*  Judge Advocate, United States Army.  Presently assigned as Associate Professor, Contract and Fiscal Law Department, The Judge Advocate General’s Legal Center and School, United States Army, Charlottesville, Virginia.  LL.M. (Contract and Fiscal Law Specialty), 2017, The Judge Advocate General’s Legal Center and School, United States Army, Charlottesville, Virginia;  J.D., 2007, University of Dayton School of Law; B.S., 2004, Indiana University – Bloomington.  Previous assignments include International & Operational Law Attorney and Special Victim Counsel, United States Army Africa, Vicenza, Italy 2014-2016; Trial Attorney, Contract and Fiscal Law Division, United States Army Legal Services Agency, Fort Belvoir 2011-2014; Trial Counsel, 13th Sustainment Command (Expeditionary), Fort Hood 2010-2011; Chief of Administrative, Contract, and Fiscal Law and Foreign Claims Commission, 13th Expeditionary Sustainment Command, Iraq, 2009-2010; Administrative Law Attorney, III Corps & Fort Hood, Fort Hood, 2008-2009.  Member of the bars of Pennsylvania, the Supreme Court of the United States, and the United States Court of Appeals for the Armed Forces.  This article was submitted in partial completion of the Master of Laws requirements of the 65th Judge Advocate Officer Graduate Course.

[1]  Terry L. Baggett, Joint Advanced Warfighting School, Security Cooperation and Professional Military Education:  Developing Better Theater Campaign Planners 3 (2012).

[2]  Deployable Training Division Joint Staff J7, Design and Planning Insights and Best Practices Focus Paper 21 (2013), http://www.dtic.mil/doctrine/fp/ fp_design_planning.pdf (an operational planning team (OPT) utilizes members from various working groups, as well as members from the future operations planning cell).

[3]  See id. at 28 (spreading plans across three event horizons: current operations, future operations, and future plans).  See U.S. Dep’t of Army, Field Manual 6-0, Commander and Staff Organization and Operations para. 1-42 (C1, 11 May 2015) (“The future operations cell is responsible for planning operations in the mid-range planning horizon.”).

[4]  The Defense Logistics Agency (DLA) is a Department of Defense (DoD) combat support agency that provides the DoD with a full spectrum of logistics, acquisition and technical services.  Defense Logistics Agency, http://www.dla.mil/AtaGlance.aspx (last visited Nov. 28, 2017).  The DLA “sources and provides nearly all of the consumable items America’s military forces need to operate – from food, fuel and energy to uniforms, medical supplies and construction material.”  Id. 

[5]  The mobile battlefield command centers employ a Joint Operational Center (JOC) for the fictional “JOC-in-a-box” concept.  A JOC is “an enduring functional organization, with supporting staff, designed to perform a joint function” within a joint force headquarters.  Joint Chiefs of Staff, Joint Pub. 3-33, Joint Task Force Headquarters II-5(b)(1) (30 July 2012).

[6]  Information exchange interactions are common within the Army’s Operating Concept.  U.S. Dep’t of Army, Pam. 525-3-1, The U.S. Army Operating Concept para. 3-3(a) (31 Oct. 2014) (“Conventional and Special Forces contribute to a global land network of relationships resulting in early warning, indigenous solutions, and informed campaigns.  Regional engagement sets favorable conditions for a commitment of forces if diplomacy and deterrence fail.”).

[7]  “The Army Service Component Commands (ASCC) exercise mission command under the authority and direction of combatant commanders to whom they are assigned and in accordance with the policies and procedures established by the SECDEF.”  U.S. Dep’t of Army, Reg. 10-87, Army Commands, Army Service Component Commands, and Direct Reporting Units para. 1-1(f)(2) (11 Dec. 17).

[8]  National Defense Authorization Act (NDAA) for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2943 (2016) (authorizes the payment of personnel expenses for defense personnel of foreign militaries for security cooperation under Section 312 of Chapter 16, title 10 United States Code).  Section 312 consolidates the authorities previously provided under 10 U.S.C. §§ 1050, 1050a, 1051, and 1051a.  Id.

[9]  Joint Chiefs of Staff, Joint Pub. 1-02, Dep’t of Def. Dictionary of Military and Associated Terms 52 (1 Aug. 2017) hereinafter Joint Pub. 1-02] (Defining a cooperative security location as a “facility located outside the United States and US territories with little or no permanent US presence, maintained with periodic service, contractor, or host-nation support.”).  Cooperative security locations provide contingency access, logistic support, and rotational use by operating forces and are a focal point for security cooperation activities.”  Id.

[10]  See generally Andrew Feickert, Cong. Research Serv., R42077, The Unified Command Plan and Combatant Commands:  Background and Issues for Congress (2013).  Each geographic combatant command within the DoD contains an Air Force service component command.  Id.

[11]  The DoD normally finances expenses with Operations and Maintenance (O&M) money.  See U.S. Dep’t of Def. 7000.14-R, DoD Financial Management Regulation, vol. 2A, ch. 01, para. 010201 (Oct. 2008).

[12]  The Army colloquially refers to training foreign security forces as “Big T” training.  Contract & Fiscal L. Dep’t, The Judge Advocate General’s Legal Center and School, U.S. Army, Fiscal Law Deskbook 10-7 (2016) hereinafter Fiscal Law Deskbook].

[13]  Def. Inst. of Sec. Cooperation Stud., The Management of Security Cooperation Greenbook 1-25 (37.0 ed. 2017) hereinafter Greenbook] (“There can be some confusion about the definition of military-to-military contacts programs because there is no single doctrinal definition . . . it is not a clearly defined program.”).

[14]  Id. at 1-25 (Military-to-military contacts are “designed to encourage a democratic orientation of defense establishments and military forces of other countries.”); see also U.S. Dep’t of Def., Quadrennial Defense Review 16 (2014) (“The U.S. military forward and rotationally deploys forces – which . . . conduct training, exercises, and other forms of military-to-military contacts] – to build security globally in support of our national security interests.”).  Cf. U.S. Dep’t. of Def., Implementation of Section 8057, DoD Appropriations Act of 2014 at Tab A (14 Aug. 2014) hereinafter DoD Leahy Law] (defining military-to-military contacts as an individual and collective interface activity where the primary focus is not training foreign security forces).

[15]  For the purposes of this paper, the author uses the terms geographic combatant command (COCOM) and combatant commanders interchangeably.  Though these terms are not synonymous, they are relatively indistinct when discussing mission intent and authority.  See Joint Chiefs of Staff, Joint Pub. 1-0, Doctrine for the Armed Forces of the United States (25 Mar. 2013)(“combatant command] provides full authority for a combatant commander] to perform those functions of command over assigned forces . . . .”).

[16]  U.S. Dep’t of Army, Field Manual 3-22, Army Support to Security Cooperation para. 1-21 (22 Jan. 2013) hereinafter FM 3-22] (“The Army . . . conducts] military engagements with partners, fostering mutual understanding through military-to-military contacts, and helping partners build the capacity to defend themselves.”).  Each geographic COCOM publishes a theater campaign plan specific to its area of responsibility.  Joint Chiefs of Staff, Joint Pub. 5-0, Joint Operation Planning II-5(d)(1) (11 Aug. 2011) hereinafter Joint Pub. 5-0] (stating theater campaign plans are a COCOM’s centerpiece for its planning construct and functional strategies).

[17]  See generally 10 U.S.C. § 168, repealed by National Defense Authorization Act of 2017 § 1253, S. 2943 (2016).  Section 168 defined military-to-military contacts as “contacts between members of the armed forces and members of foreign armed forces through traveling contact teams, military liaison teams, exchanges of civilian or military personnel, seminars and conferences]” and other similar activities.  Id.  However, this statute did not provide any details beyond listing examples of military-to-military contacts.  Id. 

[18]  Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. No. 99-433, 100 Stat. 992, 1012 (1986). 

[19]  The authority of combatant commanders includes six command functions, including “organizing commands and forces, and employing forces . . . to carry out missions assigned to the command.”  10 U.S.C. § 164(c)(1)(C)-(D) (2017) (emphasis added).

[20]  Id.

[21]  Id.  The authority to employ forces to interact with foreign militaries is not an inherent authority for combatant commanders.  Id.  Instead, combatant commanders require an assigned mission to employ and organize forces against.  Id.

[22]  Congress never appropriated funds for 10 U.S.C. § 168.  DoD Appropriations Act of 1995, Pub. L. No. 103-355, 108 Stat. 2599 (1994).  Without a specific appropriation, no activities under 10 U.S.C. § 168 could be funded due to its limiting clause.  10 U.S.C. § 168(e)(B) (1994).  The House conference report accompanying the Appropriations Act of 1995 directed a reduction of $46,300,000 in the Military-to-Military Contact Program.  H. R. REP. No. 103-747, at 63 (1994).  See also Colonel Richard D. Rosen, Funding “Non-Traditional” Military Operations: The Alluring Myth of a Presidential Power of the Purse, 155 Mil. L. Rev., 11 n.52 (1998).

[23]  See 10 U.S.C. § 168(a) (2016) (providing program authority for Section 168 to the Secretary of Defense (SECDEF), not the combatant commanders).

[24]  E-mail from William Moxley (Deputy General Counsel, DoD) to Timothy Pendolino (19 July 2012, 03:33:00 EST) hereinafter Moxley E-mail] (on file with author) (“Thereafter, the Department decided to no longer request funds for S]ection 168.  Instead, the decision was made to fund what is now known as traditional combatant commander activities].]”).

[25]  Vice Chairman, Joint Chiefs of Staff Messages, Traditional CINC Activities Funding (2 May 1995) hereinafter TCA Order 1] (stating that Traditional Combatant Commander Activities (TCA) funding fulfills a COCOM’s long-standing requirement to interact with foreign militaries).

[26]  See id.  See also Vice Chairman, Joint Chiefs of Staff Messages, Traditional CINC Activities Funding (18 Oct.1996) hereinafter TCA Order 2]; see also Vice Chairman, Joint Chiefs of Staff Messages, Traditional CINC Activities Funding (19 Aug. 1996) hereinafter TCA Order 3].

[27]  TCA Order 1, supra note 25, para. 2 (“The COCOMs] will be responsible for direct oversight and execution of TCA] within established policy and legal guidelines.”).  A combatant commander’s mission authority stems from appropriate orders and other directives.  Joint Chiefs of Staff, Joint Pub. 3-0, Joint Operations xii (11 Aug. 2011) hereinafter Joint Pub. 3-0].

[28] See, e.g., Headquarters, U.S. European Command Office of Strategy Implementation, Theater Security Cooperation Resources Handbook 106 (21 Oct. 2016) hereinafter EUCOM TSC Handbook] (showing an average of five million dollars in TCA funds have been allocated to the U.S. European Command for TCA on an annual basis since 2010). 

[29]  U.S. Dep’t of Def., Office of the Under Sec. of Def., Execution of Fiscal Year 2017 Security Cooperation Activities 1 (3 Feb. 2016) hereinafter FY17 Interim Implementation for SC Activities] (“The 2017 NDAA] includes a number of changes to existing security cooperation authorities, mandates changes to the oversight and management of security cooperation, and directs improvements to the DoD] workforce.”).

[30]  With the repeal of 10 U.S.C. §168, express authority for traveling contact teams, information exchanges, and familiarization visits exists only within TCA.  Cf. Greenbook, supra note 13, at 1-25 (equating 10 U.S.C. §168 as TCA).

[31]  A traveling contact team is listed as a military-to-military contact activity within both 10 U.S.C. §168 and TCA.  See 10 U.S.C. § 168 (2016); see also TCA Order 2, supra note 26. 

[32]  An information exchange is listed as a military-to-military contact activity only within TCA.  See TCA Order 2, supra note 26.  Implicitly, an information exchange event occurs in a host nation as TCA authorizes COCOMs to interact with foreign militaries in their respective area of responsibility.  See TCA Order 1, supra note 25, para. 5.

[33]  Joint Staff Message, Human Rights Verification for DoD-Funded Training With Foreign Personnel para. 3(c) (21 Dec. 1998); see also TCA Order 2, supra note 26.  Familiarization visits are activities similar to the individual and collective interface activities contemplated under TCA.  See id.  They are distinct from familiarization training events because familiarization visits do not increase the capabilities of a foreign force.  See infra note 187 (emphasis added) (for a discussion of the origin of familiarization training).

[34]  National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328 § 1253, 130 Stat. 2943 (2016).

[35]  Id. § 1253.

[36]  Id.

[37]  See id. §§ 311-12 (addressing only the payment of personnel exchanges and the payment of foreign defense personnel expenses for travel related to security cooperation).  These sections do not address TCA events such as traveling contact teams, information exchanges, or familiarization visits.  Id.

[38]  Id.

[39]  This paper introduces the term “TCA-exclusive.”

[40] See, e.g., Headquarters, U.S. Africa Command, FY-15 Military to Military Tasking Order, Annex A (28 Aug. 2014).

[41]  Id.

[42]  Doctrine does not provide any definitions for military-to-military contacts and doctrine generally does not discuss TCA.  See generally Joint Pub. 1-02, supra note 9 (providing no definition for TCA); see generally U.S. Dep’t of Army, Reg. 11-31, Army Security Cooperation Policy (21 Mar. 13) hereinafter Army Reg. 11-31] (providing no references to TCA); see U.S. Dep’t of Navy, Sec’y of Navy Instr. 4950.4B, Joint Security Cooperation Education and Training para. 4-46 (3 Jan. 2011) hereinafter Navy Instr. 4950.4B] (mentioning TCA briefly and only with regard to Marine Corps teams).  However, a meager discussion of TCA can be found buried in an Army field manual for security cooperation.  See FM 3-22, supra note 16, at 2-28 (reiterating text found in the TCA Orders and limiting—without explanation—the list of activities that may be funded with TCA to only military liaison teams, exchanges of military and civilian personnel, seminars, and conferences).  Other DoD publications may mention TCA but without referencing the orders or providing any context.  See Joint Chiefs of Staff, Joint Pub. 1-06, Financial Management Support to Joint Operations at E-2 (11 January 2016) (parroting back the text of the TCA Orders without any commentary or practical guidance).

[43]  See, e.g., FM 3-22, supra note 16, at 2-18.

[44]  See TCA Order 1, supra note 25; see TCA Order 2, supra note 26, see TCA Order 3, supra note 26.

[45]  Often, 10 U.S.C. §168 was mistakenly cited as a valid authority.  See Bolko J. Skorupski and Nina M. Serafino, Cong. Research Serv., R44602, DoD Security Cooperation: An Overview of Authorities and Issues passim (2016) hereinafter CRS-R44602]; see Ctr. for Law & Military Operations, The Judge Advocate Gen.’s Legal Ctr. & Sch., U.S. Army, The Operational Law Quarterly at 12 (25 Feb. 2016) (“The authority to conduct a subject matter expert exchange] is derived from 10 U.S.C. §168, military-to-military contacts and comparable activities.”).

[46]  U.S. Army Combined Arms Ctr, Ctr for Army Lessons Learned Bulletin at 14 (Mar. 2016) (“Military-to-m]ilitary funds . . . allow the ASCC] to send small teams for familiarization training with partner nation armies.”).

[47]  See CRS-R44602, supra note 45, at 17.

[48]  See David E. Thaler et al., Rand Nat’l Def. Research Inst., from Patchwork to Framework:  A Review of Title 10 Authorities for Security Cooperation 17-18 (2016) hereinafter Patchwork] (“Prior to 2012, SC personnel in the COCOMs] had used 10 U.S.C. §168] to apply TCA O&M funds to mil-mil events . . . .  In mid-2012] . . . the Office of the General Counsel interpreted the statute as requiring a yearly appropriation that is not delegated to the COCOMs], but to the SECDEF.  The U.S. European Command (EUCOM) and other COCOMs] stopped using the authority and had to cancel events or quickly revise mil-mil event funding plans in mid-stream.  This has led some to ask, ‘Is 168 a valid authority?’”).

[49] Nina M. Serafino, Cong. Research Serv., R44444, Security Assistance And Cooperation:  Shared Responsibility Of The Departments Of State And Defense 1 (2016) hereinafter CRS-R44444].  See generally U.S. Dep’t of Army, Pam. 11-31, Army Security Cooperation Handbook para. 2-3 (6 Feb. 2015) hereinafter DA Pam. 11-31] (“security cooperation] activities conducted across all phases of military operations . . . promote overall U.S. security interests . . .”); Captain Robert J. Kasper, Jr., Direct Training and Military-to-Military Contact Programs: The CINC’s Peacetime Enablers, 42 Naval L. Rev. 189, 192 (1995).

[50]  Dep’t of Def. and Security Cooperation:  Improving Prioritization, Authorities, and Evaluations:  Hearing Before the Subcomm. on Emerging Threats of the S. Comm. on Armed Services, 114th Cong. 1 (2016) (statement of Michael J. McNerney).

[51]  Joint Chiefs of Staff, Joint Pub. 3-20, Security Cooperation at I-1 (23 May 2017) (“Security Cooperation] strengthens and expands the existing network of US allies and

partners, which improves the overall warfighting effectiveness of the joint force and

enables more effective multinational operations.”).  See also Joint Chiefs of Staff, Joint Pub. 3-22, Foreign Internal Defense (12 July 2010) hereinafter Joint Pub. 3-22].  Security cooperation also includes “developing] allied and friendly military capabilities for self-defense and multinational operations, and providing] U.S. forces with peacetime and contingency access to a host nation.”  Id.

[52]  U.S. Dep’t of Def., Dir. 5132.03, DoD Policy and Responsibilities Relating to Security Cooperation 3 (29 Dec. 2016) hereinafter DoDD 5132.03] (“Geographic combatant command theater campaign plans . . . serve as the primary vehicle for the development and articulation of integrated DoD security cooperation plans.”).  See also Defense Security Cooperation Agency, Manual 5105.38-M, Security Assistance Management Manual para. C1.3.2.13. (30 Apr. 2012) hereinafter SAMM] (“The combatant commanders develop campaign plans to conduct security cooperation] programs and activities.]”).

[53]  General Raymond T. Odierno, CSA Editorial: Prevent, Shape, Win, U.S. Army (Oct. 16, 2011), https://www.army.mil/article/71030/CSA_Editorial__Prevent__shape__win  hereinafter GEN Odierno Speech] (“We do that by engaging with our partners, fostering mutual understanding through military-to-military contacts, and helping partners build the capacity to defend themselves. This is an investment in the future, and an investment we cannot afford to forego.”).

[54]  DoDD 5132.03, supra note 52; see SAMM, supra note 52, at C11.8.6.

[55]  Headquarters, U.S. Africa Command, FY-16 Military to Military Tasking Order (29 Sept. 2015); Headquarters, U.S. Africa Command, Command Instruction 3900.12, Military to Military Contact Program (1 Aug. 2016) hereinafter ACI 3900.12].

[56]  See SAMM, supra note 52, at C11.10.

[57]  U.S. Dep’t of Army, Reg. app. B-7(d) 34-1, Multinational Force Interoperability (10 Jul. 15) (stating that subject matter expert exchanges (SMEEs) enhance Army-to-Army contacts and mutual understanding with partner militaries).  This regulation, does not define military-to-military contacts nor discuss TCA.  Id.  Moreover, its description of SMEEs limits the duration of such an interaction to a single day.  Id.  The regulation does not reconcile the difficulty in building relationships and fostering mutual understanding in only one meeting and infers that multi-day SMEEs evolve into impermissible training events.  See id.

[58]  Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 8082, 129 Stat. 2242 (2015).  See E-mail from Pamela Harms (Attorney Advisor, U.S. Army Pacific) to Anthony Lenze (13 December 2017, 19:45:00 EST) (on file with author) (stating U.S. Army Pacific’s SMEEs for the Asia Pacific Regional Initiative are funded through the Department of the Army, not the COCOM).  Ms. Harms’ e-mail highlights that not all military-to-military contacts are funded through TCA.  Due to the lack of DoD guidance, a service-funded military-to-military contact event is just as troublesome to define as a TCA funded event.

[59]  Carol Atkinson, Constructivist Implications of Material Power: Military Engagement and the Socialization of States, 1972–2000, 50 International Studies Quarterly 509, 509-510 (2006) hereinafter Atkinson] (discussing the United States’ consistent practice of using military-to-military contacts as a national strategy).

[60]  Id.  See generally Robert T. Cossaboom, The Joint Contact Team Program, Contacts with Former Soviet Republics and Warsaw Pact Nations 1992-1994 (1997) (providing a detailed account of military-to-military contacts early in their development). 

[61]  President George H.W. Bush, Televised Address (Dec. 25, 1991) in N.Y. Times, Dec. 26, 1991 (“We stand tonight before a new world of hope and possibilities . . . based on commitments and assurances given to us by some of these states, concerning nuclear safety, democracy, and free markets, I am announcing some important steps designed to begin this process.”).

[62]  National Security Directive 54, The White House, Responding to Iraqi Aggression in the Gulf (Jan. 15, 1991), https://nsarchive.gwu.edu/ NSAEBB/NSAEBB39/ document4.pdf.

[63]  U.S. Dep’t of Def., Annual Report to the Congress 45-46 (1990), http://history. defense.gov/Portals/70/Documents/annual_reports/1990b_DoD_AR.pdf?ver=2014-06-24-151718-437.  For example, there were three meetings between the United States and Soviet Union at the defense minister level.  Additionally, the Secretary of the Air Force visited the Soviet Union and the Chief of the Soviet General Staff visited the United States.  Id.  The report does not explain how the contacts were funded.  Id.

[64]  Id.

[65]  Id.

[66]  U.S. Dep’t of Def., Quadrennial Defense Review sec. III (1997) http://www.dod. gov/pubs/qdr/.

 

T]he DoD] has an essential role to play in shaping the international security environment in ways that promote and protect U.S. national interests . . . the DoD] employs a wide variety of means including: forces permanently, stationed abroad; . . . combined training, or military-to-military interactions; and programs such as defense cooperation, security assistance cooperation.

Id.

[67]  Atkinson, supra note 59, at 515-16 (discussing the positive effect of military-to-military contacts on Soviet and former Soviets states).

[68] Soviet Nuclear Threat Reduction Act of 1991, Pub. L. No. 102–228, 105 Stat. 1693 (1991).  Congress renamed this act in 1993 when it established the Cooperative Threat Reduction Program.  Cooperative Threat Reduction Act of 1993, Pub. L. No. 103–160, 107 Stat. 1777 (1993).

[69]  American Security Project, Fact Sheet: The Nunn-Lugar Cooperative Threat Reduction Program (undated) https://americansecurityproject.org/ASP% 20Reports/ Ref%200068%20-%20The%20Nunn- ugar%20Cooperative%20Threat%20 Reduction %20Program.pdf.

[70]  DoD Appropriations Act of 1993, Pub. L. No. 102-396 § 9110(b)(5), 106 Stat. 1876 (1992).

[71]  Belfer Center Studies in International Security, Dismantling the Cold War 26-27 (John M. Shields & William C. Potter eds., 1997).

[72]  Lieutenant Colonel Frank Morgese, U.S.-Ukraine Security Cooperation 1993-2001 A Case Study 6 (2002) (unpublished, U.S. Army War College) (on file with author).  The U.S. European Command executed over 300 military-to-military contacts with Ukraine between 1997-2001.  Id. at 2.

[73]  Id.

[74] Shirley Kan, Cong. Research Serv., Rl32496, US-China Military Contacts: Issues for Congress 13 (2005).

[75]  Id.

[76]  Id.  “Improvements and deteriorations in overall bilateral relations have affected military contacts, which were close in 1997-1998 and 2000, but marred by the 1995-1996 Taiwan Strait crisis, mistaken North Atlantic Treaty Organization (NATO) bombing of the People’s Republic of China Embassy in 1999, and the EP-3 aircraft collision incident in 2001.”  Id. at 2.

[77]  Id.

[78]  Id. at 11.

[79]  Thomas S. Szayna et. al., Rand Nat’l Def. Research Inst., US Army Security Cooperation:  Toward Improved Planning and Management 20 (2004) hereinafter Rand SC].

[80]  See U.S. Dep’t of Def., Quadrennial Defense Review 11 (2001).

[81]  Patchwork, supra note 48, at 7-18.

[82]  U.S. Dep’t of Army, Field Manual 5-0, The Operations Process para. 2-73 (26 Mar. 2010) hereinafter FM 5-0] (“Staffs prepare clear, concise orders to ensure thorough understanding.  They use doctrinally correct operational terms . . . d]oing this minimizes chances of misunderstanding.”).

[83]  U.S. Dep’t of Def., Instr. 5025.12, Standardization of Military and Associated Terminology (12 Aug. 2009).

[84]  See CRS-R44444, supra note 49, at 4 (“The discussion of U.S. assistance to foreign military and other security forces is complicated by the lack of a standard and adequate terminology.”).

[85]  10 U.S.C. § 301(7) (2017).  Congress articulates three purposes for security cooperation: “to build and develop allied and friendly security capabilities for self-defense and multinational operations; to provide the armed forces with access to the foreign country during peacetime or a contingency operation; to build relationships that promote specific United States security interests.  Id.

[86]  U.S. Gov’t Accountability Off., GAO-13-84, Security Assistance: DoD’s Ongoing Reforms Address Some Challenges, but Additional Information is Needed to Further Enhance Program Management 4 (2012) (The “Defense Security Cooperation Agency (DSCA)] oversees program administration for both traditional programs and newer building partner capacity] programs. The] DSCA establishes security assistance procedures and systems, provides training, and guides the activities of implementing agencies.”).

[87]  See 2016 Appropriations Act §§ 2385-86.  The Iraqi Train and Equip Fund, the Counterterrorism Partnership Fund, and the European Reassurance Initiative total over two billion dollars of defense spending.  Id.  Some estimate the DoD has spent an average of $15 billion annually since 9/11.  Joe Gould, US Security Cooperation Knotted in Bureaucracy, DefenseNews (Jan. 5, 2016), http://www.defensenews.com/articles/report-us-security-cooperation-knotted-in-bureaucracy.

[88]  Nathan L. Fenell, Security Cooperation Poorly Defined (Dec. 12, 2011) (unpublished Master’s thesis, University of San Francisco) (on file with author).

[89]  Id.

[90]  Contra Joint Pub. 3-0, supra note 27, at V-4(c).

 

Security cooperation involves all DOD interactions with foreign defense and security establishments to build defense relationships that promote specific US security interests, develop allied and friendly military and security capabilities for internal and external defense for and multinational operations . . . .  Ideally, security cooperation activities lessen the causes of a potential crisis before a situation deteriorates and requires coercive US military intervention. 

 

Id. (emphasis added).

[91]  See CRS-R44602, supra note 45, at 3 (citing the 2010 Quadrennial Defense Review, “security cooperation efforts, however, remained ‘constrained by a complex patchwork of authorities, persistent shortfalls in resources, unwieldy process, and a limited ability to sustain such undertakings beyond a short period.’”); see also id. at 4 (“G]eneral agreement has emerged that the statutory framework has evolved into a cumbersome system.”).

[92]  Patchwork, supra note 48, at 18 (“The lack of clarity in congressional intent in authority language has created uncertainty as to how military-to-military contact] authorities can be legally used.”); see also Greenbook, supra note 13, at 1-25.

[93]  See Carl H. Groth & Diane T., Logistics Mgmt Inst., LMI-IR317RI, Peacetime Military Engagement: A Framework for Policy Criteria 3-14 (1993).

[94]  Id.

[95]  10 U.S.C. § 168 (2016).

[96]  Id.

[97]  Id.

[98]  Id.

 

10 U.S.C. §168 defines military-to-military contacts as “contacts between members of the armed forces and members of foreign armed forces” through the following activities:  (1) traveling contact teams, including any transportation expense, translation services expense, or administrative expense that is related to such activities; (2) The activities of military liaison teams; (3) Exchanges of civilian or military personnel between the Department of Defense and defense ministries of foreign governments; (4) Exchanges of military personnel between units of the armed forces and units of foreign armed forces; (5) Seminars and conferences held primarily in a theater of operations; (6) Distribution of publications primarily in a theater of operations; (7) Personnel expenses for Department of Defense civilian and military personnel to the extent that those expenses relate to participation in an activity described in paragraph (3), (4), (5), or (6); (8) Reimbursement of military personnel appropriations accounts for the pay and allowances paid to reserve component personnel for service while engaged in any activity referred to in another paragraph of this subsection.” 

Id.

[99]  DA Pam. 11-31, supra note 49, at table 6-18; Greenbook, supra note 13, at 41.

[100]  See H. R. Rep. No. 103-747, at 63 (1994) (Conf. Rep.) (directing a reduction of $46,300,000 in the Military-to-Military Contact Program).

[101]  Id.; see also Moxley E-mail, supra note 24.

[102]  10 U.S.C. § 168 (2016).  Section 168 was codified in U.S. Code from 1995 to 2017.  After 1995, the DoD never requested funds for Section 168 even though it was a statutory authority.  Moxley E-mail, supra note 24.

[103]  DA Pam. 11-31, supra note 49; Greenbook, supra note 13.

[104]  National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1253, 130 Stat. 2943 (2016).

[105]  10 U.S.C. § 168 (2016).

[106]  This assertion presumes that had Congress funded Section 168, the SECDEF, in turn, would have delegated Section 168’s authority to the COCOMs.  See 10 U.S.C. § 168 (2016) (providing authority to the SECDEF).

[107]  TCA Order 1, supra note 25; TCA Order 2, supra note 26; TCA Order 3, supra note 26.

[108]  See 10 U.S.C. § 164(c)(1)(D) (providing combatant commanders authority to employ their forces to assigned missions).  The TCA Orders affirm the COCOMs’ responsibility to interact with foreign militaries.  TCA Order 1, supra note 25; TCA Order 2, supra note 26; TCA Order 3, supra note 26.

[109]  Telephone Interview with Lieutenant Colonel Laura M. Calese, Deputy Counsel, Joint Chiefs of Staff (Jan. 13, 2017) (stating the Joint Staff rarely takes measures to rescinds previous orders); see also EUCOM TSC Handbook, supra note 28, at 106 (showing TCA’s use as a funding source over the last five years).

[110]  TCA Order 2, supra note 26, para. 3.

[111]  TCA Order 1, supra note 25; TCA Order 2, supra note 26; TCA Order 3, supra note 26.

[112]  See supra note 8 (discussing the 2017 NDAA reforms and the events that are still only permitted through TCA).

[113]  Id.

[114]  Id.

[115]  Id.

[116]  Id.  “TCA funding fulfills the ] long-standing requirement to interact with the militaries of nations within their areas of responsibility/area of interest.”  Id.

[117]  See ACI 3900.12, supra note 55 (references TCA); see also Headquarters, U.S. Cent. Command, Cent. Command Reg. 12-4, Traditional Commander Activities Program (5 Jan. 2015) hereinafter CCR 12-4]; see Headquarters, U.S. European Command Office of Strategy Implementation, Theater Security Cooperation Resources Handbook 105-106 (21 Oct. 2016) (describing TCA and providing EUCOM’s funding history of TCA).

[118]  Joint Pub. 5-0, supra note 16, at II-5(d)(1).

[119]  TCA Order 3, supra note 26, para. 5.

[120]  See DA Pam. 11-31, supra note 49 (omitting references to TCA).

[121]  See Army Reg. 11-31, supra note 42 (omitting references to TCA).

[122]  See Navy Instr. 4950.B, supra note 42 (confusing TCA as title 10 programs for U.S. Marines).

[123]  See DA Pam. 11-31, supra note 49 (omitting references to TCA).

[124]  PATCHWORK, supra note 48, at 7-18.  See FM 3-22, supra note 16, at 2-28.

[125]  TCA Order 1, supra note 25.

[126]  TCA Order 2, supra note 26.

[127]  TCA Order 1, supra note 25; TCA Order 2, supra note 26; TCA Order 3, supra note 26.

[128]  Patchwork, supra note 48.

[129]  TCA Order 1, supra note 25, para. 1; 10 U.S.C. § 168 (2016).

[130]  TCA Order 2, supra note 26, para. 3.

[131]  Id.

[132]  Id.  Traveling contact team events remain undefined by doctrine.

[133]  Id.

[134]  ACI 3900.12, supra note 55; CCR 12-4, supra note 117.

[135]  Lieutenant Colonel Mark B. Parker and John A. Bonin, RAF and Mission Command, Carlisle Compendia of Collaborative Research 19 (2015) (discussing the Regionally Aligned Forces’ (RAF) requirement to engage with foreign forces under a myriad of authorities) (on file with author).

[136]  See TCA Order 2, supra note 26, at para. 2(a) (stating that TCA funding is included in the service O&M appropriation).

[137]  See, e.g., Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, div. C, 129 Stat. 2242 (2015).

[138]  Id.

[139]  Id.

[140]  Rand SC, supra note 79.

[141]  See Consolidated Appropriations Act, 2016, Div. C., Title II.

[142]  Hon. Bill Alexander, 63 Comp. Gen. 422, App. A (1984) hereinafter HBA Opinion].

[143]  Id.

[144]  Office of the Under Secretary of Defense, Operations and Maintenance Overview for 2017 1 (2016).  Even though the President signs the DoD Appropriations Act, Congress is the true keeper of the nation’s purse.  U.S. Const. Art. I, § 9 (“No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”). 

[145]  Def. Fin. Acct. Serv., The Army Management Structure for Fiscal Year 2017 2C-MDEP1-1 (Aug. 2016) hereinafter DFAS-IN Manual 37-100-17].

[146]  Id.

[147]  Id.

[148]  See Lieutenant Colonel Jeffrey C. Powell, The Impact of Strategic Guidance on Army Budget Submissions 3 (Mar. 22, 2010) (unpublished paper submitted in partial fulfillment of Master of Strategic Studies Degree, U.S. Army War College) (on file with author).

[149]  DFAS-IN Manual 37-100-17, supra note 145, at 11-125.

[150] Telephone Interview with James M. Martin, Program Analyst, U.S. European Command (EUCOM) (Dec. 7, 2016) hereinafter Jim Martin Interview] (stating TCA funds are in EUCOM’s budget request for 2018).

[151]  Id.

[152]  Id.

[153]  U.S. Army War College, How the Army Runs: A Senior Leader Reference Handbook 8-41 (2015) hereinafter HTAR].

[154]  Id.

[155]  See generally Dep’t of the Army, Justification of Estimates,vol. I, Operation and Maintenance, Army (2017) (omitting references to TCA).

[156]  Id.

[157]  HTAR, supra note 153, at 8-16.  An O&M budget is generally arranged in three levels (1) budget activity, (2) budget activity group, and (3) sub-activity group (SAG).  U.S. Dep’t of Def., Fin. Mgmt. Reg 7000.14R vol. 2A, ch. 3-25 (2010).  A SAG is a budgeting term that denotes a grouping of resources.  Id.  Two SAGs within Army’s O&M appropriation exist for mission funding (e.g., TCA) and headquarters funding.  Id.

[158]  Id.

[159]  Jim Martin Interview, supra note 150.

[160]  GEN Odierno Speech, supra note 53.

[161]  See, e.g., DoD Leahy Law, supra note 14, at tab A (requiring no Leahy Vetting for military-to-military contacts).

[162]  See generally Joint Pub. 1-02, supra note 9 (omitting a definition for TCA); see generally Army Reg. 11-31, supra note 42 (omitting any references to TCA); see also Navy Instr. 4950.4B, supra note 42, at 4-46 (mentioning TCA briefly and only in regards to Marine Corps teams). 

[163]  See generally Joint Pub. 1-02, supra note 9 (omitting a definition for TCA); see generally Army Reg. 11-31, supra note 42 (omitting any references to TCA).

[164]  See ACI 3900.12, supra note 55, at Encl. A (limiting traveling contact teams to only two U.S. personnel for only one week).

[165]  See FM 5-0, supra note 82.

[166]  CRS-R44444, supra note 49.  Training is defined by the Foreign Assistance Act (FAA) as “formal or informal instruction of foreign students in the United States or overseas by officers or employees of the United States, contract technicians, contractors (including instruction at civilian institutions), or by correspondence courses, technical, educational, or information publications and media of all kinds, training aids, orientation, and military advice to foreign military units and forces.”  22 U.S.C. A. § 2403(n).  DoD defines training as “instruction of foreign security force personnel that may result in the improvement of their capabilities.”  See DoD Leahy Law, supra note 14, at Tab A

[167]  In 2014, Congress provided the DoD with specific authority to train with friendly foreign forces.  National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1203 (2014) (emphasis added) repealed by National Defense Authorization Act 2017 § 1244, S. 2943 (2016).  Although the 2017 NDAA repealed § 1203 authority, it codified this same authority anew in 10 U.SC. § 321, stating “general purpose forces of the United States Armed Forces may train with the military forces or other security forces of a friendly foreign country if the Secretary of Defense determines that it is in the national security interests of the United States to do so.”  National Defense Authorization Act 2017 § 1244, S. 2943 (2016).

[168]  See Foreign Assistance Act of 1961 Pub. L. No. 87-195, 75 Stat. 424 (codified as amended at 22 U.S.C.A § 2151 (2015)) (creating authority for the executive branch to provide foreign assistance for the United States); see Exec. Order No. 10,973, 26 C.F.R. 639, (1961) hereinafter Exec. Order No. 10,973] (providing the Department of State with the authority to conduct foreign assistance); see also SAMM, supra note 52, para. C1.1.2.2.

[169]  See HBA Opinion, supra note 142, at 3 (“Regarding your further questions as to possible violations of purpose funding restrictions . . . it is our conclusion that expenses for training . . . have been charged to DOD’s O&M funds in violation of 31 U.S.C. § 1301(a).”).

[170]  31 U.S.C. § 1301 (2016).

[171]  See, e.g., U.S. Gov’t Accountability Off., Gao-15-568, Regionally Aligned Forces:  DoD Could Enhance Army Brigades’ Efforts in Africa by Improving Activity Coordination and Mission-Specific Preparation 8 (2015) hereinafter GAO-15-568] (“The majority of brigade security cooperation activities are planned and supported by U.S. Africa Command] in Stuttgart, Germany and U.S. Army Africa] in Vicenza, Italy”).

[172]  David Vergun, Milley Names Top 3 Focal Points, U.S. Army (Apr. 7, 2016) https://www.army.mil/article/165671.  General Milley’s top priority for the Army is readiness.  Id.  Within readiness, his focal points are increased aviation flight hours (i.e., training), home-station training, and realistic training for National Guard soldiers at training centers.  Id.

[173]  CRS-R44444, supra note 49, at 2 (“Congress has increasingly provided DoD with the means to offer security assistance under authorities in either Title 10 . . . or the annual National Defense Authorization Act . . . .”).

[174]  TCA Order 2, supra note 26, para. 2 (“TCA funding cannot be used to fund training of foreign militaries normally funded with IMET or FMS or direct support to foreign countries . . . including . . . any provision of the Foreign Assistance Act (FAA).”).

[175]  The Foreign Assistance Act.

[176]  Int’l & Operational Law Dep’t, The Judge Advocate Gen.’s Legal Ctr. & Sch., U.S. Army, JA 422, Operational Law Handbook 251 (2016).

[177]  See Joint Pub. 3-22, supra note 51, at App. A para. 9.

[178]  Id.

[179]  Major Ryan W. O’Leary, A Big Change to Limitations on “Big T” Training: The New Authority to Conduct Security Assistance Training with Allied Forces, Army Law., Feb. 2014 at 23 hereinafter O’Leary].  Prior to 2014, Congress established an authority to train foreign forces; however, it was not funded with O&M dollars.  See National Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364 § 1206, 120 Stat. 2083, 2418 (2006); also see Major Timothy Austin Furin, Legally Funding Military Support to Stability, Security, Transition, and Reconstruction Operations, Army Law., Oct. 2008 at 24 (discussing a specific fund for building capacity).

[180]  Id.

[181]  The mission statement of the Department of State is to “shape and sustain a peaceful, prosperous, just, and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere.”  Mission Statement, U.S. Dep’t of State, https://www.state.gov/s/d/rm/index.htm#mission (last visited Nov. 28, 2017).

[182]  O’Leary, supra note 179, at 26.

[183]  2017 National Defense Authorization Act § 333.

[184]  FY17 Interim Implementation for SC Activities, supra note 29, at 2.

[185]  See Jim Garamone, Africom Campaign Plan Targets Terror Groups, DoD News (Jan. 5, 2016), https://www.defense.gov/News/Article/Article/639919/africom-campaign-plan-targets-terror-groups (displaying two of the U.S. Africa Command’s five lines of effort include training foreign forces.); see also Colonel James O. Robinson Jr. and Lieutenant Colonel John C. Lee, Partnering in the Pacific Theater 1 (2012) www.usarpac.army.mil/pdfs/Partnering%20in%20the%20Pacific%20Theater.pdf (“Engaging the theater and working alongside partners is U.S. Army Pacific]’s first line of effort in a theater campaign support plan designed to enable the command—by, with, or through allies and partners—to deter aggression, build capacity, and assure U.S. Pacific Command] success.”) (emphasis added).

[186]  10 U.S.C. § 301 (2017); see also O’Leary, supra note 179, at 26.

[187]  An exercise’s participants determine whether its focus is training or whether its focus is planning, execution, and evaluation.  See Chairman, Joint Chiefs of Staff, Instr. 3500.01H, Joint Training Policy and Guidance for the Armed Forces (25 Apr. 2014).  The definition of an exercise is “a] military maneuver or simulated wartime operation involving planning, preparation, and execution that is carried out for the purpose of training and evaluation.”  Id.  (emphasis added).  The definition of a joint exercise—or combined exercise—is “a] joint military maneuver, simulated wartime operation, or other Chairman—or CCDR-designated—event involving joint planning, preparation, execution, and evaluation.  Id.  Additionally, COCOMs participate in the Chairman, Joint Chiefs of Staff exercise program which pursues strategic engagement objectives, not training foreign forces.  See U.S. Gov’t Accountability Off., GAO/NSIAD-98-189, Joint Training: Observations on the Chairman, Joint Chiefs of Staff Exercise Program 8 (1998).

[188]  See HBA Opinion, supra note 142, at 12-14.

[189]  HBA Opinion, supra note 142; see generally Fiscal Law Deskbook, supra note 12, at 10-5 (citing the HBA Opinion in four different chapters).

[190]  Id.  The HBA Opinion created “little t” training for the DoD.  Fiscal Law Deskbook, supra note 12, at 10-6; see also Major Matthew T. Miller, The Large Utility of “Little T”: Conducting Interoperability, Safety, and Familiarization Training, Army Law., Aug. 2016 at 2 hereinafter Miller].  Moreover, at the time of this writing, the HBA Opinion is referenced 85 times in WestLaw and its principles are still taught in fiscal law courses within the U.S. Army.  Citing references for the HBA Opinion, WestLaw, https://1.next.westlaw.com/Search (search 63 Comp. Gen. 422); Major John Doyle, Operational Funding, at slides 22-26 (Sept. 27, 2016) (unpublished PowerPoint presentation) (on file with author) hereinafter Doyle].

[191]  TCA Order 2, supra note 26, para. 2 (stating TCA funding cannot fund training).

[192]  HBA Opinion, supra note 142.

[193]  See HBA Opinion, supra note 142, at 17 (stating that the DoD engaged in three instances of impermissible funding of security assistance).

[194]  See id. at 12-13.

[195]  Doyle, supra note 190.

[196] See generally HBA Opinion, supra note 142 (refraining from any discussion of military-to-military contacts or similar activities).  The HBA Opinion discusses the transfer of skills that occurs between militaries prior to and during an exercise; however, proficiency gains between militaries are not contemplated during military-to-military contacts.  Id. at 13.  Cf. E-mail from Assoc. Counsel, U.S. Africa Command to Captain (CPT) Neville F. Dastoor (4 Apr. 2014, 08:52:00 CET) (on file with author) (recommending the verbiage of familiarization, safety, and interoperability be included in the legal analysis of military-to-military contacts).  In this context, the terms familiarization, safety, and interoperability are likely drawn from the HBA Opinion and misapplied to the analysis of military-to-military contacts.  Memorandum from CPT Neville F. Dastoor to Colonel Louis P. Yob, Staff Judge Advocate, U.S. Army Africa 2 (Jun. 7, 2016) (on file with author).

[197]  HBA Opinion, supra note 142, at 13.

[198]  Id. at 3.  Joint exercises with foreign militaries are common across the DoD as a security cooperation activity.  Joint Pub. 3-22, supra note 51, at I-8.

[199]  HBA Opinion, supra note 142, at 1.

[200]  Id.

[201]  Id. at 12-13.

[202]  Id. at 13.

[203]  Id. at 14.

[204]  Id.

[205]  Id. at 13.

[206]  Miller, supra note 190, at 2-3.

[207]  See id. at 6; see O’Leary, supra note 179, at 1.

[208]  TCA Order 1, supra note 25, para. 5 (“Traditional Combatant Commander] Activities funding fulfills the long-standing requirement to interact with the militaries within their area of responsibility . . . .”) (emphasis added).

[209]  TCA Order 2, supra note 26, para. 2(A).

[210]  Id.

[211]  Miller, supra note 190, at 6.

[212]  See id., at 6; see O’Leary, supra note 179, at 1.

[213]  TCA Order 2, supra note 26; 10 U.S.C. § 168 (2016).

[214]  TCA Order 2, supra note 26; 10 U.S.C. § 168 (2016).  The TCA Orders also lists events such as the State Partnership Program, training program review and assessments, etcetera.  TCA Order 2, supra note 26.  Section 168 lists other examples authorized for funding: distribution of publications in the theater of operations, civilian exchanges reimbursement of personnel expenses.  10 U.S.C. § 168 (2016).

[215]  2017 National Defense Authorization Act § 1253.

[216]  Id. § 1241.

[217] Id. § 1242 (emphasis added).  Section 1242 adds Section 311 at the beginning of subchapter II titled “Exchange of defense personnel between the United States and Foreign Countries.  Id.  Section 311 inserts language from the 1997 NDAA authorizing SECDEF to enter into international defense personnel exchange agreements.  Id.

[218]  Id. § 1243.  Section 1243 adds Section 312 after Section 311 and is titled “Payment of personnel expenses necessary for theater security cooperation.”  Id.  These personnel expenses include travel, subsistence, similar personnel expenses, and special compensation.  Id.

[219] Although, the 2017 NDAA does repeal Section 168.  2017 National Defense Authorization Act § 1253.  However, the effect of this repeal is negligible as Section 168 was dead letter.  See Moxley E-mail, supra note 24, at 1.

[220] Cf. 10 U.S.C.A. § 164 (2017) and 10 U.S.C.A. § 166(a) (2017) (showing these combatant commander authorities do not contemplate TCA-exclusive activities such as traveling contact teams).

[221]  2017 National Defense Authorization Act § 1243.

[222]  TCA Order 2, supra note 26.  No funding of foreign defense personnel is contemplated by the TCA Orders because TCA activity expenses are incurred by U.S. personnel, not foreign military personnel.  Id.

[223]  2017 National Defense Authorization Act § 1253.

[224]  Combatant commands have the responsibility for oversight of TCA activities within established policy and fiscal law.  TCA Order 1, supra note 25.

[225]  Fiscal Law Deskbook, supra note 12, at 10-7; Miller, supra note 190.

[226]  E-mail from Noreen A. Mallory (G8 Support Agreements, U.S. Army Africa) to Major Anthony Lenze (14 Nov. 2016, 06:05:00 EST) (on file with author).

[227] For example, a presentation on the United States’ position regarding International Humanitarian Law topics or a discussion of best practices for vehicle maintenance is permitted under TCA; however, presentations should not be so one-sided to create the appearance of instruction.

[228]  HBA Opinion, supra note 142.

[229]  A reviewing attorney for a military-to-military contact can ensure those conducting the event understand the permissible limits of a classroom presentation by understanding the nature of the presentation and recommending that the staff include language in the operation order that clearly articulates such limits.

[230]  TCA Order 1, supra note 25.

[231] Joint Pub. 5-0, supra note 16, at II-5.  Theater campaign plans “operationalize” combatant command’s theater or functional strategies.  The campaign plans link steady-state shaping activities to the desired strategic and military end states.  Id.

[232]  TCA Order 1, supra note 25.

[233]  Joint Pub. 5-0, supra note 16, at II-35.

[234]  Id. at IV-46.

[235]  The combatant or component command’s security cooperation offices are well-suited to liaise with the security cooperation organization within the country of the proposed TCA event.  Joint Chiefs of Staff, Joint Pub. 3-08, Interorganizational Cooperation IV-4 (12 Oct. 2016).

[236]  Id.

[237]  Joint Pub. 3-0, supra note 27, at I-7 (“All combatant commanders] provide strategic direction; assign missions, tasks, forces, and resources; designate objectives; establish operational limitations such as . . . operation orders.]”).

[238]  TCA has not been delegated.  The service components of a combatant command do not have the authority to operate under TCA without the combatant command’s approval.  TCA Order 1, supra note 25.

[239]  Joint Chiefs of Staff, Commander’s Handbook for Assessment Planning and Execution VI-2 (11 Sep. 2011).

[240]  Additionally, when U.S. personnel are conducting a mission in theater a written order will provide basic information.  Should questions arise to the intent or scope of the mission, the written order is the best method of memorializing and documenting the event.

[241]  Major Michael J. O’Connor, A Judge Advocate’s Guide to Operational Planning, Army Law., Sept. 2014 at 21 (emphasizing the importance of a judge advocate’s counsel to commanders regarding authorities).

[242]  Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

[243]  Interview with Brent E. Fitch, Chief, International and Operational Law, U.S. Army Africa (Dec. 8, 2015) (stating a combatant commander’s staff judge advocate once quipped that he knows military-to-military contacts when he sees them).

[244]  The COCOMs have a strategic role in DoD missions.  Joint Pub. 3-0, supra note 27, at I-7 (stating COCOMs develop their theater strategies in order to set conditions for achieving strategic end states).

[245]  Id. at III-4.

[246]  See, e.g., GAO-15-568, supra note 171, at 16 (stating the ASCC is charged with preparing the event but not actually with executing it).

[247]  Colonels Robert J. DeSousa and Scott J. Bertinetti, RAF and Authorities, Carlisle Compendia of Collaborative Research 142 (2015) (discussing the RAF role in military-to-military contacts) (on file with author).

[248]  Id. at 139.

[249]  GAO-15-568, supra note 171, at 17.  The RAF brigades are tasked to complete many activities for service-component commands but do not receive timely and complete information, which compromises effectiveness.  Id. at 2.

[250]  Jennifer D. P. Moroney, et. al., Rand Nat’l Def. Research Inst., Review of Security Cooperation Mechanisms Combatant Commands Utilize to Build Partner Capacity xv (2013) hereinafter Rand BPC].  Depending upon the authority, some engagements with foreign forces will allow for training while others will not.  Id.

[251]  GAO-15-568, supra note 171.

[252]  Rand BPC, supra note 250.

[253]  The National Military Strategy of the United States of America for 2015, The Joint Chiefs of Staff 9 (2015). http://www.jcs.mil/Portals/36/Documents/Publications/2015 _National_Military_Strategy.pdf.

[254]  Id. (discussing the importance of military-to-military relationships as a part of the national military strategy).

[255] A display or demonstration such as this is similar to the showcase events the DoD participated in during the early 1990s in China. 

[256]  TCA Order 1, supra note 25.

[257]  See CRS-R44602, supra note 45.