Impacts of Section 7008, the ‘Coup Restriction’, on U.S. Policy in Niger
Impacts of Section 7008, the ‘Coup Restriction’, on U.S. Policy in Niger
/ United States 11 minutes

Impacts of Section 7008, the ‘Coup Restriction’, on U.S. Policy in Niger

Why the U.S. government will find no easy answers in the Sahel's coup belt

This summer another coup unfolded in the Sahel, this time in Niger, creating a coup belt across the African continent. With yet another coup to contend with, the U.S. faces the formidable challenge of quickly organizing and coordinating its diplomatic response while also weighing the limits of legal restrictions and policy objectives in Niger, a country that hosts multiple U.S. military bases and upward of 1,100 U.S. military forces.

Only two years ago, Niger experienced its first peaceful and (at least somewhat) democratic transition of power since independence from France in 1960. But on July 26, Niger’s President Mohamed Bazoum’s own guard detained him and his family, declaring intent to take control of the country. After the presidential guard reached consensus through negotiations with other Nigerien military forces, they announced the creation of the National Council for the Safeguard of the Homeland (CNSP) and its interim leadership, the head of the presidential guard, General Abdourahmane Tiani. Now, from Guinea to Sudan, militaries control a contiguous string of six countries across the top of sub-Saharan Africa. 

No Easy Answers

Swift and firm regional and international responses followed the coup in Niger, especially compared to the coups in Mali, Burkina Faso, and Guinea. The Economic Community of West African States (ECOWASthreatened possible use of military intervention, giving the Nigerien military one week to return the president to power, to which Burkina Faso and Mali responded in support of Niger’s junta (thus far there has been no military intervention and ECOWAS continues to convene to find a diplomatic solution). The African Union condemned the putschists’ efforts. The European Union announced immediate suspension of budget support and all security cooperation activities. France, Niger’s former colonial ruler, which has 1,500 French soldiers stationed in Niger, declared restriction of its assistance consistent with the EU’s announcement. 

The U.S. also quickly weighed in, denouncing the takeover and warning that economic and security assistance to Niger is in “clear jeopardy.” Days later, the U.S. announced the ordered departure of non-emergency personnel from the U.S. Embassy, advised U.S. citizens not to travel to Niger, suspended Defense Department security cooperation with the Nigerien military, and paused certain foreign assistance programs. At the request of Secretary of State Antony Blinken, Acting Deputy Secretary of State Victoria Nuland flew to Niamey and unsuccessfully tried to convince General Moussa Salaou Barmou (a U.S.-trained Nigerien military leader and designated chief of defense under the junta) to support a negotiated settlement and take action consistent with Niger’s constitution. The general later told the Wall Street Journal that if the cost of U.S. assistance is “the price to pay for our sovereignty, then let it be.” 

U.S. policymakers face many more difficult conversations and choices in the coming weeks and months. The Sahel is a center of jihadist violence (including from al-Qaeda and the Islamic State), and Niger has been a reliable security partner for the U.S. in the fight against them. From 2012 to 2021, the U.S. provided more than $500 million in military assistance equipment and training programs to Niger. U.S. forces present in the country train Nigerien forces on counterterrorism and operate intelligence, surveillance, and reconnaissance aircraft out of bases in Niamey and Agadez, the latter of which the U.S. spent more than $100 million to build. There will be no easy answers to questions about how the U.S.-Niger relationship proceeds with putschists at the helm, not even, it seems, on what to call the situation. 

Cautious About “Coup” 

Niger’s strategic importance in counterterrorism only partially explains the Biden administration’s reluctance to label recent events a “coup.” Officials are mostly sensitive to using the word because of a law referred to as the “coup restriction.” The most recent version of the law is Section 7008 of the Department of State, Foreign Operations, and Related Programs Appropriations Act for Fiscal Year 2023

Despite U.S. officials’ clumsy dance around the word “coup,” using the label is not what triggers the law; rather, it is a fact-based assessment conducted by policymakers with the advice of State Department lawyers. Section 7008 applies when “a duly elected head of government is deposed by military coup d'état or decree” or a coup d'état or decree in which the military played a decisive role in the ousting of a duly elected head of government. Once policymakers—as advised by lawyers—conclude that a certain event satisfies the standard in the law, certain assistance to the foreign government must cease. This would mean that, generally speaking, the U.S. government could not send security and economic assistance to the government of Niger (see here for a more detailed discussion on the funding restrictions under Section 7008). Regardless of the restrictions under Section 7008, the U.S. would still be able to send humanitarian assistance to Niger, as this remains legally available (for example, the U.S. obligated $73 million in humanitarian assistance for Mali in fiscal year 2022 after Section 7008 restrictions applied). 

The State Department has said that “hundreds of millions of dollars of assistance” hang in the balance in Niger.

For U.S. government officials, the stakes are high when Section 7008 restricts assistance. The State Department has said that “hundreds of millions of dollars of assistance” hang in the balance in Niger, including a million dollars in international military education and training funding, peacekeeping operations funding, and foreign military financing programs that support Nigerien counterterrorism capabilities. Duly elected President Bazoum was deposed by the military in a coup d'état, which would seem to necessitate that U.S. assistance must be withheld consistent with Section 7008. But there continues to be a lack of clarity as to whether the U.S. considers the law applicable. 

Right now, there could be a few things going on within the U.S. government with respect to its response to the coup in Niger and interpretation of Section 7008. The first might be connected to the timing of assistance to Niger. Under normal operations, the government does not send new assistance every day but does so more typically in large tranches on varying schedules. (See periodic announcements of U.S. assistance to Ukraine.) If there is no near-term obligation of assistance for Niger, there might not be an immediate need to announce that assistance is restricted under the law. That said, the fact that the U.S. has announced the suspension of certain U.S. funds and activities suggests that U.S. officials are no longer comfortable with providing assistance that would be prohibited by Section 7008. 

Another thing that’s fair to assume, and the likely answer to why officials are waffling around official language, is that the State Department is preserving political and legal flexibility in case the coup is reversed. Based on public statements, the Biden administration still considers there to be a diplomatic path to return to constitutional order. Practically speaking, such a window exists only for a short time—the longer the junta is in power, the less likely they will be inclined to relinquish it. Biden officials are determined to exhaust diplomatic efforts before considering events conclusive enough to meet the standard in the law. 

As a legal matter, assistance is restricted as soon as a duly elected leader has been deposed by the military.

As a legal matter, assistance is restricted as soon as a duly elected leader has been deposed by the military. The fact that the administration is publicly avoiding the word “coup” and is describing assistance as “paused” and not cut off suggests the State Department is treating the coup as nonconclusive as a legal matter, even though labeling it a coup does not have any legal effect. The longer the current situation in Niger prevails, the harder it will become for policymakers and their lawyers to argue that the events are temporary. While the current pause might be framed as cautionary, to extend it past a reasonable time frame would strain interpretation of the plain text of Section 7008. However, if the coup were to be reversed soon, within a reasonable window, the State Department legal adviser could well advise that President Bazoum’s overthrow was never finalized. 

This would be in keeping with recent practice. Immediately following the first 2022 coup in Burkina Faso, which began on Jan. 23, the State Department described the events there as a detention of the president and urged for the “return to civilian-led government and constitutional order.” The U.S. waited until Feb. 18 to finally refer to it as a coup and simultaneously announce restricted assistance under Section 7008. As it is likely doing now, the State Department created a grace period to keep options open and allow further time to pursue diplomatic efforts to encourage reversal. 

Preserving space for diplomacy makes sense for policymakers. If assistance is restricted in accordance with Section 7008, the only way for the full restriction to be lifted is for a democratically elected government to take office. In the case of countries that have experienced a coup, this can take several years, if not decades. 

The New Waiver 

The law governing these events, however, is more flexible following little-noticed 2022 legislative changes. In December 2022, Congress made two changes to Section 7008. The first allows restricted assistance to be used to “support a democratic transition.” Read broadly, this could include both economic and military assistance to support a democratic transition, but a democratically elected government would still have to take office before all restricted assistance (for intended purposes) could be restored. For example, if the junta decides to support and is working on a democratic transition, then assistance could go to them specifically for those ends.

For advocates in favor of the coup restriction, the second 2022 change was more vexing. For the first time since the enactment of Section 7008 in the 1980s, Congress included a waiver provision that authorizes the secretary of state to waive funding restrictions on a program-by-program basis if the secretary certifies and reports to appropriations committees that the waiver is in the national security interests of the United States. The waiver was intended to give policymakers greater flexibility in developing and maintaining security partnerships with countries that had suffered a coup. Some congressional staffers have also told me that the waiver was intended to encourage the executive branch to be more transparent and responsive in labeling coups. 

In practice, however, the waiver provision has not resulted in the U.S. adopting plain language concerning coups. It has, however, spurred some consideration of restarting assistance following a coup. As reported by the Washington Post and as reflected in my conversations with congressional staffers, the Biden administration is considering applying the waiver so that it can provide nonlethal assistance to Burkina Faso’s military. The administration’s rationale is that such assistance is necessary for mitigating Russian influence. A senior Defense Department official told the Washington Post that “if we don’t provide the assistance, someone else will, whether it is Wagner, China, or another group.” 

As the days pass and the Niger coup is not reversed, one question on the minds of policymakers and appropriators alike is whether the waiver will (and should) be applied to Niger in order to continue to provide security assistance to the junta. If the administration is concerned about its leverage in Burkina Faso, it will be even more worried about a weakened relationship with the Nigerien government (whatever its makeup) due to the U.S. military presence and the perception that the partnership is the cornerstone of U.S. counterterrorism policy in the Sahel. 

U.S. security concerns about terrorism in the region may push policymakers to eventually apply the waiver in Niger.

U.S. security concerns about terrorism in the region may push policymakers to eventually apply the waiver in Niger. But there are important countervailing arguments that the U.S. government would need to weigh. Under military leadership in Mali, where the junta has relied on a violent Wagner force, and Burkina Faso, where the government has armed civilian militias, jihadist violence and civilian deaths have gotten much worse. The path forward for the putschists in Niger is unclear, but the approach and track record of its neighbors should give the U.S. pause. The potential for an increase in violence in Niger is illustrated by the coup’s disruption of dialogue efforts between the Nigerien government and jihadists, which has resulted in the militants resuming attacks on Nigerien forces.

In the end, however, a policy decision for U.S. forces to leave Niger could render some discussions regarding the legal barriers of Section 7008 moot. While the law, absent use of the waiver, prohibits some Defense Department training and equipping of Nigerien forces, it does not prohibit U.S. military presence, U.S. special forces operations, or certain special forces “support” programs (for example, 127e programs). In the absence of an ECOWAS military intervention, it is still unclear if the U.S. will maintain its force posture as a policy matter and continue its operations with the putschists in power. In its policy planning, the Biden administration will undoubtedly consider U.S. force protection as the priority and will assess the impact of a potential French military withdrawal or a possible Wagner presence in Niger. 

What Now? 

After spending hundreds of millions of dollars on a base and investing millions more in the Nigerien military, this is a sobering moment for the U.S. At a moment when the Biden administration is searching for a policy basis for its continued military presence in Niger, it should take a step back and think about whether U.S. strategy in the Sahel has been or can be effective. In a region where U.S. security investments do not seem to have paid off in terms of stable security partnerships, it is (at the very least) an opportune time to reflect on whether the U.S. presence and security assistance to Niger has advanced Nigerien, regional, and U.S. security. 

Although the U.S. is an influential actor in the region, country-specific events shaped each coup. For example, a two months-long popular uprising over contested legislative elections paved the way for a coup in Mali in 2020. Plagued by jihadist insurgencies, the junta pointed to the fragile security situation in the country to justify their actions. When a coup occurred in Burkina Faso in January 2022 and again in September later that year, the military said the move was warranted due to eroding security. Before the 2021 coup in Guinea, internal tensions within the security apparatus grew in tandem with grievances aimed at the president over repeated human rights violations and erosion of democratic norms. In all three cases, the governments had reputations of corruption and the public—especially young people—expressed support for the coups. While Niger is more secure than Burkina Faso and Mali, the Nigerien junta justified taking control by pointing to a deteriorating security situation, bad governance, and corruption.

Going forward, the U.S. should consider conducting analysis to ascertain the risk of a coup before providing lethal assistance or training to foreign security forces.

Going forward, the U.S. should consider conducting analysis to ascertain the risk of a coup before providing lethal assistance or training to foreign security forces. In the example of Guinea, there were clear warning signs of the abuse of power by President Alpha Condé and growing tensions, but the U.S. continued to closely partner with and provide assistance and training to the Guinean military. And in Niger, which had faced very recent coup attempts, there was always a fragile tension between the president and the military in the midst of international efforts to stabilize the country. Although no one can exactly predict when a coup will happen, the U.S. should have heeded the warnings in these countries and at a minimum reassessed its security support while resisting wishful thinking. 

As U.S. security partnerships across the region implode because of coups, the question of whether the U.S. could have done more to support good governance as a complement to its security investment also bears scrutiny. The answer is not self-evident: The U.S. track record in that space is decidedly mixed. But it’s one well worth pondering before Washington invests in its next generation of security partnerships.

This article was originally published in Lawfare.

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