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A Company Commander on Sexual Assaults and Suicides

Army Captain Nick Nethery offer some thoughts about our current approach to “training” military members about sexual assault ans suicide prevention.  Like many comments on this blog, he is not a fan with the “death by powerpoint” approach many commanders take to address the problem:

Are leaders “checking the block” by administering these classes, choosing to believe their command is safe afterward, rather than addressing the underlying issues behind a rise in harassment and assault? I am no psychologist or sex abuse counselor, but I am a leader who tried to care about my soldiers when I had the fortune to lead them. During my time in command, I was skeptical of the Army’s solution to this problem. I took a more dynamic approach. I knew all my soldiers, their families, their birthdays, their kids’ names, what their goals and aspirations were, what kind of music and beer and cars they liked. I had male and female soldiers, of all ages and backgrounds. Not to be too sappy, but we were family. And you know what? We never had any of these problems.

Again, I just see my little lane. I’m no general. But I realized the limitations of the Army’s answer to suicide prevention and sexual assault, and took a more active approach, one where I knew my soldiers down to the tiniest detail. I trusted them — and showed them I did — and they trusted me. I don’t flatter myself that all my soldiers liked me. I didn’t have perfect commands, and we had some other minor discipline issues, but in four years leading soldiers I never had a single incident of suicide, suicidal ideation, or sexual harassment/assault. It worked for me. My own bosses saw that my method worked, and were supportive as long as I was meeting the Army’s required training guidelines.

Read it all here.

Charles A. Blanchard
General Counsel
United States Air Force

Posted in Criminal Law.

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By charlesblanchard – May 21, 2013

The Geopolitical Importance of Hawaii

James Holmes of the U.S. Naval War College has a very interesting post in The Diplomat blog about the geopolitical importance of Hawaii–and how the U.S. won the prize:

Alfred Thayer Mahan mounted a tireless lobbying campaign in his writings, imploring the U.S. government to acquire the islands. In so doing, it could assure access to Honolulu while preventing some hostile power from acquiring the islands and, perhaps, denying access to American seafarers crisscrossing the Pacific Ocean. Mahan ultimately got his wish following the Spanish-American War, which wrought a revolution in American thinking about national power and purposes.

Congress had vacillated over whether to annex Hawaii, while President Grover Cleveland quashed a previous annexation bid. The defeat of Spain, however, delivered a modest Caribbean and Asia-Pacific empire into the republic’s hands. Island acquisitions were suddenly a matter of expediency. Imperial management demanded way stations along the sea routes between North America and Asia. The “splendid little war” thus unclogged the political works in Washington, which proceeded with annexation in the months afterward.

In geopolitics as in real estate, it’s all about location, location, location. Hawaii occupies a particularly auspicious location some 2,400 miles southwest of San Francisco. It lies along the sea lanes linking Panama with Asia. That was a big deal for sea-power advocates who fretted about where to stage the main U.S. Navy fleet — Atlantic or Pacific? — and for officials charged with administering the Philippine Islands. It took months to combine the fleet for action in the days before the Panama Canal opened. In 1898, for instance, the Pacific-based battleship Oregon had to undertake an epic voyage around South America to get into the Caribbean fight. Reaching the combat theater was an ordeal in itself.

Read it all here.

Charles A. Blanchard
General Counsel
United States Air Force

Posted in Foreign Policy, History, Uncategorized.

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By charlesblanchard – May 21, 2013

Amending the Japanese Constitution

John W. Traphagan offers a very useful article describing the efforts by Japan Prime Minister Abe’s efforts to amend Article 9 of the Japanese Constitution in order to allow more flexibioity in its national defense strategy.  The move is very controversial:

Nonetheless, Article 9 presents a problem because of the very strong language used. The article states, “Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. To accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.”  Part of the difficulty with Article 9 rests in the second sentence, which clearly prohibits Japan from maintaining a military. Since the Korean War, Japan has, not surprisingly with encouragement from the ever-hypocritical US government, maintained a “defense” force. This was initially formed as a National Police Reserve that was basically a light infantry, but over time evolved into a more complete air, sea, and land force designed to defend Japan from external attack. The Japanese government has interpreted its way around the fact that this doesn’t look much like this is within the spirit of Article 9 by claiming that it maintains self-defense forces, and thus not a military per se. Of course, this is simply splitting hairs—the Japanese today have a sophisticated military and are among the top ten military spenders in the world.

Abe’s goal is to rewrite Article 9 by limiting the renunciation of war and stating only that Japan refrains from the use of force to settle international disputes, rather than prohibiting the maintenance of a military force. The justification for this, according to Abe, is that Japan cannot fulfill its obligations under collective security agreements and within the UN without a normal military force. In some respects, this makes a great deal of sense. Japan has already interpreted itself so far away from the meaning of Article 9 that it is in pretty clear violation of its own constitution. It has participated in multinational (led by the US) military engagements such as the war in Afghanistan and UN Peace Keeping Operations for some time, although this only occurred after a heated public debate on whether or not the Constitution allowed for such activities. It is difficult to see how the maintenance of the SDF squares with never maintaining air, land, and sea forces. So to keep the Article 9 unchanged is essentially hypocritical and it makes sense to bring the Constitution in line with the reality of contemporary Japan and the rather liberal interpretation they have developed for Article 9.

However, one of the interesting outcomes of the postwar Constitution is that the public bought Article 9 and it has often been presented as a source of pride for Japanese—theirs is the one country to renounce war. In conversations with many Japanese over the years I have occasionally used the term “guntai” in reference to the SDF. I am always corrected that the SDF is “jietai” (or rikujô jietai for ground forces), meaning a self-defense force as opposed to the meaning of guntai, which refers to an army and implies offensive capabilities. I have been told that the U.S. has a guntai, while Japan does not. While from an American perspective, it is difficult to see the difference beyond the fact that the Japanese do not maintain offensive weapons like aircraft carriers—oh, right, they have helicopter carriers now—don’t have ICBMs, and don’t participate in offensive actions alone or with their allies, from a Japanese perspective the difference is real and allows for the conceptualization of Japan as a country that does not maintain a military or at least not in a way that other countries do. In other words, Article 9 is a basis for a kind of Japanese exceptionalism built on the idea that Japan is the only country to renounce war.

Read it all here.

Charles A. Blanchard
General Counsel
United States Air Force

Posted in Defense Policy, Foreign Policy, Uncategorized.

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By charlesblanchard – May 20, 2013

Admiral Greenert and General Welsh Explain Air-Sea Battle

The “Air Sea Battle” concept developed by the Air Force and the Navy a few years back has not been very well understood either by pundits or even by many in the military.  In an effort to give greater clarity to the concept, The Chief of Naval Operations and Chief of Staff of the Air Force offer a detailed explanation.  As they explain, the Air Sea Battle is a joint war fighting operational concept geared toward defeating efforts by our potential enemies to deny access to particular areas of the globe:

Nations seeking to intimidate their neighbors are turning to anti-access strategies because they are cost-effective. Merely threatening to close key maritime crossroads such as the Strait of Hormuz or demonstrating the ability to cut off a country from cyberspace or international airspace can be an effective tool for regional and international coercion. Similarly, these capabilities can be applied to prevent or slow U.S. or allied assistance from arriving in time to stop or repel an attack — providing an aggressor much greater leverage over neighbors who depend on allies for security.

.  .  .

The Air-Sea Battle concept, approved by the secretary of defense in 2011, is designed to assure access, defeat anti-access capabilities, and provide more options to national leaders and military commanders. Air-Sea Battle is one of the operational concepts nested within the overarching Joint Operational Access Concept (JOAC) — the Joint Force’s approach to defeating threats to access. Air-Sea Battle is not focused on one specific adversary, since the anti-access capabilities it is intended to defeat are proliferating and, with automation, becoming easier to use. U.S. forces need a credible means to assure access when needed to help deter aggression by a range of potential adversaries, to assure allies, and to provide escalation control and crisis stability.

Some examples of where Air-Sea Battle may apply include the Arabian Gulf and Strait of Hormuz, where a favorable location provides Iran the ability to threaten the production and passage of almost 20 percent of the world’s oil. If Iran can demonstrate or credibly assert that it can prevent or slow a U.S. response to its aggression, it is more able to coerce its neighbors or the international community. In the eastern Mediterranean, the government of Syria has deployed an array of modern anti-air missile systems to raise the costs of outside intervention in its ongoing civil war. And in the Pacific, North Korea has already demonstrated its willingness to employ anti-access capabilities with the sinking in 2010 of the South Korean ship, Cheonan.

Air-Sea Battle is not a military strategy; it isn’t about countering an invasion; it isn’t a plan for U.S. forces to conduct an assault. Air-Sea Battle is a concept for defeating threats to access and enabling follow-on operations, which could include military activities as well as humanitarian assistance and disaster response. For example, in the last several years, improved integration between naval and air forces helped us respond to floods in Pakistan and to the earthquake and tsunami in Japan.

The article is well worth a full read.  You can find it here.

Charles A. Blanchard
General Counsel
United States Air Force

Posted in Defense Policy.

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By charlesblanchard – May 20, 2013

Assessing the European Cyber Strategy

Nerea Rial has an article in NewEurope that questions whether the three-month old EU cuber strategy is enough, and suggest that there must be an additional focus on technology:

Three months ago, the European Commission launched its Cyber Security Strategy and proposed a directive on network and information security (NIS). However, there are still some questions that must be answered and challenges to be faced if Europe wants to offer a safe Internet to its citizens.

“The strategy has two overarching purposes. It provides a basis for greater cooperation between the different actors and, most importantly, shows the direction for future work,” said Cecilia Malmström, EU Commissioner for Home Affairs, at the Cybersecurity Conference which took place in Brussels on 16 May.

Nevertheless, if something remained clear after the first speakers took the floor during the event, is that a strategy and a directive are not enough to fight against cyber threats. Online criminals are improving their capacity to hack big companies, banks, media and personal accounts; and the number of questions about how the European Union has to tackle these threats and who has to be involved in the issue are also increasing.

Read it all here.

Charles A. Blanchard
General Counsel
United States Air Force

Posted in Cyber.

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By charlesblanchard – May 19, 2013

The Future of Stealth

Over-the-air television is making quite a stir these days, and not just as a matter of copyright law (see NY Times article). Soon, the next generation of radar will harness over-the-air broadcasts to track aircraft over London. The Economist explains how the technology, known as a passive radar system, works:

The experimental system that will begin operation in June does not send out any signals of its own, but instead relies on a network of receivers to pick up television programmes. . . . By measuring the slight differences between the original broadcast signal and the signals reflected from aircraft flying in the vicinity, it is possible to plot the position of aircraft on a screen, just as is done with conventional radar. The difference is that a system that relies on signals already in the air can be simpler, cheaper and use a lot less power.

Passive radar has been in development for several years, and its debut over London suggests the technology is rapidly maturing. Indeed, if the technology proves successful, it might be possible for the technology to be used domestically, perhaps as a part of the FAA’s NextGEN air traffic control system.

Given the technology’s merits, it is clear why civil authorities may find the technology appealing. Military authorities no doubt will as well. The combination of low power and the ability to tap into an existing civilian infrastructure makes it a relatively cheap complement to legacy radar systems. The wide frequency coverage passive radar provides also may have another benefit: it can counter some low observable aspects of stealth. Such developments certainly are buzz worthy in a number of ways, but what sort of buzz should they create in the acquisition community?

A 2009 article in the Joint Force Quarterly—besides lucidly describing the counter-stealth features of passive radar technology—posits that some of the buzz should be about change. In the author’s view, the pace of technological advance means we can no longer rely solely on stealthy platforms like the F-22 and F-35 to secure a technological edge. Instead, she advocates for pursuing a mix of incremental, technological responses to counter the passive radar threat, to improve tactics, and to develop our own counter-stealth capabilities.

Others also see room for change, but at least one proposal has been more radical. In an essay that drew considerable attention last year, Admiral Jonathan Greenert proposed rethinking entirely our approach to acquiring advanced technologies, beginning with redefining operational concepts that focus less on technologically cumbersome platforms and more on the supposedly nimble payloads they deploy.

What do you think? Is passive radar the threat to stealth that some describe? How does the nature of a threat affect our pursuit of innovative technologies like stealth? How should the pace of technological change alter operational thinking?

You can read The Economist article here.

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

Posted in Acquisition, Defense Policy, Technology.

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By afgeneralcounsel – May 18, 2013

Yaoping Wang on China’s Strategic Error in Senkakaku/Diaoyu Dispute

Yaping Wang of Carnegie Endowment for International Peace suggests that the current Chinese policy of “reactive assertiveness” in the Senkaku/Diaoyu dispute is counter productive because it will lead to a stronger Japanese Military, U.S. involvement, and a uniting of other Asian states in the U.S. orbit:

First, the risk of military conflict is uncomfortably high. Chinese and Japanese ships are frequenting the disputed areas on a daily basis. It only takes one firebrand soldier or one miscalculation by a local commander to beget unpredictable escalation.

Second, while forces for peace exist in both China and Japan, so too do beneficiaries of conflict. Certainly any hostilities would play into the hands of Prime Minister Shinzo Abe and his right-wing coterie, as they try to push through an agenda to revise the Peace Constitution.

.  .  .

Third, the U.S. may have only a marginal interest in the islands themselves, but its interest in the issue is real. The U.S. will be obliged to stand by Japan in the event of an attack, not only because of its treaty obligations, but also for the sake of the alliance, which has significant implications for U.S. interests in the Asia-Pacific.

Fourth, an assertive approach, however reactive, will further stoke regional fears of bullying by China. The power asymmetry between smaller Asian countries and a big, rising China is Asia’s new reality. It is only natural for smaller Asian countries to be uncertain about China’s intentions. An assertive Beijing appears oblivious to this asymmetry. Its resolve to defend its territory is already assumed, and need not be stressed by bellicose statements or muscle flexing. Therefore, “showcasing” its resolve through the Diaoyu/Senkaku issue will only reaffirm fears of a bullying China and deteriorate China’s surrounding security environment in the long run.

Read it all here.  Do you agree?

Charles A. Blanchard
General Counsel
United States Air Force

Posted in Foreign Policy.

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By charlesblanchard – May 17, 2013

The Definition of a Contractor

Mr. Yuri Weigel recently published a note in the George Washington Law Review, “Is ‘Protection’ Always in the Best Interests of the Government?: An Argument to Narrow the Scope of Suspension and Debarment,” advocating a narrower view of the definition of a contractor where individuals should only be considered a contractor if their bad acts are directly tied to a government contract. Mr. Weigel’s note is a good reminder that with broad discretion also comes responsibility. FAR 9.402 makes it clear that suspension and debarment should be used to protect the government and to ensure the government only contracts with responsible contractors. While the FAR definition of a contractor includes those individuals likely to become a contractor, Mr. Weigel argues an individual that only has a mere coincidental relationship to the government does not fit within the FAR’s contemplation of a contractor. Mr. Weigel argues that not only do most individuals have a coincidental relationship to the government but also an individual’s suspension or debarment does not result in a value-added proposition for government resources. Mr. Weigel is certainly correct that reviewing whether or not individuals are contractors or likely to become contractors is vital to the suspension and debarment process; however, his argument that these individuals do not pose a risk to government contracting and that their suspension or debarment is not in the public interest is faulty. The individuals in the production line are equally as important to performance of a government contract as the contractor itself. These individuals are the ones responsible for actually building our airplanes, tanks, and ships. If an individual consistently demonstrates a lack of ability to perform their function or poses a risk to performance of the contract to the point where the contractor removes them from their position, the government may find it necessary to protect itself from that individual finding work at a second contractor. Thus the suspension or debarment of individuals may very well be a value added proposition even if the individual is not directly involved in the management of the company or bidding on the contract. Furthermore, ensuring adequate contract performance is very much in the public interest if for no other reason than protecting the public fisc because with poor contract performance comes time delays and cost increases. While Mr. Weigel makes a compelling argument that an individual’s status as a contractor should be thoroughly evaluated prior to a suspension or debarment, exclusion of individuals is an important aspect of the suspension and debarment regime.

Alix Schroeder
Law Clerk
United States Air Force

Posted in Contractor Responsibility.

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By afgeneralcounsel – May 17, 2013

Do We Need AUMF 2.0: Closing Arguments in tte Lawfare Debate

As we have previously reported, there has been a lively debate between folks affiliated with the Lawfare Blog about whether Congress ought to replace the 2001 Authorization for Use of Military Force (“AUMF”) with a new statute–a AUMF 2.0.  Both sides seem to have published their closing argument.

Jennifer Daskal and Stephen Vladeck make the case that the AUMF should be repealed, but NOT replaced with a new form of authorization:

Given the evolving sophistication of our ordinary law enforcement and intelligence-gathering tools over the past decade, along with the President’s settled powers under both domestic and international law to use military force in self-defense, the burden should—indeed, must—be on those seeking additional use-of-force authority to demonstrate why these existing capacities are inadequate. And even then, any use-of-force authority should be enacted by Congress only after public debate and extensive deliberation, carefully calibrated to the specific threat posed by an identifiable group, and limited in scope and duration, so as to avoid making the very mistake that Congress so assiduously sidestepped after September 11.
In short, calls for a new framework statute to replace the AUMF are unnecessary, provocative, and counterproductive—perpetuating war at a time when we should be seeking to end it. Congress certainly may choose, as it did in the AUMF, to authorize the use of military force against specific, organized groups so as to address an established and sustained threat that existing authorities are inadequate to quell. But until and unless the political branches identify a group that poses such a threat, the many other counterterrorism tools at the government’s disposal—including law enforcement, intelligence-gathering, capacity-building, and, when necessary, self-defense capabilities provide a much more strategically sound—and legally justifiable—means of addressing the terrorist threat.

Read it all here.  Arguing that we ought to have a new AUMF 2.0 are Robert Chesney and Matthew Waxman, who with Benjamin Wittes set out a proposal for a new AUMF in a recent paper:

Some critics of our paper prefer legislative inaction on the ground that new legislation would likely expand or at least prolong an otherwise-ending war.  Our background assumption, however, is that the United States will continue using military force against terrorist threats for some time, either by continuing to stretch the existing AUMF, by quietly relying upon Article II authorities, or both.  We can debate whether that prediction is accurate, of course.  If it is accurate, however, it does raise the question whether it would not be better to have a properly-tailored statute.  As a general proposition, we think legislative engagement is important to foster serious and sustained deliberation about these operations.  Any legislative framework must promote sound strategic thinking, not substitute for it.

Read it all here.  You can read our previous posts on various views on the need for an updated AUMF here, here, and here.  Daskal and Vladeck have an op ed in today’s New York Times here.   The Washington Post editorialized in favor of the AUMF 2.0 position today.  What do you think?

Charles A. Blanchard
General Counsel
United States Air Force

Posted in Constitutional Law, Defense Policy.

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By charlesblanchard – May 16, 2013

Joshua Foust: Do Drones Work

Joshua Foust has posted two posts–one at Foreign Policy and the other at The American Prospect–that address liberal concerns about drones:  both their use in the current fight, and the potential for autonomous weapon systems in the future.  On the current fight, Foust reviews the evidence, and suggest that we need more information to make a sound judgment:

Taken as a whole, drones seem to be quite good at what they’re supposed to do: disrupting terrorist groups. But that isn’t enough to actually end the threat posed by terror groups. Are the civilian and psychological costs drones incur worth it?

There is no question drones have caused dramatic, explosive anti-Americanism in the countries where they’re used. In Pakistan, the massive public outcry over the arrest of Raymond Davis, a CIA contractor who killed two people in Lahore, was a disaster for relations between Washington and Islamabad. His involvement in the CIA’s drone program in Pakistan elicited deep anger. Yemen, too, has seen increasing public fury at drone strikes—as witnesses like Farea al-Muslimi recounted during the Senate hearing.

.  .  .

It’s not at all clear that drones are worth these social and political costs. Unfortunately, Congress has only focused on a small number of the questions drone strikes raise. While the increased scrutiny of the last few weeks is a welcome and long overdue step, it is also profoundly inadequate. The consequences drones have are not limited to the shattered lives of innocent people caught up in strikes, but also include the long term effects of disrupting entire societies this way—effects we cannot measure very well. Looking toward the future, we the public need to know where it’s heading: What will we be doing with drones 25 years from now? What’s the end state we’re working toward?

Read it all here.  Read about his views on autonomous weapon systems here.

Charles A. Blanchard
General Counsel
United States Air Force

Posted in Defense Policy.

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By charlesblanchard – May 16, 2013