U.S. Air Force loadmasters and pilots assigned to the 816th Expeditionary Airlift Squadron loaded passengers aboard a U.S. Air Force C-17 Globemaster III in support of the Afghanistan evacuation at Hamid Karzai International Airport, Afghanistan. (Credit: MSgt Donald R. Allen, U.S. Air Force)
Practice Notes
The Afghanistan Non-Combatant Operation
A Fiscal Perspective
By Lieutenant Colonel Nolan T. Koon
On 31 August 2021, at 11:59 p.m. in Kabul, Afghanistan, the last American Soldiers boarded five C-17 Globemaster III aircraft and departed Hamid Karzai International Airport (HKIA), effectively concluding America’s longest conflict and marking the end of the twenty-year Global War on Terror.1 Over the preceding eighteen days, under the direction of U.S. Central Command (CENTCOM), the U.S. military conducted the largest noncombatant evacuation operation (NEO)2 in history, evacuating more than 124,000 civilians while in contact with the enemy.3 As part of Operation Allies Welcome (OAW), the inter-agency, including the Department of Defense (DoD), continues to receive, process, vet, medically treat, sustain, and temporarily house Afghan Special Immigrant Visa (SIV) applicants and at-risk Afghans (collectively, Afghan evacuees) at Camp As Sayilyah (CAS), Qatar, a temporary safe haven (TSH), before they are resettled in the United States.4 The following practitioner’s note details the main DoD fiscal authorities underlying this ongoing effort.
The Road to Abbey Gate
By way of background, on 29 February 2020, in Doha, Qatar, the United States agreed to withdraw all forces from Afghanistan, and the Taliban promised to deter al-Qaeda from using Afghanistan as a staging area to threaten the United States.5 Starting in May 2021, and coinciding with the exodus of U.S. troops, the Taliban launched a lightning offensive against the Government of the Islamic Republic of Afghanistan (GIRoA) and the Afghan National Defense and Security Forces (ANDSF).6 Although the Taliban made significant territorial gains in the countryside, few could have predicted the rapidity of their military success—and the utter collapse of the GIRoA and the ANDSF.7 In approximately ten days, from 6 to 15 August 2021, the Taliban captured seventeen provinces, and on the tenth day, they took Kabul with no resistance.8
On 14 August 2021, as the Taliban prepared to enter Kabul, the Department of State (DoS) declared an NEO.9 United States Central Command immediately deployed nearly 6,000 troops to HKIA to reinforce its security posture; to close the embassy; and to commence evacuating American citizens, Third Country Nationals, DoS-designates, and Afghan evacuees.10 Because the GIRoA and the ANDSF disintegrated within twenty-four hours of the NEO declaration, CENTCOM was required to coordinate with the Taliban to establish a deconfliction mechanism and to assist with the HKIA perimeter security.11 Although the Taliban had no intention of interfering with the NEO, the Islamic State of Iraq and ash-Sham-Khorasan (ISIS-K), an ISIS-affiliated terrorist group, posed a grave threat.12 On 26 August 2021, an ISIS-K suicide bomber killed thirteen U.S. Service members and 170 Afghans at the HKIA Abbey Gate entrance.13 Undeterred by this tragic loss, the U.S. troops on the ground heroically continued the NEO with the assistance of U.S. Transportation Command (TRANSCOM), which dedicated more than 250 aircraft and 500 military aircrews.14
Fiscal Authorities
After departing HKIA, TRANSCOM flew Afghan evacuees to various overseas DoD military installations in Bahrain, Germany, and Qatar.15 Prior to the fall of Kabul, DoS had worked with countries in the CENTCOM area of responsibility (AOR) to identify locations for the establishment of TSHs, where the inter-agency, including DoS and DoD, could fully process and temporarily house the Afghan evacuees.16 Because DoS lacked the resources, the staffing, and the capacity to operate these TSHs, the DoS requested and received DoD assistance.17
While the DoS has primacy to conduct foreign assistance on behalf of the United States, Congress annually appropriates to DoD Overseas Humanitarian, Disaster, and Civic Aid (OHDACA) funds.18 Pursuant to 10 U.S.C. § 2561, SECDEF may use OHDACA to provide “transportation of humanitarian relief and other humanitarian purposes worldwide.”19 Based on this statutory authority, DoD authorized CENTCOM to use OHDACA funds to provide urgent lifesaving assistance to Afghan evacuees, including site preparation, transportation, logistics, services, and humanitarian procurements to support DoS-identified requirements, on a non-reimbursable basis.20
The cost of this DoD support to DoS was unprecedented and not forecasted as a budgetary requirement. On 24 August 2021, the DoD reprogrammed more than $1.4 billion of the Afghanistan Security Forces Fund and transferred it into the OHDACA account for the massive Afghan resettlement effort. Also, as part of two short-term fiscal year 2022 continuing resolutions, Congress appropriated more than $4.2 billion for OHDACA to support OAW.21
Notwithstanding OHDACA’s classification as a Title 10 appropriation, the DoS Bureau of Populations, Refugees, and Migration (PRM) had to validate all requirements before spending any OHDACA funds because the DoS was the supported agency.22 In coordination with DoS/PRM, the DoD, and the Defense Security Cooperation Agency (DSCA), CENTCOM created the Inter-agency Service Request (IASR) process.23 A DoS/PRM official on CAS would submit a written request for DoD funding and assistance on an IASR form, which was staffed to CENTCOM through U.S. Army Central (ARCENT) for requirements validation.24 Once approved, CENTCOM would return the IASR to ARCENT for OHDACA funding and contract award.
While DoD, DoS/PRM, and CENTCOM finalized the OHDACA requirements validation process, DoS negotiated and executed a memorandum of understanding with the State of Qatar concerning the use of CAS as a TSH.25 Its proximity to Al Udeid Air Base, Doha, Qatar, the largest U.S.-used military base in the Middle East,26 made it an ideal location, though it would require extensive contractor-provided services to make it suitable for the OAW mission, especially since it had just been deactivated months earlier.27
Overseas Humanitarian, Disaster, and Civic Aid could be used to fund a base life support contract for the Afghan evacuees. After receiving an approved IASR, ARCENT immediately coordinated with the U.S. Army Contracting Command to place a task order with an OHDACA-funded line of accounting against the Logistics Civil Augmentation Program (LOGCAP) V contract for the CENTCOM AOR.28
In addition to the OHDACA appropriation, the DoD leveraged resources that the Presidential Drawdown Authority (PDA) made available to support the TSHs in the U.S. Northern Command, the U.S. European Command, and the CENTCOM AORs.29 Prior to the DoS NEO declaration, on 23 July 2021, the President delegated the authority to direct the drawdown of up to $200,000,000 in articles and services from the inventory and the resources of all Federal agencies to assist Afghan refugees to the Secretary of State pursuant to section 506 of the Foreign Assistance Act of 1961.30
The PDA process requires significant coordination, planning, and time. The Defense Security Cooperation Agency (DSCA) is the DoD lead agency for drawdowns.31 It is responsible for coordinating with the DoS, the National Security Council, the DoD, the Services, and the combatant commands to identify the articles and the services to be provided under a drawdown.32 Once the articles and the services are identified, the DSCA will publish an execute order.33 The purpose of the execute order is two-fold. First, it directs the drawdown to proceed; second, it issues reporting instructions to the Services to ensure they do not exceed the overall drawdown ceiling.
As stated above, OHDACA could only be used for humanitarian assistance requirements, while PDA was limited to the drawdown of articles and services from existing agency inventories. Hypothetically, a DoS request to construct an inter-agency administrative immigration processing center would not qualify as humanitarian assistance; moreover, the DoD may not have the necessary Class IV materials to drawdown from existing stocks. The DoD would only be able to provide this support on a reimbursable basis under the Economy Act.34
Pursuant to the Economy Act, the DoS could order supplies and services from the DoD.35 In order to execute an Economy Act transaction, two Federal agencies must execute a U.S. Department of Treasury interagency agreement, i.e., an FS 7600A form.36 After the execution of an FS 7600A, one agency can provide reimbursable support to another, and credit monies received to the appropriation or fund that was charged to fill the order or to replenish the depleted stock.37
Afghan Special Immigrants walked through the in-processing building at Camp As Sayliyah, Qatar, on 20 August 2021. Soldiers help process Special Immigration Applicants seeking relocation to the United States. (Credit: SGT Jimmie Baker)
Conclusion
It has been more than two years since the fall of Kabul and those chaotic eighteen days in August 2021. Since the end of the Afghan NEO, the Taliban has allowed commercial flights out of HKIA and Afghan evacuees to leave the country.38 While many TSHs have shuttered, CENTCOM and ARCENT continue to receive, process, vet, medically treat, sustain, and temporarily house new Afghan evacuees at CAS.39 In Section 122 of the Fiscal Year 2023 Continuing Resolution, Congress authorized the transfer of up to $3 billion in unobligated funds from OHDACA account to various DoS accounts to continue resettling Afghan evacuees in the United States as part of OAW’s successive operation, Operation Enduring Welcome.40
The lessons learned for future NEOs are myriad, including the following. First, judge advocates (JAs) should review any NEO memoranda of understanding between DoS and DoD concerning roles and responsibilities. Second, in coordination with their respective resource managers, they should determine whether there will be funding authorities, including if a drawdown is contemplated. Third, if a drawdown is anticipated, JAs should ascertain whether DSCA will issue an execute order with reporting instructions for the Services. Fourth, they should ensure their respective commands understand that an executed FS 7600A is required for any Economy Act transaction. Fifth, while not a JA, or even a DoD, role, TSHs should be established as soon as possible, ideally prior to the DoS-declared NEO. Finally, JAs should understand there is a supporting/supported role between DoD and DoS, respectively, as part of any declared NEO. TAL
LTC Koon is the Chief of Fiscal Law for U.S. Central Command at MacDill Air Force Base, Florida.
Notes
1. Amanda Macias, U.S. Ends 20-Year War in Afghanistan with Final Evacuation Flights out of Kabul, CNBC (Aug. 30, 2021, 4:34 PM), https://www.cnbc.com/2021/08/30/afghanistan-update-last-us-troops-leave-kabul-ending-evacuation.html.
2. A noncombatant evacuation operation (NEO) is a departure of American citizens (AMCITs) and U.S. Department of State (DoS)-designated persons, including host nation (HN) and third-country nationals (TCNs), from an overseas, threatened area. Nat’l Sec. L. Dep’t, The Judge Advoc. Gen.’s Legal Ctr. & Sch., U.S. Army, Operational Law Handbook ch. 15, paras. I(A)-(C) (2022). While the U.S. Department of Defense (DoD) is responsible for the protection and evacuation of AMCITs, the DoD serves in a supporting role to the DoS. Id. The DoS and the chief of mission, who is the President’s personal representative to the HN and the lead U.S. Government official, are the supported agency and official, respectively. Id. Importantly, the DoD cannot provide evacuation assistance until the Secretary of State requests the same from the Secretary of Defense (SECDEF) or the President. See id. at ch. 15, para. II.
3. James C. Kitfield, Remembering the Largest Non-Combatant Evacuation Operation in US History, Air & Space Forces Mag. (Aug. 29, 2022), https://www.airandspaceforces.com/remembering-the-largest-non-combatant-evacuation-operation-allies-refuge-in-u-s-history%EF%BF%BC.
4. Camilo Montoya-Galvez, U.S. Setting Up Expedited Processing Hub in Qatar for Some At-Risk Afghans, CBS News (Feb. 8, 2022, 4:40 PM), https://www.cbsnews.com/news/afghanistan-us-expedited-processing-hub-qatar.
5. Agreement for Bringing Peace to Afghanistan between the Islamic Emirate of Afghanistan Which Is Not Recognized by the United States as a State and Is Known as the Taliban and the United States of America, U.S.-Islamic Emirate of Afghanistan, Feb. 29, 2020, https://www.state.gov/wp-content/uploads/2020/02/Agreement-For-Bringing-Peace-to-Afghanistan-02.29.20.pdf.
6. See Cong. Rsch. Serv., R46879, U.S. Military Withdrawal and Taliban Takeover in Afghanistan: Frequently Asked Questions 10 (2021) [hereinafter CRS R46879].
7. See id. at 9, 11-13.
8. Id. at 10.
9. Sean W. O’Donnell, U.S. Dep’t of Def., FY22 Comprehensive Oversight Plan—Overseas Contingency Operations 46 (2021).
10. Pentagon Press Secretary John F. Kirby and General Kenneth F. McKenzie Jr. Hold a Press Briefing, U.S. Dep’t of Def. (Aug. 30, 2021), https://www.defense.gov/News/Transcripts/Transcript/Article/2759183/pentagon-press-secretary-john-f-kirby-and-general-kenneth-f-mckenzie-jr-hold-a.
11. See id.
12. See id.
13. Jim Garamone, U.S. Central Command Releases Report on August Abbey Gate Attack, U.S. Dep’t of Def. (Feb. 4, 2022), https://www.defense.gov/News/News-Stories/Article/Article/2924398/us-central-command-releases-report-on-august-abbey-gate-attack.
14. Afghanistan Evacuation Support, U.S. Trans. Command, https://www.ustranscom.mil/cmd/neo.cfm (last visited June 15, 2023).
15. U.S. Dep’t of Homeland Sec., Operation Allies Welcome (2021). Thereafter, they were flown to the United States and housed at eight different military installations in Wisconsin, New Mexico, Texas, Indiana, Virginia, New Jersey, and New Mexico, where they were afforded a range of services, including resettlement assistance. Id.
16. Sean W. O’Donnell, Diana Shaw, & Thomas J. Ullom, Operation Freedom’s Sentinel: Lead Inspector General Report to the United States Congress 35 (2021).
17. See DoD Support to Operation Allies Welcome, U.S. Northern Command, https://www.northcom.mil/OAW (last visited June 15, 2023).
18. C12 – Overseas Humanitarian, Disaster, and Civic Aid (OHDACA), Def. Sec. Cooperation Agency: Sec. Assistance Mgmt. Manual, C12.1.2, https://samm.dsca.mil/chapter/chapter-12 (last visited June 15, 2023).
19. 10 U.S.C. § 2561(a) (emphasis added).
20. See Inspector Gen., U.S. Dep’t of Def., DoDIG-2022-114, Special Report: Lessons Learned from the Audit of DoD Support for the Relocation of Afghan Nationals 3-4, 22-24 (2022).
21. CRS R46879, supra note 6, at 40.
22. This assertion is based on the author’s recent professional experiences as the Chief, Fiscal Law for CENTCOM from July 2021 to June 2023 [hereinafter Professional Experiences].
23. Id.
24. Id.
25. Memorandum of Understanding Between the United States of America and the State of Qatar on Cooperation in Temporary Hosting of Individuals at Risk Due to the Situation in Afghanistan, U.S.-Qatar, Nov. 12, 2021, T.I.A.S. No. 21-1112.
26. The United States and Qatar: Strategic Partners Advancing Peace and Security, U.S. Dep’t of State (Nov. 20, 2022), https://www.state.gov/the-united-states-and-qatar-strategic-partners-advancing-peace-and-security.
27. See Conner Hammett, Camp As Sayilyah Exchange Rapidly Reopens to Serve Troops Supporting Afghan Guests, ExchangePost.com, (Sept. 15, 2021), https://publicaffairs-sme.com/FamilyServingFamily/2021/09/15/camp-as-sayliyah-exchange-rapidly-reopens-to-serve-troops-supporting-afghan-guests.
28. Professional Experiences, supra note 22.
29. See Memorandum for the Secretary of State on the Delegation of Authority Under Section 506(a)(2) of the Foreign Assistance Act of 1961, White House (July 23, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/23/memorandum-for-the-secretary-of-state-on-the-delegation-of-authority-under-section-506a2-of-the-foreign-assistance-act-of-1961.
30. Id.; Foreign Assistance Act of 1961, Pub. L. No. 87-195, 75 Stat. 424 (codified as amended at 22 U.S.C. § 2151).
31. U.S. Gov’t Accountability Off., GAO-17-26, Security Assistance: Guidance Needed for Completing Required Impact Assessments Prior to Presidential Drawdowns at intro. (2016).
32. See id. at 4.
33. Memorandum from Assistant Dir. for Strategy, Plans and Policy, Def. Sec. Cooperation Agency to Deputy Assistant Sec’y of Army for Def. Exports and Cooperation et al., subject: Revision to Drawdowns, DSCA Policy 21-04 [E-Change 521] (14 Apr. 2021) (referring to an execute order as an “execution message”).
34. 31 U.S.C. § 1535.
35. See id.
36. U.S. Dep’t of Treasury, Bureau of Fiscal Serv., FS Form 7600A, United States Government Interagency Agreement (IAA): Aggreement Between Federal Agencies (2016).
37. U.S. Dep’t of Def., 7000.14-R, DoD Financial Management Regulation vol. 11A, ch. 03, para. 1.2.5 (Sept. 2019).
38. Afghanistan Commercial Flights Resume as U.N. Accuses Taliban of Harassment, Reuters (Sept. 10, 2021, 12:02 AM), https://www.reuters.com/world/asia-pacific/taliban-interim-government-agrees-let-foreigners-leave-afghanistan-2021-09-09.
39. See Akmal Dawi, US Continues Relocating Afghans Even Under Taliban Rule, Voice of Am. (Apr. 4, 2023), https://www.voanews.com/a/us-continues-relocating-afghans-even-under-taliban-rule-/7036129.html.
40. Cong. Rsch. Serv., R47283, Overview of Continuing Appropriations for FY2023 (Division A of P.L. 117-180), at 7 (2022).