[P]lanning staffs lack a fundamental understanding of security cooperation concepts and programs. This knowledge deficit limits their ability to develop efficient and effective ways to employ military means during steady-state operations in pursuit of theater strategic end states.1
Imagine you are an operational law attorney at an Army Service Component Command (ASCC). You attend an operational planning team (OPT) meeting as a member of the Future Operations Cell. You learn from the OPT that your multi-star commander recently acquired four mobile battlefield command centers from the Defense Logistics Agency. These mobile command centers, known as “JOC-in-a-Box” or JIABs, provide a wide range of cutting edge communication features necessary for providing commanders a real-time understanding of current operations. The JIABs also have the ability to organically generate a secure wireless internet signal that connects to a set of accompanying laptops and cell phones. Most importantly, each JIAB can be stored in a space no larger than the bed of a pick-up truck and assembled in a matter of hours without any technical expertise. The OPT lead informs the group that the commander is set on displaying this new “JOC-in-a-Box” for as many partner militaries from developing countries as possible. He believes our partners will require at least a week’s worth of system familiarization in order to understand its true operational value. As a benefit to our command, demonstrating the features of the JIAB will require U.S. personnel to be familiar enough with the system to operate it in a foreign country. Familiarity in operating this new technology in an austere environment is a command priority.
The OPT understands that the new Section 312 authority enables the Secretary of Defense (SECDEF) to pay for friendly foreign military personnel to travel to U.S. installations for theater security cooperation. However, the authority to fund the travel of friendly foreign military personnel is not relevant because the OPT wants to bring the JIABs directly to the foreign military partners. The OPT believes that moving the JIABs to secure locations within the area of responsibility (AOR) is a more efficient and effective way of displaying them. Coincidentally, the command operates four cooperative security locations (CSL) within the AOR that have the capacity for JIAB demonstrations. Each CSL is also located near a major metropolitan area that makes travel convenient and cost-effective for foreign militaries. Demonstrating the incredible utility of a JIAB in an austere location will benefit not only U.S. personnel, but it will also display the JIAB’s ability to operate in real-world conditions where low electricity levels, inclement weather, and lack of internet communications all persist.
You learn that the Air Force component command has already approved the shipment of JIABs to the CSLs on a space-available basis. The OPT believes that each demonstration requires at least ten U.S. Army personnel and is best suited for groups of 20-30 foreign military officers at a time. Through the planning process, you come to realize that a JIAB demonstration will convey no training benefit to the foreign military audiences since only U.S. personnel will operate the equipment. As you scramble to jot down notes, you hear one OPT member sneer that two-star commanders can do whatever they want with Operations and Maintenance (O&M) money. Then a second OPT member chimes in that it is all legal as long as it is not “Big T” stuff. The OPT lead—a seasoned security cooperation planner—poses a pointed question to you: Do our military-to-military contact authorities allow the command to provide week-long JIAB demonstrations to a series of foreign military partners?
Analyzing military-to-military contacts is a difficult task for judge advocates and lawyers across the Department of Defense (DoD). In general, military-to-military contacts are interactions with foreign militaries that promote national security goals and strengthen relationships with foreign partners. The DoD’s geographic combatant commands (COCOMs) use military-to-military contacts in pursuit of their theater campaign plans. Despite the COCOMs’ widespread use of military-to-military contacts, understanding what actually constitutes one of these activities can be vexing.
A number of issues hinder a judge advocate’s ability to conceptualize and analyze the proper legal bounds of military-to-military contacts. At the outset, the authority for COCOMs to conduct military-to-military contacts is not readily apparent. Created in 1986, the COCOMs’ powers and duties are set forth in 10 U.S.C. §164. These authorities include command and control of all U.S. missions and forces within the respective AOR. But a specific authority for COCOMs to employ forces to interact with foreign militaries is not found in this statute. So in 1994, Congress passed 10 U.S.C. §168 with the intent of authorizing military-to-military contacts. However, this statute went unfunded and still did not provide the COCOMs with specific authorities. This led the Joint Staff to issue specific mission authority to the COCOMs for military-to-military contacts.
Published in 1995, the Joint Staff established Traditional Combatant Commander Activities (TCA) to empower COCOMs to execute military-to-military contacts within their respective AOR. Through a series of three Joint Staff orders, TCA permits COCOMs to interact with foreign militaries and to promote regional and national security goals. These orders establish foreign military interactions as a COCOM responsibility and provide a funding mechanism for military-to-military contacts across the DoD. Despite a recent overhaul to security cooperation authorities, TCA is still the primary and exclusive means for a number of military-to-military contact events—namely, traveling contact teams, information exchanges, and familiarization visits.
Recently, Congress reformed security cooperation authorities in the 2017 National Defense Authorization Act (NDAA). The reforms consolidated a number of authorities and repealed others, including 10 U.S.C §168. As a part of the new reforms, the 2017 NDAA provides new sections specific to funding events listed within TCA such as conferences, personnel exchanges, and the travel of foreign defense personnel. But these reforms did not address all the military-to-military contact activities organic to TCA. As such, the military-to-military contacts that are organic to TCA are unchanged by the 2017 NDAA’s reforms. By excluding these events from the new provisions created in the 2017 NDAA, Congress indirectly created a subset of military-to-military contacts that are now “TCA-exclusive.”
Congress’s decision not to include what are now TCA-exclusive activities within the new reforms is significant because these TCA-exclusive activities are commonly used by COCOMs to interact with foreign forces. In 2015 alone, U.S. Africa Command directed its components to execute over 500 traveling contact team missions and over 100 familiarization visits. By not including these TCA-exclusive activities in the recent security cooperation reforms, Congress essentially magnified TCA’s importance to the COCOMs.
Yet, TCA is peculiarly absent from most DoD or service doctrine. Moreover, DoD doctrine does not define the events that constitute military-to-military contacts. Even the TCA Orders do not provide definitions; the orders merely provide a non-exhaustive list of authorized activities. With this, a number of misconceptions related to military-to-military contacts persist, ranging from mistaking 10 U.S.C. §168 as a valid authority to associating military-to-military contact events with training foreign forces.
The lack of definitions and common doctrine for TCA-exclusive military-to-military contacts is counter-productive to efficient and effective theater security cooperation. The theater decision makers—combatant commanders—demand clear guidance and counsel in executing their theater campaign plans. Without a true understanding of these TCA-exclusive activities, planning staffs cannot fully appreciate the limits of COCOM authority. Meanwhile, funding interactions with foreign militaries are ripe for Congressional scrutiny. At a time when each dollar spent overseas can wind up under a magnifying glass, the DoD is still struggling to understand its military-to-military contact authorities.
The sparse guidance underlying military-to-military contacts does not match their strategic importance. To this end, this paper will argue that the DoD’s ability to conduct TCA-exclusive military-to-military contacts still rests in TCA and that commanders charged with planning and executing these events possess the requisite authority to decide their associated limitations. It is the obligation of the actors within the planning process to fully grasp the content and objectives of a military-to-military contact event and, with the help of judge advocates, apply the proper corresponding legal principles.
Part I of this paper will provide a brief overview of security cooperation and then highlight the strategic objectives of post-Cold War military-to-military contacts in an evolving security landscape. Part II of this paper will flesh out the authority to conduct military-to-military contacts and delve into the distinct legal differences between a training event (such as those discussed by the Government Accountability Office (GAO) in the Honorable Bill Alexander Opinion) and a mere interaction with a foreign force. This section will explore the use of O&M money for TCA and shed light on the fact that TCA-exclusive events are within the discretion of the COCOM. Returning to the hypothetical question raised in the introduction, Part III will apply TCA to the series of proposed military-to-military contacts. This paper will conclude by arguing that combatant commanders and their planning staffs hold the requisite authority and are best situated to determine the scope of a military-to-military contact. Further, the DoD should clearly articulate COCOM authority to conduct TCA-exclusive events by updating its guidance for this vital area of security cooperation.
Over the past decade, Congress has increased the DoD’s role in engaging with foreign forces through security cooperation. Today, the DoD conducts security cooperation events in more than 130 countries each year, totaling between 3000 and 4000 events. The aims of security cooperation are vast, from building defense relationships with allies to promoting specific U.S. security interests. Some of the methods used for security cooperation include various types of training, exercises, and military-to-military contacts that are executed in accordance with each combatant command’s theater campaign plan. The military-to-military contacts help create international partnerships by fostering mutual understanding and building positive relations toward security.
The COCOMs tailor military-to-military contacts to their respective theater campaign plans. The U.S. Africa Command uses military-to-military contacts mostly in the form of traveling contact teams of one to two U.S. personnel. The U.S. European Command uses military-to-military contacts to promote interoperability between North Atlantic Treaty Organization allies. The U.S. Pacific Command refers to its military-to-military contacts as subject matter expert exchanges for its Asia Pacific Regional Initiative. The use of military-to-military contacts within security cooperation is not a new concept. Military-to-military contacts have consistently been a part of national security strategies since the end of the Cold War.
A. The Strategic Importance of Military-to-Military Contacts
The years following the collapse of the Soviet Union began a momentous transition for the United States and the DoD. On the one hand, old adversaries dissolved away, bringing hope for new relationships and free markets. However, new foes emerged around the same time to agitate U.S. national security interests in the Middle East. In response, U.S. military leaders poised themselves for a new approach to the nation’s defense strategy.
Starting in 1990, the DoD began regular use of military-to-military contacts as peacetime engagements. Through a series of military-to-military contacts, the DoD engaged the Soviets and Chinese at the defense minister levels. The contacts with the Soviets opened a dialogue to promote understanding between the two nations; with the Chinese, the contacts balanced a series of diplomatic and political ups and downs.
The United States employed the use of military-to-military contacts with other nations too. In its annual report to Congress, the SECDEF noted the strategic importance of the U.S. military-to-military relations in Latin and South America as well as in the Middle East. These contacts and the development of military relationships marked a new method to deter threats and promote regional peace and security. This approach was particularly successful in building relationships that encouraged the development of democratic institutions and deterrence of nuclear threats.
B. Post-Cold War Opportunities for Military-to-Military Contacts
As sovereign countries materialized from what was once the former Soviet Union, Congress found new opportunities to promote regional and national security. One such program was the Cooperative Threat Reduction (CTR) program. Senators Samuel Nunn and Richard Lugar proposed the CTR program to aid former Soviet Union states with dismantling weapons of mass destruction and their associated infrastructure. Paired with a non-proliferation agenda, Congress set aside 15 million dollars for military-to-military contacts with the newly formed nations previously under the control of the Soviet Union. By 1995, the United States was engaging with Russian and other former Soviet-states in over 100 military-to-military contacts. Increasing in number over time, the contacts helped integrate the Ukraine into western security structures. In 1999, Vice President Gore praised the program as the best example of the Clinton administration’s military strategy of “Shape, Prepare, and Respond.”
Along these same lines, President Clinton also engaged with China to promote greater military-to-military contacts between the two countries. U.S. military attachés posted to China found that the military-to-military contacts promoted mutual trust and friendship between the two countries. Chinese showcase units conducted demonstrations for the attachés to display developments in China’s military and defense policies. While the U.S.-Chinese relations were mixed throughout the end of the 1990s and early 2000s, the military-to-military relations between the two countries communicated a willingness toward transparency and a greater understanding of each other’s nation.
The origins of peacetime engagements show that DoD strategists of the 1990s began to realize the ever-evolving potential in utilizing tailorable, focused military-to-military contacts. Indeed, including these contacts in the DoD’s peacetime engagements strategy was vital to strengthening regional security and promoting defense diplomacy. Through the post-Cold War activities of the 1990s, it became clear that the U.S. Army would be the lead executive agency in international activities for the DoD. And in 2001, the DoD scrapped its doctrinal phrase “peacetime engagements” in favor of “security cooperation.” But bringing the Army to the forefront of security cooperation was not the only change to U.S. defense strategy. The years following the Cold-War brought a sprawling web of authorities in furtherance of security cooperation, ever increasing the confusion for planning staffs and commands across the DoD.
C. Evolving Terminology for Peacetime Engagements
Military operations of any scale require precise language to communicate information efficiently. Common sense dictates that terms and concepts applicable to a joint environment are standard and well-known between the services in order to foster efficient communication. Confusion and general misunderstandings result when military terms are used improperly or when their evolving definitions outpace doctrine. The DoD recognizes the importance of standardizing its terminology by instructing the military departments to identify, delete, modify, and incorporate standard definitions. Nonetheless, the misuse and misunderstanding of key terms within security cooperation is pervasive.
Security cooperation is now a term that encompasses “any program, activity (including an exercise), or interaction of the [DoD] with the security establishment of a foreign country to achieve a [strategic] purpose . . . [.]” The DoD assigns such strategic importance to security cooperation that, with the help of Congress, it created the Defense Security Cooperation Agency (DSCA) to direct and guide the execution of all DoD security cooperation programs. The DSCA helps administer security cooperation, now a multi-billion dollar industry within the annual Defense appropriation. With all the money and strategic brainpower pouring into security cooperation, newcomers to the field may presume fully-vetted, standardized terms and definitions. However, this could not be further from reality.
Members of the DoD frequently mischaracterize security cooperation or outright disagree with respect to its doctrinal definition. For example, the 2010 National Security Strategy (NSS) used the term security cooperation to include rebuilding damaged infrastructure and establishing conditions necessary to end military operations in Afghanistan. With the exception of combat operations, it would seem that almost any military action could fit under the 2010 NSS’s version of security cooperation. Nevertheless, if security cooperation is in fact an evolving term in the DoD, making sense of the authorities under which the military executes security cooperation events is even more troublesome. This is especially true when authorities are based upon a set of specific terms. Hence, with doctrine lagging behind and accompanied by undefined terminology, no authority in the realm of security cooperation is more ambiguous than the authority for military-to-military contacts. With ambiguity surrounding military-to-military contacts, planners and lawyers should defer to commanders to decide the best way to employ these strategic interaction events. The fate of 10 U.S.C. §168 and its ultimate repeal is illustrative of this point.
D. The Ill-Fated 10 U.S.C §168
In the early 1990s, the days when peacetime engagements with Russia, the former Soviet States, and China were commonplace, military-to-military contacts comprised a broad range of activities. To some, the term military-to-military contacts meant anything from senior level talks to bilateral joint training. However, in 1994, Congress changed this expansive view of military-to-military contacts by codifying an authority to execute military-to-military contacts.
Building on the momentum gained through the post-Cold War military-to-military contacts, Congress enacted Section 1316 of Pub. L. 103-337 section 168 into law. This statute provided authority for the SECDEF to carry out military-to-military contacts and “comparable activities that are designed to encourage a democratic orientation of defense establishments and military forces of other countries.” Without describing the interactions, it defined military-to-military contacts using key terms such as traveling contact teams, military liaison teams, exchanges of personnel, and other similar activities.
Since 1995, 10 U.S.C. §168 has been the oft-cited legal authority for military-to-military contacts. The problem, however, is that Congress withdrew its financial pledge for military contacts and Section 168 in the 1995 DoD Appropriations Act. Essentially, what the authorizers gave to the military-to-military contacts program in 10 U.S.C. §168 was denied by the appropriators. But because Section 168 remained on the books as statutory authority, it was assumed to represent the legal authority for conducting military-to-military contacts. Effectively, from 1995-2016, Section 168 was dead letter. The security cooperation reforms of 2017 finally repealed Section 168 and took it off the books.
However, Section 168 is no relic of small import. It represents Congress’s attempt to authorize a wide swath of interactions with foreign militaries. Although Section 168 essentially contains a list of undefined terms (e.g., traveling contact team), its codification did acknowledge the importance of military-to-military contacts within the security cooperation enterprise. Had Congress funded Section 168, it is reasonable to assume commanders would have been able to properly employ its authority—chock full of undefined terms—within their respective theater campaign plans. This assumption is reasonable as the Joint Staff’s substitute for Section 168 provided similar means to these commanders, which they continue to utilize today.
III. Traditional Combatant Commander Activities
Responding to the lack of funding appropriated against 10 U.S.C. §168, the Joint Staff published a series of orders (TCA Orders) between May 1995 and August 1996 to revive and sustain military-to-military contacts. The TCA Orders provide funding, invoke COCOM operational authority, and are in effect across the DoD for military-to-military contacts. The orders permit interactions similar to those identified in 10 U.S.C. §168, but also go further in authorizing staff assistance and assessment visits, ship rider programs, and joint/combined exercise observers.
The TCA program funds military-to-military contacts. This funding is exclusive to COCOMs expressly directs the types of military-to-military contact events. Even as Congress institutes new security cooperation reforms, TCA remains a viable mechanism for promoting regional and national security interests via interactions with foreign militaries. Looking to the text, the TCA Orders provide the COCOMs with the purpose of military-to-military contacts, examples of specific events, and the funds that are to be utilized in exercising COCOM authority.
The TCA Orders give combatant commanders discretion in employing military-to-military contacts. According to the TCA Orders, TCA provides “one of the pillars of [DoD’s] foreign military interaction initiatives.” The Joint Staff published the TCA Orders not to authorize and fund combatant commanders’ efforts to train foreign militaries, but instead to interact with foreign militaries. Today, TCA is used across the DoD by almost every COCOM. Because each COCOM pursues regional security objectives specific to its AOR, the TCA Orders provide commanders the flexibility in determining how to utilize these interactions. Despite the wide use of TCA funds for interactions with foreign forces, there is no DoD guidance regarding the use of these funds or TCA itself.
The DoD should update its doctrine to reflect TCA. Currently, neither TCA nor the TCA Orders garner even a reference in the Army’s Security Cooperation Policy, the Joint Security Cooperation Manual, or the Army’s Security Cooperation Handbook. Gaping holes exist where guidance for military-to-military contacts should be. Presumably, the 2017 reforms to security cooperation will likely take priority in doctrinal updates over established programs such as TCA. Meanwhile, the scarce mention of TCA in DoD-wide and service-wide publications compounds what is an already nebulous understanding related to engagements with foreign forces. All the while, TCA remains a current funding source for a number of military-to-military contact events. It also represents the sole source for events exclusive to the TCA orders. Although the TCA Orders represent the current written guidance for TCA-exclusive interactions with foreign forces, the TCA Orders are not free from rebuke.
Similar to 10 U.S.C. §168, the TCA Orders do not provide key definitions. As discussed above, the DoD should publish guidance that addresses these security cooperation authorities and supports COCOM discretion in executing these events. The lack of definitions impedes clarity for both TCA and Section 168. What is clear, however, is that the TCA Orders instruct the combatant commanders, not the SECDEF as in Section 168. This demonstrates that combatant commanders not only have the authority to conduct TCA-type events, but that they can also determine how to conduct such activities. For example, TCA provides a non-exhaustive list of activities that a combatant command can fund. Within this non-exhaustive list is a traveling contact team. Implicitly, the TCA Orders, as published by the Joint Staff to the combatant commanders, convey that what a traveling contact team can be or do is at the discretion of the COCOM. After all, the COCOM is responsible for executing TCA events such as traveling contact teams that pursue theater campaign goals in support of over-arching national security objectives. In addition, neither the TCA Orders nor any other publication across the DoD definitively contemplate how to conduct a traveling contact team. The result is that COCOMs are not all marching in cadence when it comes to traveling contact teams. This is potentially problematic for planners, judge advocates, and commanders who attempt to utilize a traveling contact team for a TCA mission.
Even with the lack of proper guidance, military lawyers can address interaction proposals and properly analyze military-to-military contacts. One way is by understanding the purpose of TCA and the manner in which its events are funded. Analyzing the purpose of the TCA events and the way they are funded permits well-reasoned counsel to planners and commanders. This is true for commands at all echelons with a security cooperation mission. However, in order to properly analyze a TCA event, judge advocates must understand the funding, applicable engagement law, and the new developments in security cooperation from the 2017 NDAA.
A. Funding and Programming TCA
Examining the way the DoD funds TCA events is one of the keys to understanding the intent behind interacting with foreign forces. Combatant commanders receive a specific funding source for TCA events within the annual appropriations provided to the DoD. The manner in which combatant commanders receive and expend these funds demonstrates that combatant commanders have significant discretion to execute TCA events within their respective theater security cooperation plans.
Each year, the President signs an appropriations bill for the Federal Government. This Presidential Act provides the DoD with the funds necessary to carry out its mission in promoting national defense. The DoD Appropriations Act provides the services with O&M funds. For the Army—as the executive agent for security cooperation—a brief description of TCA funding is pertinent.
The Army’s O&M appropriations pay for the current operations of the force, and for the maintenance of all of its equipment, including base maintenance services, vehicle maintenance services, civilian salaries, and all expenses required to operate the force. In order for the Army to properly spend its O&M funds, its obligations must satisfy the necessary expense test. The necessary expense test requires expenditures to do three things: (1) bear a logical relationship to its appropriation, (2) not be prohibited by law, and (3) not be otherwise provided for in another appropriation.
In 2015, through the DoD Appropriations bill, the active duty component of the Army received over $51 billion for its O&M budget. In order to manage this mammoth budget, the Army uses the military decision package (MDEP) construct. The MDEP construct groups the Army’s functions and capabilities, defined by program element, appropriation, and organizational codes, into high level packages. This grouping allows the Army to simplify and organize its fiscal resources; it also helps enable the Army leadership defend its resource decisions to challenges external to the Army.
The Army is using over 500 MDEPs to organize its resources. All together, these MDEPs comprise the entirety of Army resources for a given year. The combatant commands account for their prospective TCA missions through a specific MDEP named Joint/Defense Activities (JDJT). The combatant commands submit their funding requests for future TCA events in their program objective memorandum (POM) to the Office of the Secretary of Defense (OSD) via the Army or its Combatant Command Support Agent (CCSA). After discussions with OSD, the Army Justification Book is compiled for the coming fiscal year. The Army Justification Book a detailed budget justification based upon the President’s budget for the Army. Before going to the President, it goes to Congress for decisions to modify it (add or subtract funding from it). Funds for TCA missions are not represented in the Army Justification Book. Instead, the funding request for TCA is incorporated into the COCOM’s POM for the president’s budget. After the appropriations act is signed, funds are apportioned by the Office of Management and Budget to OSD, to the CCSA and finally to the COCOMs for TCA missions through their sub-activity groups (SAG). For TCA events, the SAG contains funds for headquarters day-to-day operations and mission activities that promote regional stability and shape the international security environment in ways that favor U.S. National Security. The funds sent to the COCOMs for TCA activities are referred to in the TCA Orders as TCA Funds. Although referred to as TCA Funds, these funds remain O&M and therefore beholden to the requirements of the necessary expense test under U.S. fiscal law.
The manner in which further TCA Funds are requested and transmitted to combatant commands is instructive. Essentially, combatant commanders request TCA Funds to pursue their theater campaign goals, and through the multi-layered budgeting processes, involving the CCSA, OSD, the President, and Congress, are provided with the resources to carry out these missions. At no time in the planning, budgeting, or allocation of funds process is TCA discussed in a manner that limits the combatant commander’s authority to execute military-to-military contacts. Year after year, the combatant commanders have come to rely on TCA funding and use it as an integral part of their theater strategy. From a policy standpoint, the national leadership provides our combatant commanders with the means to carry out military-to-military contacts with very few restrictions. As such, a COCOM has the authority to determine the way military-to-military contacts should operate in its AOR.
The funding process for TCA events is surprisingly straightforward for a program that is mostly missing from security cooperation doctrine. The joint service publications’ and the security cooperation handbooks’ guidance on TCA is scant at best, leaving planning staffs with little to no information regarding the methods to use TCA.
Lacking TCA guidance, planners assume an overly conservative planning posture for military-to-military contacts. This risk-averse posture sacrifices what otherwise may be meaningful content in fear of mission creep. Instead of taking a restrictive, blanket approach to TCA, planning staffs should build their TCA events and tailor their outcomes toward the COCOM’s strategic objectives. Planning staffs should then manage the execution of the military-to-military contact events by effectively communicating the mission (and its limits).
In order to effectively plan TCA events, planning staffs and judge advocates must understand the relevant legal considerations. These legal considerations require judge advocates to distinguish between interaction events and training foreign forces. Generally speaking, the service O&M appropriations may not be used for training foreign forces. This was the explicit message from the GAO in its legal opinion to Congress in the 1980s. Exploring that GAO opinion and its relation to interactions with foreign forces will help bolster an understanding as to what is and what is not a military-to-military contact.
B. The Proper Legal Considerations for Military-to-Military Contacts
The fiscal law governing military-to-military contacts is simple to comprehend. Like all Army expenditures, military-to-military contact events must meet the necessary expense doctrine and have a proper purpose to be fiscally sound. Typically, the purpose of a military-to-military contact event is conceived at command echelons far above those which task the service members actually executing the event. As long as military-to-military contact events follow a proper mission, there is little risk for fiscal impropriety. However, imprecise operational orders or misperceptions related to the event can skew the intended purpose or outcome of the event.
The difficulty in understanding the purpose of a military-to-military contact event is only partially related to fiscal law. Instead, the legal trappings for military-to-military contacts are inherent: the Army places training, not interacting, as one of its central priorities. From a fire team’s hip-pocket training time to a rotation at a combat training center, it is difficult to imagine any unit not conducting some type of training on any given day. Additionally, many of the DoD’s security cooperation activities with foreign forces include permissible training. The constant focus on training across the Army and even within security cooperation is problematic in analyzing military-to-military contacts. When training is the sole focus in so many events, a mere interaction becomes almost a foreign concept. However, training within a military-to-military contact is prohibited. This is because military-to-military contacts pursue objectives wholly outside of training a foreign force. Therefore, in order to comprehend the legal analyses for interactions, it is imperative to first understand how training and foreign assistance exist independently from military-to-military contacts.
1. Security Assistance and Training
In 1961, Congress doled out the responsibilities for assisting foreign nations in the Foreign Assistance Act of 1961 (FAA). Security assistance, understood as providing supplies, training, and equipment to friendly foreign militaries, is one of the twin pillars of foreign assistance. Generally, the U.S. military is prohibited from providing security assistance to foreign militaries absent congressional authority. The responsibility to provide security assistance belongs primarily to the Department of State (DoS). In order for the DoD to provide security assistance to a foreign military it must first receive specific funding and authority from the DoS. Until recently, the DoD was prohibited from expending its O&M appropriations to provide security assistance except for two specific circumstances: (1) interoperability training; or (2) narrowly tailored training. In 2014, Congress expanded the DoD’s authority to provide security assistance, albeit on a limited basis.
The guarded approach Congress takes toward limiting the DoD in the area of security assistance is not accidental. After all, diplomacy is a mission of the DoS. Each event the DoD undertakes to provide security assistance is congressionally approved and with concurrence of the DoS. One area in security assistance that this is most apparent is in the DoD’s surrogate, diplomatic role of training foreign militaries. Today, this authority is found in the newly minted Section 333 of the 2017 NDAA. Section 333 establishes the DoD’s general authority for building the capacities of foreign security forces.
Training foreign militaries consumes a large portion of a combatant command’s theater security cooperation plan. From building partner capacity programs to joint combined exchange training, the mission to increase our allies’ capabilities is vast. Congress defines training broadly and is careful to ensure that training foreign forces only occurs through specific authorizations. At the same time, the DoD conducts numerous annual exercises with foreign forces for strategic purposes and evaluation, not training. Sometimes, however, when the DoD conducts combined exercises with foreign forces the lines between permissible exercising and statute-directed capacity building tend to blur.
Published over thirty-three years ago, the Honorable Bill Alexander (HBA) Opinion provides substantial analyses into building foreign forces’ capacity. The HBA Opinion is still highly relevant to today’s practice of fiscal law. In fact, the HBA Opinion still is the single most important fiscal law opinion for combatant commands engaged in training foreign forces. The irony is that the HBA Opinion’s ripple effects impose unintended restraints upon military-to-military contacts, activities that are entirely devoid of training. The gravitational pull from the HBA Opinion leads military lawyers to often misapply its concepts to all COCOM security cooperation events, whether they include training forces or not.
2. The Honorable Bill Alexander Opinion of 1984
The U.S. military’s engagements with the Republic of Honduras began as benevolent peacetime engagements but became a defense-wide example of fiscal law promiscuity. Bending the rules of fiscal law, the DoD engaged in impermissible, unauthorized training (i.e., security assistance) with the Honduran security forces. As a byproduct, the lessons resulting from impermissible training in the Republic of Honduras continues to shape the DoD’s analysis of security cooperation with all foreign forces today. Despite the HBA Opinion’s importance to security cooperation and engagements with foreign forces, its findings are only tangentially related to the proper legal analysis for military-to-military contacts. A close review of the HBA opinion demonstrates that it stands to limit unauthorized training of foreign forces, not to limit a combatant commander’s authority to interact with those forces for national and theater strategic goals.
In 1983, the DoD partnered with the Honduran military to conduct a six-month joint exercise in Honduras called Ahuas Tara (Big Pine) II. During Ahuas Tara II, the DoD spent hundreds of thousands of dollars for airstrips, training camps, and medical supplies. A Congressmen by the name of William “Bill” Alexander requested that the GAO provide a legal decision into the fiscal propriety of the exercise. The GAO responded with a formal opinion that found the DoD improperly charged its O&M appropriation with construction projects, training events, and humanitarian assistance.
The perceived significance of the HBA opinion to military-to-military contacts arises from the unauthorized funding of training Honduran troops. During Ahuas Tara II, U.S. personnel provided five weeks of medical training to 100 Hondurans, three-to-four weeks of 105 mm artillery training, and Special Forces training for four battalions on mortars, fire direction, and counterinsurgency tactics. At the time, the value of just the 105 mm artillery training, normally purchased through foreign military sales, was estimated at over $250,000.
In its opinion, the GAO determined that the DoD improperly funded these training activities with O&M funds. The proper funds for such training endeavors were those congressionally approved and provided to the DoD for security assistance. But within the HBA Opinion, the GAO carved out a permissible subset of training that the DoD can fund with O&M. This training, however, is limited only to achieve interoperability between forces through safety and familiarization training “before combined forces activities are undertaken.” This language serves as the basis for what is colloquially known as “little t” type training within the DoD. Additionally, “little t” training—a product of the HBA Opinion—is subject to limits on cost, duration, and number of personnel in order to prevent the misuse of O&M funds seen during Ahuas Tara II.
Understanding “little t” training is important in analyzing TCA events in only one respect: To inform planning staffs of the bright line legal differences between training foreign forces and mere interactions. Whether the DoD is providing formal training via security assistance or interoperability training prior to a joint airborne exercise, both instances of training increase the capacity and capability of foreign forces. Military-to-military contacts, on the other hand, serve no such purpose. There is no transfer of a training benefit between forces in a military-to-military contact event. While military-to-military contact events fall within the realm of security cooperation and are a key components of a theater campaign plan, they do not serve to increase the capacity of a foreign force. Thus, planning staffs and combatant commanders should not fear that a mere military-to-military contact constitutes impermissible training. Moreover, the legal limits applied to “little t” events are inapplicable to military-to-military contacts. For example, limits on cost, duration and number of personnel for a “little t” event is necessary to ensure its scope does not balloon into a security assistance event. Such restrictions are sensible because both “little t” and security assistance events involve training (i.e., building capacity). Applying these same limits to a traveling contact team, however, is incongruent with the purpose of the event. In other words, there is no risk that a traveling contact team will cross into the realm of security assistance because its mission is to interact with—not train—foreign forces. The key for judge advocates and planners is to analyze the content of the military-to-military contact and ensure that the content does not evolve into training. It is imperative to focus on the specific content of a military-to-military contact event to ensure it fits within TCA.
3. Defining a TCA-Exclusive Military-to-Military Contact Event Through its Content
Each COCOM controls the definition of a military-to-military contact by developing and planning its content within its theater campaign plan. Until doctrine adequately reflects this practice, many judge advocates and lawyers will look to historical examples of these interactions. The TCA Orders and the recently repealed Section 168 authority provide the commonly-known examples of military-to-military contact events. These events include, but are not limited to, traveling contact teams, personnel and information exchanges, seminars and conferences, and military liaison teams.
Recently, Congress narrowed the definition of a TCA-exclusive military-to-military contact event by reforming the security cooperation authorities. Some of the traditional military-to-military contacts that were once tied solely to the TCA Orders or Section 168, are now consolidated within Chapter 16 of Title 10. For example, new sections authorize the funding of military-to-military exchanges and personnel expenses of foreign nations that are necessary for theater security cooperation. Although the new sections of Title 10 seemingly encompass some of the activities contemplated under the TCA, Congress’s new reforms to security cooperation do not abrogate TCA. The activities of TCA-exclusive events are still funded through TCA; no other program within a combatant command exists to fund these specific activities. In spite of the new reforms, the 2017 NDAA does not include language to broadly fund U.S. personnel expenses for security cooperation. As an example, the new Section 312 authority only authorizes the SECDEF to fund “(A) defense personnel of friendly foreign governments; and (B) with the concurrence of the Secretary of State, other personnel of friendly foreign governments and nongovernmental personnel.” It does not fund U.S. personnel expenses for traveling contact teams or familiarization visits (i.e., TCA-exclusive events). So, while adding a new authority to fund military exchanges into the 2017 NDAA certainly overlaps with existing exchange authorities under TCA, the new authority in Section 312 has no impact on TCA-exclusive events.
Even with the new reforms to security cooperation, the definitions of certain TCA events are no clearer. Events like traveling contact teams, military liaison teams, and familiarization visits are not defined by the 2017 NDAA nor the DoD at large. Although the lack of definitions for military-to-military contact events, such as a traveling contact team, persists, this in no way inhibits a COCOM from executing military-to-military contacts in accordance with its theater campaign plan. It does, however, require that military lawyers analyze whether a particular event with a foreign military fits within the definition of TCA. Ultimately, this is a question of reviewing the event’s content. With the new reforms to the 2017 NDAA, it is imperative that legal planners understand how to analyze an event that can be funded by TCA.
4. How to Analyze a TCA-Exclusive Event
Whether a proposed military-to-military contact may be funded by TCA depends upon its content. Because DoD guidance is lacking with regard to military-to-military contacts, a legal review of a proposed event’s content is of heightened importance. To understand the content of a military-to-military contact, the first question to address is whether the event will increase a foreign force’s capability in any manner. This includes not only capacity building, as in security assistance, but also interoperability, safety, and familiarization training.
A common issue with military-to-military contacts is that the U.S. personnel sometimes misinterpret their role in the interaction. This can lead to the U.S. personnel providing an instructional benefit or increased capability to a foreign force. Typically, the risk of unintentional training arises when a team conducting the contact does not understand the permissible methods of interacting versus impermissible training. If a proposed event contemplates classroom presentations, the reviewer must understand the purpose of those presentations and the desired outcome. A fiscal law violation arises when an event provides information to a foreign force that increases its capability to conduct military operations. It is essential that those conducting the event understand the permissible limits to classroom presentations. If the interaction contemplated by the command does not increase the capacity of the foreign force, it is deemed non-instructional. Whether a classroom activity lasts thirty minutes or three hours, what is important is to examine what is taking place during the interaction. Once the event is understood as non-instructional, the next question turns on intent.
Events funded as TCA promote regional security and other national security goals. The regional security objectives for combatant commands are found within their theater campaign plans. Military-to-military contacts under TCA must nest within a COCOM’s theater campaign plan. The easiest way to ascertain whether the event fits within the theater campaign plan is by reading the operation order associated with the event. The operation order should include verbiage within its execution paragraph to convey the commander’s intent. Many times, this information will provide the nexus to the theater campaign. If the operation order does not contain such information, or the order is not yet published, a call over to the combatant or component command’s security cooperation office should be helpful. The desk officer at the security cooperation office should have knowledge of the event and be able to provide information that helps fit this piece into the overall puzzle. Once it is understood how this event helps promote regional security objectives or other national security interests, the next question goes to operational authority. Put simply, has the COCOM specifically directed this event?
The final prong of analyzing a TCA event may seem like a formality but it is essential to ensure the event’s proper sponsorship. Before executing the event, the COCOM should publish a written order directing the interaction. Since the authority and funding for TCA events reside at the COCOM level, it is essential that the COCOM directs the event’s execution. Executing a TCA event without publishing an order is bad practice since it prevents the proper documentation of the event for tracking and assessment of strategic data. It is also a problematic practice because it prevents those personnel on the mission from having a detailed written understanding of the event. Most importantly, the content of a proposed TCA event cannot be analyzed by military lawyers unless the event is reduced to a written order by the planning staff.
The proper analysis for reviewing a military-to-military contact requires an understanding of TCA and the combatant commander’s intent. Furthermore, the content of the interaction drives the analysis. Without an understanding of the content within the proposed event, there can be no analysis. This holds true in simple one to two day interactions with foreign forces or in a more robust, complex contact as in the hypothetical problem presented in the introduction.
C. A Call for an Increased Understanding of TCA at the COCOMs
Accepting the status-quo and current construct for analyzing military-to-military contacts is a disservice to commanders and judge advocates who work in conjunction with COCOMs. The practice of fiscal law demands measured, well-reasoned counsel in expending appropriated funds. Military lawyers jeopardize their value as staff officers when they are unable to articulate a proper legal basis or the left and right limits of a security cooperation activity such as military-to-military contact. Worse yet are cavalier legal theories amounting to an “I know it when I see it” approach. Like all lawyers, military lawyers pride themselves on their ability to provide sound legal advice from a complex set of facts. The approach to analyzing military-to-military contacts should be no different.
A COCOM’s understanding and approach to military-to-military contacts is particularly important to its subordinate commands. This is because the COCOMs use subordinate commands to exercise authority and plan interactions within the AOR. Typically, the subordinate commands planning the interactions are not the commands actually executing the interactions with the foreign militaries.
Today, the U.S. military relies upon Regionally Aligned Forces (RAF) to be on the ground in the AOR and execute most of its military-to-military contacts. The RAF is composed of a U.S.-assigned Army brigade outside the technical chain of command of the ASCC or COCOM with which it serves. The RAF must receive clear direction from the COCOM or ASCC when engaging with foreign forces. Because of the misconceptions related to military-to-military contacts, few at the RAF brigade or its higher division-level command understand the nuances associated with such interactions. Making matters worse, sometimes higher Army echelons misadvise the RAF on the scope of its mission. Neglecting to inform RAF members or misinforming them of their role in a military-to-military contact event can lead to fiscal law violations such as training foreign forces with an inappropriate funding source.
There is no better time than the present to address the legal parameters of funding military-to-military contacts. In an era of regional instability there is also an undeniable national security interest to build and strengthen relationships through interacting, training, and exercising with foreign forces. Funding military-to-military contacts and understanding the legal parameters’ associated limitations are of incredible importance to COCOMs.
IV. Applying TCA
The hypothetical problem at the beginning of this paper is not uncommon. Planning staffs are often looking to pursue command objectives as efficiently and as effectively as possible. The mantra, “do more with less” is back in vogue. Creativity in operational planning is valued by commanders as long as it is effective and within the legal limits of command authority. To determine the question of legal authority, the problem set in the introduction requires an analysis into TCA.
First, it is important to ascertain from the proposed facts which activity the event most likely resembles. It is apparent from the hypothetical that the OPT is not seeking a personnel exchange, a conference, or an assessment. Nor is the OPT seeking to fund the defense personnel expenses to attend the proposed interaction. Instead, the OPT is proposing a team of ten personnel travel to a foreign nation for an event with a foreign force. The costs to the command for this event will largely be the costs of travel and per diem. While the proposition of this event most likely lends itself to that of a traveling contact team, the devil is in the details (i.e., the event’s content).
The second step in the analysis may be the most important. It is a question for TCA events and military-to-military contacts alike: What content will the event contain? This is a fact-driven analysis that starts with basic information regarding the participants conducting the event, the flow of information throughout, and the nexus to the objectives in the theater campaign plan. In the hypothetical problem, the OPT seeks to display the JIABs to the friendly forces to promote this new technology as a way of building trust and fostering relationships. The foreign force participants will rotate through the week-long demonstration as the U.S. personnel remain at the CSL. Because the U.S. personnel are tasked to operate the JIABs as demonstrators and not as instructors, no training benefits will transfer to foreign forces. Although the information flowing from the proposed event will be largely in the direction of the foreign force, the U.S. personnel will benefit from operating the JIABs in austere locations. Additionally, a strategic benefit to the COCOM is likely to transpire from this partnership opportunity with a foreign military. Since the proposed JIAB demonstrations do not increase the capability of the foreign forces, the risk of this TCA event crossing into the realm of security assistance is minimal.
Once the content of a TCA event is determined to be within the bounds of a non-instructive interaction, the next question turns to the theater campaign plan. Here, the JIABs are assets of the theater Army and the OPT is encouraged to utilize the JIABs by the ASCC Commander. While a theater Army commander wields significant clout within his or her organization, the authority to conduct a demonstration event by a traveling contact is not held at the ASCC level. Instead, operational authority and TCA funding is held by the combatant commands. The implication here is that once a planning staff determines the plan, it will need to be validated by the combatant command and supported with TCA funds. In the hypothetical problem set, the regional security cooperation at each of the CSLs may fit nicely into the theater campaign plan—but this is a question of the specific combatant command’s objectives and whether the plan will be sponsored by the combatant command. Close coordination between the operations cells at both levels of these commands will aid this determination. Until the combatant command directs the component command to conduct the event, there is no authority to engage under TCA.
The OPT’s ability to conduct JIAB demonstrations rests on whether the COCOM is willing to direct the interaction. However, the stage is set for a TCA-exclusive military-to-military contact in the form of a traveling contact team. Thus, the OPT is likely within the bounds of the authorities set forth in TCA; however, sponsorship and direction from the combatant command is required.
Congress’s new reforms to security cooperation altered many of the statutory authorities in play for a combatant command. Presently, combatant commanders can conduct military-to-military exchanges and fund the expenses of foreign military personnel through new sections of the 2017 NDAA. Despite these new reforms, the manner with which a combatant command interacts with a foreign military through a team of U.S. personnel remains unchanged.
A combatant command’s TCA funding provides specific funds to interact with foreign militaries via traveling contact teams and familiarization visits. Though TCA has been whittled down from its heyday of the mid-to-late 1990s, it articulates the only written understanding for TCA-exclusive activities. These interactions with foreign forces are valuable within a theater campaign because they promote trust and partnerships—keys to success within any theater of operations.
The lack of information and guidance from DoD concerning TCA is an easy fix. Yet, an update in security cooperation guidance related to TCA will likely take a backseat to the current need to address the reforms in the 2017 NDAA. Therefore, in the short-term, understanding TCA falls squarely on the planners and commanders tasked with executing events in furtherance of a theater campaign plan.
For the DoD to more effectively interact with foreign militaries within the limits of the law (and provide a proper long-term understanding), the DoD should publish guidance that clearly articulates that combatant commanders have discretion to conduct such activities under TCA as they see fit. The sheer volume of interactions that the COCOMs pursue demonstrate that these activities demand the DoD’s attention. Guidance from the DoD will aid planners at COCOM and component-level commands in developing and proposing interactions that meet COCOM objectives in accordance with TCA.
Judge advocates act as both legal planners and reviewers for military plans that execute military-to-military contacts. This necessitates that judge advocates identify the line between permissible interactions under TCA and impermissible security assistance when advising planning teams and commanders. Updating DoD doctrine with regard to military-to-military contacts will help clarify that TCA-exclusive events, though not contemplated in the 2017 NDAA reforms, are viable means of interacting with foreign forces in furtherance of the theater campaign plan.
In order to correctly apply TCA at present day, the 2017 NDAA reforms must be read in conjunction with the current TCA Orders. A side-by-side reading of these two documents shows that the reforms do not cover specific activities listed within the TCA Orders; additionally, with the exception of military and personnel exchanges, the 2017 NDAA reforms do not address the types of activities listed within the TCA Orders. Thus, military-to-military contacts exclusive to TCA can only be executed by COCOMs through the guidance provided by the Joint Staff in TCA.
The DoD should address the TCA-exclusive activities that are not within the 2017 NDAA in order to bring its doctrine into the 21st century of security cooperation. Until then, planning staffs and judge advocates should not deny otherwise lawful engagements due to concerns of crossing into areas of security assistance. The legal analysis should begin with an understanding of the interaction’s specific content and objectives. Military lawyers can aid planning staffs and combatant commanders in developing military-to-military contacts according to the broad discretion given to COCOMs under TCA. Blanket limits to duration, cost, and number of personnel for military-to-military contacts misapply the proper legal analysis, unnecessarily restrict the COCOM’s ability to conduct interactions under TCA, and undermine the discretion given to combatant commanders. A well-reasoned approach that is rooted in TCA will enable COCOMs to fully realize their ability to interact with foreign forces.