In this Nov. 19, 2014, file photo, a Free Syrian Army fighter from Shams al-Shamal heads to the front line in Kobani, Syria.

In this Nov. 19, 2014, file photo, a Free Syrian Army fighter from Shams al-Shamal heads to the front line in Kobani, Syria. Jake Simkin/AP

Pentagon Doesn’t Know If It’s Allowed to Defend Syrian Fighters or Turkish ‘Safe Zone’

That’s an odd situation to be in as the U.S. puts the first of its trained-and-equipped opposition fighters into Syria and finalizes an agreement with Turkey to back a “safe zone” on the Syrian border.

In early July, Defense Secretary Ash Carter said he didn’t know whether the U.S. military could defend the Syrian opposition fighters it is training and equipping as its proxy ground force. Now, as the month draws to a close, the White House is preparing to fly strike missions from Turkish air bases against ISIS, and is backing a “safe zone” to clear ISIS away from Turkey’s border with Syria. All of this raises the distinct possibility of clashes with Syrian government forces — yet Pentagon leaders don’t yet know whether they have the legal authority to order U.S. troops to fight.

On a background call Tuesday, three senior administration officials added detail to the news that the U.S. is now backing the establishment of an area variably referred to on the call and by officials as a “safe zone” and “ISIS-free zone” — effectively a no-fly zone — on the Syria-Turkey border. Moderate opposition fighters, in coordination with the U.S. and coalition militaries, would wrest from ISIS the last 68 miles of border west of the Euphrates River to the Mediterranean Sea that the terrorist group still controls, and allow refugees to return to their homes.

The officials also confirmed Turkey has agreed to open its bases to U.S. and coalition armed ISR missions, as well as “U.S. manned and unmanned platforms,” to hit ISIS in both Syria and Iraq. The arrangement, which the U.S. has long sought, will cut the cost and flight time to hit ISIS targets and ramp up Turkey’s involvement in a fight that long ago crossed its border with Syria.

“In terms of what exactly it looks like and how it will look and what the modalities are, that’s what we have to work out with them,” one official said of the “safe zone.” “It will not be a no-fly zone just as Kobani was not a no-fly zone. But if there are significant operations going on in an area … We’ve learned an awful lot, so we’re fairly confident that we can figure out how to do this.”

He added later, “Safe zone or whatever you want to call it, the idea is to get [ISIS] out of this area.”

But he dodged a question of what steps the U.S. is considering to ensure there’s no conflict between the U.S. and Syrian government operations given their close proximity in the area. He noted that so far, Assad’s forces haven’t engaged.

“We’ve been at this now for some time,” the official said, noting that some 40 percent of the coalition’s 5,600-plus airstrikes have hit targets in Syria. “And from the first night of the strikes, we’ve been very clear through various channels to the Syrian government that we were going after [ISIS] and that they should not come into the area in which we’re operating. So I would assume that we’ll have a standard procedure.”  

The National Security Council deferred the question of legal authority to engage Assad’s forces to the Pentagon. But the Pentagon said they don’t yet have an answer.

On Tuesday, Defense Department spokesman Lt. Col. Joe Sowers reiterated an earlier response from a colleague: “We do not want to get ahead of the [Defense] Secretary in responding.”

He added later, “The U.S. is committed to the success of the personnel we will train. We are still considering the full complement of support we might provide to the [U.S.-trained] forces.”

The U.S. strategy against ISIS in Syria consists mostly of air strikes and the program to train and equip moderate members of the government opposition to fight the terrorist group (rather than Assad), as an alternative to putting American “boots on the ground” in the country. Unsurprisingly, Assad opposes such moves — and presumably, the “safe zone” and use of bases on his doorstep — as he continues to battle both ISIS and the rebels in a four-year civil war that has killed more than 200,000. The Obama administration has said Assad doesn’t have a role in Syria’s future, but also that the ISIS fight cannot be won without eradicating it from the country.

The administration official said Tuesday that the moderate opposition groups would establish and protect that zone, not Turkish or U.S. soldiers. Turkey had already agreed to hosting the U.S. train-and-equip program, which the official described as “really important … in terms of getting units out of Syria, training them, and putting them back in,” and also to assist in surveillance, in order to give the coalition a better picture of ISIS networks in Syria, where, opposed to Iraq, the coalition doesn’t have a presence on the ground.

But Carter told members of the Senate Armed Services Committee on July 7 that that the $500-million train-and-equip program, approved by Congress last September and intended to produce more than 15,000 fighters over three years, has only turned out 60 fighters. The fighters were made to pledge they would fight ISIS only, but Carter acknowledged the U.S. hadn’t decided whether it would defend them against the Syrian military if they were to come into contact with it, and that he did not know whether the U.S. had the authority to do so.

“I am not sure about the legalities of it, Senator, to be quite honest,” Carter said, to which Sen. Lindsey Graham, R-S.C. responded, “If there’s any doubt about whether or not we have the legal authority to protect the troops we train against Assad, please let the committee know. You don't have to answer right now, but that's a big decision. If there’s a lack of legal authority, I want to know why and what can we do to fix it.”

The first of those 60 fighters reentered Syria from a base in Jordan several weeks ago, though the Pentagon will not say where they are. On Tuesday, the administration officials acknowledged that the program’s pace thus far has been a “disappointment,” they added that the new agreement for coalition forces to operate out of Turkish air bases would turn these groups into a more effective force.

The senators who questioned Carter in early July on potential U.S. military engagement with Assad in defense of these fighters said they haven’t yet received a response. Graham’s office doesn’t expect one until September.

Sen. Tim Kaine, D-Va., said to Carter that officials in theater told him “current rules of engagement still would prohibit U.S. effort to support U.S.-trained anti-ISIL fighters in Syria if they come under attack by the Assad regime.”

Kaine and others such as Sen. Mike Lee, R-Utah, argue that the U.S. shouldn’t be sending forces they have trained into war without a guarantee they’ll be protected. Critics also say that the authorizations for the use of military force that the Obama administration has said provide legal authority for the nearly-year-old ISIS fight without additional approval from Congress, originally intended to go after al Qaeda and invade Iraq, clearly do not apply to the Syrian government.

Sen. Dick Durbin of Illinois, the Senate’s No. 2 Democrat, has been calling for months for the establishment of a U.S.-enforced humanitarian zone in Syria. His spokesman, Ben Marter, told Defense One that while the ISIS fight is based on the original AUMFs passed in 2001 and 2002, the senator had also voted for a limited AUMF against Assad for his use of chemical weapons, and “felt these should be updated.”

Lee’s office told Defense One, “It remains unclear what authority the Department of Defense would rely on.”

“The President did not provide a plan or explanation about how he would support this program through its logical conclusion,” the aide said, “a battle between the rebels we supported and the Assad regime.”

This story has been updated.