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Are We Allowed To Be There?

 

Understanding Mission Authority in the Context of the Fatal Niger Ambush

 
 
   
   
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(Credit: istockphoto.com/gagarych)

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I believe that the troops who were sadly killed in Niger in October of 2017 were engaged in a mission that they were not authorized by law to participate in . . . and that is a significant reason that they tragically lost their lives.1
–Senator Tim Kaine

National security law and fiscal law converge at one word: authority. All military missions cross this legal intersection. The commentary and confusion surrounding the fatal Niger ambush highlights the need to strengthen our understanding of the union between mission and funding authorities.

In October of 2017, four American and four Nigerien Soldiers tragically lost their lives near a remote village in Niger.2 The four American Soldiers were part of a small Special Forces (SF)3 team executing multiple missions that spanned two days, resulting in a fatal ambush by a larger enemy force. Their deaths triggered numerous questions from legislators and the press, to include: how did this happen and who is to blame?4 While the Department of Defense (DoD) investigation identified the superior enemy force as the predominate cause, it also identified improper mission approvals as a contributing factor.5 The DoD’s investigation determined that the SF team initially did not obtain proper mission approval at the battalion-level command in N’Djamena, Chad.6 Instead, the initial mission was mischaracterized, approved by a lower level company-grade officer, and executed absent mission authority.7 The proper approval authority then directed a follow-on mission for the next day that ultimately failed to achieve its objective.8 After the follow-on mission, the SF team was ambushed while returning to its base.9 The tragic events in Niger sparked a national debate concerning the legality of our counter-terrorism (CT) strategy in Africa’s volatile Sahel region.10 This article does not examine that strategy or the accompanying policy debate.11

Using the 2017 incident in Niger as a backdrop, this article distills the authorities needed to execute a mission, highlighting the need to understand and apply mission authority. This article then asserts a basic formula for analyzing executable missions and applies this formula to examine whether the DoD had authority to train and operate in Niger.

Congressional Authorities

The SF team’s mission in Niger concerns two equally important, but distinct, congressional authorities—mission authority and funding authority. Both of these authorities impact commanders at all levels of every Service. First, operational missions flow through combatant commanders (CCDRs).12 Our command structure requires this chain of approval to synchronize the armed forces toward specific priorities in the interest of national security.13 The practical aspect of this congressional requirement is that the Services (e.g., the Army) cannot generate their own operational missions.14 Rather, the Services present trained forces to the CCDRs who receive mission authority from the Secretary of Defense (SECDEF).15 Although CCDRs manage the DoD’s operational activities, the Services still get the bill. In other words, the Services not only provide the forces to CCDRs, but they must also fund the CCDRs’ missions.16 This funding paradox magnifies the operational powers of the CCDR and implores Services to program and budget according to combatant command requirements.

The other pertinent congressional control is the broad requirement to operate within the bounds of a designated funding authority.17 Funding authorities are found in Title 10 of the U.S. Code as well as the annual Defense-wide authorization and appropriation acts. Generally, commanders fund missions using operation and maintenance (O&M) authorizations and appropriations.18 However, U.S. activities that directly assist foreign forces with training or operations require more specific funding authorities from Congress.19

Working within the mission and funding authorities ensures that resources go toward authorized missions in accordance with fiscal law, i.e., the Purpose Statute.20 However, guidance linking these congressional legal requirements does not exist.21 While numerous articles address the various statutory funding authorities, few, if any, discuss mission authority as a part of the equation.22 Department of Defense doctrine does not define mission authority, nor does it articulate the legal requirement to obtain it.23

Mission Authority24

Understanding mission authority is vital for both commanders and legal advisors. Mission authority runs through a unified or specified CCDR possessing command authority.25 Although mission authority and command authority sound similar in function and effect, they are distinct. Command authority is the statutory authority that permits organizing and employing forces to accomplish assigned missions.26 Mission authority is the directive or right—provided through a CCDR—to execute a particular task.27 As an example, a commander may have command authority to operationally control his assigned forces, but it is possible that the same commander may not have the mission authority to carry out a specific mission. To identify this missing link, all one has to do is read the orders.

The U.S. military issues orders28 to dictate mission authority and specify tasks and objectives for subordinate commanders.29 In doing so, mission authority both validates and defines the requirement the commander is to achieve.30 Certainly commanders may take initiative to execute unspecified tasks in furtherance of an objective.31 Such requirements are implied tasks.32 However, until commanders receive the mission authority that conveys the ability to act toward the objective, they do not have mission authority and they cannot take action.33 When provided authority to carry out a task, all commanders may do so; however, only certain individuals within the U.S. government may create an original mission and then convey that mission (and mission authority) to a subordinate commander.

Flow

Only the President and the SECDEF may initiate and convey original mission authority.34 For major operations, the President or SECDEF authorizes the mission. Then, typically, the Chairman, Joint Chiefs of Staff (CJCS) issues an execute order (EXORD) to the supported CCDR.35 For steady-state activities, CCDRs issue orders and plans based upon the Unified Command Plan.36 The orders include both specified and implied tasks for the subordinate commanders to execute.37

Conducting a mission outside the bounds of a valid military order subjects commanders to both operational and fiscal law risk.38 Operational risk often involves mission authority as emphasized by commentators on the Niger tragedy.39 Fiscal law risk, on the other hand, revolves around the connection between mission authority and Congress’ most powerful constraint on funding: the Purpose Statute.

Relation to Fiscal Law

One of the legal “checks” that keeps the DoD from operating outside the wishes of Congress is fiscal law.40 Congress requires adherence to fiscal law through legislation that protects its “power of the purse.”41

Commanders must have mission authority before expending resources or directing forces to execute an objective. When it comes to spending appropriated funds, Congress controls the expenditure and use of all government funds through 31 U.S.C. § 1301(a), otherwise known as the Purpose Statute. The Purpose Statute requires that appropriations only pay for objects for which the appropriations were made, except as otherwise provided by law.42 For supplies or services, commanders typically use a validation process known as a requirements board to ensure their expenditure carries a proper purpose.43 But the use of Soldiers’ time, labor, and the incremental expenses needed for an action in the field also expends resources; a priori validation for these particular expenses is conveyed through mission authority.

Mission authority validates mission requirements.44 In other words, when mission authority is conveyed, the authorization to expend resources that enable that mission is also conveyed.45 This is important because spending time and resources toward unauthorized missions violates the Purpose Statute if the expenditures are outside the intent of appropriation.46 However, mission authority is only a third of the equation; commanders must also work within the specific statutory (i.e., funding) authority and proper funding source.47

The Funding Formula for Executable Missions

From day-to-day tasks to large-scale operations, mission authority is crucial to the funding analysis. The current paradigm squares only the funding authority with the relevant appropriation.48 This is an oversimplification that misleads commanders because it assumes mission authority.49 Additionally, missions often change, and those changes can alter the requirement and even extinguish the need outright. All the while, funding authorities and the appropriations remain relatively static. Incorporating mission authority into the operational funding framework addresses this issue.50 Thus, the correct equation is:

Mission Authority + Funding Authority + Proper Funds51 = Executable Mission

Returning to this article’s backdrop, media outlets and Congress have publicly questioned the DoD’s authority to prosecute missions in Niger. Answers to these questions lie in understanding the U.S. military’s multiple national security objectives in Niger and the SF team’s specific mission authority.

The troops that were in Niger were there pursuant to a congressional authorization to engage in train-and-equip missions; they were not on a train and equip mission.52
- Senator Tim Kaine

Mission Authority in Niger

The DoD has had a presence in Niger with mission and funding authorities since 2002.53 Operationally, EXORDs are in place to address violent extremist organizations by, with, and through Nigerien forces. The original mission authority for these EXORDs was conveyed to the CCDRs by the Joint Staff at the direction of the SECDEF. The DoD was also utilizing the EXORDs to direct congressionally approved funding toward “train and equip” activities for Nigerien security forces.54 Having multiple, parallel operational authorities is not unique to Niger nor does that diminish the authorities’ effect. Moreover, commanders may shift their resources between these parallel authorities as required.

It’s not new, and lawmakers that seem to be aghast at these missions going on are simply not well-read.55
- Representative Charlie Dent

From Training to Operating

Commanders may shift service members from training missions to operational missions and vice versa so long as sufficient mission and fiscal authority underlies both.56 The multiple lines of effort dictated in the DoD’s Niger investigation infer such variances. Moving between training and operating simply requires commanders to adhere to the existing legal framework discussed above. These command decisions ensure support to emerging requirements. Determining whether a unit has the expertise and the capability to support an additional mission is another question—one best left to the proper approval authorities, officers with command authority and responsibility. Mistaken mission approvals, as in those identified in the DoD’s Niger investigation serve to potentially invalidate mission authority.

An Approved Mission

The SF team had mission authority in Niger despite their initial missteps. It is undisputed that a company-level officer mischaracterized and then mistakenly approved the initial mission. However, a battalion-level officer (O-5) with new intelligence subsequently ordered the follow-on mission. This, in effect, reaffirmed the chain of mission authority for the SF team. As stated within the DoD investigation, the follow-on mission occurred a day after the initial mission and resulted in a failed attempt to capture its target. It was not until the SF team was traveling back to its base camp that it was ambushed. The O-5’s approval and follow-on mission validated the mission authority. With valid mission authority, the SF team utilized the funding authorities and resources provided by Congress in accordance with the equation asserted in this article.

Mission Authority in the Abstract: No Purpose Statute Violation

Had the SF team operated solely at the direction of the company-level commander, its activities in Niger would have lacked mission authority and an approved purpose. However, spending O&M funds toward an unauthorized mission does not violate the Purpose Statute, unless the expenditure violates a specific statutory control on funding. This is because the Purpose Statute restricts appropriations to the purposes for which Congress appropriates them. Congress specifically appropriates O&M funds for mission-related activities. Even with a hypothetical lack of mission authority, the SF team still expended its resources toward the purpose for which Congress appropriated O&M funds. This does not suggest that commanders can discount the Purpose Statute altogether. The DoD’s Purpose Statute violations and their corresponding investigations are well-documented. It does serve to argue that mission authority issues highlight operational scope and approval problems, not necessarily Purpose Statute violations.

Reviewing the SF team’s mission authority is essential to determining whether it was authorized to train, equip, and operate within Niger. Mission authority, while absent from DoD doctrine, is established by law and present in every valid mission the DoD executes. Initially, the SF team did not have mission authority; however, its lack of authority was corrected at the right approval level, enabling it to execute its assigned missions. As the DoD’s investigation indicates, the loss of life in Niger in October of 2017 was attributable to a number of factors that went against the SF team. The multi-day chain of events: initial errors in approval authority, receipt of mission authority, follow-on mission, travel and ambush—calls into question the assertion that mission approvals were a contributing factor that led to the ambush. Contending that the DoD did not have authority to train, equip, and operate in Niger simply neglects the U.S.’s long-standing strategic policy and the SF team’s valid mission authority in Niger. TAL

 


MAJ Lenze is a professor with the Contract and Fiscal Law Department at TJAGLCS.



Notes

1. Maegan Vazquez & Barbara Starr, Kaine Says US Troops Killed in Niger were on Unauthorized Mission, CNN.Com (May 9, 2018, 2:45 PM), https://www.cnn.com/2018/05/09/politics/tim-kaine-niger-unauthorized-cnntv/index.html (statement of Senator Tim Kaine).

2. U.S. Dep’t of Def., Oct 2017 Niger Ambush Summary of Investigation (May 10, 2018), https://dod.defense.gov/portals/1/features/2018/0418_niger/img/Oct-2017-Niger-Ambush-Summary-of-Investigation.pdf (hereinafter DoD Investigation Summary).

3. Special Forces are United States Army forces organized, trained, and equipped to conduct special operations with an emphasis on unconventional warfare capabilities. Joint Chiefs of Staff, DoD Dictionary of Military and Associated Terms (Feb. 2019).

4. Zack Beauchamp, Why Did 4 US Troops Die in Niger? Even the Military Doesn’t Know, Vox (Oct. 23, 2017 6:15 PM), https://www.vox.com/world/2017/10/23/16526884/niger-troops-trump-johnson-dunford.

5. DoD Investigation Summary, supra note 2, para. 3(e).

6. Id.

7. Id.

8. Id. para. 3(f).

9. Id. para. 3(g).

10. Rukmini Callimachi et al., ‘An Endless War’: Why 4 U.S. Soldiers Died in a Remote African Desert, N.Y. Times (Feb. 20, 2018), https://www.nytimes.com/interactive/2018/02/17/world/africa/niger-ambush-american-soldiers.html (discussing the validity of the Authorization for Use of Military Force (AUMF)). The AUMF authorizes the president to use “all necessary and appropriate force” against the nations, organizations or people that “he determines planned, authorized, committed, or aided” the terrorist attacks on September 11, 2001 “to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.” Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

11. This article does not address any issues related to the AUMF nor the inherent right of self-defense. Self-defense against an armed-attack is recognized as a right under international law. U.N. CHARTER art. 51.

12. 10 U.S.C. § 164(c) (2018). Since 1986, the authority of a combatant commander (CCDR) has included: giving authoritative direction to subordinate commands, prescribing the chain of command, organizing commands and forces, employing forces within that command to carry out missions. Goldwater-Nichols Dep’t of Def. Reorganization Act of 1986, 99 P.L. 433, 100 Stat. 992 (1986). The Goldwater-Nichols Act provides that the chain of command for operational missions runs from the President, through the Secretary of Defense (SECDEF), to the Combatant Commanders. See Joint Chiefs of Staff, Joint Pub. 1, Doctrine for the Armed Forces of the United States II-2 (25 Mar. 2013) (C1, 12 July 2017) [hereinafter JP 1]. A CCDR’s command authority, as articulated in 10 U.S.C. § 164, cannot be delegated or transferred. Joint Chiefs of Staff, Joint Pub. 3-0, Joint Operations III-3 (17 Jan. 2017) (C1, 22 Oct. 2018) [hereinafter JP 3-0].

13. See generally Andrew Feickert, Cong. Research Serv., R42077, The Unified Command Plan and Combatant Commands: Background and Issues for Congress (2013).

14. See, e.g., 10 U.S.C. § 3013 (2018) (providing the Secretary of the Army with authorities only necessary to carry out the affairs of the Army); see also JP 1, supra note 12. The president or SECDEF direct military operations through the CCDRs, not the service chiefs. Id. at II-9, III-8.

15. JP 1, supra note 12, at II-9, III-8. This command structure is in place to prevent the operational issues repeated throughout the early 1980s. “The 1980 Desert One tragedy and the 1983 loss of 237 Marines in Beirut, combined with the command and control problems experienced during Grenada in 1983 heightened apprehensions about DoD’s ability to manage the Services, including special operations forces who were ‘owned’ by their respective service.” Feickert, supra note 13, at 15.

16. See generally Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. No. 99-433, 100 Stat. 992 (1986) (realigning the DoD’s command structure, not its budget authority). See also U.S. Army War College, How The Army Runs: A Senior Leader Reference Handbook 92 (2018).

17. Funding authorities permit appropriations for specific programs and provide a program’s legislative purpose. See U.S. Gov’t Accountability Office, GAO-17-797SP, Principles of Federal Appropriations Law 19–21 (2017).

18. See, e.g., National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 113- 66, § 301 (2018) (authorizing funds to be appropriated “for the use of the Armed Forces . . . for operation and maintenance[.]”)

19. These specific authorities enable the DoD to provide foreign assistance, which is typically a Department of State (DoS) mission. The DoS is the lead U.S. agency for foreign assistance. See Foreign Assistance Act of 1961 Pub. L. No. 87-195, 75 Stat. 424 (codified as amended at 22 U.S.C. §2151 (2018)); see also Exec. Order No. 10,973, 26 C.F.R. § 639 (1961), which delegated the authority to conduct foreign assistance created by Congress in the Foreign Assistance Act to the DoS.

20. 31 U.S.C. § 1301(a) (2018) (stating “[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.”).

21. For example, the Necessary Expense Doctrine does not ask whether an agency’s mission was properly approved to expend resources—it assumes the presence of mission authority. See U.S. Gov’t Accountability Office (GAO), GAO-17-797SP, Principles of Federal Appropriations Law 16–17 (2017). The Necessary Expense Doctrine provides a three-step analysis that asks: does the expenditure bear a logical relationship to the appropriation, is the expenditure prohibited by law, and is the expenditure otherwise provided for in some other appropriation? Id. The GAO seems to acknowledge the limitations to the Necessary Expense Doctrine. Id. at 15 (stating “The Comptroller General has never established a precise formula for determining the application of the necessary expense rule. In view of the vast differences among agencies, any such formula would almost certainly be unworkable.”).

22. See, e.g., Major Ryan W. Leary, A Big Change to Limitations on “Big T” Training: The New Authority to Conduct Security Assistance Training with Allied Forces, Army Law., Aug. 2016 (discussing only a funding authority).

23. Previously, the DoD defined operational authority as “the authority exercised by a commander in the chain of command.” JP 1, supra note 12. However, the DoD removed the definition from its joint publications in 2012. Email from George E. Katsos, J7 DoD Terminologist to the author (2 October 2018, 09:00:00 EST) (on file with author). According to the Army, authority is the delegated power to judge, act, or command. U.S. Dep’t of Army, Army Doctrine Pub. 6-0, Mission Command para. 25 (May 2012) (C2, 12 Mar. 2014) [hereinafter ADP 6-0]. However, doctrine does not connect authority in this sense to analyzing the expenditure.

24. Mission authority, in the context of this article, concerns missions specifically pertaining to the Constitutional or statutory authority of the President, SECDEF, or CCDRs.

25. JP 3-0, supra note 12, at III-3 – III-5 (“Normally, this authority is exercised through subordinate [Joint Force Commands] and Service and/or functional component commanders. [Command authority] provides full authority to organize and employ commands and forces as the CCDR considers necessary to accomplish assigned missions.”). Mission authority originates from the President or the SECDEF. Infra note 34.

26. JP 3-0, supra note 12, at III-3, para. (c)(1).

27. This definition is asserted solely by the author as neither law nor doctrine define “mission authority.” This definition is consistent with the basic understanding that military orders provide the authority to conduct a mission. Major Michael J. O’Connor, A Judge Advocate’s Guide to Operational Planning, Army Law., Sept. 2014, at 5, 27.

28. Use of Mission Orders is one of the six principles of mission command. ADP 6-0, supra note 23, para. 7. Mission command enables the execution of military operations through orders. See JP 3-0, supra note 12, at II-2 – I-3.

29. Commanders use mission orders to assign tasks, allocate resources, and issue broad guidance. ADP 6-0, supra note 23, para. 19.

30. Id. (stating “[m]ission orders are directives that emphasize to subordinates the results to be attained, not how they are to achieve them.”). Additionally, “commanders have a responsibility to act within their higher commander’s intent to achieve the desired end state.” ADP 6-0, supra note 23, para. 2-32 (emphasis added).

31. See, e.g., HQ, U.S. Southern Command, Joint Task Force Leeward Islands Execute Order 001 para. 3.C.1.D. (Sept. 13, 2017) (tasking the Joint Task Force Commander to coordinate with partner forces in the joint operations area). An operations order (OPORD) or fragmentary order (FRAGORD) is issued to specify the purpose of the support relationship, the effect desired, and the scope of the action to be taken. U.S. Dep’t of Army, Field Manual 6-05, Multi-Service Tactics para. 8.b. (4 Apr. 2018).

32. See JP 3-0, supra note 12, at I-14 (“The purpose of military action may be specified in a mission statement or implied from an order.”).

33. See, e.g., U.S. Dep’t of Army, Field Manual 3-21.10, Infantry Rifle Company App. B-7 (14 May 2018) (stating the first step of the troop-leading procedures is Receive the Mission).

34. The President derives original mission authority as the Commander in Chief of the Armed Forces. U.S. Const. art. II. The SECDEF derives original mission authority through 10 U.S.C. § 113. Joint Chiefs of Staff, Joint Pub. 5-0, Joint Planning II-15 para. (d)(1) (16 June 2017) [hereinafter JP 5-0] (“An execute order (EXORD), or other authorizing directive, is issued by the CJCS at the direction of the President or SECDEF to initiate or conduct the military operations.”).

35. JP 5-0, supra note 34, at II-15 (“An execute order (EXORD), or other authorizing directive, is issued by the CJCS at the direction of the President or SECDEF to initiate or conduct the military operations.”).

36. Id. at xv.

37. Id. at V-10 (discussing specified, implied, and essential tasks).

38. Understanding a mission’s authorization allows commanders to determine a mission’s left and right limits. Operating near the boundaries (or within the “gray areas”) of mission authority and managing that risk—with the advice of counsel—is the sole job of a commander.

39. See, e.g., Andrew Rudalevige, When Did Congress Authorize Fighting in Niger? That’s an Excellent Question., Wash. Post (Nov. 11, 2017), https://www.washingtonpost.com/news/monkey-cage/wp/2017/11/11/when-did-congress-authorize-fighting-in-niger-thats-an-excellent-question/?noredirect=on&utm_term=.1f5f87b3c517; Jimmy Gurulé, Deploying US Armed Forces in Niger is Unlawful, CNN.Com (Oct. 24, 2017, 7:01 PM), https://www.cnn.com/2017/10/24/opinions/deploying-us-armed-forces-in-niger-is-unlawful-opinion-gurul/index.html.

40. Major Brian A. Hughes, Uses and Abuses of O&M Funded Construction: Never Build on a Foundation of Sand, Army Law. at 1, 1 (Aug. 2005) (noting that fiscal law constrains military operations).

41. U.S. Const. art. I, § 9 (“No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”).

42. 31 U.S.C. § 1301(a) (2018).

43. In the joint environment, this is referred to as the Joint Requirements Review Board (JRRB) and serves to coordinate, review, prioritize, and approve contract support requests. Joint Chiefs of Staff, Joint Pub. 4-10, Operational Contract Support III-6 (4 Mar. 2014).

44. Telephone Interview with Colonel (Ret., USAF) James H. Dapper, Attorney-Advisor, U.S. Africa Command, (Sept. 7, 2018) (equating mission authority within an order with the statement of work within a contract).

45. See, e.g., MAJ Paul Robson et al., Setting the Theater the Army Service Component Way: A Humanitarian Response to the Ebola Epidemic in Liberia, Army Law., Feb. 2017, at 18, 38 (stating mission orders to “be prepared to” did not convey actual operational authority to obligate funds).

46. 31 U.S.C. § 1301(a) (2018). Additionally, GAO decisions “consistently apply the principle that the use of appropriated funds for unauthorized purposes potentially violates the Antideficiency Act.” U.S. Gov’t Accountability Office, GAO-06-382SP, Principles of Federal Appropriations Law, vol. II, ch. 6, 6-83 (3d ed. 2006). However, it is unlikely that even an unauthorized mission, funded with operation and maintenance dollars (O&M) for benefit the U.S. or its forces, will result in an Antideficiency Act (ADA) violation. See Antideficiency Act—Applicability to Statutory Prohibitions on the Use of Appropriations, B-317450, 2009 CPD ¶ 72, at 5 (stating that the ADA only covers deficiencies caused by excess spending and violations of statutory controls on funding).

47. The Necessary Expense Doctrine examines whether an expenditure is authorized and fits within a particular appropriation. A-17673, 6 Comp. Gen. 619, 621 (1927); Hon. Bill Alexander, 63 Comp. Gen. 422, App. A (1984).

48. See Hon. Bill Alexander, 63 Comp. Gen. 422, App. A at 4 (1984).

49. See id. (using the Necessary Expense Test to analyze Operation and Maintenance expenditures without addressing the DoD’s mission authority in Honduras).

50. Senior fiscal law practitioners already incorporate a mission authority analysis into their legal advice. See Colonel Jose A. Cora, Staff Judge Advocate, U.S. Army Central Command, Fiscal Law, at slide 2 (Jan. 23, 2018) (unpublished PowerPoint presentation) (on file with author) (stating that “[i]n order to execute ANY mission, you need 1) Mission Authority . . . and 2) Funding Authority . . . .”); see also, Email from Lieutenant Colonel (Ret., USAF) Sarah Scullion (Fiscal Law Attorney, U.S. Army Africa) to author (5 Sept. 2018, 03:26:00 EST) (on file with author) (noting that she requires operational orders for every mission funding request before she provides a legal review).

51. Although not central to the purpose of this article, the requirement to ensure the availability of proper funds is required by the Antideficiency Act and maintains a rightful place in the operational funding analysis. 31 U.S.C. §§ 1341-42, 1511-19 (2018).

52. Vazquez & Starr, supra note 1.

53. Krishnadev Calamur, The Region Where ISIS, Al-Qaeda, and Boko Haram Converge, The Atlantic (Oct. 5, 2017), https://www.theatlantic.com/international/archive/2017/10/us-niger-green-berets/542190/.

54. DoD Investigation Summary, supra note 2, para. 3(a); telephone interview with James H. Dapper, Attorney-Advisor, U.S. Africa Command, (Sept. 7, 2018).

55. Daniella Diaz, Key Senators Say They Didn’t Know the US Had Troops in Niger, Cnn.Com (Oct. 23, 2017, 12:00 PM), https://www.cnn.com/2017/10/23/politics/niger-troops-lawmakers/index.html (statement of Representative Charlie Dent).

56. See, e.g., Bradley Larschan, The War Powers Resolution: Conflicting Constitutional Powers, The War Powers, and U.S. Foreign Policy, 16 Denver J. Int’l L. & Pol 33, 45 (1987) (arguing that the President becomes the final arbiter of the armed forces once Congress has raised an army and appropriated funds for engagements short of war); see also David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. 941, 956–58 (2008) (describing President Polk’s use of a Mexican War regiment that Congress raised for purposes specific to Oregon).