By, With, And Through: Section 1202 and the Future of Unconventional Warfare

• Author: Major Christopher B. Rich, Jr., Captain Charles B. Johnson, and Major Paul T. Shirk
• Position: Judge Advocate, United States Army; J.D. 2008, University of Virginia School of Law; LL.M. 2018, Judge Advocate General's Legal Center and School, Honor Graduate/Judge Advocate, United States Army; J.D. 2012, University of Louisville's Brandeis School of Law. LL.M. 2022, University of Arizona/Judge Advocate, United States Army; J.D. 2011, ...
• Pages: 537-582

By, With, And Through: Section 1202 and the

Future of Unconventional Warfare

Major Christopher B. Rich, Jr.*, Captain Charles B. Johnson**, and

Major Paul T. Shirk***

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538

I. A BRIEF HISTORY OF SOF BY, WITH, AND THROUGH ACTIVITIES . . . . . 541

A. World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543

B. Korea and Vietnam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 544

C. The Cold War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546

D. The Global War on Terror. . . . . . . . . . . . . . . . . . . . . . . . . . . 549

E. Great Power Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . 551

II. BY, WITH, AND THROUGH ACTIVITIES AND FISCAL LAW. . . . . . . . . . . . . . 552

A. Funding By, With and Through Operations Prior to 1983 . . . 554

B. The Alexander Opinion: A Quantum Shift . . . . . . . . . . . . . . . 556

C. The Patchwork of Authorities . . . . . . . . . . . . . . . . . . . . . . . . 561

1. Rationalizing DoD Authorities . . . . . . . . . . . . . . . . . . . . 562

2. USSOCOM-Specific Authorities . . . . . . . . . . . . . . . . . . . 563

III. THE DEVELOPMENT AND IMPLEMENTATION OF IRREGULAR WARFARE

AUTHORITY THROUGH SECTION 1202 . . . . . . . . . . . . . . . . . . . . . . . . . 565

A. The Need for Sec. 1202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565

B. Sec. 1202 Structure and Content . . . . . . . . . . . . . . . . . . . . . . 568

C. What is Traditional Armed Conflict? . . . . . . . . . . . . . . . . . . . 572

D. Sec. 1202 in the Gray Zone . . . . . . . . . . . . . . . . . . . . . . . . . . 575

IV. THE NEED FOR EXPANSION OF IRREGULAR WARFARE AUTHORITIES . . . . . 577

* Judge Advocate, United States Army; J.D. 2008, University of Virginia School of Law; LL.M.

2018, Judge Advocate General’s Legal Center and School, Honor Graduate. Previous assignments

include Chief of National Security Law, 1st Special Forces Command (Airborne), 2018-2020. Thank

you to CAPT (R) Todd Huntley for reviewing an early draft of this article and providing many helpful

suggestions. The opinions, conclusions, and recommendations in this article do not necessarily reflect

the views of the Department of Defense, the U.S. Army, or the Judge Advocate General’s Corps.

© 2022, Major Christopher B. Rich, Jr., Captain Charles B. Johnson, and Major Paul T. Shirk.

** Judge Advocate, United States Army; J.D. 2012, University of Louisville’s Brandeis School of

Law. LL.M. 2022, University of Arizona. Previous assignments include Deputy Legal Advisor to a Joint

Special Operations Task Force in Afghanistan, 2019-2020, National Security Law Attorney, United

States Army Special Operations Command, 2019-2020, and National Security Law Attorney, 1st

Special Forces Command (Airborne), 2018-2019. Thank you to the USASOC History Office and Bob

Seals for your time, support, and guidance.

*** Judge Advocate, United States Army; J.D. 2011, Marquette University Law School. LL.M.

2022, Judge Advocate General’s Legal Center and School. Previous assignments include Deputy Group

Judge Advocate and 4th Battalion Judge Advocate, 10th Special Forces Group (Airborne), Fort Carson,

Colorado, 2016–2019. A special thanks to Colonel Gabe Szody for being #nevernotballin and Lieutenant

Colonel Anthony Heisler for his exceptional support during the writing process.

537

A. Option 1: Enact Legislation in Response to Traditional Armed

Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 577

B. Option 2: Amend Existing Statutes . . . . . . . . . . . . . . . . . . . . 579

C. Option 3: Draft a New Statutory Authority Applicable to

“Traditional Armed Conflict”. . . . . . . . . . . . . . . . . . . . . . . . 581

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 582

INTRODUCTION

Just weeks after al-Qaeda terrorists flew passenger aircraft into the World

Trade Center and the Pentagon, a small force of Central Intelligence Agency

(CIA) paramilitary officers infiltrated Afghanistan to establish a strategic partner-

ship with the Northern Alliance, an Afghan resistance movement fighting against

the Taliban. The CIA officers were soon joined by several detachments of Army

Special Forces, commonly known as Green Berets. This combined force of

approximately 450 Americans and 15,000 Afghans executed a classic unconven-

tional warfare campaign that precipitated the fall of the Taliban government by

early December 2001.

1

Yet during these operations, and for several years there-

after, the Green Berets were hampered in their ability to effectively work with

their Afghan partners. Despite the fact that one of the primary missions of Special

Forces is to operate by, with, and through (BWT) indigenous personnel, they had

no fiscal authority to provide training or equipment to the Afghans. As a result,

the Green Berets were wholly dependent on the CIA to use covert authorities in

order to train, equip, and arm their foreign allies.

2

Since World War II, U.S. Special Operations Forces (SOF) have been tasked to

provide support to foreign personnel in a variety of circumstances from Vietnam to

El Salvador to Syria.

3

Indeed, when Congress created U.S. Special Operations

Command (USSOCOM) in 1986, it specifically designated assistance to indigenous

forces as part of the organization’s statutory mission.

4

Although SOF are sometimes

permitted to execute combined operations with their partners, as they were in

Afghanistan, support more often includes the provision of training and equipment.

The surprising limitations that were placed on the Green Berets during their initial

1. DOUG STANTON, HORSE SOLDIERS: THE EXTRAORDINARY STORY OF A BAND OF US SOLDIERS

WHO RODE TO VICTORY IN AFGHANISTAN 347 (2009). For other descriptions of CIA and Special Forces

operations in Afghanistan immediately after the September 11 attacks, see LINDA ROBINSON, MASTERS

OF CHAOS: THE SECRET HISTORY OF THE SPECIAL FORCES 153-190 (2004). See generally GARY

SCHROEN, FIRST IN: AN INSIDER’S ACCOUNT OF HOW THE CIA SPEARHEADED THE WAR ON TERROR IN

AFGHANISTAN (2006) and STEVE COLL, DIRECTORATE S: THE C.I.A. AND AMERICA’S SECRET WARS IN

AFGHANISTAN AND PAKISTAN (2019) for their detailed accounts of the CIA’s involvement in the

development of unconventional warfare campaigns during the infancy of the War on Terror.

2. See generally Matthew R. Grant & Todd C. Huntley, Legal Issues in Special Operations, in U.S.

MILITARY OPERATIONS: LAW, POLICY, AND PRACTICE, 553–601, 565–66 (Geoffrey S. Corn, Rachel E.

Van Landingham & Shane R. Reeves, eds. 2015); RICHARD A. BEST, JR. & ANDREW FEICKERT, CONG.

RSCH. SERV., RS22017, SPECIAL OPERATIONS FORCES (SOF) AND CIA PARAMILITARY OPERATIONS:

ISSUES FOR CONGRESS 4 (2009).

3. See discussion infra Section I.

4. 10 U.S.C. § 167(k).

538 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 12:537

missions with the Northern Alliance were the result of a protracted struggle between

Congress and the Executive Branch for control of foreign assistance in the aftermath

of the Vietnam War. By the mid-1980s, this contest had left the U.S. military unable

to use its own appropriated funds to train or equip foreign personnel without explicit

legislative authorization.

5

Unfortunately, this policy severely limited the ability of

SOF to effectively respond to unforeseen contingencies. When Green Berets began

combat operations in the fall of 2001, there was simply no existing statute authoriz-

ing them to provide arms, equipment, or training to their Afghan partners.

This state of affairs was clearly unsustainable in the midst of a global campaign

against Al-Qaeda and its affiliates that required SOF to execute multiple opera-

tions BWT indigenous forces. Indeed, in 2004, the 9/11 Commission Report rec-

ommended that lead responsibility for all U.S. paramilitary activities should be

transferred from the CIA to SOF, including “legal authorities” to train foreign

personnel.

6

Although this did not occur,

7

Congress ultimately saw the need to

drastically expand foreign assistance authorities within the Department of

Defense (DoD), and for SOF in particular. Between 2005 and 2017, Congress

enacted a number of statutes which enabled SOF to provide training and other

forms of assistance to foreign personnel who facilitate counterterrorism (CT)

operations.

8

This sustained response has unmistakably signaled Congressional

support for an expansive BWT strategy to combat violent extremist organizations

(VEOs) in unstable areas throughout the world.

Legislative support for SOF-led BWT missions has continued even as DoD

shifts its focus away from CT to long-term competition with other nation states

such as Iran, North Korea, Russia, and China.

9

By 2015, then Chairman of the Joint Chiefs of Staff General Martin E. Dempsey declared that in addition

to continued threats from “sub-state and non-state actors,” the Russian annexation of Crimea had demonstrated

“a legitimate risk emanating from state actors.” Jim Garomone, Dempsey: U.S. Forces Must Adapt to Deal

With Near-Peer Competitors, DOD NEWS (Aug. 17, 2015), https://perma.cc/U95A-C9B3.

To that end, Congress enacted

Section 1202 of the FY 2018 National Defense Authorization Act (Sec. 1202).

10

Sec. 1202 evolved from a legislative proposal originally drafted by Special

Operations Command Europe (SOCEUR).

11

It permits the Secretary of Defense

to obligate up to $10 million annually

12

in order to “provide support to foreign

forces, irregular forces, groups, or individuals engaged in supporting or facilitat-

ing ongoing and authorized irregular warfare operations by United States Special

Operations Forces.”

13

On the surface, this appears to be an almost limitless

5. See discussion infra Sections II.A., II.B.

6. THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST

ATTACKS UPON THE UNITED STATES, at 415–16 (2004).

7. BEST & FEICKERT, supra note 2.

8. See discussion infra Section II.C.

9.

10. National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 1202 (2017).

11. See discussion infra Section III.A.

12. The FY2021 NDAA increases this annual amount to $15 million. National Defense

Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, § 1207, 134 Stat. 3388 (2021).

13. National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 1202(a), 131

Stat. 1283 (2017).

2022] THE FUTURE OF UNCONVENTIONAL WARFARE 539