WASHINGTON — A House panel on Tuesday advanced legislation that would codify into law the ability of U.S. special operations units to arm irregular forces for warfare in volatile regions, portrayed by proponents as a tool for deterring competitors like Russia and China. But those activities can’t resume in Ukraine just yet.

The intelligence and special operations subcommittee advanced by voice vote the draft legislation for consideration when the Armed Services Committee marks up the fiscal 2024 National Defense Authorization Act, or NDAA, next week.

Subcommittee Chairman Jack Bergman, R-Mich., said ahead of the vote the language “codifies the current Section 1202 of the FY18 NDAA support of special operations for irregular warfare to continue the United States efforts in strategic competition with partner nations to build the capability to resist and counter aggression from nations such as Russia and China.”

First established in 2018 in response to Moscow’s support for Ukrainian separatists, the provisional Section 1202 authorities allow U.S. special forces to arm proxies for irregular warfare in other countries. The provision, which has so far largely been used for intelligence gathering operations, is set to expire in 2025.

In addition to codifying the authorities for these top secret operations into law, the draft language would increase the Section 1202 budget for fiscal 2024 to $25 million, up from $15 million this year.

The House first attempted to institutionalize Section 1202 activities when it passed its version of the NDAA last year, but Congress dropped that provision after agreeing on a final bill with the Senate. Rep. Ruben Gallego of Arizona chaired the special operations subcommittee at the time and now serves as the panel’s top Democrat.

“There was some confusion about whether or not this could potentially cause a gray area in terms of operations in places like Ukraine,” Gallego told Defense News after the vote. “I thought it was very clear. I thought it was not an issue. I don’t think it was that much of a change from the past, if anything. I just want to make it permanent.”

The FY18 NDAA, which first established these authorities, stipulates that irregular warfare must fall short of “traditional armed conflict.”

That stipulation prompted the Pentagon to pause Section 1202 authorities in Ukraine when Russia invaded last year. The Washington Post reported in February that the Pentagon is lobbying Congress to tweak the language on “traditional armed conflict” to allow these activities to resume in Ukraine. But the House language does not make the Pentagon’s requested adjustment.

“I’m not saying that we’re entirely against it, but I think it’s something we have to work on,” said Gallego. “We could not just get that started as soon as they wanted without doing the proper jurisdictional oversight, maybe doing a study on it before we jump that fast.”

Even without tweaking the original provision, Katherine Ebright – a counsel at New York University’s Brennan Center for Justice – told Defense News that codifying Section 1202 authorities could make congressional oversight more difficult.

“Congress has leverage over how the authority is used and can change the legislative text with relative ease to add guardrails or improve the oversight regime,” said Ebright. “Codifying the authority would not expand the scope of what the Pentagon can do as a legal matter, but it would reduce Congress’ leverage and could loosen political constraints on how the Pentagon runs 1202 programs and reports to lawmakers.”

She noted that Section 1202 is derived from a similar authority, Section 127e, which the Pentagon has used to expand counterterrorism operations across the world without congressional authorization.

“My biggest concern is that the 1202 authority will be used in a similar fashion to conduct kinetic operations against Russia, China, Iran or their proxies with virtually no congressional oversight and precisely zero public transparency or debate,” said Ebright. “Of course, using the 1202 authority for unauthorized hostilities would not only be unlawful; it would also carry a substantial risk of military escalation.”

Bryant Harris is the Congress reporter for Defense News. He has covered U.S. foreign policy, national security, international affairs and politics in Washington since 2014. He has also written for Foreign Policy, Al-Monitor, Al Jazeera English and IPS News.

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