Rules governing the Pentagon’s use of proxy forces shed light on a shadowy war force
US Special Operations forces are not required to investigate past human rights violations by the foreign troops they arm and train as surrogates, newly released documents show.
Although there is a gap in the rules for vetting an anti-terrorism program previously reported based on anonymous sources, the documents provide official confirmation. Under the program, U.S. commandos pay for, train and equip partner foreign troops, then send them on kill-or-capture operations.
The documents, which include two sets of guidelines obtained by The New York Times through a Freedom of Information Act lawsuit, also reveal a similar gap in another Pentagon surrogate power program for so-called irregular warfare. It is aimed at disrupting nation-state rivals through operations that do not lead to full-blown armed conflict – including sabotage, hacking, and informational campaigns such as propaganda or clandestine attempts to raise morale.
While the Pentagon is more open about security cooperation helping allies and partners expand their own capabilities, it rarely discusses the use of surrogates, or the foreign forces Special Operations forces work with to pursue specific U.S. goals. The documents open a window about how the programs work and what rules apply to them.
Proxy forces are an increasingly important part of US foreign policy. Over the past decade, the United States has increasingly relied on supporting or replacing local partner forces in places like Niger and Somalia, moving away from deploying large numbers of US ground troops such as in Iraq and Afghanistan.
Even if that strategic shift is meant to reduce the risk of US casualties and recoil being seen as occupiers, training and arming local forces carries other dangers.
The revelations underlined the need for tougher rules on proxy forces, argued California Democrat Representative Sara Jacobs. “We need to make sure we don’t train violent units to become more lethal and fuel the conflict and violence we want to resolve,” she said. “And that starts with universal human rights investigations.”
Last year she and Senator Chris Van HollenDemocrat of Maryland, sponsored an amendment to a defense bill to demand human rights investigations of surrogate troops who have passed through the House but not the Senate. She said she plans to introduce a more comprehensive law to tighten such rules.
A senior Defense Department official, speaking on condition of anonymity to discuss sensitive operations, said all members of a proxy force had already undergone extensive screening to ensure they would not attack or spy on US forces . The official claimed that vetting was enough to weed out bad actors.
Lieutenant Colonel Cesar Santiago-Santini, a Pentagon spokesman, said in a statement to The Times that the department had found “no verifiable gross human rights abuses” by participants in either proxy force program.
Katherine Yon Ebrighta counsel for the Brennan Center for Justice at New York University Law School critically written about both programssaid Pentagon officials have been sending mixed signals about whether surrogate troops are being vetted for past human rights violations, with current and former officials sometimes contradicting each other.
“It is now very helpful to have this internal policy in our hands that definitively shows that human rights investigation is not necessary,” said Ms Ebright. “It’s frustrating the more you know about this because of the mixed messages and the opacity.”
The Pentagon keeps a lot of secrets about its proxy force operations.
In February, the Government Accountability Office completed a report titled “Special Operations: Overarching Guidance Needed to Oversee and Assess Use of Surrogate Forces to Combat Terrorism”, but everything about it outside of the title is classified. (The Times is seeking an assessment of declassification under the Freedom of Information Act.)
The Pentagon will also not disclose a full list of partner forces and the countries in which they operate. The Defense Department official said the list is classified primarily for its sensitivity to partners, citing situations where a foreign government has agreed but wants to keep its participation quiet for its own domestic political reasons.
The documents obtained by The Times contain guidelines for two programs named after the laws authorizing them. The Section 127e program, commonly referred to as “127 Echo,” can spend up to $100 million a year on counterterrorism proxies. The Section 1202 program is authorized to spend up to $15 million a year on irregular warfare surrogates.
The rules detail the process by which special operators propose to develop a new partner force, which is ultimately up to the Secretary of Defense. The head of the State Department’s mission in the affected country – if there is one – must also agree, but the rules do not require the Secretary of State in Washington to be consulted. The programs cannot be used for covert operations.
The laws that create the two programs do not provide standalone operational authority, the documents say. They do not provide details about the scope and limits that the programs can target.
The counterterrorism program requires the proxy force to be used against an adversary deemed to be covered by the authorization for the use of military force issued by Congress after the September 11, 2001 attacks, the senior Defense Department official said. The executive has interpreted that law as a legal basis to wage an armed conflict against Al Qaeda, the Islamic State and the Somali militant group Al Shabab.
It is unclear whether the program has always been limited to groups covered by the coercive authorization. Reporting by The interception And Politics has suggested that the Pentagon may have used the program to support a force in Cameroon fighting both an ISIS-affiliated party and Boko Haram, a group not considered to be under the authorization. However, some members of Boko Haram also have ties to ISIS.
The irregular warfare program has been training Allied forces in countries threatened by invasion by larger neighbors, a senior Defense Department official said. The Washington Post has reported that an illegal warfare proxy program in Ukraine was terminated just before the Russian invasion and that some officials want to restart it.
The guidelines also detail the vetting allied partners must undergo before U.S. taxpayers pay their salaries and get their hands on weapons and specialized military equipment, such as night vision goggles.
Screening involves collecting DNA from people; analyzing phone logs, travel histories, social media messages and social contacts; checking local and national archives for anomalous information; and conducting safety interviews. Leaders who come into closer contact with US troops and learn about their plans must also undergo behavioral health interviews and polygraph tests.
But the purpose of this vetting is to detect counterintelligence risks and potential threats to US forces. The directive does not mention human rights violations such as rape, torture or extrajudicial killings.
The Irregular Warfare Guidance is less detailed on vetting. But it explicitly says, “The provision of assistance under Article 1202 is not contingent upon successful human rights vetting requirements as defined in” a statute with a rule known as the Leahy Law.
The Leahy Law, named after former Senator Patrick Leahy, Democrat of Vermont, prohibits security assistance to units of foreign armies or other security forces that have a history of gross human rights abuses. (The law does not cover non-state forces, such as a tribal militia.)
Still, Colonel Santiago-Santini, the Pentagon spokesman, said in his statement that the department was “confident that our vetting system for Section 127e and 1202 programs would uncover potential human rights concerns.”
Initially, the Pentagon version of the Leahy Act only applied to training. But in 2014, Congress expanded it to provide equipment and other aid. But in a memo signed that year by Secretary of Defense Chuck Hagel and obtained by The Times separately from the information law lawsuit, the Pentagon stated that the Leahy law did not apply to counterterrorism surrogates.
The memo stated that enlisting proxy forces to aid Special Forces counter-terrorism operations is “no aid” to the foreigners. This supposed distinction – that building proxy forces so that they can assist the United States in pursuing its objectives is legally distinct from helping foreign partners build their own security capabilities – has been challenged.
One critic of that theory is Sarah Harrison, who worked as a Pentagon lawyer from 2017 to 2021 and is now with the International Crisis Group, where she called for human rights investigations of surrogate troops to be demanded. She argued that the Pentagon’s narrow interpretation of the Leahy Act “is an unfair reading of the plain text and intent of Congress.”