The endless war authorization at the heart of Biden’s foreign policy
Speaking Security Newsletter | Advisory Note for Organizers and Candidates, n°56 | 10 November 2020
Summary: Section 333 authorizes DOD to train and equip non-US military forces on a global scale. I consider it the forgotten endless war authorization because it’s more PR-friendly than either the 2001/2002 AUMFs. By every indication it will be a central practice of the Biden administration. It must be repealed or defunded.
Situation
In its Ending Forever Wars section, the 2020 Democratic Party Platform promises to repeal and replace the “decades-old authorizations for the use of military force.” Safe to assume this means the 2001 AUMF (Al Qaeda) and the 2002 AUMF (Iraq).
Both authorizations provide legal cover for operations unmoored from these authorizations’ original (and already quite broad) intent, which is much of what the US’ endless wars are about. To give you an idea: as of 2018, three presidents have used the 2001 AUMF to legitimize 41 operations across 19 countries exclusively on the grounds that the legal authority applies to “associated forces” of al Qaeda/Taliban, even though that term doesn’t appear anywhere in the law.
Even if we assume the best case scenario — that both are simply repealed and not replaced — the DNC’s platform implicitly doubles down on another authorization that facilitates endless war: “Section 333.”
What is Section 333
It’s a global military aid program funded/run by the US military. Section 333 refers to the authorities granted to the Department of Defense (DOD) in 10 U.S. Code § 333. The ‘10’ refers to Title 10 of the US Code of Laws, which forms the legal basis for the roles and missions of DOD. The ‘Section 333’ bit authorizes DOD to ‘build capacity’ of non-US forces through ‘train-and-equip’ programs. Taxonomically, it’s classified as a (major) ‘security cooperation’ activity.
The authority was enshrined into permanent US law via the 2017 NDAA (Obama’s last defense policy bill), but Section 333’s predecessor (Section 1206) was first enacted by the 2006 National Defense Authorization Act (NDAA).
Taken together, DOD’s ‘Train & Equip’ authority (§1206 + §333) represents a growth industry:
^Data via Security Assistance Monitor. Before 2006 global military aid programs were funded/administered solely by the State Department (established by the Foreign Assistance Act of 1961 and Arms Export Control Act of 1976).
Why Section 333 is a problem
The authority to ‘build partner capacity’ sounds innocuous. But it does authorize a range of US military interventions across the world. And once deployed somewhere (Section 333 is overwhelmingly enacted in countries described as “developing” or in the “Global South”), DOD has invoked the legal cover of “collective self-defense” to engage in combat without prior congressional approval.
“Collective self-defense” refers to the UN Charter right of states to defend other states. The term also appears in the US military’s Standing Rules of Engagement, but as a zoomed in, tactical-level mutation from the international version.
Self-defense to the US military means defending its own people/property, but also individual military units that it designates (with Executive approval) as ‘partner’ forces. So basically it allows DOD to make the call on using military force if it sees itself or its partner force threatened by anyone else who’s around.
The US military has used ‘self-defense’ to justify preemptive strikes — like in Somalia — or reactive military action, like in Niger. Both justifications invoke DOD’s version of “collective self-defense” as the primary legal defense (both countries are ‘partners’ w/r/t Section 333, hence the US’ presence):
In short: the Executive Branch/DOD abuses (or capitalizes on) the “collective self-defense” argument. This abuse/capitalization requires US boots on the ground, and Section 333 authorizes those boots to be there in the first place.
*N.B.: Far as I can tell, the US military’s version of “collective self-defense” doesn’t fly with arbiters of international law, and hasn’t since at least 1984 — see Nicaragua v. United States.
Democrats are all in
Here’s a few excerpts from the 2020 Democratic Party Platform* (still from the Ending Forever Wars section) that provide indication that the incoming Biden administration will double down on Section 333:
“Democrats will not only reinvent existing alliances but also work to strengthen and build new partnerships in regions of growing strategic importance, particularly in Africa and Latin America.” (p. 74)
“Rather than occupy countries and overthrow regimes to prevent terrorist attacks … we will mobilize our partners to make sustained investments that can prevent conflict and help extinguish the flames on which extremists feed” (p. 76)
“[We] will not shirk from our longstanding pledge to assist countries in Central Africa, the Sahel, and the Horn of Africa to counter extremism” (p. 86)
“Democrats support a small, finite, and focused military presence to train our Iraqi partners so they can ensure the lasting defeat of ISIS. We also support keeping up the offensive against ISIS in Syria to prevent it from regaining a foothold, and will stand by Kurdish and other critical partners in that fight.” (p. 90)
*I chose the DNC platform because Biden’s foreign policy has been described as a “blank slate” onto which the national security establishment will project their desired policies. I believe that to be the case, and the DNC platform was written by the establishment (if it was written by the people, Medicare For All — among other popular priorities — would have been included in the platform, and not rejected).
What this says about Democrats
I see a failure (or reluctance) to grasp the idea that US military interventions are in themselves the problem, which means that the incoming Biden administration’s promise to end endless wars won’t entail ending endless US military interventions.
Section 333 enables militarization and is designed in US military doctrine to go on forever, but its ‘security cooperation’ label disguises it from the same critique as the 2001/2002 AUMFs. In short: it’s the most PR-friendly way to wage war so we can expect it to be a central part of Biden’s foreign policy, as it was under the Obama administration.
Legislative options
Section 333 can be repealed or effectively repealed in the following ways:
Repeal it through the defense policy bill (NDAA). This would involve engaging with the House and/or Senate Armed Services Committees.
Defund the provision through the defense appropriations bill. Members sitting on either the House or Senate Appropriations Committee, specifically on the Subcommittee on Defense, are the most relevant players here.
Defund the Pentagon to the extent that it’s forced to wind down empire and by extension 333. For this the primary targets are the OCO account or the “Operations and Maintenance” account within DOD’s budget. Those are the two funding streams I’ve seen affiliated with Section 333/1206.
Pursuing all three gives us the best chance.
Thanks for your time,
Stephen (@stephensemler; stephen@securityreform.org)
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