By Michael J. Robertson*
The United States reached a status-of-forces agreement with the West African nation of Niger in January 2013. The agreement outlines the rights and privileges of U.S. military personnel in Niger, and will permit the U.S. to launch drones for surveillance purposes from within Niger’s territory. The United States hopes to keep eyes in the sky on a region that has recently experienced significant upheaval. The agreement follows close on the heels of a violent revolution and an intra-governmental tug-of-war in neighboring Mali; starting in 2012, Islamist insurgents gained control of the northern regions of Mali before being pushed back by Malian government forces with significant help from France and intervening African nations. The conflict is ongoing, but the insurgents have lost substantial ground and are currently holed up in mountainous hideaways, a far cry from the territorial dominance they briefly enjoyed.
But the U.S. government’s interest in the region springs from more than just one nation’s momentary crisis, no matter how substantial that crisis has been. The region surrounding Niger is home to a branch of al Qaeda—known as al Qaeda in the Islamic Maghreb—which has been linked to last year’s attack on the U.S. diplomatic mission in Libya, another of Niger’s neighbors. The area is also rife with other militant organizations. Doubtless the increased volatility in the region and its visibility in world headline news have reinforced Washington’s decision pursue the agreement. At the moment, prior to the completion of the drone-launching facilities in Niger, the only permanent base that the U.S. operates in Africa is in Djibouti, thousands of miles to the east, a fact that has made intelligence gathering in the region relatively difficult.
On February 22—a few weeks after the announcement of the drone base—in compliance with the War Powers Resolution, President Obama notified Congress that 100 U.S. military personnel have been deployed to Niger. Section 4 of the War Powers Resolution requires the President to notify the Speaker of the House and the President Pro Tempore of the Senate within 48 hours of introducing armed forces “into the territory, airspace, or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces.” Although the President, in his letter to Congress, vaguely asserted the purpose of the deployment as being “intelligence gathering,” “facilitat[ing] intelligence sharing with French forces conducting operations in Mali,” and the “furtherance of U.S. national security interests,” other sources report that the deployed personnel will be in Niger with the more specific goal of beginning to set up the drone base, which, for now, is to be built in Niamey, Niger’s capital.
So far, the details of the U.S.–Niger agreement are opaque at best. The U.S. forces that are currently deployed in Niger—made up logistics specialists, intelligence analysts, and security officers—are apparently on an evaluative mission, to determine how best to proceed. But within a short period, the U.S. might deploy 250 to 300 personnel, along with Raptor surveillance drones, to Niger to begin operations.
Critics of the move may not be as concerned about the immediate plans of the mission as about what the U.S. presence in Niger may mean for the future. The Obama administration has been under scrutiny in recent years for its use of drone strikes in Yemen and northwest Pakistan. These strikes raise particular legal concerns regarding the law of armed conflict because, inter alia, they have been carried out in countries with which the U.S. is not at war. The Obama administration’s unflagging affirmation of the legal permissibility of these strikes may raise red flags for critics who see in the establishment of the Nigerien drone base an opportunity for the administration to extend its targeted drone strike campaign. United States officials have declared that the base will only be used to launch unarmed drones for surveillance purposes, and reports suggest that the agreement with Niger may dictate such a limitation. But the New York Times reported in late January—before any details of the plan emerged—that U.S. officials had not “ruled out conducting missile strikes at some point if the threat worsens.” Presumably, the threat referred to is the larger threat posed by terrorist organizations operating in the region and not just the threat raised by the present conflict in Mali. Any expansion of the use of targeted drone strikes beyond the regions in which they have already been used would raise additional questions about the limits of their legal permissibility: first, because the U.S. currently has relatively little involvement in this region, officials might find drone strikes here more difficult to justify than similar strikes in the Middle East, where the U.S. has had a sustained and significant presence; secondly, previous U.S. drone strikes in Pakistan, Afghanistan, and Yemen have been carried out with at least the gloss of those countries’ approval, but there is no guarantee that Mali, Algeria, Nigeria, or other countries in the region surrounding Niger would permit drone strikes with comparable alacrity. This is not to suggest that the legal obstacles are insurmountable—only that the differences arising from a campaign carried out in West Africa would compel reconsideration of the vigor of the legal arguments that have brought us to where we are today.
For now, the establishment of the drone base in Niger presents more questions than it does answers with respect to U.S. national security policy in West Africa. The story to be unfolded in the coming months and years will either be one of relatively innocuous intelligence-gathering or of a robust and unforeseen extension of the Global War on Terror. Stay tuned for further developments.
* J.D. candidate, Harvard Law School, 2014; B.A., Brigham Young University, 2011.
Michael J. Robertson
J.D. candidate, Harvard Law School, 2014; B.A., Brigham Young University, 2011.