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Foreign Assistance Funds or Direct Military Assistance: The Questionable Legality of the U.S. Missio

On March 21, 2012, Malian soldiers under the command of Captain Amadou Sanogo seized the presidential palace in Bamako, ousting the country’s democratically elected government and installing Sanogo and his National Committee for the Restoration of Democracy and State (CNRDR) in its place. However, the fall of the legitimate Malian government allowed insurgents in northern Mali, particularly al Qaeda in the Islamic Maghreb (AQIM), to vastly expand their influence, and the Islamist insurgency began to advance southward towards Bamako in early January 2013. Recognizing the increased risk of an AQIM victory, on January 11, France launched military air strikes and ground operations against insurgent targets throughout northern Mali. Although France has driven AQIM and its affiliates back, requests for U.S. military aid by both France and Mali raise troubling legal questions regarding the legality of providing assistance to a government installed by a coup.

Prior to the coup, the United States was one of the largest providers of foreign aid to Mali, particularly in areas such as military and counterterrorism training. Indeed, the United States trained Amadou Sanogo, the leader of the new Malian junta. However, in the aftermath of the coup, providing aid to Mali’s current government is – theoretically – forbidden under Section 7008 of the FY2012 Consolidated Appropriations Act, P.L. 112-74. P.L. 112-74 provides that no appropriated funds “shall be obligated or expended to finance directly any assistance to the government of any country whose duly elected head of government is deposed by military coup d’etat or decree, or a coup d’etat or decree that is supported by the military.” Although the statute would seem to make clear that funding cannot be provided which would assist a government whose elected head has been deposed, in recent days the Obama Administration has seemingly overcome any legal qualms, and the Administration has now offered France aerial refueling and planes to transport its troops. The Department of Defense explained its decision as legally sound because the aid being provided to France does not constitute direct military support of the Malian government. The Pentagon’s legal reasoning also rests on the distinction that the coup bars only direct military support, not foreign assistance funds.

The DOD’s decision to provide foreign aid to France merits further scrutiny. Clearly, AQIM presents both a regional threat to U.S. interest and could potentially – if given time – offer a transatlantic threat to the United States itself. However, P.L. 112-74 clearly states that aid shall not be provided which would directly assist the government of a county whose legitimately elected leader has been deposed. The Act does not make any distinction between military support and “foreign assistance funds”. Indeed, providing France “foreign assistance funds” is the functional equivalent of providing Mali direct military aid. If the language of P.L. 112-74 is strictly construed, it would seem to make clear that foreign aid which directly assists a government whose elected head has been deposed is forbidden. There is no argument which could support the contention that France’s intervention in Mali has not directly aided Amadou Sanogo and his illegitimate government. Although the Obama Administration insists that its decision to support France’s military venture is legally sound, its failure to set forth the legal reasoning behind that decision remains troubling.


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