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The Army Lawyer | Issue 6 2021View PDF

No. 2: The Fog After War

Written By
Hannah Zeigler
Tags
2024-06-17
Contracted Logistics Support to Mi-17 operations in support of Afghan Security Forces. (Credit: U.S. Forces–Afghanistan Public Affairs Office)

Contracted Logistics Support to Mi-17 operations in support of Afghan Security Forces. (Credit: U.S. Forces–Afghanistan Public Affairs Office)

No. 2

The Fog After War

U.S. Government Security Assistance and the Dissolution of Afghanistan National Defense and Security Forces Defense Articles

By Major Todd Chard, with Introduction by Colonel Ryan B. Dowdy

Introduction

Why submit an article about the challenges of defense article property disposition post-collapse of the Government of the Islamic Republic of Afghanistan (GIRoA) when one could write about more intriguing issues associated with all things Afghanistan? Fair question. Appropriations law and the National Defense Authorization Acts tend to be inflexible, black-letter law with no room for legal options. The Security Assistance Management Manual (SAMM) delineates in detail the Department of Defense’s (DoD) security cooperation roles, responsibilities, and processes. The DoD even has an agency, the Defense Security Cooperation Agency (DSCA), dedicated to administering enterprise-level DoD security cooperation programs across the globe. So, in light of all that, I too would have asked “why write this article” before witnessing the legal aftermath caused by the collapse of GIRoA; an aftermath that exposed the gaps and seams within law and policy with which my agency—the Defense Security Cooperation Management Office–Afghanistan (DSCMO–A)—had to contend.

Briefly, DSCMO–A served as the execution agent and fiduciary for the Afghanistan Security Forces Fund (ASFF). The ASFF, a two-year, overlapping fund, was specifically appropriated to provide financial and security assistance support to the Afghan National Defense and Security Forces (ANDSF), and therein lies the problem. After 15 August 2021, we were presented with a glaring and obvious question: did the ANDSF still exist for purposes of expending ASFF? Obviously, the decision as to whether the ANDSF legally existed after 15 August 2021 resided echelons above DSCMO–A. However, such a declaration was not forthcoming in the several months after the collapse of GIRoA. Understandably, the U.S. Government faced much more pressing issues immediately following GIRoA’s collapse. The DSCMO–A’s senior leaders pressed on in the absence of immediate guidance to responsibly mitigate the consequences of closing down ASFF-funded programs, which was something akin to turning an aircraft carrier as opposed to a small skiff.

The government’s collapse left millions of dollars in ASFF-procured, Afghan-owned defense articles stranded in the Continental United States (CONUS) and outside the Continental United States (OCONUS) locations. Much of the equipment—battle damaged or in need of maintenance due to wear and tear—was in various stages of repair and receiving ASFF-funded contract maintenance at logistic support hubs outside Afghanistan. These contracts also posed a problem, in that they were all at various points within their period of performance and required individualized assessments on how best to close each. This article is an account of how we navigated the legal ambiguity in which we found ourselves pending final decision from the appropriate higher authorities.

The purpose of this article is twofold. We offer our experience to legal practitioners newly assigned to a role advising senior leaders in the arena of security cooperation. At the basic level, those practitioners may use this article as a contextual primer. However, while our legal mission was strategically specific to the laws, regulations, and policies governing security cooperation in Afghanistan, our experiences advising through the U.S. Forces–Afghanistan retrograde, stand-up of DSCMO–A, and collapse of GIRoA transcend our Corps’s professional competencies.

My personal experience as the DSCMO–A staff judge advocate (SJA) reinforced—more than any prior assignment—our responsibilities as legal professionals in uniform and the value we bring to organizations in which we serve. These concepts are much aligned with The Judge Advocate General’s mission,1 vision,2 and our Corps’s Constants3: never stop honing your critical thinking skills, commit to a lifetime of learning, and ensure that each of you master the legal portfolio that you are assigned. Do not be afraid to lead up, especially when you are fully ensconced in a complex problem that, for all the right reasons, is not the immediate priority of the larger enterprise. However, leading up requires professional tact and the recognition of when your advocacy stops and your followership begins. As each of you gain more seniority, those you advise will expect you to have the innate ability to represent your organization within the greater hierarchy. At times, you as a leader will be the lead voice for your client as they endeavor to build interagency consensus. The art, of course, is doing so by also recognizing the terminus of your lane, balancing respect for proper organizational hierarchy while also leaning in and flattening communications.

For me, this experience reinforced another constant that I remember a very astute professor at The Judge Advocate General’s Legal Center and School espousing to my basic course: the Corps and the Army are small; relationships matter. In this short deployment, I re-kindled a friendship with our J2. As captains we served in V Corps together during the invasion of Iraq. I also communicated often with legal colleagues with whom I have served over the years, all of whom were now leaders in key positions across the Army, joint force, and DoD. Their sage advice and access immeasurably contributed to my ability to assist our team of talented JAs working through the difficult problems before us. For purposes of this article, I will respect the principles of non-attribution and protect the innocent; but each have my sincerest gratitude for their personal and professional friendship. And finally, the DSCMO–A Director and I served together when I was the deputy SJA at the 82d Airborne Division. This helped our relationship begin from a position of trust. I cannot stress how important it is that you foster your relationships over the course of your career. Even when serving in a position that requires you to be a zealous advocate, do so with professionalism and tact, and not with scorched-earth, relationship-ending behaviors.

At the time of our submission, the Office of the Secretary of Defense (OSD) was still considering what official position to take as to the legal status of the materiel left stranded by the collapse of GIRoA. The DSCMO–A remains agnostic about the final decision on property disposition and the future of ASFF. We did not see ourselves as advocating for one option over another. Our only goals were to be a good a teammate, a good steward of resources, take initiative during uncertain times, and succinctly communicate up the legal ambiguities and friction identified at our level. In the end, remember it’s a team sport. Avoid becoming anchored on one course of action or position, especially where law and policy intersect. A decision from higher to go a different direction is just that—a decision; it’s not personal. In the end, we provided options—all of which we felt were legally sound—for consideration by those that I commend for making very hard decisions in support of our Nation’s national security interests.

The Fog After War

The ability to get things done is a measure of the ability to build a consensus of support and understanding for what you are trying to do.4

On 15 August 2021, as Taliban troops stormed the walls of the presidential palace, Ashraf Ghani (some would say) surreptitiously fled Kabul, Afghanistan. Ghani, the last president of GIRoA, would later say he retreated to the United Arab Emirates (UAE) by helicopter with only the clothes on his back.5 History will say, however, that he took with him the final gasp of hope for Afghanistan’s independence from Taliban rule. One day prior, two iconic warlords, Abdul Rashid Dostum (a brutal army Marshall in the ANDSF)6 and Atta Mohammed Noor (the Mujahideen commander turned Balkh province governor) fled the Afghan city of Mazar-i-Sharif as it fell to the Taliban, unopposed. Dostum and Noor both enjoyed power for decades. In his final salvo to retain that power, Dostum hurriedly commanded a fleet of nearly fifty ANDSF aircraft over the northern border to a safe haven in Uzbekistan, crashing one along the way.7 A testament to his celebrity, hundreds of his followers who did not make the flight trailed him on foot, rushing the Friendship Bridge at the northern pass.8 Noor, an ethnic Tajik, took a similar approach, escaping to neighboring Tajikistan with Afghan pilots and soldiers by use of ANDSF aircraft.9

From 2002 to 2021, the U.S. Congress appropriated over $88 billion to help build and sustain the ANDSF.10 This included billions of dollars in aircraft, weapons, communications equipment, vehicles, and other materiel.11 They procured most of these defense articles and the services and supplies needed to sustain them using the ASFF, an Overseas Contingency Operations (OCO) fund.12 The ASFF was first authorized and appropriated by Congress in fiscal year (FY) 2005, to provide the ANDSF with security assistance.13 The Combined Security Transition Command–Afghanistan (CSTC–A)14 served as the execution agent of ASFF from 2006 until it reconstituted “over-the-horizon” at Al Udeid Air Base, Qatar, in the late spring of 2021. Shortly thereafter, it was deactivated, and succeeded by the DSCMO–A.15 The DSCMO–A mission was largely a continuation of what CSTC–A had done: manage ASFF in support of the ANDSF and enable GIRoA authorities through stabilization operations.16 In the early summer of 2021, the bulk of coalition and U.S. forces under both Resolute Support and U.S. Forces–Afghanistan (USFOR–A) reached their military end state, and the role of DSCMO–A grew in importance.17 The DSCMO–A’s intended use of ASFF to provide materiel and contractor logistics support to sustain the ANDSF fleets of rolling and non-rolling stock, and rotary and fixed wing aircraft was projected to be instrumental to the viability of the Afghan force. After 15 August 2021, with GIRoA dissolved and the ANDSF disbanded, DSCMO–A needed to revise its approach in earnest.

This article centers on DSCMO–A’s abrupt and uncertain shift in mission: from providing the ANSDF with defense articles to returning those same defense articles to the DoD after the ANDSF disbanded. Specifically, DSCMO–A grappled with whether law and policy allowed for ASFF-procured items to be returned to DoD base budgets, and if so, how. The first part of this article, “Moving to Friction,” details the problems posed by these defense articles once GIRoA collapsed. The second, “Security Cooperation and the ANDSF,” briefly describes security cooperation programs, such as pseudo-Foreign Military Sales (FMS), used by DSCMO–A to support the ANDSF. The third part, “Building the Plane in Flight,” analyzes ASFF provisions of the governing authorization and appropriation laws. The fourth section, “Defense Trade and Arms Transfers,” returns to a discussion of security cooperation, particularly, the Excess Defense Article program, to forecast the future use of ASFF-funded defense articles. Finally, the article closes with a brief application of lessons learned towards a scenario where an Operation INHERENT RESOLVE (OIR) retrograde involves the dissolution of a partner force.

Moving to Friction

What do you do with a fleet of helicopters? This seemingly simple question can generate myriad courses of action (COA) shaped by law, policy, command authority, and the operating environment. Unfortunately, the swift collapse of GIRoA both created this quandary and left little time for DSCMO–A to solve it. Soon after the ANDSF disbanded, General Kenneth McKenzie, U.S. Central Command (USCENTCOM) commander, directed DSCMO–A to execute the responsible closeout of activities within the organization, and specifically to account for all ASFF-procured defense articles still under control of the U.S. Government (USG).18 For DSCMO–A, this was a call to action. Major General Curtis Buzzard, an infantryman by trade, did not know it when he took command in June 2021, but this USCENTCOM order would become the center of gravity to his organization’s existence.

Transition within any major operation invites risk to the security and stability of the organization, and this was no different.19 With an uncertain legal and operating landscape, “move to friction”—to seek out and defeat the ambiguity of post-war operations—became a mantra for Major General Buzzard and his staff. Working out of USCENTCOM Forward Headquarters, the DSCMO–A staff understood winding up the ANDSF estate required development of ends, ways, and means through consensus, by authority, or some combination of each. This would invoke key stakeholder input across the USG. Success, therefore, was born from the synchronization of competing requirements across the enterprise—leveraging opportunities to consolidate consensus in order to reduce internal rivalry and maximize results. Success only existed in the narrow juncture between concurrent requirements to reintegrate or otherwise dispose of ASFF-funded defense articles, while at the same time serving as a fiduciary of appropriated funds.20

DSCMO-A leadership and legal team, October 2021. (Photo courtesy of author)

DSCMO-A leadership and legal team, October 2021. (Photo courtesy of author)

To develop the plan, the staff first defined the materiel concerned. The Afghanistan Program of Record included all types of ASFF-funded end use items. The provision of significant military equipment—specifically, fixed and rotary wing aircraft—however, was at the heart of this program.21 Towards the end of the war, the ANDSF maintained a fleet of approximately 292 ASFF-funded ANDSF aircraft.22 A number of aircraft were destroyed or otherwise inaccessible during the later stages of the retrograde from Afghanistan and therefore could not be recovered. The remainder were found in various legal, physical, and geographic states. The DoD transferred title to the ANDSF for most, but not all, of these aircraft. There was also a cache of frustrated stock still in DoD supply chains, procured with ASFF but never transferred to the ANDSF.23 Regardless of title, the condition of each aircraft varied from fully mission capable to requiring significant investment for intensive repair or overhaul. While many were now consolidated in the United States, others were located at U.S.-contracted depots worldwide, deteriorating in place, not cleared by customs, and incurring storage fees.24

With the conditions shifted, but still in flux, the DSCMO–A staff learned they would need to navigate the priorities and paradigms of key stakeholders to properly transition from supporting the ANDSF to dissolving its estate.25 An intervening constant to best laid plans, however, is law and policy. Analyzing the fiscal law authorization to use ASFF for aircraft after 15 August 2021 was a nuanced issue, and measuring the cost-benefit of funding contractor logistic support to maintain and pre-position these aircraft became a complex problem as well. The overarching requirement to transfer these items to DoD stocks, however, became the primary driver of the planning process.

A Season of Change

The time of death for GIRoA marked the true birth of DSCMO–A. Up until this point, DSCMO–A was living in the shadow of CSTC–A, having adopted many of its practices and personnel to advance the ANDSF. Now, with the fall of GIRoA, a new mission emerged—to forge a path for the DoD and Department of State (DoS) to parlay defense articles intended for the ANDSF towards other USG needs. This was a season of change and roles were redefined. The new FY was approaching, and the staff now turned to DSCMO–A Legislative Affairs more than ever, scouring updates to draft legislation for news on rescission or reprogramming of existing ASFF.26 Stakeholders outside of the organization emerged as well. The Departments of the Army and Air Force became significantly more invested in the planning process as potential heirs to the ANDSF estate and its associated costs. To that end, geographic combatant commands began to survey their footprint in order to gauge demand for ASFF-funded defense articles to support their varied missions.

As the sweltering Qatar summer finally broke for a cooler fall, the DSCMO–A team worked through uncertainty, diligently continuing to blaze the trail. Unfortunately, ambiguous law and nascent policy dimly lit the path. The defense article transfer program is based on the Foreign Assistance Act of 1961 (FAA) as amended,27 the Arms Export Control Act of 1976 (AECA) as amended,28 the International Traffic in Arms Regulation (ITAR) with U.S. Munitions List,29 and the Security Assistance Management Manual (SAMM).30 These laws, policies, and regulations combined to define, authorize, and appropriate the ASFF that was used to provide the ANDSF with aircraft, and sustain them as well. Prior to 15 August 2021, these authorities, along with annual authorization and appropriation laws, were seemingly full and complete.31 As DSCMO–A soon discovered, however, this compilation of authorities provided little guidance regarding the dissolution of a partner force.

Security Cooperation and the ANDSF

While DSCMO–A’s partner force dissolution planning matured, a truth became self-evident: that, in this space, not all agencies are created equal. Specifically, the DoS, through the FAA, is the controlling agency for security assistance programming. The DoS uses 12 different Title 22 programs to provide defense articles and other support to foreign partners worldwide.32 Typical security assistance arrangements include a combination of grants, loans, sales, or leases.33 For many of these security assistance programs, the DoS has delegated action authority to the DoD. The DoD uses these delegated authorities, falling under the title of security cooperation, to facilitate the DoS vision of building foreign partner military capacity in order to enable shared response to mutual challenges worldwide.34 For security cooperation planning concerning the ANDSF, the Afghanistan Resources Oversight Council was tabbed as the congressionally-chartered board to validate acquisition strategies for unique and high-dollar ASFF procurements.35 Once planned and validated, security cooperation initiatives were passed to the Defense Security Cooperation Agency (DSCA) and DSCMO–A for action. The DSCMO–A, as the manager of ASFF, delivered the funds, and DSCA, as the execution arm of DoD, provided the defense articles.

The DSCA has an interesting history in its own right. It was conceived because of a problem in disposing surplus equipment after World War II and then developed by the government’s solution to leverage that surplus toward other military assistance initiatives abroad. What was once a small office in Arlington, Virginia, is now a security cooperation juggernaut, leading the DoD mission to transfer defense articles from DoD stocks to partner nations worldwide. To assist DSCA, each service has a security program office. For instance, the U.S. Army Security Assistance Command (USASAC), headquartered at Redstone Arsenal, Alabama, manages upwards of 5,000 FMS cases for the Army, spread across 145 countries and totaling over $160 billion.36 In Afghanistan, the DoD, through DSCA and DSCMO–A, relied heavily on variations of FMS programming to support the ANDSF.37

The FMS program is a primary vehicle for the DoS to broker the sale of U.S.-origin defense articles on a government-to-government basis. The AECA and FAA establish eligibility prerequisites for the sale of defense articles to foreign purchasers. These acts also require that such sales be for specific authorized military purposes and subject to end-use monitoring.38 Although the DoD may employ 10 U.S.C. § 333 or other authorities to transfer defense articles to foreign partners, the primary means of DoD security cooperation is by FMS through the Foreign Military Financing (FMF) program.39 As with all security cooperation programming, FMS takes a coordinated village to be successful. A letter of request (LOR) starts the process to transfer articles via FMS. The LOR is the official application by a foreign applicant to receive defense articles. Once received, the DoD forwards the letter to the DoS for vetting, consideration of policy implications, and export licensing.40 Depending on the dollar value of the nominative defense articles, consultation with congressional committees or notice to Congress may also be required.41 Once the DoS concurs with the sale and meets any or all congressional requirements, the USG sends a letter of offer and acceptance (LOA; “the case”) to the applicant. The LOA sets the terms.42 For FMS, the LOA is the instrument the DoS uses to sell articles from the USG to recipient nations.43 Once the applicant accepts the terms of the LOA, it is considered legal tender and case execution begins.44 At this point, the defense articles are delivered from DoD stocks to the recipient. Once accepted and services performed, the recipient is billed and the case is closed. On average, the FMS process takes six-to-twelve months to complete.45

For the ANSDF, the DoD employed a specific flavor of FMS called pseudo-FMS programming. Pseudo-FMS is distinct from FMS-at-large in one key aspect: funding. Specifically, the DoD pays for pseudo-FMS defense articles that are divested to foreign partners with OCO funds. Foreign Military Financing is not used. Prior to the transfer, the FAA and AECA both require the DoS to effectuate an agreement with the recipient to ensure compliance with U.S. law and policy goals.46 This is called the “505” agreement, named after section 505 of the FAA. Although pseudo-FMS defense articles function as grants, the strings of a 505 agreement are still attached. The recipient, such as the ANDSF, must agree to the terms of section 505 of the FAA prior to receiving the defense article.47

For the past twenty years, multiple iterations of “505 agreements” were brokered in Afghanistan. For example, on behalf of the USG, the DoS at the U.S. embassy in Kabul entered into a “505 agreement” through an exchange of diplomatic notes with the GIRoA Ministry of Defense on 13 June 2017 and again on 25 June 2018.48 These notes significantly overlapped in form and substance with prior instruments dating back to the earliest days of pseudo-FMS use in Afghanistan. In accordance with the notes, GIRoA agreed, among other things, to: 1) maintain security of the defense articles they were about to receive from the USG; 2) allow use of the articles by GIRoA personnel only; 3) transfer articles only after USG approval; 4) return articles to USG when no longer needed for the purposes for which they were furnished; and 5) after consent of transfer from the USG, return the net proceeds of any follow-on transfer to the USG.49 The exchange of notes served as an offer and acceptance between the parties.50 Once the “505 agreement” was signed by the recipient, the articles were transferred, and DSCA managed the end-use monitoring program to ensure compliance.51 As a grant program, it is often the tactical-level security cooperation office that unilaterally identifies the capability gap of the partner force, and facilitates the pseudo-FMS process to transfer defense articles that meet the need.

Throughout the war in Afghanistan, the pseudo-FMS roles and responsibilities for each agency, directorate and section were intricate but synchronized. Congress identified the Secretary of Defense (SecDef) as the manager of ASFF. The Secretary of Defense designated this responsibility to DSCMO–A, a direct reporting unit to USCENTCOM. The U.S. Army is the executive agent for ASFF even though Congress appropriated ASFF in support of a joint operation. As such, the Army Budget Office (ABO) receives ASFF from the Office of Management and Budget (OMB) and apportions approximately half to USCENTCOM. In turn, USCENTCOM uses a pass-through account at U.S. Army Central Command (USARCENT)—USCENTCOM’s executive agent for funding—to allot that amount of the ASFF budget to DSCMO–A. The ABO allots the other approximate half of the appropriation to DSCA for pre-identified security cooperation programming, namely pseudo-foreign military sales. Within DSCMO–A, the Security Assistance Office (SAO) coupled with Office of Security-Logistics (OS-Log) identified the materiel needs of the ANDSF. On a rolling basis, they coordinated with DSCA to open cases for the procurement and transfer of these needs. The DSCMO–A Comptroller validated and disbursed ASFF within his warrant and the Afghanistan Resources Oversight Council validated all other cases. Once on contract, DSCMO–A would meet weekly with Program Executive Offices (PEO) such as PEO-Simulation, Training and Instrumentation (PEO-STRI), and Program Management Offices such as PEO Aviation’s Multi-National Aviation Special Project Office, in order to monitor contract performance. As needed, the PEOs would communicate DSCMO–A needs to contracting activities such as Army Contracting Command, who would monitor or modify contracts with contractors. The PEOs would also work with the aviation section of DSCMO–A to engage directly with foreign government-run maintenance depots, such as the Advanced Military Maintenance Repair and Overhaul Center in the United Arab Emirates, to streamline depot use issues, customs procedure, and service support.52

Building the Plane in Flight

Returning Defense Articles to DoD Stocks for Follow-on Disposition

The process to transfer defense articles to the ANDSF was fine-tuned over the two decades of war in Afghanistan. Unfortunately, from a security cooperation perspective, probating the precipitous end of the ANDSF was far less harmonious. As the taxpayers’ fiduciary, and at the direction of USCENTCOM, DSCMO–A sought to recover ASFF-funded defense articles for future DoD needs. However, before this could happen, DSCMO–A needed to account for the restrictions of the 2011 Budget Control Act (BCA).53 The ASFF is an OCO fund.54 Absent congressional intervention, it was generally improper to transfer OCO funds or the items procured with OCO funds to base budgets. To do so would have invoked the BCA.55 Congress passed the BCA to bake discretionary spending limits into how much Congress could appropriate towards DoD base budgets, using sequestration among other tools.56 Overseas Contingency Operations funds were an exception though. The Balanced Budget and Emergency Deficit Control Act of 198557 allowed emergency funding to be excluded from some BCA budget control limitations. After 11 September 2001, the USG focused security cooperation on counter-terrorism, to include build partner capacity programs funded by ASFF.58 Congress and the President designated OCO funds such as ASFF as emergency funding to support the Global War on Terror. As such, the Balanced Budget and Emergency Deficit Control Act of 1985 exempted ASFF, a discretionary funding stream,59 from sequestration and other BCA enforcement tools. For DSCMO–A, this meant that ASFF-funded aircraft should not be comingled into DoD stocks where defense articles are purchased with procurement or other base budget funds. The result of doing so would be to augment the service budgets. To ensure comingling did not occur, Congress passed a provision in section 1531 of the FY 2014 National Defense Authorization Act (NDAA), and every NDAA thereafter.60 These provisions required notice from the DoD prior to any transfer of ASFF interests into base budgets. Although intended to protect the BCA rather than account for the disbandment of the ANDSF, this provision provided DSCMO–A with an opportunity to meet the current need.

DSCMO–A had previously used this claw back provision in the spring of 2021 to return Wolfhound equipment (handheld radio frequency finder) not yet accepted by the ANDSF.61 This particular batch was found to be damaged upon arrival, and returned to sender, where it was absorbed into DoD stocks and presumptively repaired for follow-on use. Never before, however, had this process been accessed to this breadth and scale. On 15 August 2021, the ANDSF abandoned the defense articles they received from the USG. In doing so, they defaulted on the 505 agreement. As such, section 1531 of the FY 2014 NDAA authorized the DoD to retrieve the ASFF-funded defense articles as constructively “returned by the ANDSF” and place them into DoD stocks. Section 1531 provided a broad scope of transfer eligibility for defense articles. Subsequent NDAAs, however, appeared less permissive. Specifically, within section 1521 of the FY 2021 NDAA,62 Congress seemingly narrowed the scope of section 1531 to no longer allow the DoD to transfer ASFF-funded defense articles into DoD stocks that were already accepted by the ANDSF. However, in a later proviso of the same law, Congress declared executive use of prior year authorizations simply required notice.63 Although the broad allowance of section 1531 was potentially curtailed by later NDAAs, this ambiguity as to whether 1531 could still be accessed created space for the DoD to operate. It was here that the power of congressional notice was fully realized.

Congressional notice is a deceptively powerful tool to pair a need to what the law allows, no matter how incompatible the two may seem on their face. On 10 December 2021, SecDef notified Congress of his intent to transfer nominative ASFF-funded defense articles into DoD stocks pursuant to section 1531 of the FY 2014 NDAA. This packet was assembled by DSCMO–A, reviewed at echelon, vetted by the Afghanistan Resources Oversight Council, and staffed by congressional committees prior to official submission to Congress. With no objection, Congress constructively informed the executive branch that SecDef’s intended use of section 1531—to transfer ASFF-funded defense articles with varying status of title to DoD stocks—complied with current law, or at a minimum, would not be challenged.

 

Back to Square One: Transferring Defense Articles from DoD Stocks

Once ASFF-funded defense articles were legally transferred to DoD stocks, the services owned them, along with the current and future costs associated with their remaining lifecycle. This will be paid with base budget funds until such time that the defense articles are again transferred out of DoD stocks by DSCA.64 For example, the Department of the Army would be required to provide base budget funds to store, maintain, modify, field, and dispose the cache of ASFF-funded UH-60s, HMMWVs, or any other defense article they acquired through the 1531 process.

In general, budget planning centers on the two-step legislative process in which Congress establishes policy and then funds that policy with taxpayer dollars.65 Congress usually completes this process by pairing the National Defense Authorization Act (NDAA) with appropriations bills, such as the Consolidated Appropriations Act, to inform the DoD on how, how much, and what type of appropriated funds each department of the DoD should use for their respective programs.66 This inductive, iterative process is time intensive and planned with granularity.67 Funding is itemized by budget activity group and sub-activity groups.68 Sum certain allowances are then tabulated by line, down to the unit level, often with little room for error.69

To be clear, funding these unanticipated requirements is a big deal for the services. Consider storage alone. The cost to store one HMMWV can surpass $400 annually. This seemingly small number is large in the aggregate when multiplied by the thousands of defense articles that are mothballed across the enterprise. Further, the cost to remove hazardous fluids and other activities just to make defense articles fit for storage can surpass thousands of dollars per item.70 Not only are these costs not programmed into their budget, they will draw funds away from previously identified needs. For these reasons, the services take on budget risk when assuming control of the ASFF-funded defense articles. For the services to relieve themselves of the unanticipated financial burden of maintaining these defense articles, they turn to DSCA. The DSCA averages an aggregate of $50 billion in defense article sales per year.71 Generally, DSCA requires use of DoD stocks as a pass-through in order to consummate these sales. It was primarily for this reason that the ASFF-funded aircraft were transferred into DoD stocks. However, this is not to say that the ASFF-funded defense articles must be leveraged for future security cooperation initiatives. The slate is clean upon their receipt by the DoD and it is immaterial that they were originally procured with ASFF. They can either remain in the DoD for future use or be re-transferred by DSCA as part of a security cooperation program. If re-transferred, DSCA has a number of ways to do so, some of which are briefly described below.72

Defense Trade and Arms Transfers

The Excess Defense Article (EDA) program, first established in 1961 through the FAA, is a subset of FMS programming.73 Generally, recipients of EDA already have U.S.-origin articles in their inventories.74 As such, the DoS facilitates EDA cases to supplement those earlier acquisitions.75 First, the service takes inventory of their defense articles to determine if they have an excess based on force-determined stock retention allowances, among other things.76 Once the excess is identified, the service determines whether the defense articles should be decommissioned or sold “as is, where is.”77 Defense articles to be sold are offered to foreign partners by solicitation. Along with the solicitation, interest amongst foreign partners is generated by geographic combatant commanders.78 Interested parties reply to the solicitation with a letter of interest, and upon expiration of the solicitation, the service generates an order of merit list of perspective buyers based on strategic imperatives. This order of merit list is packaged by DSCA for the DoS and congressional approval. Once the foreign partner is approved to receive, they jointly inspect the defense articles. If the partner is satisfied, they submit a LOR, which is answered via LOA.79 The nominative defense articles are often offered at a reduced cost or grant to the recipient based on its level of depreciation. After some time, if the defense article cannot be sold, it is destroyed to avoid mounting storage and other lifecycle costs. The EDA program is not distinct from FMS in terms of time to process a case or manner in which it is processed, but rather in status of articles. For EDA, the military department concerned owns the defense article, but has determined it is excess, as opposed to other FMS programming where the defense article is specifically produced for foreign partner sale. When authorized, this process has the aptitude to match excess articles with capability gaps for warfighters worldwide. This process best works when the receiving foreign forces have interoperable stocks and available field services representatives to assist the integration of the platform. It could also develop into an ongoing relationship where future parts are sold as well. Once the defense articles are purchased, the foreign partner must package and transport the defense article from its location. If a repair or other modification to the defense articles is required, the receiving party pays that bill as well.

Before a defense article can be sold as EDA, the service must first offer it to the DoD and USG at-large. If a suitor is found, the DoD executes a direct sale to customers at-cost. For example, the Combined Joint Task Force (CJTF) operating out of Kuwait and Iraq could purchase defense articles on behalf of eligible Iraqi forces using the Counter-ISIS Train and Equip Fund (CTEF). Prior to acceptance, CJTF would inspect the items for suitability and condition. The Defense Logistics Agency (DLA) often assists in storing and transporting DoD stock for both FMS cases and these other disposition approaches as well. Similar to DSCA in origin, the idea of DLA was born from the DoD’s inability to divest 17,000 courier pigeons at the close of World War II. The organization that would become DLA received them, housed them, then sold or gave them away to the public. Since its official inception in 1972, DLA has served the DoD in receiving its defense articles for demilitarization, reutilization, or destruction.80 In this capacity, DLA is central to many divestment strategies, whether as a portal to share solicitations, a shipyard to store defense articles, or a logistics partner worldwide.

Presidential drawdown authority is the final security cooperation option discussed in this article. Under this authority, the President may transfer defense articles from DoD stocks to vetted foreign partners in emergency situations. In order to exercise this authority, the President must identify the existence of an unforeseen emergency that requires immediate military assistance. The President must then determine that only his drawdown authority, and no other law, can quell this emergency. Upon making this finding, the President reports their intent to use drawdown authority to Congress. For example, in 2013, then-President Obama used his drawdown authority to support counterterrorism missions in Mali with airlift capabilities and fuel.81 Under 22 U.S.C. § 506(a)(1), the aggregate value of drawdowns cannot exceed $100 million in any fiscal year.

All of the processes listed above have a common theme in that they require a close nexus to the use of DoD stocks as a conduit for transfer activity. For many defense articles, this makes sense as DSCA is the subject matter expert on transferring defense articles from DoD stocks, and has delegated DoS authorities. For some defense articles, however, the return to DoD stocks is nonsensical because of two reasons: time and money. As previously stated, the FMS process often takes six-to-twelve months to complete.82 During that time, the services accrue bills for defense articles they may have no intention of keeping.

The End Around: Bypassing DoD Stocks

The story of the Afghan Mi-17 may best illustrate the utility of bypassing DoD stocks. The Afghan Air Force (AAF) used Russian Mi-17 rotary wing in their fight against the Taliban.83 The CSTC–A purchased many of these Mi-17s for the AAF through Rosoboronexport State Corporation, the Russian business entity that, under Russian law, has the exclusive right to negotiate the export of Russian military aircraft. On 23 October 2008, the DoS imposed sanctions on Rosoboronexport for violating U.S. nonproliferation laws, and largely prohibited USG agencies from contracting with them.84 On 21 May 2010, the DoS ended the sanctions;85 however, U.S. policy to transition the AAF fleet from Russian-made to U.S.-made aircraft remained until the fall of GIRoA.86 Nonetheless, from 2010 to 2014, CSTC–A used ASFF to procure 63 Mi-17 aircraft from Rosoboronexport and transfer them to the AAF. Although lawful, this procurement sparked significant backlash in Congress.87 On 26 December 2013, Congress passed the FY 2014 NDAA into law.88 Section 1255 of the FY14 NDAA prohibited the DoD from obligating appropriated funds to enter into contracts or agreements with Rosoboronexport.

Notwithstanding the FY14 NDAA, Mi-17s remained a key component to DoD security assistance efforts with the ANDSF. Due to the nature of the conflict, and AAF use of the Mi-17, a contracted logistical support solution was necessary for requisite sustainment and overhauls of the fleet.89 Simply put, in the interest of security cooperation, the DoD paid for the AAF Mi-17s and funded their maintenance throughout the war. Despite this, the DoD has generally not maintained Mi-17s in DoD stocks and has little need to purchase or use Mi-17s moving forward. Taking these Afghan Mi-17s into DoD stocks would serve only to provide a time-consuming, base-budget crunching pass-through for follow-on security cooperation initiatives.

The DoD is encouraged by the FY 2021 NDAA to explore alternatives prior to invoking the 1531 process and returning the ASFF-funded articles to DoD stocks.90 A proposal for future legislation is to create more mainstream opportunities for the DoD to transfer OCO-funded defense articles to vetted foreign partners without first using DoD stocks as a pass-through. The problem with using DoD stocks as a pass-through is that security cooperation programs can take twelve months or longer to transfer defense articles to foreign partners. While in DoD stocks, the aircraft will need to be inducted, stored, and maintained. This costs money and the bill will go to the DoD organization maintaining the aircraft on their property books, regardless of whether that organization has any use for them. For those defense articles, such as the Mi-17, the use of DoD stocks as a conduit for re-transfer is expensive, time consuming, and generally not necessary.

Afghan National Army Air Corps aviators land an MI-17 helicopter at Bagram Air Base, Afghanistan. (Credit: Sergeant Stephanie van Geete)

Afghan National Army Air Corps aviators land an MI-17 helicopter at Bagram Air Base, Afghanistan. (Credit: Sergeant Stephanie van Geete)

For the Legal Advisor

Throughout the planning process, DSCMO–A remained impartial to which approach would best meet the USG needs, understanding that the DoS and the Office of the Secretary of Defense–Policy Division were in many regards the decision makers. This article matches that objective spirit. It is a recitation of the planning process to consolidate ASFF-funded defense articles in the fog after the war by DSCMO–A, a tactical-level organization that is leading up to provide strategic input on the dissolution of the ASFF-funded ANDSF estate.

The ASFF is just one security cooperation fund available to the DoD. As Congress continues to train and equip foreign forces in the Middle East, Eastern Europe, the South Pacific, and around the world, the lessons of ASFF remain applicable to legal practitioners in any operating environment seeking to understand the fiscal and operational landscape of defense article transfers.91 For example, concurrent with the release of this article, security assistance initiatives are underway to support the defense of Ukraine against the Russian invasion. As FMS cases, ASFF-funded defense articles will pass through the DoD and into Ukraine stocks. Judge advocates working in this space will need to understand security assistance mechanisms in order to contribute to this mission.92

The lessons of DSCMO–A are also value-added to the OIR retrograde from Iraq and Syria. Since FY 2015, Congress has used NDAAs to authorize CTEF through section 1209 in support of vetted Syrian groups and individuals, and section 1236 to provide assistance to counter the Islamic State of Iraq and Syria.93 Similar to ASFF, the authority to use CTEF to fund partner forces will diminish commensurate with the phasing of its operation. When that happens, it remains unclear if the law is structured for proper CTEF dissolution planning. In its current state, section 1209 does not appear to authorize the DoD to accept all states of CTEF-funded defense articles into DoD stocks. In addition, defense articles purchased with Counterterrorism Partnerships Funds, reprogrammed to provide assistance to vetted Syrian groups and individuals are not eligible for a transfer to DoD stocks.94

Although the BCA expired in 2021, legacy defense articles and antiquated law persist. As such, this case study re-tells the disestablishment of ASFF as a matter of historical importance for OIR planners to contemplate and also to underscore the need for contract and fiscal law competency in operational assignments. It is the judge advocate who must be ready to close the gap between law, policy, and the mission when navigating end state operations of foreign partner funds.

In many regards, the dissolution of the ANDSF was a case of first impression. Congress did not design security assistance law to retrieve the estate of a collapsed partner nation. The DSCMO–A, assembled largely from retrograded United States Forces–Afghanistan personnel and CSTC–A holdovers, was stood up to validate and obligate funds in support of the ANDSF war machine, not navigate strategy and policy to take it apart. This was not the mission they deployed for, but the mission they received, and the staff understood its importance. For the legal advisor, it is imperative to build relationships across the staff and outside of the organization in order to leverage expertise beyond traditional legal disciplines and assist the command in meeting its mission.95 Networking means speed means mission accomplishment. For the national security law specialist, contract and fiscal law speaks to the very core of your competency. Embrace the full spectrum of your chosen craft or make room at the table for your contract attorney counterparts.96 Today, more than ever, these two disciplines are one. For the contract and fiscal law practitioner, buckle up—your time is now.

Winding up the Estate

The DSCA celebrates its fifty-year anniversary this year.97 From a security cooperation perspective, the operating environment DSCA was born into is not so different than today. In 1971, DSCA worked to provide the South Vietnamese forces with defense articles in their fight against the North. In the chaos of retreat, more than $1 billion in U.S.-made defense articles—vehicles, tanks, aircraft, and more—were lost to the North. By March 1973, the final American troops departed Vietnam, but the conflict carried on. The DSCA continued to provide defense articles to the South until the fall of Saigon in the spring of 1975. In the aftermath, Army Chief of Staff General Frederick C. Weyand was tapped by President Gerald Ford to assess the loss and determine what, if anything, could be salvaged.98

Today, as it did fifty years prior, the law seemingly limits how the United States can transfer defense articles away from disbanded partner forces. This leaves a large gap in DoD capabilities in their attempt to consolidate all ANDSF defense articles in U.S. possession. The DSCMO–A will soon change commanders. After that, the FY 2022 continuing resolution will expire. Congress may develop the law surrounding the disposition of ASFF-funded defense articles in future legislation, but until then, DSCMO–A will continue to refine and execute the options at hand to responsibly closeout ASFF activities, moving to friction. TAL

MAJ Chard was the chief of contract and fiscal law for U.S. Forces–Afghanistan in Afghanistan and the Defense Security Cooperation Management Office–Afghanistan in Qatar. He currently serves as the deputy staff judge advocate for Special Operations Joint Task Force–Levant at Camp Xiphos, Jordan.

COL Dowdy was the staff judge advocate for the Defense Security Cooperation Management Office–Afghanistan. He is currently a Plans Officer in the Office of The Judge Advocate General at the Pentagon in Washington, D.C.

Notes

1. The Judge Advocate General’s (JAG) Corps’s mission is: “Provide principled counsel and premier legal services, as committed members and leaders in the legal and Army professions, in support of a ready, globally responsive, and regionally engaged Army.” Mission, JAGCnet, https://www.jagcnet.army.mil/Sites/jagc.nsf/homeContent.xsp?open&documentId=DEE613DFEC84B73B852579BC006142CE (last visited Jan. 26, 2022).

2. The JAG Corps’s vision is: “In an increasingly complex and legally dynamic world, remain the most highly trained and values-based Corps of adaptive, ready, and dedicated legal and Army professionals who excel in our Joint Force and Army missions, at home and abroad, both today and against emerging threats.” Vision, JAGCnet, https://www.jagcnet.army.mil/Sites/jagc.nsf/homeContent.xsp?open&documentId=DEE613DFEC84B73B852579BC006142CE (last visited Jan. 26, 2022).

3. The JAG Corps’s Four Constants are: Principled Counsel, Stewardship, Mastery of the Law, and Servant Leadership. The Judge Advoc. Gen.’s Corps, U.S. Dep’t of Army, Four Constants, at slide 2 (2021), https://www.jagcnet.army.mil/Sites/jagc.nsf/0/46DCA0CA1EE75266852586C5004A681F/$File/US%20Army%20JAG%20Corps%20Four%20Constants%20Smart%20Card.pdf.

4. General Frederick Weyand, U.S. Army Chief of Staff, Address at the George Catlett Marshall Memorial Reception and Dinner (Oct. 18, 2000), https://www.i-served.com/weyandspeech.htm.

5. Carlotta Gall Ashraf Ghani Says He Fled Afghanistan to Avoid Being Lynched, N.Y. Times (Aug.18, 2021), https://www.nytimes.com/2021/08/18/world/middleeast/ashraf-ghani-afghanistan-taliban.html (accused of stealing duffel bags full of money when fleeing to the United Arab Emirates, Ghani replied “I came with just with my clothes, and I was not even able to bring my library.”).

6. Christina L. Arabia, Cong. Rsch. Serv., IN11728, The Collapse of the Afghan National Defense and Security Forces: Implications for U.S. Security Assistance and Cooperation (2021) (the ANDSF was the professional military force established in 2002 to defend GIRoA. It remained active until the fall of GIRoA in 2021. The ANDSF was composed of the Afghan Air Force, Afghan National Army, and Afghan Special Security Forces under the direction of the GIRoA Ministry of Defense, and the Afghan National Police under the direction of the GIRoA Ministry of Interior.).

7. Aircraft, Merriam-Webster, https://www.merriam-webster.com/dictionary/aircraft (the plural of “aircraft” is “aircraft,” not “aircrafts”).

8. Andrew Kramer, An Iconic Bridge Sees U.S. Allies Flee Afghanistan as the Soviets Did, N.Y. Times, https://www.nytimes.com/2021/08/16/world/middleeast/afghanistan-taliban-soviet-friendship-bridge.html (Aug. 18, 2021) (the Friendship Bridge was also used by Russians retreating from Afghanistan thirty-two years earlier).

9. Mukhhammadsharif Mamatkulov, Uzbekistan Says Hundreds of Afghan Soldiers Flee over Border with Dozens of Aircraft, Reuters (Aug. 16, 2021, 12:16 PM), https://www.reuters.com/world/asia-pacific/uzbekistan-says-hundreds-afghan-soldiers-flee-over-border-with-dozens-aircraft-2021-08-16/; Catherine Putz, Afghan Forces Flee, Fly, to Central Asia, Diplomat (Aug. 17, 2021), https://thediplomat.com/2021/08/afghan-forces-flee-fly-to-central-asia/; Alan Cullison, Afghan Pilots Who Fled Taliban to Tajikistan Begin Transfer to U.S., Wall St. J. (Nov. 10, 2021), https://www.wsj.com/articles/afghan-pilots-who-fled-taliban-to-tajikistan-begin-transfer-to-u-s-11636575146.

10. Special Inspector Gen. for Afg. Reconstruction, Quarterly Report to the United States Congress (July 2021) [hereinafter July 2021 SIGAR Report] (“As of June 30, 2021, the U.S. Congress had appropriated nearly $88.61 billion to help the Afghan government provide security in Afghanistan. This accounts for 61% of all U.S. reconstruction funding for Afghanistan since FY 2002.” The total of $88.61 billion does not include rescissions.) From 2002 to 2004 there was no ASFF per se. The FY 2002 NDAA contemplates funding the establishment of an Afghanistan Army with certain conditions. See Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 2002, Pub. L. No. 107-117, ch. 6, 115 Stat. 2230, 2310. The FY 2005 NDAA reimbursed service budgets ($500 million) for funds provided from 2002 to 2004 for ANDSF defense articles. See Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, §١٢٠٢, 118 Stat. 1811, 2078 (2004).

11. Id.; U.S. Gov’t Accountability Off., GAO-19-116, Afghanistan Security: Some Improvements Reported in Afghan Forces’ Capabilities, but Actions Needed to Enhance DoD Oversight of U.S.-Purchased Equipment 6 (2018).

12. See generally Emily M. Morgenstern, Cong. Rsch. Serv., IF10143, Foreign Affairs Overseas Contingency Operations (OCO) Funding: Background and Current Status (2001).

13. See Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, 118 Stat. 1811 (2004). See also id. §§ ١٢٠١–1202 (the pre-cursor to ASFF appropriations for security assistance to the ANDSF. Its language provided up to $300 million to Afghanistan for their development of a civilian-controlled Afghan Army.)

14. See generally Major General Daniel P. Hughes, The Continuing Mission in Afghanistan, Army AL&T, Apr.-June 2016, at 9.

15. Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, 134 Stat. 1182 (2020) (in accordance with Title IX, Overseas Contingency Operations, of the Fiscal Year (FY) 21 Consolidated Appropriations Act, Congress authorized the Secretary of Defense (SecDef), or the Secretary’s designee to administer ASFF. On 22 June 2021, SecDef established DSCMO–A, a direct reporting unit to USCENTCOM, and designated administration of ASFF previously held by CSTC–A to DSCMO–A).

16. Joint Chiefs of Staff, Joint Pub. 3-0, Joint Operations, at V-10 (17 Jan. 2017) (C1, 22 Oct. 2018).

17. Off. of Sec’y of Def., Department of Defense Budget Fiscal Year (FY) 2021: Justification for FY 2021 Overseas Contingency Operations (OCO) Afghanistan Security Forces Fund 7 (2020); Off. of Sec’y of Def., Department of Defense Budget Fiscal Year (FY) 2022: Justification for FY 2022 Afghanistan Security Forces Fund 7 (2021).

18. But see US Exit from Afghanistan Gives Taliban Access to Several Weapons Including Guns, Ammunition, Helicopters and More, Firstpost (Aug. 18, 2021, 7:41 AM), https://www.firstpost.com/world/us-exit-from-afghanistan-gives-taliban-access-to-several-weapons-including-guns-ammunition-helicopters-and-more-9892981.html.

19. U.S. Dep’t of Army, Doctrine Pub. 3-90, Offense and Defense para. 4-116 (31 July 2019).

20. See Joint Chiefs of Staff, Joint Pub. 5-0, Joint Planning ch. 1 (1 Dec. 2020).

21. 22 C.F.R. § 121.1, category VIII—Aircraft and Related Articles (2021). SIGAR Report, supra note 10, at 50.

22. U.S. Gov’t Accountability Off., GAO-17-667R, Afghanistan Security: U.S.-Funded Equipment for the Afghan National Defense and Security Forces (2017) (the ANDSF air fleet consisted of (fixed) A-29, AC-208, C-208, and C-130, and (rotary) Mi-17, MD-530, and UH-60).

23. Frustrated stock is an overseas shipment which is en route but cannot be continued onward or diverted to reach its intended destination. See 41 C.F.R. § 101 26.311(a) (2022).

24. Special Inspector Gen. for Afg. Reconstruction, Divided Responsibility: Lessons from U.S. Security Sector Assistance Efforts in Afghanistan 39 (2019) (“Depot-level maintenance must be performed outside of Afghanistan and can take up to 12 months . . . .”).

25. Major General Curtis Buzzard, U.S. Army, DSCMO–A Director, coined the phrase “move to friction” as a means to describe enterprise-level coordination for DSCMO–A to responsibly close-out ASFF activities. This assertion is based on the author’s recent professional experiences as the Chief, Contract & Fiscal Law for DSCMO-A from 16 June 2021 to 16 November 2021.

26. Special Inspector Gen. for Afg. Reconstruction, Quarterly Report to the United States Congress (Oct. 2021) (in August 2021, Congress reprogrammed $1.46 billion ASFF towards the noncombatant evacuation of over 160,000 Afghans and others from Afghanistan).

27. Foreign Assistance Act of 1961, Pub. L. No. 87-195, 75 Stat. 424 (codified as amended at 22 U.S.C. §§ 2151–2450).

28. Foreign Military Sales Act, Pub. L. No. 90-629, 82 Stat. 1320 (1968) (codified as amended at Arms Export Control Act, 22 U.S.C. §§ 2751–2799aa-2).

29. International Traffic in Arms Regulations, 22 C.F.R. §§ 120–130 (2021).

30. Def. Sec. Coop. Agency, Manual 5105.38-M, Security Assistance Management Manual (2021) [hereinafter DSCA Manual 5105.38-M].

31. William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, § 1521, 134 Stat. 3388, 4035 (Afghanistan Security Forces Fund).

32. See Def. Sec. Coop. Univ., Security Cooperation Management ch. 1 (41st ed. 2021) (commonly referred to as The Green Book) [hereinafter The Green Book].

33. Id.

34. Mission, Vision, Values, Def. Sec. Coop. Agency, https://www.dsca.mil/mission-vision-values (last visited Jan. 27, 2022).

35. U.S. Dep’t of Def., Dir. 5132.03, DoD Policy and Responsibilities Relating to Security Cooperation (2016). The Afghanistan Resources Oversight Council is chaired by the Office of the Secretary of Defense Undersecretaries for Policy, Comptroller, and Acquisition and Sustainment.

36. Tommy L. Lancaster, Divest and Prosper, Army AL&T, Oct.–Dec. 2015, at 144.

37. Joint Chiefs of Staff, Joint Pub. 4-01, The Defense Transportation System ch. 15, para. 1.4.1. (6 June 2013) (C1, 18 July 2017). See also Evaluating DoD Equipment and Uniform Procurement in Iraq and Afghanistan: Hearing Before the H. Subcomm. on Oversight & Investigations, 115th Cong. (2017) (joint statement of Pete Velez, Afghanistan (Resources & Transition), Office of the Undersecretary of Defense, Policy, and Colonel David Navratil, Country Director for Iraq, Office of the Undersecretary of Defense, Policy).

38. Nathan J. Lucas & Michael J. Vassalotti, Cong. Rsch. Serv., IF11437, Transfer of Defense Articles: Foreign Military Sales (FMS) (2020).

39. Id.

40. The Green Book, supra note 32, ch. 5, tbl.5-1.

41. Id.

42. Id.

43. Def. Sec. Coop. Agency, Letter of Offer and Acceptance (LOA) Standardization Guide (2020), https://www.dsca.mil/sites/default/files/2020_dsca_loa_standardization_guide.pdf.

44. The Green Book, supra note 32, ch. 5, tbl.5-1.

45. Id.

46. Id.

47. Id. See also Special Inspector Gen. for Afg. Reconstruction, Divided Responsibility: Lesson from U.S. Security Sector Assistance Efforts in Afghanistan (2019).

48. See DSCA Manual 5105.38-M, supra note 30, para. C15.1.3.1.

49. Id. (citing 22 U.S.C. § 2314(a)).

50. Id.

51. See Paul K. Kerr & Liana W. Rosen, Cong. Rsch. Serv., IF 11533, Modifying or Ending Sales of U.S.-Origin Defense Articles (2020) (citing 22 U.S.C. § 2785).

52. Combined Sec. Transition Command–Afghanistan, Afghanistan Security Forces Fund Standard Operating Procedure 18 (2020) (on file with author).

53. Budget Control Act of 2011, Pub. L. No. 112-25, 125 Stat. 240.

54. Cong. Budget Off., Long Term Costs of the Administration’s 2022 Defense Budget (2022) (“The base budget was intended to fund normal, peacetime operations and other activities anticipated during the regular budgeting process, and OCO funding was intended for major overseas operations (primarily the wars in Afghanistan and Iraq). However, appropriations for OCO were also used to fund base-budget activities because the base budget was capped under the BCA of 2011. Funding provided for OCO and for emergencies such as natural disasters was not subject to those caps. There was no need to separate base-budget costs from anticipated OCO costs in the 2022 request because FY 2021 was the final year in which the base budget was subject to caps under the BCA . . . .”).

55. Off. of the Under Sec’y of Def. (Comptroller)/Chief Fin. Officer, Defense Budget Overview: United States Department of Defense Fiscal Year 2022 Budget Request 7-2 (2021) (in conjunction with the 2021 expiration of the BCA, and perhaps the discontinuation of OCO budgeting, “the DoD is shifting funds that had previously been designated as OCO to the base budget. The discretionary request also discontinues requests for OCO as a separate funding category, instead funding direct war costs and enduring operations in the DoD base budget, a significant budgetary reform.”).

56. See 2 U.S.C. § ٩٠١ (sequestration is the exercise of cancelling previously enacted appropriations by an amount necessary to reach pre-specified levels).

57. Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038.

58. Nina M. Serafino, Cong. Rsch. Serv., R44444, Security Assistance and Cooperation: Shared Responsibility of the Departments of State and Defense (2016).

59. Brendan W. McGarry & Emily M. Morgenstern, Cong. Rsch. Serv., R44519, Overseas Contingency Operations Funding: Background and Status (2019) (“Since the terrorist attacks of September 11, 2001, Congress has appropriated $2 trillion in discretionary budget authority designated as emergency requirements or for Overseas Contingency Operations/Global War on Terrorism (OCO/GWOT) in support of the broad U.S. government response to the ٩/١١ attacks and for other related international affairs activities. This figure amounts to ٩.٥٪ of total discretionary spending during this period.”) Overseas Contingency Operations funding is a discretionary funding stream, hence the unique importance of its exemption from BCA ceilings on discretionary funding.

60. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1531, 127 Stat. 672, 937 (2013) (Afghanistan Security Forces Fund).

61. Summer Barkley, Wolfhound Electronically Tracks Enemy C2 in Afghanistan, U.S. Army (March 11, 2013), https://www.army.mil/article/98025/Wolfhound_electronically_tracks_enemy_C2_in_Afghanistan/.

62. William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, § 1521, 134 Stat. 3388, 4035 (Afghanistan Security Forces Fund).

63. Id. The FY21 NDAA mandates certain reporting requirements that would comply with the FY14 § 1531; however, Congress limited these requirements by the scope of FY21 § 1521 (“during the period in which the authority provided under paragraph (1) is exercised . . . . ”).

64. Lucas & Vassalotti, supra note 38, fig.1.

65. James V. Saturno, Cong. Rsch. Serv., R46497, Authorizations and Appropriations Process (2020).

66. Brendan W. McGarry & Valerie Heithusen, Cong. Rsch. Serv., IF10516, Defense Primer: Navigating the NDAA (2021).

67. Before the NDAA and CAA becomes law, the President’s Budget Request is used to calculate the executive branch request for funds. The Budget Request is a milestone document in the Planning, Programming, Budgeting and Execution process: an inductive series of steps used to develop the request for funds by the executive to the legislative branch. See Michelle D. Christensen, Cong Rsch. Serv., R42633, The Executive Budget Process: An Overview (2012).

68. For the ASFF, the four branches of the ANDSF represented the budget activity group. Congress then delineated the sub-activity groups into four buckets of need represented across each budget activity group, namely, sustainment, infrastructure, equipment and transportation, and training and operations. See sources cited supra note 17.

69. See sources cited supra note 17.

70. Lancaster, supra note 36.

71. Major Arms Sales, Def. Sec. Coop. Agency, https://www.dsca.mil/press-media/major-arms-sales (last visited Jan. 27, 2022).

72. Although not a security assistance program, the General Services Administration provides another avenue to transfer equipment out of DoD stocks. This process includes internal inventory assessments, and recipient prioritizing in which federal agencies have first rights to the articles, followed by state and local, and then the public. In some instances, the DoD can abandon, destroy, or recycle the articles. Personal Property Management for Federal Agencies, U.S. Gen. Servs. Admin., https://www.gsa.gov/buying-selling/government-property-for-sale-or-disposal/personal-property-for-reuse-sale/personal-property-management-for-federal-agencies (Nov. 16, 2021).

73. See 22 U.S.C. § 2321b (authorizing the President to transfer excess defense articles to foreign governments. The President delegated this to the Department of State on 29 September 1979 by Executive Order Number 12163, § ١-١٠٢(١), 44 Fed. Reg. 56,673 reprinted as amended in 22 U.S.C. § 2381).

74. Foreign Assistance Act of 1961, Pub. L. No. 87-195, §644(g), 75 Stat. 424, 461 (“excess defense articles” (EDA) is defined as “the quantity of defense articles (other than construction equipment, including tractors, scrapers, loaders, graders, bulldozers, dump trucks, generators and compressors) owned by the U.S. government and not procured in anticipation of military assistance or sales requirements or pursuant to a military assistance or sales order, which is in excess of the Approved Force Acquisition Objective and Approved Force Retention Stock of all DoD components at the time such articles are dropped from inventory by the supplying agency for delivery to countries or international organizations under this Act.”)

75. Excess Defense Articles, Def. Sec. Coop. Agency, https://www.dsca.mil/programs/excess-defense-articles-eda (last visited Aug. 6, 2021).

76. Id.

77. Foreign Assistance Act of 1961, § 516(b)(1)(e) (EDA transfers must not negatively impact the U.S. national technology and industrial base, nor diminish opportunities of U.S. industry to sell new or used equipment to the nominative recipient).

78. J.R. Wilson, DSCA: Excess Defense Articles (EDA): All EDA Is Excess, not all Excess Is EDA, Def. Media Network (Sept. 4, 2014), https://www.defensemedianetwork.com/stories/excess-defense-articles/ (last visited Jan. 18, 2022).

79. Excess Defense Articles, U.S. Coast Guard, https://www.dcms.uscg.mil/Our-Organization/Assistant-Commandant-for-Acquisitions-CG-9/International-Acquisition/Excess-Defense-Articles/ (last visited Jan. 18, 2022).

80. Equipment Disposition, Def. Logistics Agency, https://www.dla.mil/WhatDLAOffers/EquipmentDisposition/ (last visited Nov. 11, 2021).

81. Memorandum from U.S. President to Sec’y of State & Sec’y of Def., subject: Presidential Memorandum Regarding Drawdown Under Section 506(a)(I) of the Foreign Assistance Act of 1961, as Amended, for Chad and France to Support Their Efforts in Mali (Feb. 11, 2013).

82. Lucas & Vassalotti, supra note 38.

83. U.S. Gov’t Accountability Off., supra note 22.

84. Imposition of Measures Against Foreign Persons, Including a Ban on U.S. Government Procurement, 73 Fed. Reg. 63226–63227 (Oct. 23, 2008).

85. Termination of Measures Against a Russian Entity, 75 Fed. Reg. 28673 (May 21, 2010).

86. See generally Bureau of Pol.-Mil. Affs., European Recapitalization Incentive Program (ERIP), U.S. Dep’t of State (Mar. 17, 2020), https://2017-2021.state.gov/european-recapitalization-incentive-program-erip/index.html.

87. Tom Cole, Pentagon Purchase of Russian Helicopters an Outrage, Congressman Tom Cole (July 15, 2013), https://cole.house.gov/pentagon-purchase-russian-helicopters-outrage.

88. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013).

89. Supra note 17 (for the Mi-17, depot-level overhauls that are required every 8 years or 2,000 flight hours). See generally U.S. Dep’t of Def., Dir. 4151.18, Maintenance of Military Materiel (31 Mar. 2004) (C1, 31 Aug. 2018).

90. William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, § 1521, 134 Stat. 3388, 4035 (Afghanistan Security Forces Fund).

91. Press Release, H. Comm. on Appropriations, Appropriations Committee Releases Fiscal Year 2022 Defense Funding Bill (June 29, 2021), https://appropriations.house.gov/news/press-releases/appropriations-committee-releases-fiscal-year-2022-defense-funding-bill (other security cooperation programs included in the House Appropriations Committee draft fiscal year 2022 Defense funding bill include $275 million for the Ukraine Security Assistance Initiative, $165 million for countries in Africa, up to $590 million for Jordan programs, $150 million for the Baltic Security Initiative, and others across countries in the Indo-Pacific command).

92. Ben Zeisloft, Biden Could Move Weapons Meant for Fallen Afghan Government to Ukraine, Daily Wire (Dec. 18, 2021), https://www.dailywire.com/news/biden-could-move-weapons-meant-for-fallen-afghan-government-to-ukraine.

93. See Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113–291, §§ 1209, 1236, 128 Stat. 3292, 3541, 3558 (2014).

94. Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, § 9016, 134 Stat. 1182, 1349 (2020).

95. Special Inspector Gen. for Afg. Reconstruction, supra note 24, at xvi (“When the U.S. government empowers a temporary organization like CSTC–A to transfer equipment to a partner nation, DSCA must establish a formal process that ensures all relevant U.S.-based stakeholders approve of and provide input on equipping decisions.”).

96. “I am he as you are he as you are me, And we are all together.” The Beatles, I Am the Walrus (EMI 1967).

97. Defense Trade and Arms Transfers, Def. Sec. Coop. Agency, https://www.dsca.mil/defense-trade-and-arms-transfers (last visited Jan. 27, 2021).

98. Bernard Weinraub, Arms Left by U.S., N.Y. Times (Mar. 29, 1975), https://www.nytimes.com/1975/03/29/archives/arms-left-by-us-loss-by-saigon-force-called-catastrophic-1billion.html.