House’s ‘Irregular Warfare’ Provision Risks Unintended War
It’s not clear how many of the lawmakers who passed the House defense policy bill were aware of a dangerous provision in it.
Congress may be sleepwalking the United States into war, potentially with a nuclear state. A provision in the recently passed House version of the 2023 National Defense Authorization Act would expand the U.S. military’s ability to use proxy forces for “irregular warfare” operations against Iran, North Korea, Russia, and China. It’s not clear how many lawmakers were aware of the provision—much less considered how the military’s use of foreign proxies can escalate into direct military conflict. The Senate should reject this dangerous measure in its consideration of the bill.
The House-passed bill codifies and increases the budget of the “1202 authority,” a provisional authority from 2018 that has allowed the military to secretly recruit, train, and pay foreign forces and private individuals to conduct irregular warfare operations on behalf of the United States. To date, 1202 programs have been non-kinetic in nature: information and intelligence operations targeting so-called “rogue regimes” and “revisionist powers” in Eastern Europe and East Asia, as the Pentagon sets its sights on great power competition. But nothing prevents the military from using the 1202 authority to send proxy forces into combat.
The 1202 authority was modeled on 10 U.S.C. § 127e, an earlier authority designed to give the military operational flexibility and greater access in its pursuit of groups like al-Qaeda and the Taliban. In practice, the 127e authority has been used to create and command shadowy proxy forces in at least 16 countries across Africa and Asia, including Niger, Egypt, and Yemen. The military’s 127e proxies—such as the Danab Brigade in Somalia, a force of 1,000 fighters who take orders and salaries from U.S. troops—are regularly instructed to conduct patrols, raids, and kill-or-capture missions against terrorist targets. At times, U.S. forces join their proxies in the field, themselves engaging in combat and taking casualties.
Under both 127e and 1202, the use of proxy forces must support “authorized” U.S. military operations. The Defense Department has cited two sources of authority for engaging in combat through and with 127e proxies: the 2001 Authorization for Use of Military Force, or AUMF—the authority for the United States’s endless “war on terror”—and the president’s constitutional prerogative to engage in “self-defense,” defined expansively by executive branch lawyers.
The Defense Department could cite similar authorities for the use of 1202 proxies. Although no AUMF was designed to counter Iran, North Korea, Russia, or China, the executive branch believes it has the authority to engage these countries militarily. The Trump administration invoked the 2002 AUMF, the authorization for the Iraq War, to justify an airstrike on Qassem Soleimani, a high‑ranking Iranian general. The administration reasoned that the 2002 AUMF allows the pursuit of Iran-backed militias in Iraq and associated Iranian officials, even though the Iraq War has been over for more than a decade and did not involve Iran. The Biden administration has not refuted or rescinded this interpretation of the 2002 AUMF. As long as the 2002 AUMF is on the books, no law stops the Defense Department from creating a 1202 proxy force to combat Iran-backed militias and related targets.
The Defense Department has already crafted arguments for why it can use the military in self-defense against potential Russian threats, as well as yet-undisclosed threats in East Asia. Each of the Defense Department’s current 1202 programs, including numerous programs in Eastern Europe and at least one program in the Indo-Pacific region, is justified on the basis of self-defense. Since the Cold War, presidents have maintained that they have the authority to use the military for self-defense without congressional authorization, so long as their operations do not rise to the level of an all-out “war in the constitutional sense.” They have defined “self-defense” to include not only the defense of the American homeland or U.S. forces abroad, but also the defense of foreign partners and even the defense of abstract “national interests.” Between the 1202 authority and this expansive view of presidential power, the Defense Department has all it needs to raise a proxy force to counter, say, Russian separatists in the Donbass.
The Biden administration has not used the 1202 authority for combat through or with partners; it has limited its use of that authority to information and intelligence operations. But there’s no telling what a more belligerent or reckless future administration might do. The legal limitations on the 1202 authority are few.
Moreover, Congress’s oversight of the 1202 authority is virtually nonexistent. The Defense Department’s reports to Congress on 1202 activity are so heavily classified that most congressional offices cannot read them. Offices that have seen these reports question their value, suggesting that the reports omit key information. It’s far from clear that the House members who voted to codify and expand the 1202 authority through the 2023 National Defense Authorization Act understood the implications of doing so. The public, of course, receives no information on the 1202 proxies that our tax dollars support.
If the Senate joins the House in codifying and expanding the 1202 authority, Congress will have given the Defense Department an authority that very well could lead to combat and even war. This time, though, the war might not be with al-Shabaab or ISIS. It might be with a nuclear state.
Katherine Yon Ebright is Counsel in the Liberty and National Security Program at the Brennan Center for Justice at NYU Law. She is the author of a forthcoming report on the Defense Department’s security cooperation authorities.