Phillip Carter | Vox

Why were US soldiers even in Niger? America’s shadow wars in Africa, explained.

2017-10-26T09:00:14-04:00

President Trump’s inexplicable fight with the widow of a Green Beret who was killed in Niger has sparked a political firestorm that shows no signs of dying down. It’s also brought new attention to a little-known aspect of Washington’s ongoing war on terror: The Pentagon is rapidly expanding its presence in Africa and is now engaged in military operations — including active combat — in more than half a dozen African countries.

It’s a fight that takes place largely in the shadows, led by small teams of US special operations forces. In Somalia, Navy SEALs are hunting members of al-Qaeda and ISIS-linked militants from groups like al-Shabaab (one of the commandos died in a botched raid earlier this year). In Libya, they’re carrying out counterterror missions like the one that captured Ahmed Abu Khattala, a militant linked to the deadly assault on the American diplomatic compound in Benghazi. And in Djibouti, the US flies armed drones out of a major airbase at Camp Lemonnier, which is also used for counterterrorism and counter-piracy operations in the region.

US forces have also regularly conducted raids and other missions in Chad, Cameroon, Uganda, and, of course, Niger, where there are at least 800 American troops deployed.

The missions rely on a broad array of legal authorities but have one particularly important thing in common: They have never been specifically authorized by Congress, let alone discussed and debated by the American public. Huge questions exist as to the strategic importance and relevance of all these missions, and whether they improve US national security enough to justify the high cost in blood and treasure. Since 2001, at least 36 soldiers have died conducting or supporting military operations in Africa, including Sgt. La David Johnson and the three others killed in Niger earlier this month.

With 6,000 troops operating in Africa, and US commanders describing the continent as the next big battleground in the terror fight, the pace and number of American military engagements is certain to increase even more sharply. That raises legitimate new questions about whether the US has committed itself to unending and expanding war in Africa through missions that are taking place with nearly no political or public oversight.

Niger is getting the headlines, but it’s a small part of what the Pentagon is doing in Africa

As Zack Beauchamp has written for Vox, the US has been working with governments in heavily Muslim West Africa to counter local Islamist groups since the George W. Bush administration. The US presence there ramped up considerably under the Obama administration, which sent special forces to train and assist local partners in countering both al-Qaeda and ISIS groups.

None of these missions have been specifically debated, much less authorized by Congress; Sen. John McCain has already talked about issuing subpoenas to the Pentagon for more details about the mission in Niger. For operations against al-Qaeda-linked groups, the Pentagon relies on the old post-9/11 Authorization for the Use of Military Force as its legal authority. In the aftermath of the botched mission, there’s a new push in Congress to repeal that legislation and require the Trump administration to seek a new one, but it’s not clear if those efforts will pay off. In the meantime, the military continues to operate in the shadows across Africa.

Most US missions aren’t intended to involve any form of combat. Instead, they’re designed to help African nations build up their own capacity to fight militants inside their borders without American help. The theory underlying all of these missions is that it’s cheaper, less risky, and more effective to train and equip local forces to fight than rely on American troops operating far from home on unfamiliar terrain. The problem is that it’s not clear those types of missions work — let alone serve broader US security interests.

The US is fighting in multiple African countries with nearly no political or public oversight

However, in countries like Niger and Mali, the US has struggled to build effective local capacity to fight terrorism, in part because of the difficulty of the task and the relatively meager resources allocated (tens of millions of dollars, compared to the billions spent in places like Afghanistan or Syria).

In her forthcoming book, former Pentagon official Mara Karlin concludes that “in practice, American efforts to build up local security forces are an oversold halfway measure that is rarely cheap and often falls short of the desired outcome.” Kings College London professor Walter Ladwig pins many of these failures on rifts that emerge between the patron (like the US) and the client in these relationships. Ladwig studied three major cases of military aid — Vietnam, El Salvador, and the Philippines — and found that the US did well managing the relationship in just one of these (the Philippines), while doing a fair job in El Salvador and a disastrous job in Vietnam.

Others, like Naval War College professor Jonathan Caverley and Trinity College Dublin professor Jesse Dillon Savage, have noted that security assistance can have a destabilizing effect by effectively forcing Washington to choose sides in local conflicts and empowering the military at the expense of civilian politicians. In 2010, a military junta overthrew Niger’s president; democratic elections were held in 2011, and another military coup attempted to overthrow that president in 2011.

As Nick Turse noted for the Intercept, Chad’s military launched coup attempts in 2006 and 2013, the Mauritanian military toppled the civilian government in 2005 and again in 2008, and a US-trained military officer ousted the democratically elected president of Mali in 2012. The latter coup helped set the stage for an al-Qaeda affiliate to conquer a broad swath of the country before being pushed out by a French-led military coalition.

The bottom line is that it’s impossible to predict when, or if, training local militaries will help US interests or regional stability. Over the past 75 years, the US has successfully helped local forces win, as in 1947 with Greek forces fighting the communists, in the 1980s helping Afghan fighters defeat the Soviets, in 1995 helping Croat forces battle the Serbs, or more recently in Iraq, helping local units retake Mosul. The problem is that the list of failures is even longer — and that success doesn’t always further US interests in the long run, as seen most clearly in Afghanistan.

A second major risk is that these operations can quickly escalate from training or advisory efforts into combat operations — often when least expected, and at the initiative of the enemy. That appears to be what happened in Niger.

Johnson and his fellow soldiers were advising Nigerien military on the ground, seeking to improve their ability to fight al-Qaeda- and ISIS-linked fighters leaking over the porous border with Mali. On October 4, an Army Special Forces team (composed of 12 soldiers) set out on a patrol with its Nigerien counterparts along the Niger-Mali border. Intelligence told the team they faced little chance of enemy contact on this reconnaissance mission. Although US military forces had conducted nearly 30 similar missions in that area before, October 4 was only this particular team’s second such mission in Niger.

NBC News reports that the mission changed at some point from reconnaissance to something more like a “kill/capture” mission, focused on insurgent leader Adnan Abu Walid al-Sahraoui. The joint US-Nigerien unit was ambushed on October 4, suffering heavy casualties.

The Pentagon is hunting terrorists across Africa. Sometimes the terrorists strike first.

The Pentagon wants to keep its troops out of harm’s way. That may not be possible.

Modern US advisory efforts attempt to minimize risk to American forces like those killed in Niger by distinguishing between “train and assist” and “advise, assist, and accompany” missions. In the former, US troops generally stay on well-secured bases or embassy grounds, providing training or remote assistance where allowed by their mission parameters. In the latter, US troops actually accompany local forces on their missions, exposing themselves to the same risks as their counterparts battling al-Qaeda or other violent extremists.

The latter type of mission — the kind where US forces face risk — is far more effective. However, it exposes US troops, often in places where the US has no military infrastructure for combat air support or medical evacuation.

This is the third risk unique to these small (“light footprint” in Pentagon parlance) operations: They expose troops to tremendous risk by their very nature. Special forces teams, like the one ambushed on October 4 in Niger, are incredibly skilled but carry minimal weaponry and cannot fight their way out of battles with numerically superior foes, nor survive when they sustain large numbers of casualties. These advisory missions frequently rely on local health care facilities or allied forces for medical evacuation and treatment, or rely on nearby embassies or intelligence personnel to obtain such support, because they rarely deploy with their own organic evacuation helicopters and medical units.

Consequently, when troops on these advisory missions do find themselves in combat — as they often do — they may be more vulnerable than conventional troops to taking large numbers of casualties, or even having comrades captured or left missing, as appears to have happened with Johnson in Niger.

In a Monday press conference, Gen. Joseph Dunford, the chairman of the Joint Chiefs of Staff, repeatedly highlighted the risks inherent in this kind of mission, especially when acknowledging that it took the military two full days to find Johnson’s body. “This is a very complex situation that they found themselves in, a pretty tough firefight,” Dunford said, going on to add that Pentagon leaders still don’t quite know whether the mission switched from reconnaissance to something else, and, if so, on whose orders.

“I don’t know how this attack unfolded,” Dunford said bluntly.

What’s clear, though, is that a larger, more robust force — like the kind the US has mostly fought with in Iraq or Afghanistan, or deployed to combat Ebola in Africa — would likely have more support on standby, and more ability to respond to an ambush than the small Special Forces team that made contact in this instance.

In this case, the Special Forces teams in Niger had conducted similar missions in this location on 29 occasions prior to the October 4 ambush. (That pattern itself may have played a role in the incident, by showing enemy forces there was a target to be attacked, and inducing a kind of complacency among the US Special Forces troops themselves about the risks on these patrols.) Washington has reportedly been operating in the country since 2002, with American personnel working with Nigerien forces on the Mali border and leaked Pentagon documents suggesting the construction of a major US airbase in central Niger for the operation of drones and other American aircraft.

Can the US prevent a major war by launching a bunch of smaller ones? Africa may provide the answer.

Unfortunately, the trigger for whether a given mission like the one in Niger ends in combat isn’t in American hands. Just as enemy forces in Iraq and Afghanistan frequently decided when and where combat would erupt, so too did extremist elements in Niger. And so it is with all these “light footprint,” advisory missions: The enemy gets a vote, and often the deciding vote, as to when and where these missions will go from training to fighting.

This fact highlights the fourth and broadest risk of these operations: They share a tenuous link to US national security, and leave many questions about what, if anything, is purchased with them for our benefit (as opposed to be benefit of the local forces we arm and train). In theory, security assistance missions go to countries that are fighting a common enemy, such as Afghanistan or Niger. These missions represent an “economy of force” approach to warfare: easier, cheaper and more efficient to send a few advisers to build up local forces, and have them fight, than to fight these wars with thousands of US troops.

These missions also reflect a growing belief among national security professionals in the importance of preventive war — something that also goes by other names, such as gray zone operations, shaping operations, or “Phase Zero” operations. Just as it is more efficient to fight wars with proxies, so too is it more efficient (and effective) to prevent larger wars by fighting small ones wherever possible.

This theory currently justifies an expansive view of military activity from naval patrols in contested waters to advisory missions in Southeast Asia to the assorted advisory missions in Africa. The Joint Chiefs of Staff and other senior military leaders have adopted this approach as part of official US military doctrine, embracing the view that persistent conflict at a low level is the best way to prevent large-scale wars from breaking out.

The theory has worked in some places. US advisers in Colombia did, eventually, help the Colombian government achieve a stunning victory over the rebels and narcotraffickers there. US military units have successfully trained with local forces in Southeast Asia for many years, boosting the effectiveness of military forces they work with. American efforts to support African military units operating as part of AMISOM against Somali militants have also worked well, aided by targeted strikes conducted directly by US special operations forces. Most of these missions have unfolded in the background — not deliberately hidden as covert, but not trumpeted either.

That lack of public attention has often been a good thing, enabling US military units to sustain efforts over a period of years and enabling local forces (and their political leaders) to work with US forces when that might not always be a popular thing.

However, the great downside has been a massive expansion of US military operations without any meaningful political oversight, let alone a specific vote, like the war in Iraq. “The war is morphing,” Graham said after a briefing from Defense Secretary James Mattis on military operations in Africa. “You’re going to see more actions in Africa, not less; you’re going to see more aggression by the United States toward our enemies, not less; you’re going to have decisions being made not in the White House but out in the field.”

McCain, the powerful chair of the Senate Armed Services Committee, admitted as much when he called for a congressional debate over whether continued US military operations in Niger were lawful and necessary. However, past congressional efforts to review and possibly revise the post-9/11 authorization for the use of military force have failed, and there is no reason to think a Niger-focused debate will be any more successful.

And that means that Johnson and Staff Sgts. Bryan Black, Jeremiah Johnson, and Dustin Wright are the most recent US soldiers to fall in Africa, but they won’t be the last.

Phillip Carter and Andrew Swick are both former Army officers and veterans of Iraq and Afghanistan, respectively, who are researchers at the Center for a New American Security in Washington, DC.

Trump is at war with his own generals

2017-09-01T13:14:46-04:00

President Donald Trump and Defense Secretary Jim Mattis attend a Cabinet meeting on June 12, 2017. | AP Photo/Andrew Harnik

During his campaign for the White House, Donald Trump took the highly-unusual step of blasting America’s top generals, arguing in one debate that they’d been “reduced to rubble” and later threatening to fire them if they didn’t tell him what he wanted to hear. If elected, Trump promised to put top generals into key jobs — and then to give them the freedom to fight America’s wars without micromanagement from the White House.

True to his word, Trump has surrounded himself with a trio of well-respected current and retired generals: Defense Secretary Jim Mattis, a former Marine general best known for a successful tour through one of the bloodiest parts of Iraq; White House Chief of Staff John Kelly, a retired Marine general who served three tours in Iraq, oversaw Guantanamo Bay and was a top aide to two secretaries of defense; and National Security Adviser H.R. McMaster, a three-star general in the Army with a celebrated Iraq war record of his own.

The three men’s prominence, and their long history of distinguished service, has led many inside and outside the White House to see them as the adults in the room who would be guiding Trump toward a calmer, more stable, more rational foreign policy than what he alluded to during his campaign.

The three men, in turn, have spent months traveling the globe to reassure allies that Trump hasn’t meant what he said when the president threatened a preemptive strike on North Korea (which terrified Japan and South Korea) or talked about pulling out of NATO and cozying up to Russia (which terrified much of Europe).

But seven months into his term, that conventional wisdom is looking increasingly shaky. Trump is openly at odds with many current and former military leaders in his administration on issues ranging from Afghanistan (the generals want more troops than he’s inclined to send) to his proposed ban on transgender troops (the Pentagon opposes the move).

The disagreements have recently reached a fever pitch over North Korea. Trump is threatening Kim Jong Un’s regime with “fire and fury,” and tweeting that “Talking is not the answer.” Mattis, by contrast, is saying “we’re never out of diplomatic solutions,” while McMaster has flown to Seoul to personally reassure the South Korean government that Washington wouldn’t do anything rash.

Put another way, a commander in chief nominally in thrall to a trio of powerful generals is instead beginning to feud with them. That’s sparked rumors that Trump might fire both McMaster and Secretary of State Rex Tillerson, a nonmilitary man who has much the same worldview as the generals and has stood with them during internal administration debates.

In some ways, the intensifying fight between Trump and his generals shouldn’t be a surprise. Trump came into office disagreeing with most of the bipartisan consensus held by the national security establishment, including top military leaders, on issues ranging from the future of NATO to the threat posed by Vladimir Putin.

A commander in chief nominally in thrall to a trio of powerful generals is instead beginning to feud with them

On Afghanistan, Trump and “America First” White House aides like former chief strategist Steve Bannon questioned why the US was even still fighting America’s longest war and opposed sending more troops to the battlefield. On Europe, Trump attacked America’s allies and refused for months to publicly endorse the mutual defense provisions at the heart of the NATO military alliance. On Russia, Trump has broken with his top generals, spies, and diplomats (not to mention Congress) by continuing to say that he believes he can do business with Putin and denying that Russia meddled in the 2016 election or poses a security threat to the US.

Beyond these substantive foreign policy issues, Trump has also clashed with his generals over domestic policy. After the political violence in Charlottesville, Trump steadfastly refused to condemn the neo-Nazis and white supremacists who instigated the bloodshed. By contrast, each of the four-star officers leading a military service (including the Coast Guard and National Guard Bureau) tweeted a statement condemning the violence.

To take one example, Adm. John Richardson, who leads the Navy, said his service “forever stands against intolerance & hatred.” He was quickly followed by Gen. Robert Neller, the commandant of the Marine Corps, who tweeted that there was “No place for racial hatred or extremism in @USMC.”

The statements represented a remarkable break with their commander in chief, who has inexplicably stuck to his argument that those protesting hatred and bigotry were as much to blame for the violence as those who started it. It is difficult to think of a comparable moment in American history where the service chiefs have quickly and unanimously marched out-of-step with their president.

Or take Trump’s ban on transgender troops, which he first announced in a series of vague tweets on July 26 and later converted into an official White House memorandum. At first, senior officers dipped their toes in the waters of civil disobedience by saying they would wait for proper orders from the White House — never mind the fact that there is no meaningful legal distinction between a tweet or speech or presidential order.

Then the chiefs began to speak: Coast Guard Commandant Paul Zukunft publicly said at a Washington think tank event that his service would “not break faith” with transgender troops, no matter what the president said. Secretary of the Navy Richard V. Spencer — a civilian political appointee of President Trump — echoed his disagreement with the policy, saying that “any patriot that wants to serve and meets all the requirements should be able to serve in our military.”

Other top officers signaled their disdain for Trump’s policy change, in part because they had already reached an outcome they found satisfactory after a review launched during the Obama administration. Notably — and in direct contradiction of Trump’s statement that he was making the change on “after consultation with my generals and military experts” — the top brass said there had been zero consultation and coordination by Trump. Mattis himself was on vacation when the ban was announced.

Trump is following in Bill Clinton’s footsteps. That’s not a good thing.

Ironically, the last time a president roiled civil-military relations this badly was when President Bill Clinton took office and promised to swiftly open the ranks to LGBTQ Americans. The service chiefs and Congress effectively checked him then, enacting “don’t ask, don’t tell” as a compromise measure. However, the Clinton administration was a model of civil-military relations compared to the Trump administration.

Three main reasons explain today’s discord between Trump and his generals, and why such discord is likely to continue for the foreseeable future.

First, there are the substantive disagreements between Trump (and his base) and the national security establishment on almost everything under the sun.

Trump is likelier to blame his generals than have the “buck stops here” mentality of previous presidents

As Trump noted during his speech on Afghanistan in late August, both he and his core supporters have wearied of America’s wars in Iraq and Afghanistan. For all of Trump’s insults hurled at veterans or military families, many who’d served in the wars — or had loved ones who’d fought or died in the conflicts — gravitated toward Trump because he promised to win (or end) these wars and keep the military out of such open-ended conflicts in the future. (Full disclosure: I advised the Clinton campaign on veterans issues during the campaign, and saw this trend first-hand among many veterans I talked with.) When Trump talks about “America First,” he is channeling the resentments and objections of these families whose sons and daughters serve in our military.

Contrast Trump’s substantive views on our post-9/11 wars with those of today’s military leadership, who are human embodiments of the American national security establishment. These men all graduated from the service academies or other top schools; many of them attended top graduate schools, spent tours in top think tanks, and worked alongside top politicians at lower levels as they rose in rank.

Over their decades in uniform, all three military men have come to believe in the traditional foreign policy beliefs that have shaped Washington’s place on the world stage for decades. All have fought in Iraq and Afghanistan, and lost troops under their command — or loved ones — in Iraq and Afghanistan. All see alliances like NATO as an important part of American national security, and Russia as a major threat to it. Their views didn’t change with Trump’s election, and probably won’t change going forward. And that means their disagreements with Trump will continue — and grow — well into the future.

The second reason for discord between Trump and the brass is one of character. Put bluntly, the military leaders now occupying high command volunteered to serve at a time when Trump did not. And not only did Trump avoid service by gaming the draft lottery, he actively evaded military service at the height of the Vietnam War in ways that make President Clinton’s letter to an ROTC commander or President Bush’s service in the National Guard look quaint by comparison.

During his campaign, Trump repeatedly insulted veterans and military families. He mocked former POW John McCain by saying “He’s war hero because he was captured … I like people that weren’t captured.” He attacked the family of Army Capt. Humayun Khan, who was killed in Iraq, after Khan’s parents spoke at the Democratic National Convention. Trump even obfuscated about his philanthropic contributions to veterans organizations — at least until the Washington Post’s David Fahrenthold called him on it (work that would earn Fahrenthold a Pulitzer Prize).

That has made him a very different commander in chief than the generals have been used to, one likelier to blame them than to have the “buck stops here” mentality of his predecessors from both parties. In his first week on the job, for instance, Trump ordered a risky special operations raid into Yemen that ended with the death of an elite Navy SEAL and dozens of civilians. Trump responded by blaming his generals rather than taking responsibility as commander in chief.

“This was a mission that was started before I got here. This was something they wanted to do,” Trump said. “They came to me, they explained what they wanted to do — the generals — who are very respected, my generals are the most respected that we’ve had in many decades, I believe. And they lost Ryan.”

At the Coast Guard Academy’s graduation in May, Trump whined about unfair media coverage to the assembled graduates, who had persevered to reach that stage and would endure more hardship still as Coast Guard officers after graduation. “Look at the way I’ve been treated lately — especially by the media. No politician in history — and I say this with great surety — has been treated worse or more unfairly,” he said.

Generals are loyal to the Constitution. Trump wants them to be loyal to him instead.

Finally, there exists an unmistakable difference in allegiance and values between senior military leaders and Trump.

Critics worried Trump would listen to the generals too much. Turns out that he may not be listening to them enough.

Senior military officers, like all military personnel (and civil servants, too), swear an oath to support and defend the Constitution of the United States. Beyond this oath, military officers live by a strict code of military justice and ethics regulations which ensures, among other things, that they serve the nation and no one else. Federal ethics statutes make it a felony for military personnel (and other government personnel too) to act upon conflicts of interest.

Senior officers must repeatedly disclose their assets during security clearance investigations and as part of the confirmation process for high rank. By the time they reach 3 or 4-star rank, their allegiance is established and unquestioned.

Trump may swear roughly the same oath, but his first eight months on the job make it clear that he’s in the presidency for himself. Trump’s conflicts of interest continue, despite some meager attempts to create trusts that fall far short of the divestiture required of other appointees. These conflicts arguably create a constitutional basis for impeachment under the emoluments clause to the extent that Trump retains ownership of corporate entities that receive payment from foreign governments.

Trump spends vastly more time at the golf course than in the White House situation room. Worse, he practices the politics of division whenever possible, playing to his base and ignoring (or attacking) the rest of America.

Trump promised to stack with his administration with generals, and has — unusually — kept his word. The problem is that Trump has a fundamentally different worldview than they do, and is a vastly different kind of commander in chief than they’ve served before. Many critics have long worried Trump would listen to the generals too much. It turns out that he may not be listening to them enough.

Congress can’t save Jeff Sessions

2017-07-28T11:10:31-04:00

Senators from both parties are telling President Donald Trump not to fire Attorney General Jeff Sessions. Sen. Lindsey Graham (R-SC) told reporters that “if Jeff Sessions is fired there will be holy hell to pay.” Sessions himself says he won’t quit, and will only leave if Trump forces him out. Given the depth of Trump’s rage, that may be only a matter of time.

All of which raises the question: Is there anything the Republican-led Congress can do to protect Sessions — and, by extension, the Justice Department special counsel currently probing Trump’s Russia ties?

The short answer, unfortunately, is no. Sessions’s future, and that of Special Counsel Robert Mueller, will effectively be determined by Trump, and Trump alone.

It may seem ironic and unfortunate that a president at the center of so much controversy has the ultimate say in whether the nation’s chief prosecutor — responsible for investigating the president’s own affairs, and those of his family — gets to stay.

And yet the Constitution creates just such a system, giving nearly all power over prosecutions to the president, largely neutering Congress when it comes to law enforcement and forcing the courts to wait until a case comes to them before they can issue any decisions.

Past efforts to create an independent counsel answerable to Congress or the courts are of dubious constitutionality because our founding document vests executive power — including enforcement of the laws — in the president alone. Congressional investigations like the four current probes into Trump’s Russia ties can also make it harder for federal prosecutors to actually bring criminal cases if the lawmakers strike immunity deals with suspects in exchange for their testimony. (Disgraced former National Security Adviser Michael Flynn has been seeking that type of deal, with no success.)

Congress does have a variety of ways it could strike back at Trump for his handling of the Sessions mess, but those could only be used after Sessions or Mueller were fired — not to prevent Trump from doing so in the first place. That’s bad news for both Sessions and Mueller, and it’s bad news for American democracy.

The Constitution makes it nearly impossible for Congress to restrain Trump

The Constitution creates an uneven playing field when it comes to law enforcement and the day-to-day operations of the federal government. In broad brush strokes, Article I empowers Congress to legislate, appropriate money, and confirm appointees (that last one is just for the Senate). Article II empowers the president to be chief executive and administrator of the government. This includes, importantly for Jeff Sessions, both the power to enforce the laws (the president “shall take care that the laws be faithfully executed”) and to appoint federal officials.

In theory, the president’s near-complete power is balanced by electoral accountability, as well as congressional power to create the laws he enforces and appropriate funds to support his decisions. In practice, the president dominates the field. He and his Cabinet officials control the vast machinery of American government and are responsible for its day-to-day operation. Congress can rarely act (or react) in time to affect the actual conduct of governance.

And even if Congress could act quickly enough, it lacks access to information held by the executive branch, whether that’s classified information or sensitive law enforcement evidence. Consequently, Congress plays a weak hand in its poker game of power with the president, almost always folding its cards.

Sessions’s future, and that of Special Counsel Robert Mueller, will be determined by Trump, and Trump alone

To help better police the executive branch In the wake of the Watergate scandal, Congress passed (and President Jimmy Carter signed) the Ethics in Government of 1978, which created a “special prosecutor” that could investigate crimes at the behest of Congress, not a president who may have conflicts of interest. This statute was used many times to appoint special prosecutors or independent counsel; over time the statute was also amended to limit these prosecutor’s powers and bring them increasingly under the auspices of the Department of Justice for supervision.

In 1988, the Supreme Court upheld the constitutionality of the statute, in part because the attorney general technically retained the power to actually appoint and supervise these prosecutors. Under the Constitution’s separation of powers, only the executive branch can directly enforce the law. Consequently, any arrangement allowing Congress or the courts to appoint prosecutors, or supervise them, would run afoul of the Constitution’s division of labor.

The law was perhaps most famously used during the Clinton administration, when a narrow probe into suspicious real estate dealings in Arkansas snowballed into a massive inquiry taking six years and more than $50 million, led by a series of independent counsels most notably including Kenneth Starr. The Whitewater investigation eventually led to President Bill Clinton’s impeachment, but ultimately “determined that the evidence was insufficient to prove to a jury beyond a reasonable doubt that either (the) president or Mrs. Clinton knowingly participated in any criminal conduct.”

The Starr investigation and others conducted during the Clinton administration were so thoroughly unpopular that Congress declined to renew the independent counsel statute when it expired in 1999. (In a historical irony, Starr penned a Washington Post column Thursday pleading with Trump to stop attacking Sessions and respect the rule of law.)

Alongside the now-expired independent counsel statute, the Justice Department created its own internal authority to appoint a “special counsel” in situations where the president or senior Justice Department officials may have a conflict of interest.

These regulations require the special counsel to be appointed from outside the government, and be “a lawyer with a reputation for integrity and impartial decision-making, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly.”

Someone, in other words, very much like former FBI Director Robert Mueller, who Deputy Attorney General Rod Rosenstein appointed to investigate Trump’s Russia ties — as well as any crimes against the integrity of the legal system like obstruction of justice that may come to the attention of Mueller’s team.

Firing Sessions would be Trump’s first step towards firing Bob Mueller

As special counsel, Mueller has the “investigative and prosecutorial functions of any United States Attorney.” He can gather evidence from other agencies (including classified information from the National Security Agency, like intercepted phone calls with Russian diplomats), interview witnesses, and subpoena witnesses or documents as necessary. If warranted, Mueller can recommend charges to a grand jury. However, it’s unclear whether Mueller could make an recommend indictment or impeachment for Trump himself.

Given this constitutional playing field, and the brief history to date of the Russia saga and its characters (including Sessions, Rosenstein, and Mueller), the president and Congress have only a few options in front of them.

For his part, Trump can summarily fire Sessions — a power he used to oust acting Attorney General Sally Yates and FBI Director James Comey. Whether Trump bullies Sessions into eventually resigning or actively fires him is immaterial. The president enjoys unquestioned power to fire an “officer of the United States,” and Congress can’t stop the president from doing so.

Congress could punish Trump for firing Sessions. It can’t ensure he keeps his job.

At best, Congress can engage in legislative brinksmanship, like beginning impeachment proceedings, or take some other legislative action if provoked. But none of these measures would save Sessions or any other senior official from being canned.

It’s much less clear that Trump can summarily fire Mueller, who is protected by Justice Department regulations from being fired without “good cause.” The emerging consensus among legal experts is that Trump could direct Rosenstein or some other senior Justice Department official to create a cause for firing Mueller, or rewrite the special counsel regulations to allow for his firing.

However, it’s also possible (particularly given Trump’s litigation history in the private sector before taking office) that Trump would bluster forward anyway, ordering Mueller’s firing and daring anyone to litigate its propriety after the fact.

Congress can’t save Jeff Sessions — but it can make life miserable for Trump

Congress isn’t totally toothless, though: It can still make new laws, control the purse strings of the federal government, and block Trump’s ability to appoint new federal officials.

In this instance, Congress couldn’t make new laws that would make it a crime to do what Trump and his associates may have done during the campaign; the Constitution forbids such “ex post facto” statutes.

However, Congress could increasingly tighten the screws on Trump and his associates by strengthening federal ethics laws and making them apply, explicitly, to the president and his White House staff. Walter Shaub, the former director of the government’s ethics office, suggests this would help close many of the loopholes Trump is currently exploiting, such as by creating a legal rule on conflicts of interest that would explicitly apply to the president.

Another possibility would be for Congress to bolster the protections for Justice Department employees and their investigations, or amend the criminal statutes regarding obstruction of justice and related matters to more effectively fence off the Justice Department from White House interference going forward. On Thursday, Sen. Graham said he would try to do just that by introducing a bill requiring a federal judge to approve the firing of a special counsel like Mueller who was investigating the president.

Beyond that kind of new law, Congress could also mandate detailed reports from executive agencies on their programs and activities, and haul their leaders before oversight hearings, to make governance more difficult for the Trump team.

All of this would slowly frustrate Trump’s presidency, and make it more difficult for him to pursue his agenda while dealing with so many investigations and oversight matters.

Another big area where Congress could act is by leveraging its control over federal spending to directly affect how Trump uses the Justice Department, and also to control the rest of his agenda. Nothing in government happens without money; indeed, it’s a federal offense to do something in government without an appropriation. If Trump fires Sessions, or uses his replacement to improperly fire Mueller, then Congress could respond by zeroing out parts of the Justice Department budget.

Or, Congress could threaten the funding for more specific presidential priorities, like the construction of a border wall or his much-promoted infrastructure project. The problem is that many of these projects are pretty popular with the general public, so lawmakers — especially those up for reelection in 2018 — may not want to rock the boat.

A third kind of leverage exists in the Senate’s confirmation power, which both Republicans and Democrats have successfully used to extract performance from presidents.

In 1973, Congressional leaders used the confirmation of a new attorney general to extract the appointment of a special prosecutor for Watergate. Similarly, Sen. Charles Grassley on the Senate Judiciary Committee, or other Republican leaders, could threaten to delay or deny confirmation of Trump appointees. Grassley has already taken to Twitter to say his committee would refuse to even hold a confirmation hearing for whoever Trump would nominate if he went ahead and fired Sessions.

Trump might see congressional retaliation as a cost of doing business

The problem here is that Trump has shown little desire to actually fill appointments in the first place, and any more delay could actually affect the performance of government in ways that politically backfire. Nonetheless, the Senate could easily use this power to guide the selection of Sessions’s replacement at the Justice Department, and the choice of any other appointees to law enforcement positions.

No matter what, Congress would surely use its powers here to ensure that future appointees would continue the work of Sessions, Rosenstein, and Mueller. And, if it became clear that Trump really had fired these men in order to quash the inquiries into his administration, then Congress might finally decide to take political action in the form of impeachment.

Finally, Congress could act by creating a new independent counsel statute (cured of its constitutional infirmities) or by super-charging the investigations now being conducted by various congressional committees.

Both Democrats and Republicans still hate the idea of an independent counsel, resenting the ways it operated during the two decades of its life including major investigations like Iran-Contra and Whitewater, and lesser known investigations into myriad government officials for corruption or influence-related allegations. However, Mueller’s termination would likely outweigh this distaste and cause Congress to look for ways it could build new institutions to check and balance the president. Mueller’s termination could push Congress to create a more aggressive and empowered investigation of its own — one that can leverage congressional subpoena power and immunity authority.

To date, congressional inquiries have focused on Russian meddling in the 2016 election or other discrete issues. But if Trump dares Congress to act by firing the attorney general and special counsel, then Congress could (and probably would) respond with a more direct set of inquiries focused on Trump himself.

In concrete terms, Congress could ramp up these inquiries by hiring more professional staff, using subpoena powers to collect more evidence, and scheduling more interviews and public hearings to build a record — and perhaps a public case — against the president.

For now, the status quo persists. Sessions remains, albeit in what Trump himself derisively calls a “beleaguered” state, recused from anything related to the Russia investigation. Rosenstein continues to oversee the Russia and Trump-related inquiries, despite Trump’s animus toward him. Mueller and his dream team continue to make their way through sensitive evidence, piecing together what happened in 2016 and whether the Trump team committed any crimes then or since.

If Trump does nothing but tweet his anger, the prosecutorial triumvirate of Sessions, Rosenstein, and Mueller will continue their work, unaffected by Trump’s rage except to the extent there is more public interest in their efforts. If Trump acts to fire one or all three, their replacements are almost certain to continue their work. The only question will be how heavy a price Congress will force Trump to pay in the aftermath.

Correction: An earlier version of this story said that Sen. Lindsey Graham had warned impeachment proceedings might begin if Sessions was fired. He actually said this could happen if Mueller was dismissed.

Trump’s decision to fire Comey is another win for Vladimir Putin

2017-05-11T10:00:08-04:00

In his wildest dreams, Russian leader (and former Soviet intelligence officer) Vladimir Putin could have never imagined the extent of his success during President Donald Trump’s first five months in office.

Trump’s move on Tuesday to terminate FBI Director James Comey puts another huge point on the scoreboard for Putin — especially given the FBI’s lead role in probing possible collusion between the Trump campaign and Russia.

Truth be told, though, Russia’s already doing pretty well. In just a few months, Putin’s intrigues have probably influenced the outcome of an American presidential election and produced a basket of spoils for Mother Russia, including bitter feuds between the White House and the CIA, rifts between the US and its allies, damage to the American press’s legitimacy and public standing, a standoff between the White House and the federal courts over immigration orders, and the slow sabotage of American government through neglect and mismanagement.

If Putin were a Hollywood villain, it would be easy to imagine the scene in his lair on Tuesday night, as he watched the coverage of Comey’s ouster, cackling and stroking his evil pussycat while concocting his next scheme for world domination.

With a day of perspective after the Comey firing, it’s worth stepping back to take a broad view of all that Putin has already accomplished — and all the gains he may see in the days, weeks, months, and years to come.

Remember: Moscow may have handed Trump the White House

No accomplishment tops Russian influence on the outcome of the 2016 election. In Hillary Clinton, the Russians faced a formidable adversary who would have been quicker to confront Moscow on issues ranging from its support for Syrian strongman Bashar al-Assad to its meddling in Ukraine. In Trump, Putin saw a businessman with whom he could deal, if not also someone whose amateurism and personal weaknesses he could exploit.

American intelligence agencies share a consensus view that Russia influenced the 2016 election through old-fashioned espionage, cyberattacks, and support for WikiLeaks, among other means. Whether the heavy paw of the Russian bear was enough to tip the scales toward Trump remains an unanswered question. Someday, a special prosecutor or bipartisan, independent commission might answer that question, but for now, Putin can bask in the knowledge that he played at least some role in deciding the 2016 presidential election.

The Kremlin has directly weakened the American national security state

Putin can also celebrate his successful work to undermine American trust in its intelligence community. During the presidential campaign and transition, Trump openly derided the integrity and professionalism of America’s spies, suggesting they were unhappy under the past two presidents and their work on Iraq and other subjects had been shoddy and unreliable.

This feud continued through Trump’s inauguration, with the president comparing American intelligence agencies to the Nazis and falsely complaining that President Obama had ordered the FBI to wiretap Trump’s offices during the 2016 election. Russian intelligence did its part here, fanning the flames through adroit use of Twitter and fake news. The net effect was a president who took office deeply distrustful of the CIA, the FBI, and the rest of the American national security state.

Things haven’t gotten much better since Trump moved into the White House. The president’s first speeches to intelligence community and military audiences flopped — in part because he treated the audiences as political allies, insulting their apolitical professionalism, and in part because he used those speeches as platforms to attack the press or other institutions of American democracy.

Instead of mending fences with the agency during a televised speech at CIA headquarters on his first full day in office, Trump — standing in front of a wall honoring CIA personnel who have died in the line of duty, and facing a wall inscribed with the biblical quotation “And Ye Shall Know the Truth, and the Truth Shall Make You Free” — used the occasion to mock the press and reiterate his absurd calls for the American military to take Iraq’s oil.

Trump’s failure to fill senior positions in the Pentagon, State Department, Department of Homeland Security, and Justice Department, have contributed to this dysfunction. It’s also been fueled by Trump’s decision to staff his White House with aides like Ezra Cohen-Watnick, a junior intelligence official and Michael Flynn acolyte who’s repeatedly sparred with the CIA; Sebastian Gorka, under fire for his anti-Muslim views and reported past ties to neo-Nazi groups in Hungary; and Steve Bannon, the architect of Trump’s Muslim ban and his harsh attacks on the press and the judiciary.

Bannon’s formal appointment to the National Security Council — though later revoked — had raised eyebrows because no political adviser had ever previously served on the arm of the White House charged with deciding vital questions of life and death. Trump further alienated intelligence agencies and the Pentagon with an initial reorganization of the NSC that downgraded the standing of the CIA chief and the chairman of the Joint Chiefs of Staff (both later regained their earlier standing).

The net effect has been to create a stark and bitter divide between the president and his national security agencies, and to erode the vital relationship between a president responsible for keeping the country safe and the spies, soldiers and diplomats who actually carry out the hard work of doing so. And that’s another point on the board for Putin.

Putin wants to destroy NATO. Trump is helping.

The continuing existence and vitality of NATO irritates Russia to no end. It reminds the former Soviet state of its former greatness, as well as its former control over the satellite nations of the Warsaw Pact. NATO’s continuing march east, the aggressively pro-American foreign policy of new members like Poland, and the alliance’s steadfast support for Ukraine and other former Soviet states rankles Putin. It makes sense for Moscow to see opposition to NATO as a vital security interest — and to pursue any means available to undermine or neutralize an alliance expressly created during the Cold War to battle the Soviet Union.

Enter Trump, and his rhetoric of America First. Such rhetoric last appeared during the late 1930s, when it was deployed by American isolationists to keep America out of Europe’s wars and conflicts. Putin and his henchmen clearly understood the strategic value in having an “America First” proponent in the White House — it necessarily meant that the US would reduce, if not entirely eliminate, its support for NATO.

Trump’s rhetoric must have reassured Putin during the 2016 campaign when he cast America’s alliances in transactional terms and castigated America’s allies for not paying their fair share for Europe’s defense.

Since taking office, Trump has taken nearly every opportunity to insult, spurn, or diminish America’s allies in Europe (and elsewhere too). In his zeal to undermine the US intelligence community, Trump took aim at the British GCHQ intelligence agency, throwing around wild and false accusations that they’d helped Obama wiretap his offices. Trump barely tolerated a visit from German Chancellor Angela Merkel to the White House, while pressing Merkel to spend more on defense.

After a tragic terrorist attack in France, meanwhile, Trump tweeted that far-right candidate Marine Le Pen would likely benefit from post-attack outrage, saying, “Another terrorist attack in Paris. The people of France will not take much more of this. Will have a big effect on presidential election!” Trump’s tweet was both premature and incorrect, however; French voters overwhelmingly elected Emmanuel Macron, who had been formally endorsed by former President Barack Obama.

And Trump repeated his campaign statements about NATO’s obsolescence — until, presumably, being briefed on NATO’s continuing, heavy commitment to counterterrorism operations in Afghanistan and other nations, at which point he said NATO wasn’t actually obsolete after all.

As a political alliance, NATO’s survival depends on the ability of its leaders to set aside their many differences in pursuit of common goals. Until the 2016 election, NATO leaders were on the same page when it came to seeing a rising threat from Russia and seeking ways to beat it back. Trump has undermined this unity of effort within NATO since day one of his presidency. Can you hear Putin cackling now?

Thanks to Putin, our dysfunctional democracy has gotten much worse

For all of the dysfunctional politics of Washington, our national security agencies have evolved through major crises like World War II, the Cuban Missile Crisis, Vietnam, the Cold War, and our post-9/11 wars, into a relatively stable and functional (if bloated) machine. This machine depends on leadership and strategy from the White House.

Once a new president sets out his or her top national objectives and priorities, the immense machinery of the Pentagon, State Department, and intelligence community swings into action, deploying troops, diplomats, weapons systems, money, or other tools of statecraft to carry out American strategy.

However, for all his talking and tweeting since January 20, Trump has still not articulated a coherent national security policy for the United States. The White House website contains no articulation of a strategy for complex issues like defeating ISIS or handling a rising China. Twitter — Trump’s preferred mode of communication — doesn’t either.

In the absence of clear direction from above, Trump’s lieutenants are left to recommend what they think the US ought to do in moments of crisis, whether that means moving an aircraft carrier battle group to counter North Korea or launching cruise missiles to strike Syria. None of these actions are linked together by any underlying strategy. Indeed, many directly contradict President Trump’s prior articulations of an “America First” strategy and effectively maintain the status quo policies developed under Presidents Bush and Obama.

Relatedly, Trump has failed to staff his Pentagon, State Department, Treasury Department, Justice Department, and intelligence community with the senior and midlevel appointees necessary to actually implement an agenda — any agenda. These appointees matter because they actually handle the difficult day-to-day work of carrying out the president’s broad marching orders to specific agencies and departments.

Without deputy, under, and assistant secretaries in place, no president can manage the immense American national security state. Their absence compounds the failure caused by an absence of strategy, leaving these agencies adrift, driven mostly by inertia. This also deprives the president of a team of advisers who can guide him in sensitive negotiations, such as the summit with Chinese President Xi Jinping, or develop options for important issues, like the war in Afghanistan.

Career officials at these agencies can do a relatively good job of managing current operations, but these agencies need political appointees in place to function effectively and mesh well with the White House. US ties with foreign countries also suffer when top officials from other governments meet with American officials that they know to only be keeping seats warm temporarily.

By this point, Putin has probably fallen out of his chair laughing at the dysfunction and chaos he has sown in Washington, and the extent to which Russia has benefited from Trump’s actions and missteps. We may never definitively know if Putin is the reason Trump won the White House — or the full dossier of Russian espionage and influence operations over the past year. But there’s one thing we can say with absolute certainty: The Russian strongman, to use a famous Trumpism, is winning so much that he might get tired of winning.

Trump just blamed the military for the botched Yemen raid. That’s a disgrace.

2017-02-28T21:16:33-05:00

Most Americans thought little of President Harry Truman when he ascended to the White House in April 1945. Six months later, they thought even less, as the nation’s economy slowed at the end of World War II and the nation woke up to the dangers of the Cold War. To encourage the new president, and remind him of the awesome responsibility for the nation that rested atop his shoulders, an old friend sent Truman a sign made by federal prisoners in Oklahoma, emblazoned on the back with “I’m from MISSOURI,” and on the front with “The BUCK STOPS here!”

Update: Watch Trump speech to Congress

Seventy-two years later, perhaps we should play Taps for the notion that the buck stops on the president’s desk. In an interview with Fox & Friends Tuesday, President Donald Trump refused to accept responsibility for the risky special operations raid in Yemen earlier this month that resulted in the death of Navy SEAL Chief Petty Officer William “Ryan” Owens.

Never mind the fact that Trump personally approved and ordered this flawed raid; never mind the fact that he personally signaled during his campaign that he wanted to order more aggressive counterterrorism actions like this. When things went bad, it was the fault of the military — not Trump.

“This was a mission that was started before I got here. This was something they wanted to do,” Trump said. “They came to me, they explained what they wanted to do ― the generals ― who are very respected, my generals are the most respected that we’ve had in many decades, I believe. And they lost Ryan.”

The military, in other words, is to blame for the tragic loss of one of their own. Trump himself, in his own mind, is blameless.

This evasion of responsibility should come as no surprise from someone who personally evaded military service during the Vietnam War with four draft deferments for college and one for “bone spurs.” Similarly, we should not be surprised that a man who avoids compliance with the Constitution’s emoluments clause would also avoid his responsibility as “commander in chief of the Army and Navy of the United States.”

Still, Trump’s blunt refusal to accept personal responsibility for the Yemen raid burns because it marks such an incredible betrayal of his office and the awesome responsibility that our president must shoulder, especially in the national security sphere. A president who passes the buck is not one we can trust to lead our military or keep us safe.

Presidents have always taken responsibility for military raids gone bad. Trump is blaming others.

It has not always been so. Historically, great and not-so-great presidents have taken responsibility for military operations and setbacks, even when presidential responsibility was more attenuated than in this case. Shortly after taking office in 1961, President John Kennedy ordered the disastrous Bay of Pigs invasion; he publicly accepted responsibility for that operation on national television. When the 1980 Desert One mission to rescue hostages in Iran failed spectacularly, President Jimmy Carter similarly went on national television to accept responsibility, saying, “It was my decision to attempt the rescue operation. It was my decision to cancel it when problems developed in the placement of our rescue team for a future rescue operation. The responsibility is fully my own.”

In 1983, when Hezbollah militants demolished a Marine barracks in Beirut and killed 241 US service members, President Ronald Reagan held a news conference the next day to answer questions about the bombing and the Marines’ mission. More recently, President Barack Obama pointed the finger at himself after the deadly attack in Benghazi, Libya, in 2012 that left four Americans dead. “I’m the president. And I’m always responsible,” he said at the time.

In each of these cases, there were a thousand errors at lower echelons of command that contributed to the ultimate failure. Such is the fog and friction of war. However, each of these prior presidents understood the dictum of Truman’s sign: The buck stopped in the Oval Office, with the president personally. Both the nation and the troops expected no less.

The military, in Trump’s mind, is to blame for the tragic loss of one of their own. Trump himself is blameless.

Trump’s comments betray the service members whom he commands, as well as their leaders. Service members (and their families) put their faith in their leaders, up to and including the president, that they will spend their lives wisely. When things go wrong, American troops expect ruthless and rigorous introspection to identify failures, to learn lessons that might avoid failure the next time. It’s a principle I learned and lived by as a young Army officer and combat leader in Iraq; my troops expected I would put ego aside to focus on the mission, and put their lives and welfare above mine. Shifting blame undermines this faith, as does the White House’s steady evasion of requests for post-raid investigations.

The father of the fallen commando didn’t want to meet with Trump

These breaches of faith, as evidenced by the White House’s defensive maneuvers immediately after the raid, probably played some role in the decision by Bill Owens, the fallen commando’s father, to refuse a meeting with the president.

“I’m sorry; I don’t want to see him,” Owens told a military chaplain at Dover Air Force Base after being told that Trump would be attending the dignified transfer ceremony for his son’s casket. “My conscience wouldn’t let me talk to him,” Owens said later, in part because of Trump’s treatment of Gold Star parents during the campaign, and in part because of serious questions about the wisdom of the operation itself.

“Why at this time did there have to be this stupid mission when it wasn’t even barely a week into his administration? Why?” Owens asked.

Trump’s denials of responsibility and evasion fit a broader pattern of weakness for the man who inhabits the world’s most powerful office

Notwithstanding the portrayal of military martinets in movies like Patton and Full Metal Jacket, real military leadership is epitomized by leadership by example, mutual respect, shared sacrifice, and trust. The foundation for this trust is mutual faith: leader faith that troops will follow orders and persevere when in harm’s way; subordinates’ faith that leaders will make good decisions and take responsibility for bad decisions or actions, so as not to waste troops’ lives. Trump throwing our military leadership under the bus illustrates that he has zero understanding of real leadership, as distinguished from movie caricatures. His leadership style mimics the martinets he’s seen in Hollywood portrayals of the military. It could not be further from the real thing.

When taken together with his previous bashing of the military, and punitive actions toward leakers and dissenters on his own staff, Trump’s blame shifting will likely make military leaders less trusting of their boss, and possibly more risk-averse as well. If they know they will be blamed for every failure — even those that occur on missions directly ordered by the president — military leaders will likely look to minimize risks wherever possible. In the hard, bloody work of counterterrorism, this may push generals to recommend measures like targeted killings by drones or bombing by planes, in lieu of special operations raids, because the risks are lower, regardless of whether such tactics achieve the same ends.

Trump’s denials of responsibility and evasion fit a broader pattern of weakness for the man who inhabits the world’s most powerful office. If Trump’s worst instincts continue to guide him, as here, he will only diminish the office and the nation by undermining the trust and respect accorded the president by those who serve him, and corroding the chain of command responsible for our national security. Our troops deserve better, and so do we.

Phillip Carter is a former Army officer and Iraq veteran who is a senior fellow at the Center for a New American Security. Find him on Twitter @Carter_PE.