Beyond the AUMF: Congressional Authorizations for Forever War in Somalia

At the recently-held 79th session of the United Nations General Assembly (UNGA) in New York City, U.S Ambassador Linda Thomas-Greenfield met with current Somali Prime Minister Hamza Abdi Barre in an exchange which focused heavily on the security aspects of the long-growing strategic partnership between the two countries.[1] In a press release following the meeting, a spokesperson from the U.S. Mission to the United Nations reported that the parties “discussed the need to take steps to promote security and stability in the Horn of Africa, including to ensure the readiness of a follow-on mission to continue the fight against Al-Shabaab.”[2]  

The meeting took place just over six months after the establishment of a new Memorandum of Understanding (MoU) between the two countries, wherein the parties agreed to the building of up to five new military bases for the Somali National Army, in particular the U.S.-sponsored Danab Brigade, a Special Ops Force established in 2014.[3] Following the signing of the agreement, U.S. Assistant Secretary of State for African Affairs Molly Phee expressed that “U.S support to the Danab Brigade [remains] ‘a centerpiece of [its] ongoing cooperation with Somalia.’”[4]

U.S support for military operations in Somalia is not a recent development. The United States has a long history of providing military and security assistance to Somalia, including the notably disastrous military intervention of 1992-1993 which was infamously, though inaccurately, depicted in the 2001 film “Black Hawk Down.”[5] Following a period of hesitancy to reinvolve themselves in the affairs of the East African state, the U.S. has reemerged as a key provider of both humanitarian aid and military assistance in post-9/11 era, with a particular focus on security-minded statebuilding and counterterrorism efforts focused on the militant group Al-Shabaab.[6]

Between 2006 and 2019, the U.S provided $3 billion worth of humanitarian assistance and an additional $253 million in development assistance to Somalia.[7] According to a 2023 Report by the Congressional Research Service, the Biden Administration requested an increase in the FY2024 budget to include over $285 million for Somalia.[8] The U.S has also valued the cost of the new military bases agreed to in the February 2024 MoU at over $100 million.[9]

The U.S. continues to have both a direct and indirect military presence in Somalia (direct being targeted airstrikes and, on certain occasions, U.S. boots on the ground; indirect being through financial support and training of forces such as the Danab Brigade).[10] Yet, the Department of Defense still does not consider it an “area of active hostilities.”[11]

Going back to the basic principles of American constitutional law, a clear issue arises: the U.S. Constitution vests the power to declare war and to raise and support armies in the legislature, not the executive.[12] So where is the congressional authorization permitting the Departments of State and Defense to construct such a costly U.S. military partnership with Somalia? 

As to direct involvement, the primary congressional authorization for the U.S.’s direct military actions in Somalia comes from the 2001 Authorization for Use of Military Force (AUMF).[13] Though debates are aplenty as to whether this authorization should have ever applied to groups beyond Al-Qaeda and the Taliban, especially considering that Al-Shabaab was not even operable at the time the AUMF was passed, the presence or absence of congressional authorizations for the U.S.’s indirect participation in armed conflict in Somalia has not been subject to the same level of scrutiny.[14] 

As to security partnerships not involving direct participation in hostilities, Title 10 of the United States Code has become the primary source of congressional authorizations governing what the Department of Defense can and cannot do in cooperation with foreign partners.[15] [1] [2] Of Title 10, Sections 127e and 333 have emerged as the primary legal bases for U.S support for counterterrorism operations.[16] Section 127e  allocates the Secretary of Defense up to $100,000,000 to spend on “support to foreign forces, irregular forces, groups, or individuals engaged in supporting or facilitating authorized ongoing military operations by United States special operations forces to combat terrorism.”[17] Section 333 permits the Secretary of Defense to “conduct or support … programs to provide training and equipment to the national security forces of one or more foreign countries for the purpose of building the capacity of such forces” in the conduction of a variety of operations, including counterterrorism and military intelligence operations.[18]  

Like the AUMF, Sections 127e and 333 of Title 10 contain extremely broad delegations of congressional war powers. Though the president remains the Commander in Chief and, as was stated in the case of United States v. Curtiss-Wright Export Corporation, “the sole organ of the federal government in the field of international relations,” the power to engage U.S troops in active hostilities remains vested in the legislature.[19] Yet, without adequate oversight, who is to say that the U.S. forces are not prepared to engage in direct combat in Somalia? Without reporting requirements such as those that arise under the War Powers Act in cases of declared wars, it is not implausible that a security partnership of this magnitude could transform into full-scale U.S. involvement in another indefinite and unauthorized foreign war.[20]

Emily Jones is a staff member of Fordham International Law Journal Volume XLVIII.

[1] Somalia and U.S. Forge Ahead With Enhanced Strategic Partnership At UNGA, All Africa (Sept. 24, 2024),  https://allafrica.com/stories/202409240511.html.

[2] Readout of Ambassador Thomas-Greenfield’s Meeting with Somali Prime Minister Hamza Abdi Barre, U.S. Mission to the U.N. (Sept. 23, 2024), https://usun.usmission.gov/readout-of-ambassador-thomas-greenfields-meeting-with-somali-prime-minister-hamza-abdi-barre/.

[3] Press Release, United States Increases Security Assistance Through Construction of SNA Bases, U.S. Embassy in Som. (Feb. 16, 2024), https://so.usembassy.gov/united-states-increases-security-assistance-through-construction-of-sna-bases/; Amanda Sperber, The Danab Brigade: Somalia’s Elite, US-Sponsored Special Ops Force, Pulitzer Center (Aug. 11, 2020), https://pulitzercenter.org/stories/danab-brigade-somalias-elite-us-sponsored-special-ops-force.

[4] Id.

[5] Elias Yousif, US Security Assistance to Somalia, Stimson (Mar. 20, 2023), https://www.stimson.org/2023/us-security-cooperation-with-somalia/.

[6] Id.

[7] Bureau of African Affairs, U.S. Relations with Somalia, U.S. Dep’t of State (Dec. 19, 2019), https://2017-2021.state.gov/u-s-relations-with-somalia/.

[8] Lauren Ploch Blanchard, Somalia, Cong. Rsch. Serv. (July 27, 2023) https://crsreports.congress.gov/product/pdf/IF/IF10155.

[9] See U.S. Embassy in Som., supra note 4.

[10] See, e.g., Press Release, U.S Forces Conduct Strike Targeting ISIS, U.S Africa Command Public Affairs (May. 31, 2024); Katharine Houreld, U.S. Troops are Back in Somalia and Scrambling to Help its Special Forces,  Wash.Post (Dec. 10, 2022).

[11] Office of the Dir. of Nat’l Intelligence, Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities (Aug. 6, 2016), https://www.dni.gov.

[12] U.S. Const. art. I, § 8, cl. 11-12.

[13] Afreen Minai, 23 Years of Endless Wars Is Enough, Responsible Statecraft (Sep. 17, 2024), https://responsiblestatecraft.org/war-on-terror-2669222390/.

[14] Id.

[15] David E. Thaler et al., From Patchwork to Framework: A Review of Title 10 Authorities for Security Cooperation, at ix–xi (RAND Corp. 2016).

[16] See Yousif, supra note 5.

[17] 10 U.S.C. § 127e.

[18] 10 U.S.C § 333.

[19] United States v. Curtiss-Wright, 299 U.S. 304 (1936).

[20] 50 U.S.C. Ch. 33.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.