An American serviceman prepares ammunition, weapons and other equipment bound for Ukraine at Dover Air Force Base in Delaware on January 21, 2022. Photo: Wikimedia Commons / US Air Force / Mauricio Campino

Conversations over the past week with current and former US officials about whether, to their knowledge, there is any real debate inside President Joe Biden’s administration over the approach it is taking in Ukraine has produced only slight variations of the same answer: “Not really.”

As of now, what the Biden policy amounts to is a replay along the lines of president Franklin D Roosevelt’s policy toward the war in Europe from 1939 to December 1941, during which the US was a co-belligerent all but in name. 

In their public statements, Biden and his Defense Secretary Lloyd Austin seem intent on obfuscating the true extent of American involvement. A story in the defense-industry-sponsored Politico quoted unnamed US officials as saying “military options in Ukraine aren’t on the table – echoing Biden’s repeated position of not wanting to spark World War III.”

If taken at face value, Biden’s policy would seem to be at odds with itself. Not wanting to start a third World War is a prudent, appropriate policy objective, but if that’s the goal, the administration is taking the long way around, because whether they admit it or not, the US is, and has been for some time, a co-belligerent in the war. 

“We have consistently been sharing intelligence that includes information the Ukrainians can use to inform and develop their military response to Russia’s invasion,” White House spokeswoman Jen Psaki told reporters in March. 

On April 13, Biden authorized US$800 million in military assistance to Ukraine, bringing the total amount his administration has spent on aiding Ukraine to roughly $3 billion.

The open spigot of funding has naturally attracted the attention of the defense industry, and last week, the chief executives of Raytheon, Lockheed Martin, Boeing, Northrop Grumman, General Dynamics and L3Harris Technologies met at the Pentagon with Deputy Defense Secretary Kathleen Hicks. 

But US involvement goes deeper than arms sales and intelligence sharing. A Pentagon official who requested anonymity told me it is “likely we have a limited footprint on the ground in Ukraine, but under Title 50, not Title 10,” meaning US intelligence operatives and paramilitaries – but not regular military.

Bruce Fein, a constitutional expert and former associate attorney general in the Ronald Reagan administration, told me this week that in his view, “the United States and several NATO members have become co-belligerents with Ukraine against Russia by systematic and massive assistance to its military forces to defeat Russia.” 

According to Fein, the US and its NATO allies are now vulnerable to attack by “an enemy belligerent,” meaning Russia, because of their “systematic or substantial violations of a neutral’s duties of impartiality and non-participation in the conflict.”

“Neutrality,” continued Fein, “is violated by permitting a belligerent to violate its territorial integrity (as Belarus and Russia have done to Ukraine), or by supplying warships, arms, ammunition, military provisions or other war materials, directly or indirectly, or supplying military advisers to a belligerent,” as the US has done.

“Under the Declare War Clause of the constitution, co-belligerency, which displaces the status of the United States as neutral, requires a declaration of war by Congress,” said Fein. But instead of fulfilling its constitutional duties, Congress has been aggressively pushing the administration to deepen its involvement in what is clearly now a US-Russian proxy war.

On. March 2, the US House of Representatives voted 425-3 in favor of a non-binding resolution “Supporting the People of Ukraine.” The following week, on March 10, the House overwhelmingly voted to send $14 billion in military funding to Ukraine as part of an omnibus spending package.

And on April 7, the US Senate passed Republican Senator John Cornyn’s Ukraine Democracy Defense Lend-Lease Act of 2022, which “temporarily waives certain requirements related to the President’s authority to lend or lease defense articles if the defense articles are intended for Ukraine’s government and necessary to protect civilians in Ukraine from Russian military invasion.”

In the end, Congress and the Biden administration are wading into dangerous waters. Fein warns that the US has “employed the concept of co-belligerency to target for extermination any group or individual who provides material support to al-Qaeda or ISIS” – and there is a real risk that Russia may take a page out of America’s playbook.

James Carden

James W Carden is a former adviser to the US-Russia Bilateral Presidential Commission at the US Department of State. His articles and essays have appeared in a wide variety of publications including The Nation, The American Conservative, Responsible Statecraft, The Spectator, UnHerd, The National Interest, Quartz, the Los Angeles Times and American Affairs.