UNCLASSIFIED. Report on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations

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1 UNCLASSFED Report on the Lega and Pocy Frameworks Gudng the Unted States' Use of Mtary Force and Reated Natona Securty Operatons Ths report s provded consstent wth Secton 1264 of the Natona Defense Authorzaton Act (ND AA) for Fsca Year (FY) t provdes an update to the ega, factua, and pocy bases for the "Report on the Lega and Pocy Frameworks Gudng the Unted States' Use of Mtary Force and Reated Natona Securty Operatons," orgnay pubshed on December 5, 2016 ("orgna report"). Consstent wth Secton 1264, ths report contans a cassfed annex. f a partcuar tem or topc area from the orgna report s not covered n ths update or ts cassfed annex, t remans unchanged from the orgna report. Countres n Whch the Unted States Has Used or s Usng Mtary Force Consstent wth the War Powers Resouton, the Presdent provdes a perodc report to Congress every sx months on the status of the stuatons n whch U.S. Armed Forces have been, among other thngs, ntroduced nto "hosttes or nto stuatons where mmnent nvovement n hosttes s ceary ndcated by the crcumstances."2 ncudng as descrbed n the most recent perodc War Powers report, submtted on December 11, 2017, the Unted States has used mtary force n the foowng countres: 3 Afghanstan: Pursuant to the strategy that the Presdent announced pubcy on August 21, 2017, U.S. forces reman n Afghanstan for the purposes of stoppng the reemergence of safe havens that enabe terrorsts to threaten the Unted States or ts nterests, supportng the Afghan government and the Afghan mtary as they confront the Taban n the fed, and creatng condtons to support a potca process to acheve a astng peace. Unted States forces n Afghanstan are tranng, advsng, and assstng Afghan forces; conductng and supportng counterterrorsm operatons aganst a-qa'da and aganst the samc State ofraq and Syra (SS); and takng approprate measures aganst those who provde drect support to a-qa'da, threaten U.S. and coaton forces, or threaten the vabty of the Afghan government or the abty of the Afghan Natona Defense and Securty Forces to acheve campagn success. The Unted States remans n an armed confct, ncudng n Afghanstan and aganst a-qa'da, SS, the Taban, and the Taban Haqqan Network, and actve hosttes are ongong. 1 Natona ' Defense Authorzaton Act for Fsca Year 2018, Pub. L. No (2017) ("NDAA for FY 2018"). Jont Resouton Concernng the War Powers of Congress and the Presdent, Pub. L. No , 87 Stat. 555 (1973) ("War Powers Resouton"). 2 Letter from the Presdent to the Speaker of the House of Representatves and the Presdent Pro Tempore of the Senate provdng a Suppementa Consodated Report Consstent wth the War Powers Resouton, December 11, 2017 ("2017 War Powers Report"). 3 1 UNCLASSFED

2 UNCLASSFED raq and Syra: As part of a comprehensve strategy to defeat SS, U.S. Armed Forces are conductng a systematc campagn of arstrkes and other vta operatons aganst SS forces n raq and Syra. U.S. Armed Forces have aso carred out arstrkes and other necessary operatons aganst a-qa'da n Syra. U.S. Armed Forces are aso depoyed to Syra to conduct operatons aganst SS wth ndgenous ground forces. n raq, U.S. Armed Forces are advsng and coordnatng wth raq forces and provdng tranng, equpment, communcatons support, ntegence support, and other support to seect eements of the raq securty forces, ncudng raq Kurdsh Peshmerga forces. Actons n raq are beng undertaken n coordnaton wth the Government of raq, and n conjuncton wth coaton partners. U.S. Armed Forces partcpatng n the Defeat-SS campagn n Syra have taken a mted number of strkes aganst Syran government and pro-syran government forces. These strkes were awfu measures to counter mmedate threats to U.S. and partner forces whe engaged n that campagn. Addtonay, on Apr 6, 2017, U.S. forces n the Medterranean Sea operatng beyond the terrtora sea of any state struck the Shayrat mtary arfed n Syra n response to the chemca weapons attack on Syran cvans n southern db Provnce, Syra, on Apr 4, Yemen: A sma number of U.S. mtary personne are depoyed to Yemen to conduct operatons aganst a-qa'da n the Araban Pennsua (AQAP) and SS. U.S. Armed Forces contnue to work cosey wth the Government of Yemen and regona partner forces to dsmante and utmatey emnate the terrorst threat posed by those groups. Unted States forces have conducted a number of arstrkes aganst AQAP operatves and factes n Yemen, and supported Unted Arab Emrates- and Yemen-ed operatons to cear AQAP from Shabwah Governorate. n October 2017, U.S. forces aso conducted arstrkes aganst SS targets n Yemen for the frst tme. Separatey, Unted States forces, n a non-combat roe, have aso contnued to provde ogstcs and other support to the Saud-ed coaton combattng the Houth nsurgency n Yemen. The mted mtary and ntegence support that the U.S. mtary s provdng to the Saud-ed coaton does not nvove the ntroducton of U.S. Armed Forces nto hosttes and thus does not trgger reportng under the War Powers Resouton. Somaa: n Somaa, U.S. forces are counterng the terrorst threat posed by SS and ashabaab, an assocated force of a-qa'da Unted States forces have conducted a number of arstrkes aganst a-shabaab as we as SS. Unted States forces aso advse, assst, and accompany regona forces, ncudng Soma and Afrcan Unon Msson n Somaa (AMSOM) forces, durng counterterrorsm operatons. Lbya: Unted States forces have conducted a number of arstrkes aganst SS n Lbya. These arstrkes were conducted n coordnaton wth Lbya's Government of Natona Accord. 2 UNCLASSFED t j f

3 UNCLASSFED Nger: Unted States forces that were depoyed to Nger to tran, advse, and assst Ngeren partner forces were attacked on October 4, 2017 and on December 6, 2017, by eements assessed to be part ofss. Unted States and Ngeren partner forces responded wth armed force n sef-defense. Tte Domestc Law Bases for the Ongong Use of U.S. Mtary Force Statutory Authorzaton: The 2001 AUMF o The Scope of the 2001 AUMF: The cassfed annex contans more nformaton on the appcaton of the Authorzaton for Use of Mtary Force (2001 AUMF)4 to partcuar groups and ndvduas. e Statutory Authorzaton: The 2002 AUMF: Athough the Authorzaton for Use of Mtary Force Aganst raq (2002 AUMF) 5 was mentoned n the orgna report wth respect to ts authorzaton to use force aganst SS n raq and n certan crcumstances n Syra, the orgna report dd not provde a fu expanaton of the scope of the 2002 AUMF. Under the reevant portons of the 2002 AUMF, "[t]he Presdent s authorzed to use the Armed Forces of the Unted States as he determnes to be necessary and approprate n order to... defend the natona securty of the Unted States aganst the contnung threat posed by raq."6 Athough the threat posed by Saddam Hussen's regme n raq was the prmary focus of the 2002 AUMF, the statute, n accordance wth ts express goas, has aways been understood to authorze the use of force for the reated dua purposes of hepng to estabsh a stabe, democratc raq and for the purpose of addressng terrorst threats emanatng from raq. After Saddam Hussen's regme fe n 2003, the Unted States contnued to take mtary acton n raq under the 2002 AUMF to further these purposes, ncudng acton aganst a-qada n raq (now known as SS). Then, as now, that organzaton posed a terrorst threat to the Unted States and ts partners and undermned stabty and democracy n raq. Congress ratfed ths understandng of the 2002 AUMF by appropratng funds over severa years. Furthermore, athough the raq AUMF mts the use of force to address threats to, or stemmng from, raq, t (ke the 2001 AUMF) contans no geographc mtaton on where authorzed force may be empoyed. Accordngy, the 2002 AUMF renforces the authorty for mtary operatons aganst SS n raq and, to the extent necessary to acheve the purposes descrbed above, n Syra or esewhere. 4 The Presdent 's Consttutona Authorty to Take Mtary Acton n Certan Crcumstances Wthout Specfc Pror Authorzaton ofcongress: n addton to these statutes, Artce of Authorzaton for Use of Mtary Force, Pub. L. No , 115 Stat. 224, (2001) ("2001 AUMF"). 5 Authorzaton for Use of Mtary Force Aganst raq, Pub. L. No , 116 Stat (2002) ("2002 AUMF"). 6 d. 3(a)(). 3 UNCLASSFED

4 UNCLASSFED the Consttuton provdes authorty for the use of mtary force n certan crcumstances even wthout specfc pror authorzaton of Congress. For exampe, on Apr 6, 2017, the Presdent drected a mtary strke aganst the Shayrat mtary arfed n Syra pursuant to hs authorty under Artce of the Consttuton to conduct foregn reatons and as Commander n Chef and Chef Executve. Unted States ntegence ndcated that Syran mtary forces operatng from that arfed were responsbe for the chemca weapons attack on Syran cvans n southern db Provnce, Syra The Presdent drected ths strke n order to degrade the Syran mtary's abty to conduct further chemca weapons attacks and to dssuade the Syran government from usng or proferatng chemca weapons, thereby promotng regona stabty and avertng a worsenng of the regon's current humantaran catastrophe. n drectng ths strke, the Presdent acted n the vta natona securty and foregn pocy nterests of the Unted States. Congress was notfed of ths partcuar strke on Apr 8, 2017, n a Presdenta report, consstent wth the War Powers Resouton. Workng Wth Others n an Armed Confct The 2017 Natona Securty Strategy and the 2018 Natona Defense Strategy contnue to prortze workng by, wth, and through aes and partners to acheve our natona securty objectves. Ths cas for partnershps wth states, mutnatona forces, and n some cases, nonstate actors that share U.S. nterests. For exampe, 70 state partners (and 4 nternatona organzatons) are part of the Defeat-SS Coaton. Unted States-supported non-state actors n Syra were aso crtca n dsmantng SS's sef-procamed physca "caphate." Domestc Authortes and Lmtatons: Secton 1232 of the NDAA for FY 2017, 7 as amended by Secton 1231 of the NDAA for FY 2018, purports to mt "batera mtary-to-mtary cooperaton" between the Unted States and Russa. The Unted States does not support Russa's mtary strategy n Syra, and U.S. mtary forces do not cooperate wth Russan mtary forces. However, Secton 1232 does not purport to mt mtary-to-mtary dscussons wth Russa to de-confct mtary operatons n Syra to reduce the rsk of nterference, mscacuaton, or unntended escaaton of mtary operatons. As descrbed n the orgna report, the Unted States often supports ts partners and aes by provdng ntegence n furtherance of shared objectves. As approprate, the Unted States takes a varety of measures, ncudng dpomatc assurances, vettng, tranng, and montorng, to promote respect for human rghts and compance wth the aw of armed confct by the recpent of U.S. ntegence and to mtgate the rsk that the ntegence w be used n voaton of the aw. Sharng must aways be consstent wth U.S. domestc aw. Appcaton of Key Domestc and nternatona Lega Prncpes to Key Theaters 7 Natona Defense Authorzaton Act for Fsca Year 2017, Pub. L. No , 130 Stat (2016). 4 UNCLASSFED

5 UNCLASSFED Afghanstan: Snce October 7, 2001, the Unted States has conducted counterterrorsm combat operatons n Afghanstan. Pursuant to the strategy that the Presdent announced pubcy on August 21, 2017, U.S. forces reman n Afghanstan for the purposes of stoppng the reemergence of safe havens that enabe terrorsts to threaten the Unted States, supportng the Afghan government and the Afghan mtary as they confront the Taban n the fed, and for the purpose of creatng condtons to support a potca process to acheve a astng peace. Unted States forces n Afghanstan are tranng, advsng, and assstng Afghan forces; conductng and supportng counterterrorsm operatons aganst a-qa'da and aganst SS; and tacng approprate measures aganst those who provde drect support to a-qa'da, threaten U.S. or coaton forces, or threaten the vabty of the Afghan government or the abty of the Afghan Natona Defense and Securty Forces to acheve campagn success. The Unted States remans n an armed confct, ncudng n Afghanstan and aganst aqa 'da, SS, the Taban, and the Taban Haqqan Network, and actve hosttes are ongong. The domestc and nternatona ega bases for U.S. mtary operatons and actvtes n Afghanstan reman unchanged from the orgna report. raq: Due to acceerated progress n the fght to defeat SS, the Unted States and the Defeat-SS Coaton are shftng focus n raq from combat operatons to sustanng mtary gans. Unted States forces, however, contnue to conduct arstrkes, and raq securty forces are st engaged n combat operatons aganst remanng ces of SS. SS retans the abty to carry out etha attacks, and t st poses a sgnfcant threat to cvans and the stabty of the regon. At the contnued request and wth the consent of the Government ofraq, and wth the contnued authorty provded by statute and the Consttuton, 8 U.S. forces are advsng and coordnatng wth raq forces and are tranng, equppng, and budng the capacty of seect eements of the raq securty forces, ncudng raq Kurdsh Peshmerga forces, to prevent the re-emergence of SS. The domestc and nternatona ega bases for U.S. mtary operatons and actvtes n raq reman unchanged from the orgna report. t ~ j. ' 1 8 Syra: The Unted States and the Defeat-SS Coaton berated 4.5 mon peope from SS oppresson n 2017, and SS has ost 98 percent of the terrtory t once camed n raq and Syra. The Unted States and U.S.-supported Syran Democratc Forces (SDF) are engaged n beratng the mdde Euphrates Rver vaey n Syra. U.S. operatons ncude contnued arstrkes; advce and coordnaton to ndgenous ground forces; and tranng, equpment, and other assstance n support of those ndgenous forces. Despte ths, SS contnues to be abe to carry out etha attacks. Therefore, the Unted States contnues to use force aganst SS and a-qa'da n other parts of Syra as we. After the mdde Euphrates Rver vaey s berated, the Unted States w contnue to conduct arstrkes aganst these terrorst groups n Syra and w contnue to tran, equp, and bud the capacty of appropratey vetted Syran groups pursuant to the authorty provded by statute and the Consttuton. 9 NDAA for FY 2018, supra note 1, Jd at UNCLASSFED j j

6 UNCLASSFED The fght aganst SS contnues, and t remans a regona and goba threat through ts abty to organze and nspre acts of voence throughout the word. Smary, a-qa'da contnues to pose a threat to the Unted States and to the securty of our partners and aes. The domestc and nternatona ega bases for U.S. mtary operatons and actvtes aganst SS and a-qa'da n Syra reman unchanged from the orgna report. n May and June 2017, as we as February 2018, the Unted States took strkes aganst the Syran Government and pro-syran Government forces. These strkes were mted and awfu measures taken to counter mmedate threats to U.S. or partner forces whe engaged n the campagn aganst SS. As a matter of domestc aw, the 2001 AUMF provdes authorty to use force to defend U.S., Coaton, and partner forces engaged n the campagn to defeat SS to the extent such use of force s a necessary and approprate measure n support of counter-ss operatons. As a matter of nternatona aw, necessary and proportonate use of force n natona and coectve sef-defense aganst SS n Syra ncudes measures to defend U.S., Coaton, and U.S.-supported partner forces whe engaged n the campagn to defeat SS. Yemen: n addton to conductng drect acton aganst AQAP n Yemen as descrbed n the orgna report, the Unted States has aso conducted a mted number of arstrkes aganst SS n Yemen. The 2001 AUMF confers authorty to use force aganst SS. As a matter of nternatona aw, we note that the arstrkes aganst SS have been conducted wth the consent of the Government of Yemen n the context of ts armed confct aganst SS and aso n furtherance of U.S. natona sef-defense. As descrbed n the orgna report, snce 2015, the Unted States has provded mted support to the Kngdom of Saud Araba (KSA)-ed coaton mtary operatons aganst Houth and Saeh-agned forces n Yemen. Authorzed types of support contnue to ncude ntegence sharng, best practces, and other advsory support when requested and approprate. Addtonay, the Arms Export Contro Act (AECA) and assocated deegatons of authorty provde the Secretary of State, prmary through the Foregn Mtary Saes program and through the Department of State's censng of Drect Commerca Saes, the authorty to provde or cense defense artces and defense servces to KSA, the Unted Arab Emrates (UAE), and other members of the KSA-ed coaton. Many of these defense artces and defense servces have been used n the confct n Yemen. The domestc and nternatona ega bases for mted U.S. mtary support to KSA-ed coaton operatons n Yemen reman unchanged from the orgna report. Somaa: n addton to conductng drect acton aganst a-qa'da and a-shabaab n Somaa as descrbed n the orgna report, the Unted States has aso conducted arstrkes aganst a mted number ofss terrorst targets n Somaa. The 2001 AUMF confers authorty to use force aganst SS. As a matter of nternatona aw, we note that the arstrkes aganst SS have been conducted wth the consent of the Government of Somaa n the context of ts armed confct aganst SS and aso n furtherance of U.S. natona sef-defense. 6 UNCLASSFED

7 UNCLASSFED Lbya: The Unted States has contnued to conduct arstrkes aganst SS terrorst targets n Lbya, ncudng ts desert camps and networks, to promote regona stabty and contrbute to the defeat of SS n Lbya. The domestc and nternatona ega bases for mtary drect acton n Lbya reman unchanged from the orgna report. Nger: At the request of the Government of Nger, the prevous Admnstraton approved, and the current Admnstraton contnued, the depoyment of U.S. forces to Nger under the Presdent's consttutona authorty as Commander-n-Chef and Chef Executve and under certan statutory authortes of the Secretary of Defense to tran, advse, and assst Ngeren partner forces. On October 4, 2017 and December 6, 2017, those U.S. forces and ther Ngeren partner forces were attacked by forces assessed to be eements of SS, a group wthn the scope of the 2001 AUMF, and responded wth force n sef-defense. The Admnstraton has concuded that ths use of force was aso conducted pursuant to the 2001 AUMF. Targetng t Unted States Poces Regardng Targetng and ncdenta Cvan Casuates: The Unted States remans commtted to compyng wth ts obgatons under the aw of armed confct, ncudng those that address the protecton of cvans, such as the fundamenta prncpes of necessty, humanty, dstncton, and proportonaty. n addton to Amercan vaues and ega mperatves that gude U.S. forces n the protecton of cvans, protectng cvans s fundamentay consstent wth msson accompshment and the egtmacy of operatons. The Unted States contnues, as a matter of pocy, to appy heghtened targetng standards that are more protectve of cvans than are requred under the aw of armed confct. These heghtened pocy standards are refected n Presdenta and other Executve Branch poces, mtary orders and ru1es of engagement, and the tranng of U.S. personne. The cassfed annex contans addtona nformaton on ths topc. f ' ' r t Capture and Detenton of ndvduas n Armed Confct The capture of terrorst suspects remans an essenta part of U.S. counterterrorsm strategy. The Unted States uses a avaabe toos at ts dsposa, ncudng aw of armed confct detenton, the crmna justce system, and transfers to thrd countres. Maxmzng ntegence coecton and seekng the most approprate ong-term dsposton are key factors n choosng the rght too or combnaton of toos, whe aways adherng to U.S. ega obgatons, poces, and vaues. The cassfed annex contans addtona nformaton on ths topc. The Presdent ssued Executve Order (E.O.) on January 30, 2018, drectng the Secretary of Defense, n consutaton wth the Secretary of State, the Attorney Genera, the Secretary of Homeand Securty, the Drector of Natona ntegence, and the heads of any other approprate executve departments and agences, to recommend poces to the Presdent regardng the dsposton of ndvduas captured n connecton wth an armed confct. The Executve Branch w nform Congress of any new poces approved by the Presdent. 7 UNCLASSFED 1 ~

8 UNCLASSFED Scope ofmtary Detenton Under Artce of the U.S. Consttuton: As dscussed n the orgna report, the Presdent as Chef Executve and Commander-n-Chef has consttutona authorty to drect the use of mtary force n certan crcumstances, wthout pror statutory authorzaton. Over two centures of Executve Branch practce support ths authorty, suppyng a "hstorca goss on the 'executve Power' vested n Artce of the Consttuton. " 10 Ths authorty has been the bass for usng force n a number of nstances dscussed throughout the orgna report and n ths update. f the Presdent were to order operatons n reance on hs consttutona authorty to use mtary force abroad, that authorty woud ncude the power to detan ndvduas wth whom the Unted States s engaged n hosttes so that they coud not return to the battefed for the duraton of those hosttes. 11 Revew ofcontnued Detenton ofdetanees at Guantanamo Bay: The Presdent ssued E.O on January 30, 2018, revokng Secton 3 of E.O of January 22, 2009, whch was never acted upon fuy but whch ordered the cosure of detenton factes at U.S. Nava Staton Guantanamo Bay. Detenton operatons at Guantanamo Bay are necessary because a number of the remanng detanees are beng prosecuted by mtary commsson, and the detenton of others s necessary to protect aganst contnung, sgnfcant threats to the securty of the Unted States, as determned by perodc revews. Further, detenton operatons at Guantanamo Bay are ega, safe, humane, and conducted consstent wth U.S. and nternatona aw. The E.O. provdes that a detenton operatons at U.S. Nava Staton Guantanamo Bay w contnue to be conducted consstent wth a appcabe Unted States and nternatona aw. The E.0. aso permts the transport and detenton of new detanees to Guantanamo Bay when awfu and necessary to protect the Unted States and drects the Secretary of Defense, n consutaton wth the Secretary of State and the Attorney Genera, to recommend poces to the Presdent governng the transfer of ndvduas to Guantanamo Bay. For those detanees at Guantanamo Bay not charged n or subject to a judgment of convcton by a mtary commsson, E.O retans the procedures for perodc revew estabshed n E.O of March 7, 2011, whch are descrbed n the orgna report. The purpose of the perodc revew s to determne whether contnued aw of war detenton s necessary to protect aganst a sgnfcant threat to the securty of the Unted States. Prosecuton ofndvduas Through the Crmna Justce System and Mtary Commssons Snce the pubcaton of the orgna report, the Department of Justce has successfuy prosecuted a number of ndvduas for terrorsm and terrorsm-reated offenses. Among others, brahm Adam Huran, aso known as Spn Ghu, was sentenced to fe mprsonment for hs roe n attemptng to murder Amercan mtary personne n Afghanstan and consprng to bomb the 10 Am. ns. Ass'n v. Garamend, 539 U.S. 396,414 (2003). 11 See, e.g., Hamd v. Rumsfed, 542 U.S. 507, (2004) (puraty) ("[D]etenton to prevent a combatant's return to the battefed s a fundamenta ncdent to wagng war...."); d. at 587 (Thomas, J., dssentng). 8 UNCLASSFED J: ~ }; J :f. 1 [ ~

9 UNCLASSFED U.S. Embassy n Ngera, and Ahmed Abu Khattaa was convcted of federa terrorsm charges stemmng from hs roe n the 2012 attacks on U.S. factes n Benghaz. 9 UNCLASSFED