Working Case Study: Congress’s Oversight of the Tongo Tongo, Niger, Ambush

Some of the gaps the Tongo Tongo ambush highlighted—between the Pentagon and operational units; between AFRICOM and Special Operations Command Africa (SOC-AF); and between Congress and the DoD—have been addressed, but others remain. This incident offers multiple lessons to both sides of the Potomac River in improving oversight relationships, both in informal interactions and in formal understanding of authorities and oversight responsibilities.

Background

The White House first notified Congress of the deployment of combat-equipped U.S. forces to Niger in February 2013 with the mission to “provide support for intelligence collection and to facilitate intelligence sharing with French forces conducting operations in neighboring Mali.”² This contingent grew over the years to 645 troops in July 2017—the last War Powers report made before the Tongo Tongo ambush—and to 800 at the time of the incident.³ The last War Powers report did not indicate that U.S. forces were operating under the 2001 Authorization for Use of Military Force (AUMF), and the DoD had requested no separate authority for military combat intervention in Niger.

This was not a combat mission. But “combat-equipped” is a technical term derived from the War Powers Resolution (WPR) that only a niche body of experts grasps the nuances of. Its use is emblematic of confusion and controversy around operations like those in Niger.⁴ The WPR mandates that the president notifies Congress within two days of introducing U.S. forces into hostilities (or likely hostilities), deploying combat-equipped forces, or substantially enlarging prior deployments. While the executive branch complies to a degree with this requirement, it does not as a rule recognize the WPR’s constitutional authority, and many of the embedded WPR reporting requirements are not statutorily defined.⁵ So-called War Powers reports may involve deployments that occur for a range of reasons and are not intended to lead to conflict; many deployments occur that do not require War Powers reports, such as some humanitarian intervention and even some remote kinetic operations. Experts have described the reports as “stripped of so much content in the interest of preserving secrecy as to make them hardly useful. . . . [and] loaded up with material to address minor matters. They are widely considered a waste of time.”⁶

While these reports are limited and partial, what they should flag for Congress is that U.S. forces may be at greater risk—sometimes significant, sometimes minor—even if the reports do not necessarily indicate that forces will be in combat or operating under an authorization for military force. In some cases, they should indicate that U.S. forces are entering a combat zone and may be placed in a high-risk position where self-defense is necessary. This series of notices to Congress on U.S. forces in Niger should have made that message clear, but for a range of reasons, in practice, they did not. It’s worth considering why.

At the time of the ambush in Tongo Tongo, U.S. forces were deployed in Niger for a wide range of purposes—from military construction of a drone base in Agadez to train and equip support of Niger’s security forces to advisory activities in which U.S. personnel were embedded with local forces for counterterrorism purposes. While counterterrorism activities in the region have expanded over time, their mission and purpose are not new, and have for many years been part of a frequently briefed broader Trans-Sahel Counterterrorism Partnership Strategy—all of which has been briefed to Congress and received targeted support from specific members.⁷

What is crucial to note is that from the DoD’s perspective, these activities are not combat. U.S. forces may be training and preparing counterparts for combat, they may accompany partner forces on operations with the intent of “stay[ing] back at . . . the last covered and conceal position,”⁸ and, since adversaries get a vote, they may encounter hostile fire and need to defend themselves. But per the DoD’s framing of the operation, such efforts do not require authorization for use of force and are not reported or briefed to Congress in that fashion.

Particularly with that context, repeated protestation that key congressional members were not aware of U.S. forces’ presence in Niger before October 4 is not as absurd as it may seem.⁹ Several interviews noted that congressional, and even congressional staff, portfolios are enormously broad, even when limited to committee assignments. In practice, only a few staff on the Hill are devoted to African security matters, and members delegate to them the burden of information prioritization and routine oversight for committee members in the absence of urgency or priority. Such staffers generally also have larger portfolios, and few members are experienced Africanists, capable of punching above their weigh in oversight and policy influence. Members who can and do attend regular counterterrorism briefings (not all participate) may have seen mention of Niger on a few slides over the course of a few minutes. Even if they had, they likely would not have anticipated the events of October.

On October 4, 2017, when four U.S. special forces soldiers were killed in an ambush near Tongo Tongo, Niger, the DoD blamed a local ISIS affiliate for the attack.¹⁰ Initial reporting from the DoD was both confusing and confused; Chairman of the Joint Chiefs of Staff General Joe Dunford acknowledged there was a perception that the DoD was being less than forthcoming about operations there,¹¹ or indeed that senior officials were simply unaware of the specifics of the mission. There was no question that U.S. forces under attack should be in a position to defend themselves. But the larger question was what sort of mission had placed them in this circumstance to begin with. In the space of one briefing, then-Secretary of Defense James Mattis gave two disparate impressions of U.S. forces’ role in Niger. First, “Mostly we’re providing refueling support, intelligence support, surveillance support, but also we have troops on the ground. . . . Their job is to help the people in the region learn how to defend themselves.”¹² Second, “War is war and these terrorists are conducting war on innocent people. . . . there’s a reason we have U.S. Army soldiers there and not the Peace Corps, because we carry guns and so it’s a reality, part of the danger that our troops face in these counterterrorist campaigns.”¹³ Both of these reflect the truth, while also reflecting distinct views of operational intent, risk to U.S. personnel, and interests.

It is on this point that congressional oversight, perception, and legal requirements became muddled in all directions, at least superficially. Under Title 10, U.S. forces are empowered to conduct, train, advise, assist, and accompany missions in which U.S. contact with adversary forces is not expected, even while partner force contact with adversary forces is enabled (or, as Dunford briefed: “enemy contact [was] unlikely on this particular mission, [but] the reason why we’re in West Africa is because it’s an area of concentration of ISIS and al Qaeda”).¹⁴ Congress also has authorized the 127e program, which provides the DoD fiscal authority to offer equipment and resources to partner forces.¹⁵ Based on the DoD’s interpretation, Congress does not need to authorize force for such missions because U.S. combat is not the goal, and such operations are perceived as lower risk to U.S. forces. Niger was just such a theater; the DoD had not declared that it was subject to the AUMF. But combat is unquestionably the environment in which forces are sent, and “the professionalism of U.S. forces cannot eliminate their basic vulnerability when accompanying partners into areas with hostile groups whose own tolerance for risk is high.”¹⁶

Notably, some members and Hill staff disagree with the premise that U.S. forces on “accompany” missions—as seemed to be the case in Niger—are not engaged in hostilities or at imminent risk of such. Though a key term of the War Powers Resolution, “hostilities” is not defined in statute. However, the original report authored by the House Foreign Affairs Committee seems to suggest that such missions should be within parameters: “the term is intended to be ‘broader in scope’ than the term ‘armed conflict,’ and it encompasses a ‘state of confrontation in which no shots have been fired’ but where there is a “clear and present danger of armed conflict.”¹⁷ Still, such interpretations have not been at all accepted by any administration.

Amid these blurred lines came months of mistrust that is still active today, which neither the DoD nor Congress have worked sufficiently to ameliorate. At the forefront of this mistrust was the reported—but never confirmed—suspicion about whether the DoD was engaging in active combat operations in Niger without congressional knowledge, or even without the understanding of senior officials. Press reporting indicated that an operation against a high-value target was the reason U.S. forces were in the area.¹⁸ But in the weeks after the operation and Mattis’s declaration that “we are at war,” AFRICOM was careful to note that the United States had no “active, direct combat mission” in Niger.¹⁹ Mattis subsequently testified in two hearings that U.S. forces were, indeed, under Title 10 authority (and thus not authorized for combat). Notably, and confusingly, the DoD did not provide a hostilities notification to Congress in the aftermath of the attack. But months later, the congressionally mandated 1264 report (Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force for National Security Operations) concluded that the attack and response were conducted under the auspices of the 2001 Authorization for Use of Military Force—effectively, retroactive engagement in hostilities.²⁰

Confused yet? Most are.

Though Niger was addressed briefly in two congressional hearings in October 2017, no dedicated public hearings on U.S. presence and operations in Niger or the broader Trans-Sahel region were scheduled in the aftermath of Tongo Tongo, despite continued congressional concern about the activities of and risk to U.S. forces there.²¹ Closed hearings convened after AFRICOM completed its investigation of the incident, after which Senator Tim Kaine reported that “I believe that the troops who were sadly killed in Niger in October of 2017 were engaged in a mission that they were not authorized by law to participate in and that they were not trained to participate in. And that is a significant reason that they tragically lost their lives.”²²

Making this assessment from the unclassified public report of the investigation is difficult. The initial concepts of operation (CONOPs) submitted by U.S. forces before the mission were inaccurate and thus approved at the wrong level of authority—supporting Kaine’s view that they lacked legal authority. However, a later amendment to the CONOPs regarding the actual operation was approved (with appropriate mission authority that did not exceed legal authorization, according to the DoD). Regardless, that mission was unsuccessful. It was while returning, not during the attempted operation, that U.S. forces were ambushed.²³ In sum, per the public DoD report, U.S. forces asked to use the wrong mission authority, but the right one may well have been approved, and later was. This unsuccessful mission put them in the path for the tragic attack, for which they had no useful prior intelligence.²⁴

According to interviews with staff, both the DoD investigation and congressional attention turned to tactics and localized command-and-control matters discussed above, not to the larger picture of U.S. strategy and whether authorities, operations, and resources were in alignment. Their focus was likely misplaced. Interviews with staff on both sides of the Potomac all suggested that the span of authorities the DoD operates under in Niger are broadly misunderstood: by members, by congressional staff, by some senior Pentagon officials, and by AFRICOM itself. Some interviewed Hill staff remain convinced that the DoD is and was hiding the scope of operations in Niger, and that it has not accurately reported its activities. The misreported CONOPs suggested to one staffer a culture of flouting, or at least not understanding the importance of, mission authority lines. At best, AFRICOM’s operations, Pentagon understanding of operations, and congressional understanding of what it authorized were out of alignment.

Even if the DoD has been fully truthful and transparent, the disparity in risk perception for such operations between and among the Hill and the DoD is significant. On the one hand, U.S. forces are deployed in a high threat environment because violent extremist organizations are active in the area—not only in Niger, but in dozens of locations around the continent and the world. It is remarkable, one staffer noted, that in the many years of such noncombat deployments there have been very few such tragic incidents. On the other hand, the DoD has popularized these operations because of their low cost, low risk, and light footprint. One generous interpretation of senators’ surprise about U.S. forces in Niger is that they were surprised instead that U.S. forces were at real risk. Such is not part of the usual marketing plan.

The greatest selling points for by-with-and-through operations—the comparatively small deployment infrastructure and smaller risk to U.S. personnel—involve serious contradictions and real concern for commanders operating in what is called an “economy of force” theater. Months before Tongo Tongo, the U.S. AFRICOM commander used his annual posture report to Congress to highlight that troops “faced increasing risks because the command did not have the resources it needed to support its troops as they operated across a vast continent”—specifically, that they did not have medical evacuation and intelligence, surveillance, and reconnaissance (ISR) resources. Those resources are widely present in U.S. combat theaters and the “golden hour”—an ideal time limit for medical evaluations—has become an expected hallmark for American forces engaged in hostilities. But at the time of the briefing, this circumstance did not sound alarms, nor did it hinder other members from vociferously protesting a proposed drawdown of U.S. forces in Africa.

Beyond the disparate perceptions of risk, another concern that emerged from interviews on Tongo Tongo was heightened frictions between national security committees that maintain bifurcated oversight of theaters where the United States is engaged in combating terrorism. The Armed Services Committees have jurisdiction over the operations and assistance provided in the scope of train, advise, assist, and accompany missions, and they receive sensitive and classified notifications and briefings on relevant activities. Despite their overall oversight of U.S. foreign policy and the noncombat status of such operations, the Foreign Affairs and Foreign Relations Committees do not, or do not consistently, receive adequate reporting, briefings, or insights for their oversight role (they have advocated for such in later authorization bills). As a consequence, there are few on Capitol Hill who maintain a full picture of all U.S. government activity in key countries in U.S. counterterrorism strategy.

After Tongo Tongo, Congress did introduce stricter requirements for DoD reporting of sensitive military operations—new ones, or changes to prior notifications—to defense committees. The events also spurred, to a degree, renewed interest in War Powers Resolution reform, none of which has come to fruition. But interviews do not suggest that these events resulted in clarification of authorities, level setting of definitions and risk, or clearer communication among relevant stakeholders below that significant goal.

Takeaways

From this analysis, one can take away that members of Congress, by and large, are tacitly comfortable with U.S. forces deploying in support of partner forces for counterterrorism purposes. Indeed, DoD staff reported in interviews that they struggled to get relevant deployments in Africa on the agenda in regular briefings on the Hill, and that in such briefings, members and staff were often absent. When congressmen are not comfortable with U.S. forces deploying is when the comparative low risk of such operations is just comparative, and when the specific parameters of the operations are elaborated in starker terms: U.S. forces are among forces engaged in combat in theaters that lack all the amenities of American military operations.

Neither of these concerns speaks to extreme opposition of such operations altogether, but instead grave concern about transparency, clarity, and honesty. More specifically, the following takeaways can be made:

Strategy review: There is no—or highly limited—public effort to pursue a strategy review of U.S. counterterrorism operations on a country by country basis on the Hill, and much oversight is left to staff. As a consequence, members and staff have limited or stovepiped views of U.S. efforts in priority countries. While this may be an acceptable risk, it is not a deliberate one, and past models of oversight have demonstrated that more focused and strategic oversight is both possible and productive.

Committee friction: Due to committee jurisdictional lines among national security committees, no one committee maintains a full picture of all U.S. government activity in a region, and due to friction among committees, they are unlikely to collaborate to generate one. Relationships are a key limiting factor, but so are statutory reporting requirements that stovepipe notifications, reporting, and briefings to specific committees.

Lack of understanding of authorities: Interviews with DoD and congressional stakeholders consistently raised concerns about whether overseers, policymakers, and implementers have accurate understanding about the specific authorities (legal, operational, fiscal) related to train, advise, assist, and accompany missions. While vital experts exist on both sides of the Potomac, their familiarity is not widely shared, and no concerted efforts are made to get everyone on the same page. In a space where noncombat operations easily can transition to combat, and where fiscal and legal authorities are both complex and widely applied, this absence of understanding is alarming.

Risk alignment: The DoD and Congress are misaligned on how partnered operations are, or should be, supported and the associated risk of such missions. In most cases, these are light footprint efforts, and “U.S. combat-related resources are not readily on hand.”²⁵ Consequently, the standard ISR, lift, and evacuation resources available in a combat mission are not accessible for those merely “accompanying” combat. While this is no secret—and in fact is highlighted regularly in relevant posture statements—many lawmakers and some policymakers still have not grasped this fundamental distinction. As such, their willingness to support such operations, actively or tacitly, may be built on false assumptions. It may be that such operations are wildly successful despite the risk environment they operate in, or it may be that deploying U.S. forces to “accompany” combat operations in a “more an art than a science” manner is also cut by half. Either way, this lack of understanding is concerning as U.S. investment in light footprint, by-with-through operations continues.

Gaps in democratic accountability: When briefing U.S. presence in Niger, Secretary Mattis himself stumbled over whether forces there were indeed at war, or simply offering assistance. As one expert asked in an interview, “even if we can identify where the line between support to combat and involvement in combat is, how much control does anyone really have over crossing it?” In practice, Congress does not specifically authorize operations in which U.S. forces face a distinct possibility of facing combat—“often when least expected, and at the initiative of the enemy.”²⁶ While there is not evidence that U.S. forces deliberately abuse this authority, its risk is far higher than traditional train and equip missions.

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CNAS initiated a project to explore in depth the weakening of a key foundation of American democracy: Constitution grants Congress, not the president, the power to declare war. The project has five components: Congress's Hidden Strengths, which examines the range of informal tools available to Congress; working case studies highlighting successful (and less successful) congressional engagement on and regulation of military operations; a report exploring formal legislative and procedural revisions to congressional war powers; an assessment of public opinion on the legislature’s role in war making; and a review of lessons learned from war powers debates among key American allies. The author would like to thank The William and Flora Hewlett Foundation for its generous support of this project.