Section 333, the authority to build partner capacity

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1. What the authority permits

Section 333 of Title 10 is the standing authority behind most capacity building work. It authorizes the Secretary of Defense "to conduct or support a program or programs to provide training and equipment to the national security forces of one or more foreign countries" for the purpose of building the capacity of those forces (10 U.S.C. 333(a)).

The purpose is not open ended. The statute lists nine kinds of operation a program may be directed at (10 U.S.C. 333(a)(1) to (9)):

• counterterrorism operations;
• counter weapons of mass destruction operations;
• counter illicit drug trafficking operations;
• counter transnational organized crime operations;
• maritime and border security operations;
• military intelligence operations;
• air domain awareness operations;
• cyberspace security and defensive cyberspace operations;
• operations contributing to an existing international coalition operation that the Secretary determines to be in the national interest.

It is a joint enterprise with the Department of State by statute rather than by practice. The concurrence of the Secretary of State is required to conduct or support any program, and the two departments "shall jointly develop and plan" any program carried out under the authority (10 U.S.C. 333(b)).

2. What a program may contain

The list of authorized elements is short and includes one item that surprises people. "A Section 333 program may include the provision and sustainment of defense articles, training, defense services, supplies (including consumables), and small-scale construction" (SAMM S333.1.2, and 10 U.S.C. 333(c)(1)).

Construction is capped, and the cap is low by the standards of a military works program. "As a matter of law, Section 333 small scale construction projects currently cannot exceed $2M" (SAMM S333.2.11.5).

Above a lower figure the reporting sharpens. For projects above $750,000, the congressional notification must give the location, the project title and the cost of each project. It must also carry a form 1391 for the project, and a master plan of planned infrastructure investment at that location over the next five years (10 U.S.C. 333(e)(8)).

3. What a program must contain

Two elements are required rather than optional. A program must include elements promoting observance of and respect for the law of armed conflict, human rights and fundamental freedoms, the rule of law and civilian control of the military. It must also include institutional capacity building (10 U.S.C. 333(c)(2)).

Each requirement is met by a certification made before anything starts. For the first, the Secretary certifies prior to initiation that a department or agency is already undertaking, or will undertake, training with a comprehensive curriculum on those subjects for the forces concerned (10 U.S.C. 333(c)(3)).

For the second, the certification covers a program of institutional capacity building with the relevant institutions, to enhance the country's capacity to organize, administer, employ, manage, maintain, sustain or oversee its own forces (10 U.S.C. 333(c)(4)).

4. The limits

Four restrictions bound the authority.

• Nothing otherwise prohibited. The authority may not be used to provide assistance "that is otherwise prohibited by any provision of law" (10 U.S.C. 333(d)(1)). The manual records how that is read in practice: assistance is prohibited where a restriction applicable to foreign assistance under Title 22 would prevent the same support being given through the analogous authority (SAMM S333.2.11.1).
• Units that have committed gross violations of human rights. Assistance is subject to the provisions of section 362 of the same title (10 U.S.C. 333(d)(2)).
• Sustainment has a clock. Five years is the limit, unless the notice on the program carries two further things. One is a written justification that longer support will enhance the security interest of the United States. The other is a plan, so far as practicable, to transition that support to another funding source (10 U.S.C. 333(d)(3) and (e)(7)).
• Reserve and National Guard pay. Funds provided for this assistance may not be used for it, though travel costs necessary to execute the activity remain allowable (SAMM S333.2.11.6).

5. Notice and wait

Activities do not begin when the money arrives. Not later than 15 days before initiating activities, the Secretary submits a written and electronic notice to the named committees (10 U.S.C. 333(e)). The manual restates the same rule: "As a matter of law, Section 333 assistance may not be provided until 15-days after CN" (SAMM S333.2.11.3).

Policy adds a further condition on top of the statute. Execution may not proceed until all notified committees have provided explicit approval of the proposed assistance (SAMM S333.2.11.3).

The notice itself is substantial. It carries, among other things (10 U.S.C. 333(e)(1) to (5)):

• the country and the specific unit whose capacity will be built, and the amount, type and purpose of the support;
• a detailed evaluation of that country and unit's capacity to absorb the training or equipment;
• the cost, implementation timeline and delivery schedule;
• the sustainment arrangements, their estimated cost and their source of funds;
• the security assistance provided to that country over the three preceding fiscal years.

6. Where the money comes from, and how long it lasts

The funding source is exclusive. Amounts for these programs "may be derived only from" sums authorized for the Department for operation and maintenance, Defense-wide, and available to the Defense Security Cooperation Agency for those purposes (10 U.S.C. 333(g)(1)).

Money may now run across years. Amounts available in fiscal year 2025 or any later year may be used for programs that begin in that year and end not later than the end of the third fiscal year after it (10 U.S.C. 333(g)(2)). Programs that began before 1 October 2024 run on the older two year rule (SAMM S333.2.5.2.2).

7. What Congress gets back

Reporting is semi annual and specific. The Director of the Defense Security Cooperation Agency reports on the delivery and execution status of all articles, training, services, supplies and construction, by recipient country (10 U.S.C. 333(f)(1)).

Two further elements make the report an accountability document rather than a summary. It compares the timeliness of delivery against the schedules previously given to Congress, and it reports the status of allocated funds, including unobligated amounts, unliquidated obligations and disbursements (10 U.S.C. 333(f)(2) and (3)). The manual adds that reports must reflect any deviation from the original notification (SAMM S333.7.4).

A delivery schedule given to Congress at notification is therefore a figure the program is measured against twice a year. That is one reason the timelines described in how a BPC case runs and closes on appropriated money are as tight as they are.

Key terms

Section 333	The standing authority at 10 U.S.C. 333 to build the capacity of foreign security forces.
Small-scale construction	An authorized element, capped at $2M, with added notification above $750,000.
Institutional capacity building	A required element, certified before a program starts. 10 U.S.C. 333(c)(4).
Notice and wait	The 15 day period between congressional notification and the start of activities.
Cross fiscal year authority	The rule allowing a program to run into later fiscal years. 10 U.S.C. 333(g)(2).

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

The authority funds equipment, training and small-scale construction in places that are rarely easy to work in. Sentfore provides secure movement, protective security, accommodation and site support around programs of that kind, and its principals have worked on overseas defense and security programs. Requirements can be sent through the contact page.