[31]  Zeina Karam, “Syrian Rebels Buckling in Face of Jihadis,” Associated Press, June 28, 2014. https://www.yahoo.com/news/syrian-rebels-buckling-face-jihadis-202642372.html?ref=gs

^[32] W. Michael Reisman, Regulating Covert Action, Yale Univ Press, 2011.