Rules for Pentagon Use of Proxy Forces Shed Light on a Shadowy War Power

"Newly disclosed documents include Special Operations forces directives for managing counterterrorism and irregular warfare surrogate fighters.

U.S. Special Operations forces are not required to vet for past human rights violations by the foreign troops they arm and train as surrogates, newly disclosed documents show.

While the gap in rules governing vetting for a counterterrorism program have previously been reported based on anonymous sources, the documents provide official confirmation. Under the program, American commandos pay, train and equip foreign partner forces and then dispatch them on kill-or-capture operations.

The documents, including two sets of directives obtained by The New York Times through a Freedom of Information Act lawsuit, also show a similar gap exists in another Pentagon surrogate force program for so-called irregular warfare. It is aimed at disrupting nation-state rivals via operations that fall short of full armed conflict — including sabotage, hacking and information campaigns like propaganda or clandestine efforts to shape morale.

While the Pentagon is more open about security cooperation in which it assists allies and partners in expanding their own capacities, it rarely discusses its use of surrogates, or the foreign troops with whom Special Operations forces work to pursue specific American objectives. The documents open a window on how the programs function and what rules govern them.

Proxy forces are an increasingly important part of American foreign policy. Over the past decade, the United States has increasingly relied on supporting or deputizing local partner forces in places like Niger and Somalia, moving away from deploying large numbers of American ground troops as it did in Iraq and Afghanistan.

Even as that strategic shift is meant to reduce the risk of American casualties and blowback from being seen as occupiers, training and arming local forces creates other hazards.

The disclosures underscored a need for tighter rules on proxy forces, Representative Sara Jacobs, Democrat of California, argued. “We need to make sure that we are not training abusive units to become even more lethal and fueling the conflict and violence that we’re aiming to solve,” she said. “And that starts with universal human rights vetting.”

Last year, she and Senator Chris Van Hollen, Democrat of Maryland, sponsored an amendment to a defense bill to require human rights vetting of surrogate forces that passed the House but not the Senate. She said she planned to introduce a more comprehensive bill to tighten such rules.

A senior Defense Department official, speaking on the condition of anonymity to discuss sensitive operations, said that all members of a proxy force were already subjected to extensive screening to ensure that they would not attack or spy on American forces. The official maintained that vetting was sufficient to weed out bad actors.

Lt. Col. Cesar Santiago-Santini, a Pentagon spokesman, said in a statement to The Times that the department had found “no verifiable gross violations of human rights” by participants of either proxy force program.

Katherine Yon Ebright, a counsel with the Brennan Center for Justice at New York University’s law school who has written critically about both programs, said that Pentagon officials have sent mixed signals about whether surrogate forces are vetted for past human rights violations, with current and former officials sometimes contradicting one another.

“It’s very helpful now to have these internal policies in hand that definitively show that human rights vetting is not required,” Ms. Ebright said. “It’s been frustrating, the more you know about this, because of those mixed messages and the opacity.”

The Pentagon keeps secret much about its proxy force operations.

In February, the Government Accountability Office completed a report titled “Special Operations: Overarching Guidance Needed to Oversee and Assess Use of Surrogate Forces to Combat Terrorism,” but everything about it beyond its title is classified. (The Times is seeking a declassification review under the Freedom of Information Act.)

The Pentagon also will not disclose a comprehensive list of partner forces and the countries in which they are operating. The Defense Department official said the list is classified primarily because of its sensitivity to partners, citing situations in which a foreign government has agreed but wants to keep its participation quiet for its own domestic political reasons.

The documents obtained by The Times include directives for two programs that are named for the laws that authorize them. The Section 127e program, commonly called “127 Echo,” can spend up to $100 million a year on counterterrorism proxies. The Section 1202 program is authorized to spend up to $15 million a year on surrogates for irregular warfare.

The rules lay out the process by which special operators propose developing a new partner force, which is ultimately up to the secretary of defense. The State Department’s chief of mission in the affected country — if there is one — must also concur, but the rules do not require consulting the secretary of state in Washington. The programs cannot be used for covert operations.

The laws creating the two programs do not provide free-standing operational authority, the documents say. They do not detail the scope and limits on whom the programs can target.

For the counterterrorism program, the proxy force must be used against an adversary deemed to be covered by the Authorization for Use of Military Force that Congress enacted after the Sept. 11, 2001, attacks, the senior Defense Department official said. The executive branch has interpreted that law as a legal basis to wage an armed conflict against Al Qaeda, the Islamic State and the Somali militant group Al Shabab.

It is unclear whether the program has always been limited to groups covered by the force authorization. Reporting by The Intercept and Politico has suggested that the Pentagon may have used the program to support a force in Cameroon battling both an ISIS affiliate and Boko Haram, a group not deemed to be covered by the authorization However, some Boko Haram members also have ISIS links.

The irregular warfare program has provided training to allied forces in countries that face a threat of invasion by larger neighbors, the senior Defense Department official said. The Washington Post has reported that an irregular warfare proxy program in Ukraine was terminated just before the open conflict with Russia started, and that some officials want to restart it.

The directives also describe the vetting that allied partners must undergo before American taxpayers pay their salaries and put weapons and specialized military equipment, like night-vision goggles, in their hands.

Screening includes collecting people’s DNA; analyzing phone call logs, travel histories, social media posts, and social contacts; checking local and national records for derogatory information; and conducting security interviews. Leaders who will come into greater contact with American troops and learn more about their plans must also undergo behavioral health interviews and lie-detector tests.

But the purpose of this vetting is to detect counterintelligence risks and potential threats to American forces. The directive does not mention violations of human rights — such as rape, torture or extrajudicial killings.

The irregular warfare directive is less detailed about vetting. But it explicitly says, “The provision of support under Section 1202 is not contingent upon successful human rights vetting requirements as defined in” a statute with a rule known as the Leahy Law.

The Leahy Law, named after former Senator Patrick Leahy, Democrat of Vermont, bans security assistance to units of foreign militaries or other security forces that have a history of gross violations of human rights. (The law does not cover nonstate forces, like a tribal militia.)

Still, Colonel Santiago-Santini, the Pentagon spokesman, said in his statement that the department was “confident that our vetting system for Section 127e and 1202 programs would reveal any human rights concerns with potential recipients.”

At first, the Pentagon’s version of the Leahy Law applied only to training. But in 2014, Congress expanded it to providing equipment and other assistance. But in a memo that year signed by Defense Secretary Chuck Hagel and obtained by The Times separately from the information act lawsuit, the Pentagon declared that the Leahy Law did not apply to counterterrorism surrogates.

The memo said that enabling proxy forces to help Special Forces counterterrorism operations is “not assistance” to the foreigners. This purported distinction — that building up proxy forces so they can assist the United States in pursuing its objectives is legally different from assisting foreign partners in building up their own security abilities — is disputed.

A critic of that theory is Sarah Harrison, who worked as a Pentagon lawyer from 2017 to 2021 and is now at the International Crisis Group, where she has called for requiring human rights vetting of surrogate forces. She argued that the Pentagon’s narrow interpretation of the Leahy Law is “a dishonest reading of the plain text and intention of Congress.”"