MILITARY LAW REVIEW
Volume 155 February 1998
FUNDING "NON-TRADITIONAL" MILITARY OPERATIONS: THE ALLURING MYTH OF A
PRESIDENTIAL POWER OF THE PURSE
COLONEL RICHARD D. ROSEN1
Every [military] undertaking must be, at least ought to be, regulated by the state of our Finances . . . ; without this disappointment, disgrace, and increase of debt will follow on our part; exultation and renewed hope, on that of the enemy.2
·December 1995: 20,000 U.S. troops join a 60,000-person NATO-led implementation force (IFOR) in Bosnia to enforce the terms of peace accords negotiated at Dayton, Ohio, the previous month.3 The military annex to the peace accords provides that a two-lane, all-weather road will be built through a Bosnian-controlled corridor between the Bosnian capital of Sarajevo and the Bosnian city of Gorazde.4 Existing roads between Sarajevo and Gorazde run through Bosnian Serb-held territory and are
unacceptable to the Bosnian government.5 The peace accords do not specify who is responsible for building the road, and NATO asks U.S. military forces to help with the construction, even though the road will be in the French IFOR sector.6 The first critical issue faced by military planners is determining what funding authority (if any) the United States can use to assist the construction effort.
·September 1994: The United States commits troops to Haiti as part of a multi-national force to restore the country's democratically elected government.7 Upon entering Haiti, U.S. officials find Haiti's govern-ment-including its judiciary-in disarray.8 The State Department asks the Department of Defense (DOD) to assist in rebuilding Haiti's judicial system.9 Military planners must first decide whether a proper source of funds exists for such a mission.
·August 1994: Thousands of Cuban refugees are detained at the U.S. Naval Base at Guantanamo Bay when the Clinton Administration reverses the United States' long-standing liberal immigration policy for Cuban asylum seekers.10 At Guantanamo, the Cubans join thousands of Haitian migrants already in detention.11 United States military personnel are tasked with caring for the migrants.12 In addition to other fiscal chal-
lenges13 and keeping the peace in the migrant camps, military planners must find a lawful source of DOD funds from which to provide migrants with comfort items and recreational equipment, ranging from shoes to volleyballs.
The Growing U.S. Involvement in "Non-Traditional" Operations
Since the end of the Cold War, the United States increasingly has committed its armed forces to so-called "non-traditional" missions, engaging in manifold operations "other than conventional battlefield warfare."14
From major undertakings, such as Somalia, Haiti, and Bosnia, to minor engagements, such as the placement of military-to-military contact teams in Eastern Europe, such operations have become a "dominant claimant on military resources."15 Indeed, these non-combat activities have become integral components of the strategy of peacetime engagement.16
Several factors explain this growing involvement of America's military in non-combat operations:
First, since the end of the Cold War, ethnic, religious, cultural, and social antagonisms-which the superpowers had successfully suppressed-have suddenly exploded to the surface in a series of conflicts, frequently accompanied by enormous human suffering. According to General Shalikashvili,
Today, some three dozen ethnic, tribal or religious-based conflicts dot the globe. Our hopes for a new world order have been drowned in a seemingly endless disorder. Far from being the end of history, the end of the Cold War marked the rebirth of instability in many countries. The instability, in turn, has bred calamity, and calamity, in turn, has bred human tragedy.17
Second, the end of the superpower rivalry has both accommodated international intervention in such conflicts,18 and enabled the United States to commit forces to the operations on a scale that would have been unthinkable during the height of the Cold War.19 "U.S. strategic interests are being defined more broadly than ever, to include not only the desire to foster democracy, but to secure 'peace,' human rights, and relief from suffering."20 As a result, the U.S. military is no longer simply viewed as an instrument of deterrence; it is also deemed "a force for constructive change at home and abroad."21
Consequently, "non-traditional" operations, such as humanitarian assistance and disaster relief, have become the routine rather than the exception.22 And while the United States has tried to develop a rational policy for engaging in such operations, notably Presidential Decision
Directive 25 (PDD-25), which establishes criteria for committing forces to peace operations,23 it has not been wholly immune from the so-called "CNN Effect," which impels intervention in conflicts where human misery and suffering receive widespread press coverage and resulting citizen outcry.24
Third, armed forces-particularly the U.S. military-possess capabilities that make them uniquely suited to responding to humanitarian crises. These include "robust transportation; command, control, communications, and intelligence hardware; and a general capacity to operate independently in a wide variety of environments."25 Thus, when disaster strikes, civic leaders traditionally turn to military establishments.26
Finally, evolving notions of "humanitarian intervention" to halt human rights abuses or to restore democratic governments have undermined traditional concepts of national sovereignty, making military intrusions into the internal affairs of nations more palatable.27
In practice, there are cases of internal repression in which states responsible for violations of human rights invoke sovereignty to shield their actions, and there are situations of highly destructive but essentially self-contained civil conflict. Under these circumstances some argue that in a world in which sovereignty is rapidly eroding, a state's failure to protect internationally guaranteed human rights should now constitute grounds for intervention, regardless of whether international peace is threat-
ened. More radical arguments assert the existence of an emerging norm of democratic governance, further justifying intervention by linking the existence of democratic regimes to reduced probabilities of war.28
While these newly emerging concepts of humanitarian intervention are not without their critics,29 their growing acceptance makes U.S. military involvement in such missions increasingly likely.
The military's traditional role of preparing for and fighting the nation's wars will undoubtedly continue to define defense budgets and funding mechanisms;30 however, America's military also will find itself increasingly absorbed in operations unrelated to its core missions.
Funding "Non-Traditional" Military Operations
All non-combat operations are "non-traditional" in that "they diverge from a widely shared assumption about the central purpose of the military"-to apply violence.31 Admittedly, in this sense the term "non-traditional" is somewhat of a misnomer. "There are almost no conceivable
roles for the American military in this new phase of national security that the American military have not performed in some earlier phase."32
For purposes of this article, however, "non-traditional" operations are those missions (or parts of missions) that-absent special statutory author-ity-are beyond the scope of traditional appropriations for the training and operations of the U.S. military;33 that is, they are operations that may not ordinarily be funded out of the operations and maintenance accounts (O&M) of DOD and the military services.34 Generally, they are operations entailing assistance to or peacetime engagement with other nations and
their militaries. Included are such activities as humanitarian assistance, foreign disaster relief, combined exercises, military-to-military contacts, foreign military education and training, and support of coalition partners during multilateral operations. One of the "most perplexing issues" faced in planning such operations is determining how to pay for them.35
While Congress controls federal spending through a variety of statutory mechanisms,36 three central principles govern the expenditure of appropriations: first, the expenditure must be for a lawful purpose;37 second, the obligation of funds must occur within the time limits applicable to the appropriation;38 and third, the expenditure must be within the amounts appropriated.39
The primary focus in determining funding options for "non-traditional" operations is the first central principle, which is embodied in the purpose statute. First enacted in 1809,40 the purpose statute confines the expenditure of public funds to the object or objects for which they were appropriated.41 The statute states simply that "[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law."42 The statute is a key means by which Congress exercises its constitutional control over the federal purse.43
When Congress makes a lump-sum appropriation, the agency may use the funds in the manner it deems proper, provided the use comports with the general purpose of the appropriation.44 Moreover, where the "appropriation is made for a particular object, by implication it confers authority to incur expenses which are necessary or proper or incident to the proper execution of the object . . . ."45 The expenditures must bear, however, a logical relationship to the appropriation charged.46
Thus, an agency may not expend its appropriations in a manner not contemplated by Congress.47 This means that, unless otherwise authorized by statute, neither DOD nor the military services may use their Operations and Maintenance (O&M) accounts to pay for activities unrelated to the operation or maintenance of the armed...