Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force

2Apr/140

Signing Off

As our readers are no doubt aware, in recent months the Air Force has announced significant reductions to manpower and personnel, and our office is not exempt from these reductions. Due to reduced resources, the General Counsel's office is ceasing operation of this blog. We greatly appreciate your participation, and hope that we have contributed positively to discourse in our coverage of law and its interplay with national security, military command, and government procurement, among other topics.

Filed under: Uncategorized No Comments
1Apr/140

And the Band Played On – Climate Change and Climate Adaptation

Two public events involving climate change and national defense coincided this week. The first involves Secretary of Defense Hagel and USAID Administrator Shah highlighting climate change's role in increasing regional political instability and the need for humanitarian assistance and disaster relief resources. The second involves the United Nations Intergovernmental Panel on Climate Change (IPCC) issuing its Fifth Assessment Report which documents changes that have already resulted from climate change and paints a dismal picture of the future:

Impacts from recent climate-related extremes, such as heat waves, droughts, floods, cyclones, and wildfires, reveal significant vulnerability and exposure of some ecosystems and many human systems to current climate variability .... Impacts of such climate-related extremes include alteration of ecosystems, disruption of food production and water supply, damage to infrastructure and settlements, morbidity and mortality, and consequences for mental health and human well-being. For countries at all levels of development, these impacts are consistent with a significant lack of preparedness for current climate variability in some sectors.

Whether this emphasis will go beyond the bounds of military and commercial planners has, however, yet to be seen.

The Wall Street Journal article appears here.  The IPCC's report is available here.

Jerry Kohns
Associate General Counsel (Installations, Energy and Environment)
U.S. Air Force

28Mar/140

“milCloud” – Competing against the Private Sector?

On March 18, the Defense Information Systems Agency (“DISA”) announced the milCloud service, a government-operated cloud tailored to DoD needs. Two computing centers have implemented milCloud for DoD’s unclassified network (NIPRnet), with a version of milCloud for the classified network (SIPRnet) expected this spring.

While cloud service providers must comply with hundreds of technical standards under the Federal Risk and Authorization Management Program (“FedRAMP”) and National Institute of Standards and Technology Special Publication 800-53 (“NIST SP 800-53”), milCloud was not evaluated against those controls, leading industry to voice concern that there may not be a level playing field:

"Why doesn't DISA just leverage what industry already has?" the executive said. "If you're building all these impact levels and you expect more than one provider to get to Level 5, why do you need to build your own?"

DISA has indicated that DoD is planning to assess milCloud using FedRAMP controls in the future.

The CIA, on the other hand, awarded a $600 million contract to Amazon Web Services in 2013 so the agency could avoid the cost pitfalls and challenges of doing the work itself. DISA has not released milCloud’s price points, and FCW cites a brief it obtained to suggest milCloud has myriad technical issues including multihour downtimes, slow transfer rates and user disconnections.

Whether milCloud will be a viable “competitor” or alternative to private cloud service providers remains to be seen.

Derek Santos
Associate General Counsel
USAF

13Mar/140

Transforming Service Delivery in the Government

The Washington Post reports on an initiative to reimagine the internal operations of federal agencies to transform service delivery by streamlining resources and eliminating duplicative efforts. Specifically, the Post points to a new report, titled “Helping Government Deliver: Transforming Mission and Support Services,” by Deloitte and the Partnership for Public Service, which highlights “success factors” derived from agency case studies. The report provides that these success factors may be conducive to the “sharing of multiple support and mission-critical functions within an entire department and, ideally, across departments.”

These success factors include:

  • Create a clear and compelling business case emphasizing financial benefits as well as the potential for non-financial benefits;
  • Focus on activities and processes that organizations have in common across the agency and rally support for new ways of doing business;
  • Put in place an organization-wide plan for effective governance if one does not exist already;
  • Encourage trust by rounding up stakeholders early and paying attention to people and culture;
  • Continually measure performance to create accountability and improve operations; and
  • Recognize the importance of experienced leaders.

What do you think? Do you think this list is comprehensive? What do you think is the most important factor on this list?

Read The Washington Post article here.

Read the Report here.

Leslie Barnes
Law Clerk
Office of the General Counsel (Contractor Responsibility)
Department of the Air Force

5Mar/140

Reactions to Chatham House Confernece on Autonomous Weapons

Last week’s Chatham House conference on autonomous weapon systems featured panelists representing a wide range of viewpoints concerning the legality and potential future uses of autonomous weapons.

Paul Scharre, Director of the Center for a New American Security’s Year 20YY Warfare Initiative, has offered thorough reflections of the discussions among the Chatham House panelists in a post over at Lawfare. Scharre, who served as a panelist at the conference, focused his reflections on the areas of agreement and disagreement among the panelists and called for continued conversation on this topic. Here is an excerpt from Scharre’s piece, centered on what he perceived as the primary categories of disagreements between panelists:

The core of disagreements, of which there were a healthy and robust amount, seemed to come down to how to deal with a technology that on the one hand has significant risks, but also might have some limited lawful and even valuable uses. Those who focused on the risks were concerned that allowing any limited use could lead to a slippery slope where wider, possibly unlawful, use occurred. Those who focused on the potential value of autonomous weapons in some circumstances . . . were opposed to prohibitions that might take a weapon that could potentially save lives, both military and civilian, out of the hands of military commanders.

***

There was, needless to say, widespread disagreement about what one should do to address some of the challenges as we move toward increasing autonomy in weapon systems. These ranged from doing nothing – existing laws are sufficient – to implementing a comprehensive legally-binding ban. . . . I would just observe that where one fell in terms of what the endgame should be seemed to depend partly on what one’s concern was. If one believed that any of the uses for autonomous weapons that might result in civilian casualties would be illegal under the laws of armed conflict anyway, that tended to push one toward believing that no new laws were necessary, but best practices or regulations could be valuable. If one had little faith that states would actually use autonomous weapons appropriately if left to their own devices, and that allowing any use at all was a slippery slope toward widespread use, that pushed one to a ban. If one was primarily concerned that allowing a machine to kill a person under any circumstances was unethical, even if the person was a legitimate military target, then that tended to lead one to argue for a complete ban as well.

Former Air Force General Counsel Charles Blanchard, who was also a panelist at the Chatham House conference, offered a similar characterization of the debate in an op-ed for Opinio Juris. Noting widespread consensus among the panelists “that except in very unique battle spaces (where the likelihood of civilians was nonexistent), deployment of autonomous weapon systems today would not be consistent with the requirements of International Humanitarian Law (IHL),” Blanchard writes:

So what was the disagreement? It centered on the following question: if technology ever developed to the point that machines were more capable than humans in complying with IHL than humans, should autonomous weapons be banned? The skeptics of a ban, such as me, argued that it would be troubling to accept more civilian casualties that would then result from a ban. The proponents, on the other hand, argued that it would violate notions of human dignity to let a machine to decide who to kill.

While one advocate calls the aversion to allowing machines to kill the “yuck” factor, a panel of ethicists and philosophers illuminated what this difference is really about: the skeptics (like myself) are advocating a utilitarian ethical scheme (the greatest good for the greatest number), while the proponents are applying Kant’s categorical imperative that no human being should be used as an instrument. While a utilitarian would be focused on whether civilian (and military) casualties would be less if autonomous weapons were used, a Kantian would object to the removal of humans from the lethal decisionmaking altogether.

More coverage of autonomous weapon systems and related legal and technological issues can be found here.

Richard B. Eisenberg
Attorney-Advisor
Office of the General Counsel
U.S. Air Force

26Feb/140

SCOTUS Ruling on Base Commander Authority to Deny Access

Today, the Supreme Court issued its decision in United States v. Apel, ruling unanimously in favor of the Government.  The case, which we previously covered here and here, involved a challenge to the legality of punishing an anti-war protestor for refusing to comply with a request to leave Vandenberg Air Force Base.  The Court rejected the argument that because the Government had granted an easement over a part of the military base, the base commander lacked authority to exclude a protestor from that part of the base.  Lyle Denniston of SCOTUSblog has more:

The key to the Court’s reading of the military base law was that the government, to retain control of the property, need not use every part of it for military operations. It is not necessary, the Court said in the opinion written by Chief Justice John G. Roberts, Jr., that the government have and exercise complete control over everything that happens within the base boundaries. Thus, having a public road run through it, or allowing some other civilian activity, does not diminish that control, according to the ruling.

Judges in civilian courts, the Chief Justice wrote, should not be involved in examining “U.S. military sites around the world, parcel by parcel, to determine which have roads, which have fences, and which have a sufficiently important, persistent military purpose.” Military control of military property, the opinion added, does not exist on a “use-it-or-lose-it” basis, the ruling stressed.

Military authority within the outer boundaries of a base, Roberts wrote, does not “change when the commander invites the public to use a portion of the base for a road, a school, a bus stop, or a protest area, especially when the commander reserves authority to protect military property by, among other things, excluding vandals and trespassers.”

Denniston's complete analysis of the decision is available here, and the Court's opinion is available here.

Richard B. Eisenberg
Attorney-Advisor
Office of the General Counsel
U.S. Air Force

19Feb/140

Time for Heightened US Military Involvement in Africa?

Michael E. O’Hanlon of Brookings acknowledges that “[f]or decades, one golden rule has guided America’s military involvement in Africa: Stay out.” But, O’Hanlon argues in in an op-ed appearing in the Los Angeles Times, “now is the time to reassess this long-standing American anathema to military involvement in Africa’s terrible wars.”

O’Hanlon explains:

At a time of national war fatigue and fiscal austerity, it may be counterintuitive to propose an increase in U.S. involvement — particularly military commitment — abroad. Given the problems that continue in Somalia, Kenya, Mali, Libya, Sudan, the DRC and Nigeria, Africa does not appear to be an area of opportunity. But, for a modest investment, the U.S. and other countries may be able to make major strides toward improving the prospects for peace and stability on the continent.

***

Some view Africa as a continent forever mired in poverty and conflict. But over the last few years, several hopeful signs have emerged there. Healthcare has progressed, with tangible headway against HIV/AIDS. Continent-wide, the annual economic growth rate has averaged 4% in real terms for a decade. A number of countries — roughly a third of the continent's total — are showing significant progress in democratic and economic reforms. Civil wars in West Africa and southern Africa have subsided; estimates of overall death rates from conflict on the continent are at their lowest since the 1970s. The French intervened successfully to support a democratically elected leader in Ivory Coast in 2011. Even Sudan and Somalia have shown progress of late, albeit limited and fragile.

The U.S. can build on this fragile progress and make a significant contribution to its counter-terrorism and humanitarian agendas in Africa with relatively modest effort. We have already deployed a small contingent to help Uganda pursue the Lord's Resistance Army, while maintaining special operations forces in Djibouti to pursue Al Qaeda. The focus of this expanded effort should work through the U.S. Africa Command to build capacity in African states through programs such as the Global Peace Operations Initiative and the Trans-Sahara Counterterrorism Partnership.

O’Hanlon’s full column, which further lays out his argument for greater American military involvement and includes some concrete recommendations for ways to intervene, is available here.

What do you think?

Richard B. Eisenberg
Attorney-Advisor
Office of the General Counsel
U.S. Air Force

12Feb/140

Wicked Acquisition – Part 3

Modernity may be mired in iniquity, and it has nothing to do with original sin. Lay the blame rather on the modern world’s complexity. Indeed, for many management gurus, complexity is getting out of hand. Their goal: to tame it before it does any harm.

Such is the observation of a recent Schumpeter Column in The Economist magazine. The column surveys the results of the Fifth Annual Global Peter Drucker Forum held in Vienna late last year. According to the column, the forum yielded two potential solutions for taming today’s complexity problems. The first solution reconstructs our organizational models into peer-to-peer networks that can more nimbly respond to the complex problems we face. The second solution imposes simplicity wherever possible.

Does any of that sound familiar? It should. Two recent posts proposed similar solutions for taming the difficulties associated with Defense Department acquisition. In the first, the idea of creating new, peer-to-peer organizational response patterns was proposed to tame the complexities of interdependent technological problems. The other was all about imposing simplicity on the Big “A” Acquisition System from bottom to top.

These parallels make the Schumpeter Column particularly noteworthy. It not only shows that the problems facing defense acquisition professionals are far from unique, but it also notes that neither solution is a cure-all for the complexity conundrum. While each solution has its merits to be sure, those merits can only shine through when the solutions are properly employed. The challenge is knowing how best to employ them.

What other observations would you add to this ongoing discussion? If the world is too complex, should organizations aim to simplify where possible? Or, is it better to adapt to the complexities by adopting new response patterns to accommodate them? Could there be merits in attempting a little of both?

The Economist’s perspective on the most recent Drucker Forum is available here. The Harvard Business Review also has an interesting series of posts and observations accompanying this year’s forum here.

Samuel Mark Borowski
Associate General Counsel (Intellectual Property)
United States Air Force

10Feb/140

International Law in the South China Sea

In testimony before the House Committee on Foreign Affairs on Wednesday, Assistant Secretary of State Daniel Russel made some news by asserting that China’s assertions of control over certain waters in the South China Sea – via its so-called “nine dash line”—violates international law. Specifically, in his prepared testimony, Russel stated:

There is a growing concern that [China’s recent] pattern of behavior in the South China Sea reflects an incremental effort by China to assert control over the area contained in the so-called “nine-dash line,” despite the objections of its neighbors and despite the lack of any explanation or apparent basis under international law regarding the scope of the claim itself. . . . I want to reinforce the point that under international law, maritime claims in the South China Sea must be derived from land features. Any use of the “nine dash line” by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.

Drawing attention to Russel’s statement in a thoughtful post at Brookings, Jeffrey A. Bader summarized the U.S. position thusly:

Under the U.N. Convention on the Law of the Sea (UNCLOS), negotiated in the 1970s and 1980s, countries can claim exclusive rights to the fish and mineral resources within Exclusive Economic Zones, which can extend 200 nautical miles from a continental shore line or around islands that can support habitation. There is no provision in the convention granting rights to waters, such as in the South China Sea, without regard to land-based sovereign rights. So it has long been implicit in the U.S. interpretation of UNCLOS that claims to the mineral and fish resources of the South China Sea, unless they are linked to specific inhabitable islands, are invalid. Assistant Secretary Russel’s statement has made that position explicit.

Bader also characterized what he views as the limited but still important US interests in the South China Sea and how they relate to this issue of international law:

The South China Sea is a complicated issue for the United States. We have no territorial claims there. We do not take sides on the respective sovereign claims of the parties, nor should we. It is highly unlikely that any country can establish effective means of projecting power from South China Sea islands that would threaten U.S. ships, military or otherwise, in the region. While there are believed to be considerable unexploited reserves of oil and gas within the South China Sea waters, they are not commercially viable for production on a large scale and are not expected to be for some time.

But the U.S. does have important interests in the South China Sea. They are:

  • To ensure freedom of navigation, not as a favor from any country but as an international right in an area through which 50 percent of the world’s oil tankers pass, that is a major thoroughfare of international commerce, and where U.S. military vessels deploy and operate consistent with international law.
  • To prevent use of force or coercion to resolve claims either to territory or to maritime rights.
  • To advocate for respect for international norms and law for resolving all such issues.
  • To ensure that all countries, including the U.S., have the right to exploit the mineral and fish resources outside of legitimate Exclusive Economic Zones.
  • To prevent a U.S. ally, the Philippines, from being bullied or subject to use of force.
  • To ensure that the rights of all countries, not merely large ones, are respected.

***

By explicitly rejecting the nine-dash line, Assistant Secretary Russel and the administration have drawn our own line in the right place. They have made clear that our objection is a principled one, based on international law, not a mere rejection of a claim simply because it is China’s. So long as our approach to the South China Sea remains firmly grounded on principle and international law, the U.S. can accomplish our objectives, strengthen the position of other claimants with respect to their rights and avoid the appearance of seeking confrontation with China over a sovereignty issue.

Julian Ku also commented on Russel’s statement in a post for Opinio Juris, characterizing it as “a semi-big deal as it shows how the US is going to use international law as a sword to challenge China’s actions in this region .” Ku goes on:

By tying itself to customary international law, the U.S. is challenging China to try to fit its Nine Dash Line into the legal framework created by the [UNCLOS]. Even some clarification from China as to the legal basis for its Nine Dash Line would be helpful, since it would shift the burden on China to explain its legal position. Moreover, the US government is also offering a legal roadmap for other countries that are not claimants in the region. It is hardly a controversial legal position, and should be fairly easy for the EU, Canada, or Australia to adopt (assuming they don’t mind tweaking China).

Do you agree with this understanding of international law? And how do you see this dispute proceeding?

Richard B. Eisenberg
Attorney-Advisor
Office of the General Counsel
U.S. Air Force

8Feb/140

Yogurt Diplomacy

The Washington Post reports on an international dispute (of sorts) between the United States and Russia over the planned shipment of 5,000 single-serve containers of yogurt to U.S. Olympians in Sochi. Yes; a controversy over 5,000 servings of yogurt. The Post explains:

America’s most famous load of yogurt — a shipment intended to feed U.S. Olympians in Sochi, but blocked by Russian authorities — remained in storage in New Jersey on Thursday, despite the best efforts of a senator and the Department of Agriculture to spring it loose.

The yogurt at the center of this fight was made by Chobani in Upstate New York. According to Sen. Charles E. Schumer (D-N.Y.), it was supposed to be shipped to Sochi last weekend.

But it wasn’t. Thus began an epic story of a dairy product denied its destiny. . . .

For the moment, this yogurt remains in limbo. No word yet as to its expiration date.

Richard B. Eisenberg
Attorney-Advisor
Office of the General Counsel
U.S. Air Force

Filed under: Uncategorized No Comments