“There’s no question the post-corona world will be very different. How it will look depends on actions the world’s leaders take. Decisions made in coming months will determine whether we see a renewed commitment to a rules-based international order, or a fragmented world increasingly dominated by authoritarianism. Whomever steps up to lead will drive the outcome.
China seeks the mantle of global leadership. Beijing is exploiting the global leadership vacuum, the fissures between the United States and its allies, and the growing strain on European unity. The Chinese Communist Party has aggressively pushed a narrative of acting swiftly and decisively to contain the virus, building goodwill through ‘mask diplomacy’, and sowing doubts about the virus’ origin to deflect blame for the magnitude of the crisis and to rewrite history. Even though the results so far are mixed, the absence of the United States on the global stage provides Beijing with good momentum.
Before the pandemic, the world’s democracies already faced their gravest challenge in decades: the shift of economic power to illiberal states. By late 2019, autocratic regimes accounted for a larger share of global GDP than democracies for the first time since 1900. As former U.K. foreign secretary David Miliband recently observed, “liberal democracy is in retreat.” How the United States and like-minded partners respond post-pandemic will determine if that trend holds.
There is urgency to act — the problem is now even more acute. The countries that figure out how to quickly restart and rebuild their economies post-pandemic will set the course for the 21st century. It is not only economic heft that is of concern: political power and military might go hand in hand with economic dominance.
At the center of this geostrategic and economic competition are technologies — artificial intelligence, quantum computing, biotechnology, and 5G — that will be the backbone of the 21st century economy. Leadership and ongoing innovation in these areas will confer critical economic, political, and military power, and the opportunity to shape global norms and values. The pre-crisis trajectory of waning clout in technology development, standards-setting, and proliferation posed an unacceptable and avoidable challenge to the interests of the world’s leading liberal-democratic states.
The current crisis accentuates this even more: it lays bare the need to rethink and restructure global supply chains; the imperative of ensuring telecommunication networks are secure, robust, and resilient; the ability to surge production of critical materiel, and the need to deter and counteract destructive disinformation. This is difficult and costly — and it is best done in concert.
Bold action is needed to set a new course that enhances the ability of the world’s democracies to out-compete increasingly capable illiberal states. The growing clout of authoritarian regimes is not rooted in better strategy or more effective statecraft. Rather, it lies in the fractious and complacent nature of the world’s democracies and leading technology powers.
In response, a new multilateral effort — an alliance framework — is needed to reverse these trends. The world’s technology and democracy leaders — the G7 members and countries like Australia, the Netherlands, and South Korea — should join forces to tackle matters of technology policy. The purpose of this initiative is three-fold: one, regain the initiative in the global technology competition through strengthened cooperation between like-minded countries; two, protect and preserve key areas of competitive technological advantage; and three, promote collective norms and values around the use of emerging technologies.
Such cooperation is vital to effectively deal with the hardest geopolitical issues that increasingly center on technology, from competing economically to building deterrence to combating disinformation. This group should not be an exclusive club: it should also work with countries like Finland and Sweden to align policies on telecommunications; Estonia, Israel, and New Zealand for cyber issues; and states around the world to craft efforts to counter the proliferation of Chinese surveillance technology and offer sound alternatives to infrastructure development, raw material extraction, and loans from China that erode their sovereignty.
The spectrum of scale and ambition this alliance can tackle is broad. Better information sharing would yield benefits on matters like investment screening, counterespionage, and fighting disinformation. Investments in new semiconductor fabs could create more secure and diverse supply chains. A concerted effort to promote open architecture in 5G could usher in a paradigm shift for an entire industry. Collaboration will also be essential to avoiding another pandemic calamity.
Similar ideas are percolating among current and former government leaders in capitals such as Tokyo, Berlin, London, and Washington, with thought leaders like Jared Cohen and Anja Manuel, and in think tanks around the world. The task at hand is to collate these ideas, find the common ground, and devise an executable plan. This requires tackling issues like organizational structure, governance, and institutionalization. It also requires making sure that stakeholders from government, industry, and civil society from around the world provide input to make the alliance framework realistic and successful.
No one country can expect to achieve its full potential by going it alone, not even the United States. An alliance framework for technology policy is the best way to ensure that the world’s democracies can effectively compete economically, politically, and militarily in the 21st century. The links between the world’s leading democracies remain strong despite the challenges of the current crisis. These relationships are an enduring and critical advantage that no autocratic country can match. It is time to capitalize on these strengths, retake the initiative, and shape the post-corona world.”
“They will include for the first time requiring women between the ages of 18 and 25 to register for potential conscription in the event of a prolonged war, as all young men are currently required to do.
Big changes are expected to come to the Selective Service System in coming years, but exactly what is still unclear.Leo Shane III
The idea has gained traction among some women’s rights groups and complaints from some conservative activists in recent years. In the past, courts have ruled against adding women to the draft because certain combat posts were closed to them, but Pentagon officials in recent years have lifted nearly all those restrictions.
In a statement on Tuesday, House Armed Services Committee ranking member Rep. Mac Thornberry, R-Texas, praised the commission’s work and promised to closely consider the findings.
“Opening Selective Service to women is just one of their recommendations,” he said. “I look forward to examining the data and arguments the commission has compiled more closely.
“In the meantime, it is important that my colleagues have an opportunity to hear from the Commission directly. I believe that public hearings in the Armed Services Committee and other relevant committees are essential.”
When those public hearings might be held is unclear. Currently, nearly all congressional hearings have been postponed indefinitely because of the ongoing coronavirus pandemic. President Donald Trump earlier this month recommended keeping any public gatherings to fewer than 10 people in an attempt to slow the spread of the illness.
Legislative proposals have stalled out in Congress, over both concerns with traditional family roles for women and the viability of the Selective Service System itself. The system costs about $23 million a year to maintain.
Congress will have to adopt new legislation in order to make the change of adding women to the draft. Or they could opt to get rid of the Selective Service System altogether.
Recent legislative proposals regarding registration of women have stalled out in Congress, over both concerns with traditional family roles for women and the viability of the Selective Service System itself. The system costs about $23 million a year to maintain, and several studies have questioned how effective it would be if officials needed it to replenish troop levels.
That hasn’t happened in more than 40 years, and Pentagon officials have repeatedly said they prefer the current all-volunteer force to the idea of a mostly conscripted military.
Men between the ages of 18 and 25 who don’t register for the draft face possible fines and jail time, and may be ineligible for benefits like federal student loans. Advocates for adding women to the registration system have argued in the past that levying those penalties only on men is unfair.”
“The Labor Department’s compliance office has waived some contractor affirmative action requirements for three months as the COVID-19 pandemic presses companies and federal agencies to quickly meet demands.
The Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) on March 17 temporarily waived some contractors’ affirmative action requirements under the three statutes it oversees.
The waiver will last until June 17, but it doesn’t put aside requirements for those contractors to enforce other federal, state and local civil rights laws, nor does it stop processing of discrimination complaints.
“Following President Trump’s direction, the Office of Federal Contract Compliance Programs is committed to swiftly responding to COVID-19,” said OFCCP Director Craig Leen, in the statement. “Today’s memorandum helps federal agencies and federal contractors engaged in relief efforts to protect the safety, security and health of the American people.”
“The waiver is not uncommon” in times of big crisis situations, Shirley Wilcher, executive director of the American Association for Access, Equity and Diversity, a Washington D.C.-based equal opportunity advocacy and training group, told FCW on March 23.
Similar contracting actions have been taken in the wake of other major disasters such as catastrophic hurricanes to help speed response, but they’re hardly welcomed with open arms, according to Wilcher. “Equal opportunity shouldn’t take a holiday.”
In 2005, the Labor Department’s Employment Standards Office issued a similar three-month waiver for contractor affirmative action rules to aid in Hurricane Katrina recovery.”
“The United States was the largest exporter of major arms from 2015-2019, delivering 76 percent more materiel than runner-up Russia, according to a new study by the Stockholm International Peace Research Institute think tank.
The study found that the U.S. provided major arms — defined by the think tank as air defense systems, armored vehicles, missiles and satellites, among other materiel — to 96 countries in those five years, with half of the weapons going to the Middle East.“
“The U.S. contributed about 35 percent of all the world’s arms exports during that five-year time period, partly supported by the increased demand for American advanced military aircraft in Europe, Australia, Japan and Taiwan, said Pieter Wezeman, a senior researcher at SIPRI.
From 2015-2019, Russia’s major arms exports decreased by 18 percent; France’s increased by 72 percent, making it the third largest exporter; and Germany’s increased by 17 percent, making it the fourth largest exporter.
Worldwide arms exports rose nearly 6 percent in 2015-2019 from 2010-2014, and increased 20 percent from since 2005-2009, SIPRI said.
Arm exports to countries in conflict in the Middle East increased by 61 percent in 2015-2019 compared to 2010-2014, the study showed. Saudi Arabia, the country to which the U.S. exported the most arms, was the largest importer globally in 2015-2019. The kingdom’s imports increased 130 percent compared to the previous five-year period. Armored vehicles, trainer aircraft, missiles and guided bombs were among the leading arms purchased by the kingdom.
Despite attempts in Congress to restrict arms exports to Saudi Arabia, the delivery of major arms, including 30 combat aircraft ordered in 2011, continued in 2019 as the U.S. provided 73% of Saudi Arabia’s imports.
In May, U.S. President Donald Trump issued an emergency declaration to push through an $8 billion arms deal with Saudi Arabia and other Middle Eastern countries for precision-guided bombs and related components. In July, he said blocking the sale of arms to Saudi Arabia would “weaken America’s global competitiveness and damage the important relationship [the United States] share with [its] allies and partners.”
U.S. arms exports to Europe and Africa increased by 45 percent and 10 percent, respectively, in 2015-2019. U.S. arms exports to Asia and the Oceania region decreased by 20 percent, as a result of fewer arms exports to India, Pakistan, Singapore, South Korea and Taiwan.
Since 2018, the U.S. has exported almost 100 major weapons to international organizations like the United Nations, the African Union and NATO, the report said, noting that Russia did not send weapons to these organizations.
Among the top 10 arms exporters outside Europe and North America, Israel and South Korea showed the biggest increase in exports. Israeli arms exports increased by 77 percent in 2015-2019 — a record for the country, according to the study. South Korea, which showed a 143 percent increase during that same time period, more than doubled its number of export clients.”
EDITOR’S NOTE: The following two articles by a Middle East war veteran at West Point and a Navy military lawyer contemplating warfare technology and the law should be carefully read by the American Public. These young gentlemen are highly visible in their fields. They and their peers are the future leadership of our country.
“MODERN WAR INSTITUTE AT WEST POINT”By Matt Cavanaugh
“Victory’s been defeated; it’s time we recognized that and moved on to what we actually can accomplish.
We’ve reached the end of victory’s road, and at this juncture it’s time to embrace other terms, a less-loaded lexicon, like “strategic advantage,” “relative gain,” and “sustainable marginalization.”
A few weeks back, Colombian President Juan Manuel Santos and Harvard Professor Steven Pinker triumphantly announced the peace deal between the government of Columbia and the Revolutionary Armed Forces of Columbia (FARC). While positive, this declaration rings hollow as the exception that proves the rule – a tentative treaty, however, at the end, roughly 7,000 guerrillas held a country of 50 million hostage over 50 years at a cost of some 220,000 lives. Churchill would be aghast: Never in the history of human conflict were so many so threatened by so few.
One reason this occasion merited a more somber statement: military victory is dead. And it was killed by a bunch of cheap stuff.
The term “victory” is loaded, so let’s stipulate it means unambiguous, unchallenged, and unquestioned strategic success – something more than a “win,” because, while one might “eke out a win,” no one “ekes out a victory.” Wins are represented by a mere letter (“w”); victory is a tickertape with tanks.
Which is something I’ll never see in my military career; I should explain. When a government has a political goal that cannot be obtained other than by force, the military gets involved and selects some objective designed to obtain said goal. Those military objectives can be classified broadly, as Prussian military theorist Carl von Clausewitz did, into either a limited aim (i.e. “occupy some…frontier-districts” to use “for bargaining”), or a larger aim to completely disarm the enemy, “render[ing] him politically helpless or military impotent.” Lo, we’ve arrived at the problem: War has become so inexpensive that anyone can afford the traditional military means of strategic significance – so we can never fully disarm the enemy. And a perpetually armed enemy means no more parades (particularly in Nice).
Never in the history of human conflict were so many so threatened by so few.
It’s a buyer’s market in war, and the baseline capabilities (shoot, move, and communicate) are at snake-belly prices. Tactical weaponry, like AK-47s are plentiful, rented, and shipped from battlefield to battlefield, and the most lethal weapon U.S. forces encountered at the height of the Iraq War, the improvised explosive device, could be had for as little as $265. Moving is cost-effective too in the “pickup truck era of warfare,” and reports on foreign fighters in Syria remind us that cheap, global travel makes it possible for nearly anyone on the planet to rapidly arrive in an active war zone with money to spare. Also, while the terror group Lashkar-e-Taiba shut down the megacity Mumbai in 2008 for less than what many traveling youth soccer teams spend in a season, using unprotected social media networks, communication has gotten even easier for the emerging warrior with today’s widely available unhackable phones and apps. These low and no-cost commo systems are the glue that binds single wolves into coordinated wolf-packs with guns, exponentially greater than the sum of their parts. The good news: Ukraine can crowdfund aerial surveillance against Russian incursions. The less-good news: strikes, like 9/11, cost less than three seconds of a single Super Bowl ad. With prices so low, why would anyone ever give up their fire, maneuver, and control platforms?
All of which explains why military victory has gone away. Consider the Middle East, and the recent comment by a Hezbollah leader, “This can go on for a hundred years,” and his comrade’s complementary analysis, that “as long as we are there, nobody will win.” With such a modestly priced war stock on offer, it’s no wonder Anthony Cordesman of the Center for Strategic and International Studies agrees with the insurgents, recently concluding, of the four wars currently burning across the region, the U.S. has “no prospect” of strategic victory in any. Or that Modern War Institute scholar Andrew Bacevich assesses bluntly, “If winning implies achieving stated political objectives, U.S. forces don’t win.” This is what happens when David’s slingshot is always full.
The guerrillas know what many don’t: It’s the era, stupid. This is the nature of the age, as Joshua Cooper Ramos describes, “a nightmare reality in which we must fight adaptive microthreats and ideas, both of which appear to be impossible to destroy even with the most expensive weapons.” Largely correct, one point merits minor amendment – it’s meaningless to destroy when it’s so cheap to get back in the game, a hallmark of a time in which Wolverine-like regeneration is regular.
This theme even extends to more civilized conflicts. Take the Gawker case: begrudged hedge fund giant Peter Thiel funded former wrestler Hulk Hogan’s lawsuit against the journalistic insurrectionists at Gawker Media, which forced the website’s writers to lay down their keyboards. However, as author Malcolm Gladwell has pointed out – Gawker’s leader, Nick Denton, can literally walk across the street, with a few dollars, and start right over. Another journalist opined, “Mr. Thiel’s victory was a hollow one – you might even say he lost. While he may have killed Gawker, its sensibility and influence on the rest of the news business survive.” Perhaps Thiel should have waited 50 more years, as Columbia had to, to write his “victory” op-ed? He may come to regret the essay as his own “Mission Accomplished” moment.
True with websites, so it goes with warfare. We live in the cheap war era, where the attacker has the advantage and the violent veto is always possible. Political leaders can speak and say tough stuff, promise ruthless revenge – it doesn’t matter, ultimately, because if you can’t disarm the enemy, you can’t parade the tanks.”
“A new chapter of the international order The automation of war is as inevitable as conflict itself. Less certain, however, is the international community’s collective ability to predict the many ways that these changes will affect the traditional global order.
The pace of technology is often far greater than our collective ability to contemplate its second and third order effects, and this reality counsels cautious reflection as we enter a new chapter in the age-old story of war and peace.“
“Robots have long presented a threat to some aspect of the human experience. What began with concern over the labor market slowly evolved into a full-blown existential debate over the future of mankind. But lost somewhere in between the assembly line and apocalypse stands a more immediate threat to the global order: the disruptive relationship between technology and international law.
Jus ad Bellum
Jus ad bellum is the body of international law that governs the initial use force. Under this heading, force is authorized in response to an “armed attack.” However, little discussion has focused on how unmanned technologies will shift this line between war and peace.
Iran’s recent unprovoked attack on one of the United States’ unmanned surveillance aircraft provides an interesting case study. Though many saw the move as the opening salvo of war, the United States declined to respond in kind. The President explained that there would have been a “big, big difference” if there was “a man or woman in the [aircraft.]” This comment seemed to address prudence, not authority. Many assumed that the United States would have been well within its rights to levy a targeted response. Yet this sentiment overlooked a key threshold: could the United States actually claim self-defense under international law?
Two cases from the International Court of Justice are instructive. In Nicaragua v. United States, the Court confronted the U.S. government’s surreptitious support and funding of the Contras, a rebel group that sought to overthrow the Nicaraguan government. Nicaragua viewed the United States’ conduct as an armed attack under international law. The Court, however, disagreed.
Key to the Court’s holding was the concept of scale and effect. Although the U.S. government had encouraged and directly supported paramilitary activities in and against Nicaragua, the Court concluded that the scale and effect of that conduct did not rise to the level of an armed attack. Notably, this was the case regardless of any standing prohibition on the United States’ efforts.
So too in Islamic Republic of Iran v. United States, more commonly known as the “Oil Platforms” case. The Court analyzed the U.S. government’s decision to bomb evacuated Iranian Oil Platforms in response to Iranian missile and mining operations throughout the Persian Gulf. Among other things, the Iranian operations injured six crew members on a U.S. flagged oil tanker, ten sailors on a U.S. naval vessel, and damaged both ships. The Court nonetheless rejected the United States’ claim of self-defense because the Iranian operations did not meet the Nicaragua gravity threshold and thus did not qualify as “armed attacks.”
Viewed on this backdrop, however contested, it strains reason to suggest that an isolated use of force against an unmanned asset would ever constitute an armed attack. Never before have hostile forces been able to similarly degrade combat capability with absolutely no risk of casualty. Though the Geneva Conventions prohibit the “extensive destruction” of property, it is another matter completely to conclude that any unlawful use of force is tantamount to an armed attack. Indeed, the Nicaragua and Oil Platforms cases clearly reject this reasoning. This highlights how the new balance of scale and effect will alter the landscape that separates peace and war.
Even assuming an attack on unmanned technology might constitute an armed attack under international law, there arise other complications regarding the degree of force available in response. The jus ad bellum principles of necessity and proportionality apply to actions taken in self-defense, and the legitimate use of “defensive” force must be tailored to achieve that legitimate end. A failure to strike this balance runs contrary to long-held principles of international law.
What, then, happens when a robotic platform is destroyed and the response delayed? Does the surrogate country have a general right to use limited, belated force in reply? Maybe. But a generalized response would likely constitute armed reprisal, which has fallen into disfavor with customary international law.
To be lawful, the deferred use of defensive force must be tailored to prevent similar attacks in the future. Anything short of this would convert a country’s inherent right to self-defense into subterfuge for illegal aggression. Thankfully, this obligation is simply met where the initial aggressor is a developed country that maintains targeting or industrial facilities that can be tied to any previous, or potential future, means of attack. But this problem takes on new difficulty in the context of asymmetric warfare.
Non-state actors are more than capable of targeting robotic technology. Yet these entities lack the traditional infrastructure that might typically (and lawfully) find itself in the crosshairs following an attack. How, then, can a traditional power use force in response to a successful, non-state assault on unmanned equipment? It is complicated. A responsive strike that broadly targets members of the hostile force may present proportionality concerns that are unique from those associated with traditional attacks that risk the loss of life.
How would a country justify a responsive strike that targets five members of a hostile force in response to a downed drone? Does the answer change if fewer people are targeted? And what if there is no question that those targeted were not involved in the initial act of aggression? These questions aside, a responsive strike that exclusively targets humans in an attempt to stymie future attacks on unmanned equipment does not bear the same legal foundation as one that seeks to prevent future attacks that risk life. The international community has yet to identify the exchange rate between robotic equipment and human lives, and therein lies the problem.
Jus in Bello
Robotic warfare will also disrupt jus in bello, the law that governs conduct during armed conflict. Under the law of armed conflict, the right to use deadly force against a belligerent continues until they have been rendered ineffective, whether through injury, surrender, or detention. But the right to use force first is not diminished by the well-recognized obligation to care for those same combatants if wounded or captured. An armed force is not required to indiscriminately assume risk in order to capture as opposed to kill an adversary. To impose such a requirement would shift risk from one group to another and impose gratuitous tactical impediments.
This sentiment fades, however, once you place “killer robots” on the battlefield. While there is little sense in telling a young soldier or marine that he cannot pull the trigger and must put himself at greater risk if an opportunity for capture presents itself, the same does not hold true when a robot is pulling the trigger. The tactical feasibility of capture over kill becomes real once you swap “boots” for “bots” on the ground. No longer is there the potential for fatality, and the risk calculus becomes largely financial. This is not to say that robots would obligate a country to blindly pursue capture at the expense of strategy. But a modernized military might effect uncontemplated restrictions on the traditional use of force under international law. The justification for kill over capture is largely nonexistent in situations where capture is tactically feasible without any coordinate risk of casualty.
Design is another important part of this discussion. Imagine a platoon of “killer robots” engages a small group of combatants, some of whom are incapacitated but not killed. A robot that is exclusively designed to target and kill would be unable to comply with the internationally recognized duty to care for wounded combatants. Unless medical care is a contemplated function of these robots’ design, the concept of a human-free battlefield will remain unrealized. Indeed, the inherent tension between new tech and old law might indicate that at least some human footprint will always be required in theater—if only after the dust of combat settles.
Reports from China suggest that robots could replace humans on the battlefield within the next five years, and the U.S. Army is slated to begin testing a platoon of robotic combat vehicles this year. Russia, too, is working to develop combat robots to supplement its infantry. This, of course, raises an important question: what happens if the most powerful, technologically adept countries write off traditional obligations at the design table? Might often makes right on the international stage, and given the lack of precedent in this area, the risk demands attention.
Law of the Sea
The peacetime naval domain provides another interesting forum for the disruptive effect of military robotics. Customary international law, for example, has long recognized an obligation to render assistance to vessels in distress—at least to the extent feasible without danger to the assisting ship and crew. This is echoed in a variety of international treaties ranging from the Geneva Convention on the High Seas to the United Nations Convention on the Law of the Sea. But what becomes of this obligation when ships of the future have no crew?
Navies across the world are actively developing ghost fleets. The U.S. Navy has called upon industry to deliver ten Large Unmanned Surface Vehicle ships by 2024, and just recently, the “Sea Hunter” became the first ship to sail autonomously between two major ports. This comes as no surprise given the Navy’s 2020 request for $628.8 million to conduct research and development involving unmanned surface and sub-surface assets. The Chinese, too, have been exploring the future of autonomous sea power.
This move highlights the real possibility that technology may relieve the most industrially developed Navies of traditional international obligations. Whether fortuitously or not, the size of a ghost fleet would inversely reflect a nation’s ability—and perhaps its obligation—to assist vessels in distress.
This would shift the humanitarian onus onto less-developed countries or commercial mariners, ceding at least one traditional pillar of international law’s peacetime function. This also opens the door to troubling precedent if global superpowers begin to consciously design themselves out of long-held international obligations.
The move to robotic sea vessels also risks an increase in challenges to the previously inviolable (and more-easily defendable) sovereignty of sea-going platforms. In 2016, for example, a Chinese warship unlawfully detained one of the United States’ underwater drones, which, at the time, was being recovered in the Philippine exclusive economic zone. The move was widely seen as violating international maritime law. But the Chinese faced no resistance in their initial detention of the vessel and the United States’ response consisted of nothing more than demands for return. Unlike their staffed counterparts, unmanned vessels are more prone to illegal seizure or boarding—in part because of the relatively low risk associated with the venture.
This dynamic may increase a nation’s willingness to unlawfully exert control over another’s sovereign vessel while simultaneously decreasing the aggrieved nation’s inclination (or ability) to use force in response. This same phenomenon bears out in the context of Unmanned Aerial Vehicles, for which the frequency and consequence of hostile engagement are counter-intuitively related. But unmanned sea vessels are far more prone to low-cost incursion than their winged counterparts. This highlights but one aspect of the normative consequence effected by unmanned naval technology, which, if unaddressed, stands to alter the cost-benefit analysis that often underlies the equilibrium of peace.”
Joshua Fiveson is an officer in the U.S. Navy and a graduate of Harvard Law School. Fiveson previously served as the youngest-ever military fellow with the Institute of World Politics, a national security fellow with the University of Virginia’s National Security Law Institute, a national security fellow with the Foundation for Defense of Democracies, and a leadership fellow with the Harvard Kennedy School’s Center for Public Leadership. Fiveson also served as a John Marshall fellow with the Claremont Institute and a James Wilson fellow with the James Wilson Institute.
“The number of House employees with top secret clearances is not publicly available, but it is likely only several hundred. By comparison, approximately 1.2 million executive branch employees and contractors hold top secret clearances.
It’s likely that more than 100,000 executive branch employees and contractors hold TS/SCI clearances, not counting foreign officials who are “in access.“
“Testimony of Mandy Smithberger, Director of the Center for Defense Information at the Project On Government Oversight (POGO), before the House Appropriations Committee, Legislative Branch Subcommittee.
Thank you Chairman Ryan, Ranking Member Herrera Beutler, and Members of the Committee for allowing me to provide testimony on behalf of the Project On Government Oversight (POGO) and Demand Progress on strengthening Congress’s capacity to oversee the executive branch. We represent nonprofit organizations focused on strengthening the legislative branch’s ability to legislate and conduct oversight. We respectfully request that your committee provide personal office staff of members on key committees with the clearances they need to properly support Members of Congress in their review of information the executive branch has deemed classified, and to report on the provision of those clearances. Accordingly, our request implicates the operations of the House Sergeant at Arms.
First, we thank you for being stalwart defenders of Congress’s constitutional duty to conduct oversight. We especially appreciate that last year the committee requested that the Sergeant at Arms produce an unclassified report on the average and median length of time for House staff to obtain a clearance.1 This report, which was due on March 1, will help the House identify whether staff are being granted clearances on an appropriate timeframe and in line with norms and practices for executive branch staff. This is an important first step.
We must modernize how Congress conducts oversight, and that must include responsibly expanding access to classified information.
We believe it is essential for key House staff to have access to Top Secret/Sensitive Compartmented Information (TS/SCI) to strengthen the House’s oversight of traditional national security matters such as the spending and operations of the military and the intelligence community, as well as emerging concerns such as election security and cyber threats. The House Permanent Select Committee on Intelligence, the House Appropriations Defense Subcommittee, and the House Armed Services Committee all play pivotal roles in overseeing our national security. While Members of Congress are entitled to access classified information by virtue of the constitutional offices they hold and do not need security clearances, they must largely rely on their personal office staff to sift through reams of information and brief them on issues. Those staff often do not hold sufficient clearances to access certain sensitive information, thereby undermining the support they can provide and weakening Congress’s ability to legislate or conduct effective oversight.
The need for Congress to improve its own access to this information becomes more apparent in light of the executive branch’s over-classification of information, and, in some cases, weaponization of the classification system to avoid any accountability.2 From 2007 to 2017, the amount of TS and TS/SCI information has more than tripled.3 Over-classification has become so cumbersome that even the vice chairman of the Joint Chiefs of Staff, General John Hyten, complained that it has become “unbelievably ridiculous.”4 Defense contractors are celebrating the “unprecedented” increase in classified spending,5 which naturally increases the risk of overspending and mismanagement.
In the Project On Government Oversight’s congressional oversight manual, former Representative Mickey Edwards (R-OK) challenged the executive branch’s assertion that it should control Congress’s access to information. “There is no authority in the executive branch to tell Congress who can or cannot have the information it seeks,” he said.6 While Congress codified some executive branch authority to limit access to sensitive information in the National Security Act of 1947, those provisions have, over time, been broadened to an unwarranted degree, and these limits must be challenged if Congress is to maintain its ability to conduct effective oversight.7
Years of executive overreach by Democratic and Republican administrations have severely diminished Congress’s power. Congress must reassert itself as a coequal branch fully able to perform its oversight duties.
The number of House employees with top secret clearances is not publicly available, but it is likely only several hundred. By comparison, approximately 1.2 million executive branch employees and contractors hold top secret clearances.8 It’s likely that more than 100,000 executive branch employees and contractors hold TS/SCI clearances, not counting foreign officials who are “in access.”9 Similarly, the legislative branch receives approximately 0.7% of the non-defense discretionary federal budget—approximately $5 billion—to oversee the entire federal government.10 By contrast, this year the intelligence community requested $85 billion, or more than 16 times all the money spent on the legislative branch.11 This significant disparity in both resources and people with access puts Congress in an inherently weak position when it comes to effectively conducting oversight.
Critics of this proposal have argued that rather than increasing congressional access to highly sensitive information, Congress should combat over-classification. It would be a mistake to force Congress to choose one over the other. “Secrecy, while necessary, can also harm oversight,” the 9/11 Commission warned in 2004.12 Over-classification is a serious problem because it impedes sharing information within the federal government and with state and local governments, placing the public at risk.13 Over-classification also undermines the legitimacy of this designation and threatens the protection of legitimate secrets.14 Excessive secrecy also spawns the related problem of uncoordinated, haphazard declassification, as the Commission on Protecting and Reducing Government Secrecy, commonly known as the Moynihan Commission, pointed out in 1997.15 While we support efforts to reduce the overall amount of classification,16 we still think that Congress must also work toward ensuring it has adequate access to controlled information. It is important for Congress to stand its ground in the face of the executive branch’s assertion that it has the sole authority to make classification decisions.17
It is important to remember that providing select House staff TS/SCI clearances will not necessarily give them unfettered access to classified information. A determination must still be made that they have a need to know. This need-to-know determination, made by the entity that holds the classified information, will ensure that information is available only to those who have an actual need for it. The granting of a TS/SCI clearance addresses an administrative hurdle—the determination that a person can be entrusted with this information—but it works hand-in-glove with the demonstration of a need to know and it would not improperly infringe on the executive branch’s classification powers.
The costs of implementing this reform are likely to be minimal. The Congressional Budget Office scored a similar amendment in the Senate as having “no budgetary impact.” The costs of clearances for congressional staff are borne by the agency granting the clearance, not Congress.18 We anticipate that there would be some funding needed for the legislative branch to maintain records of nondisclosure agreements, store classified documents, and track individuals granted clearance, and we urge the committee to increase funds for the Sergeant at Arms accordingly. Additionally, as most of the personal office staff of the relevant committees likely already have TS clearances, providing additional access should not be burdensome.
The cost of not implementing this reform, however, is significant. Without adequately credentialed staff, Congress cannot ensure that we have an executive branch that operates effectively and ethically to protect our country, and in compliance with its constitutional responsibilities. Former House Intelligence Committee Chair Mike Rogers (R-MI) and former House Intelligence Committee Ranking Member Jane Harman (D-CA) spoke last year about how adequate context and knowledge are necessary to precisely target questions to executive branch officials who are reluctant to provide Congress with information.19 While we believe every committee is under-resourced, this is an area where civil society cannot access the information to fill in the gaps. Too often, Congress is instead forced to rely on leaks to the press to learn when national security agencies waste money, violate citizens’ constitutional rights, or abuse their power.
Without adequately credentialed staff, Congress cannot ensure that we have an executive branch that operates effectively and ethically to protect our country, and in compliance with its constitutional responsibilities.
The House Intelligence Committee includes members who serve on the Foreign Affairs, Judiciary, Armed Services, and Appropriations committees.20 The purposes of this cross-seating are to ensure that those committees’ interests are respected and to provide a diversity of viewpoints and expertise while guarding sensitive information before the committee.21 But, without TS/SCI clearances, Congress is not getting the full benefit of this structure and is hampered in its ability to ensure that legislation serves the interests and priorities of the American people. Current members of the House Intelligence Committee are trying to remedy this by pushing for expanded TS/SCI access among their personal office staff.22
The Senate has recognized the need for enhanced access, and has provided designees with TS/SCI clearances for members of the Senate Select Committee on Intelligence. Consequently, the Senate has been able to engage in more robust oversight. Even so, senators are working to expand TS/SCI clearances to personal staff for nearly all senators, with an amendment offered to that effect as part of the fiscal year 2020 appropriations bill.23
To make sure that our most sensitive national security information is properly protected, we urge the committee to increase counterintelligence training for all congressional staff who receive security clearances to help prevent the occurrence of improper leaks. This training should be akin to that provided by intelligence agencies to their own personnel. In addition, the House should expand its reporting on the timeframe it takes to receive a clearance to include an accounting of the number of staff who hold clearances, and the level at which they hold it. This would put the House in line with executive branch practices.
In our experience, congressional staff take significant care to properly safeguard sensitive information, even documents that have pseudo-classifications like “For Official Use Only,” also known as Controlled Unclassified Information (CUI). If staff mishandle this information, they should be held to the same standards and subject to the same punishment as executive branch employees, including criminal prosecution.
We must modernize how Congress conducts oversight, and that must include responsibly expanding access to classified information. Years of executive overreach by Democratic and Republican administrations have severely diminished Congress’s power. Congress must reassert itself as a coequal branch fully able to perform its oversight duties.”
“Call it a colossal victory for a Pentagon that hasn’t won a war in this century, but not for the rest of us. Congress only recently passed and the president approved one of the largest Pentagon budgets ever. It will surpass spending at the peaks of both the Korean and Vietnam wars. As last year ended, as if to highlight the strangeness of all this, the Washington Postbroke a story about a “confidential trove of government documents” — interviews with key figures involved in the Afghan War by the Office of the Special Inspector General for Afghanistan Reconstruction — revealing the degree to which senior Pentagon leaders and military commanders understood that the war was failing. Yet, year after year, they provided “rosy pronouncements they knew to be false,” while “hiding unmistakable evidence that the war had become unwinnable.”
Given the way the Pentagon has sunk taxpayer dollars into endless wars, in a more reasonable world that institution would be overdue for a comprehensive audit.
However, as the latest Pentagon budget shows, no matter the revelations, there will be no reckoning when it comes to this country’s endless wars or its military establishment — not at a moment when President Donald Trump is sending yet more U.S. military personnel into the Middle East and has picked a new fight with Iran. No less troubling: how few in either party in Congress are willing to hold the president and the Pentagon accountable for runaway defense spending or the poor performance that has gone with it.
Given the way the Pentagon has sunk taxpayer dollars into those endless wars, in a more reasonable world that institution would be overdue for a comprehensive audit of all its programs and a reevaluation of its expenditures. (It has, by the way, never actually passed an audit.) According to Brown University’s Costs of War Project, Washington has already spent at least $2 trillion on its war in Afghanistan alone and, as the Post made clear, the corruption, waste, and failure associated with those expenditures was (or at least should have been) mindboggling.
Of course, little of this was news to people who had read the damning reports released by the Special Inspector General for Afghanistan Reconstruction in previous years. They included evidence, for instance, that somewhere between $10 million and $43 million had been spent constructing a single gas station in the middle of nowhere, that $150 million had gone into luxury private villas for Americans who were supposed to be helping strengthen Afghanistan’s economy, and that tens of millions more were wasted on failed programs to improve Afghan industries focused on extracting more of the country’s minerals, oil, and natural gas reserves.
In the face of all this, rather than curtailing Pentagon spending, Congress continued to increase its budget, while also supporting a Department of Defense slush fund for war spending to keep the efforts going. Still, the special inspector general’s reports did manage to rankle American military commanders (unable to find successful combat strategies in Afghanistan) enough to launch what, in effect, would be a public-relations war to try to undermine that watchdog’s findings.
Making Sense of the $1.25 Trillion National Security State Budget
Our final annual tally for war, preparations for war, and the impact of war comes to more than $1.25 trillion—more than double the Pentagon’s base budget.Read More
All of this, in turn, reflected the “unwarranted influence” of the military-industrial complex that President (and former five-star General) Dwight Eisenhower warned Americans about in his memorable 1961 farewell address. That complex only continues to thrive and grow almost six decades later, as contractor profits are endlessly prioritized over what might be considered the national security interests of the citizenry.
The infamous “revolving door” that regularly ushers senior Pentagon officials into defense-industry posts and senior defense-industry figures into key positions at the Pentagon (and in the rest of the national security state) just adds to the endless public-relations offensives that accompany this country’s forever wars. After all, the retired generals and other officials the media regularly looks to for expertise are often essentially paid shills for the defense industry. The lack of public disclosure and media discussion about such obvious conflicts of interest only further corrupts public debate on both the wars and the funding of the military, while giving the arms industry the biggest seat at the table when decisions are made on how much to spend on war and preparations for the same.
Media Analysis Brought to You by the Arms Industry
That lack of disclosure regarding potential conflicts of interest recently came into fresh relief as industry boosters beat the media drums for war with Iran. Unfortunately, it’s a story we’ve seen many times before. Back in 2008, for instance, in a Pulitzer Prize-winning series, the New York Timesrevealed that the Pentagon had launched a program to cultivate a coterie of retired-military-officers-turned-pundits in support of its already disastrous war in Iraq. Seeing such figures on TV or reading their comments in the press, the public may have assumed that they were just speaking their minds. However, the Times investigation showed that, while widely cited in the media and regularly featured on the TV news, they never disclosed that they received special Pentagon access and that, collectively, they had financial ties to more than 150 Pentagon contractors.
Given such financial interests, it was nearly impossible for them to be “objective” when it came to this country’s failing war in Iraq. After all, they needed to secure more contracts for their defense-industry employers. A subsequent analysis by the Government Accountability Office found that the Pentagon’s program raised “legitimate questions” about how its public propaganda efforts were tied to the weaponry it bought, highlighting “the possibility of compromised procurements resulting from potential competitive advantages” for those who helped them.
While the program was discontinued that same year, a similar effort was revealed in 2013 during a debate over whether the U.S. should attack Bashar al-Assad’s Syrian regime. You probably won’t be surprised to discover that most of the former military figures and officials used as analysts at the time supported action against Syria. A review of their commentary by the Public Accountability Initiative found a number of them also had undisclosed ties to the arms industry. In fact, of 111 appearances in major media outlets by 22 commentators, only 13 of them disclosed any aspect of their potential conflicts of interest that might lead them to promote war.
The same pattern is now being repeated in the debate over the Trump administration’s decision to assassinate by drone Iranian Major General Qassem Soleimani and other Iran-related issues. While Soleimani clearly opposed the United States and many of its national security interests, his killing risked pushing Washington into another endless war in the Middle East. And in a distinctly recognizable pattern, the Intercept has already found that the air waves were subsequently flooded by defense-industry pundits praising the strike. Unsurprisingly, news of a potential war also promptly boosted defense industry stocks. Northrop Grumman’s, Raytheon’s, and Lockheed Martin’s all started 2020 with an uptick.
Senator Elizabeth Warren (D-MA) and Representative Jackie Speier (D-CA) have offered legislation that could shut down that revolving door between the major weapons makers and Washington for good, but it has met concerted resistance from Pentagon officials and others still in Congress who stand to benefit from preserving the system as is. Even if that revolving door wasn’t shut down, transparency about just who was going through it would help the public better understand what former officials and military commanders are really advocating for when they speak positively of the necessity for yet another war in the Middle East.
Costly Weapons (and Well-Paid Lobbyists)
Here’s what we already know about how it all now works: weapon systems produced by the big defense firms with all those retired generals, former administration officials, and one-time congressional representatives on their boards (or lobbying for or consulting for them behind the scenes) regularly come in overpriced, are often delivered behind schedule, and repeatedly fail to have the capabilities advertised. Take, for instance, the new Ford class aircraft carriers, produced by Huntington Ingalls Industries, the sort of ships that have traditionally been used to show strength globally. In this case, however, the program’s development has been stifled by problems with its weapons elevators and the systems used to launch and recover its aircraft. Those problems have been costly enough to send the price for the first of those carriers soaring to $13.1 billion. Meanwhile, Lockheed Martin’s F-35 jet fighter, the most expensive weapons system in Pentagon history, has an abysmal rate of combat readiness and currently comes in at more than $100 million per aircraft.
Officers Advocating for More F-35s Often Had Financial Stakes
It’s clear that many of those advocating for more F-35s are far from independent and impartial experts.Read More
And yet, somehow, no one ever seems to be responsible for such programmatic failures and prices — certainly not the companies that make them (or all those retired military commanders sitting on their boards or working for them). One crucial reason for this lack of accountability is that key members of Congress serving on committees that should be overseeing such spending are often the top recipients of campaign contributions from the big weapons makers and their allies. And just as at the Pentagon, members of those committees or their staff often later become lobbyists for those very federal contractors.
With this in mind, the big defense firms carefully spread their contracts for weapons production across as many congressional districts as possible. This practice of “political engineering,” a term promoted by former Department of Defense analyst and military reformer Chuck Spinney, helps those contractors and the Pentagon buy off members of Congress from both parties. Take, for example, the Littoral Combat Ship, a vessel meant to operate close to shore. Costs for the program tripled over initial estimates and, according to Defense News, the Navy is already considering decommissioning four of the new ships next year as a cost-saving measure. It’s not the first time that program has been threatened with the budget axe. In the past, however, pork-barrel politics spearheaded by Senators Tammy Baldwin (D-WI) and Richard Shelby (R-AL), in whose states those boats were being built, kept the program afloat.
The Air Force’s new bomber, the B-21, being built by Northrup Grumman, has been on a similar trajectory. Despite significant pressure from then-Senator John McCain (R-AZ), the Air Force refused in 2017 to make public or agree upon a contract price for the program. (It was a “cost-plus,” not a “fixed price” contract, after all.) It did, however, release the names of the companies providing components to the program, ensuring that relevant congressional representatives would support it, no matter the predictably spiraling costs to come.
Recent polling indicates that such pork-barrel politics isn’t backed by the public, even when they might benefit from it. Asked whether congressional representatives should use the Pentagon’s budget to generate jobs in their districts, 77% of respondents rejected the notion. Two-thirds favored shifting such funds to sectors like healthcare, infrastructure, and clean energy that would, in fact, create significantly more jobs.
And keep in mind that, in this big-time system of profiteering, hardware costs, however staggering, are just a modest part of the equation. The Pentagon spends about as much on what it calls “services” as it does on the weaponry itself and those service contracts are another major source of profits. For example, it’s estimated that the F-35 program will cost $1.5 trillion over the lifetime of the plane, but a trillion dollars of those costs will be for support and maintenance of the aircraft.
Increasingly, this means contractors are able to hold the Pentagon hostage over a weapon’s lifetime, which means overcharges of just about every imaginable sort, including for labor. The Project On Government Oversight (where I work) has, for instance, been uncovering overcharges in spare parts since our founding, including an infamous $435 hammer back in 1983. I’m sad to report that what, in the 1980s, was a seemingly outrageous $640 plastic toilet-seat cover for military airplanes now costs an eye-popping $10,000. A number of factors help explain such otherwise unimaginable prices, including the way contractors often retain intellectual property rights to many of the systems taxpayers funded to develop, legal loopholes that make it difficult for the government to challenge wild charges, and a system largely beholden to the interests of defense companies.
In for a TransDigm, Out for Billions
While it is easy to blame TransDigm, Congress created the problem, and agencies are placed in the undesirable position of relying on outdated, and often outrageous, prices.Read More
The most recent and notorious case may be TransDigm, a company that has purchased other companies with a monopoly on providing spare parts for a number of weapon systems. That, in turn, gave it power to increase the prices of parts with little fear of losing business — once, receiving 9,400% in excess profits for a single half-inch metal pin. An investigation by the House Oversight and Reform Committee found that TransDigm’s employees had been coached to resist providing cost or pricing information to the government, lest such overcharges be challenged.
In one case, for instance, a subsidiary of TransDigm resisted providing such information until the government, desperate for parts for weapons to be used in Iraq and Afghanistan, was forced to capitulate or risk putting troops’ lives on the line. TransDigm did later repay the government $16 million for certain overcharges, but only after the House Oversight and Reform Committee held a hearing on the subject that shamed the company. As it happens, TransDigm’s behavior isn’t an outlier. It’s typical of many defense-related companies doing business with the government — about 20 major industry players, according to a former Pentagon pricing czar.
A Recipe for Disaster
For too long Congress has largely abdicated its responsibilities when it comes to holding the Pentagon accountable. You won’t be surprised to learn that most of the “acquisition reforms” it’s passed in recent years, which affect how the Department of Defense buys goods and services, have placed just about all real negotiating power in the hands of the big defense contractors. To add insult to injury, both parties of Congress continue to vote in near unanimity for increases in the Pentagon budget, despite 18-plus years of losing wars, the never-ending gross mismanagement of weapons programs, and a continued failure to pass a basic audit. If any other federal agency (or the contractors it dealt with) had a similar track record, you can only begin to imagine the hubbub that would ensue. But not the Pentagon. Never the Pentagon.
A significantly reduced budget would undoubtedly increase that institution’s effectiveness by curbing its urge to throw ever more money at problems. Instead, an often bought-and-paid-for Congress continues to enable bad decision-making about what to buy and how to buy it. And let’s face it, a Congress that allows endless wars, terrible spending practices, and multiplying conflicts of interest is, as the history of the twenty-first century has shown us, a recipe for disaster.”
Mandy Smithberger rejoined POGO as the director of the Straus Military Reform Project at the Center for Defense Information in December 2014. Previously she was a national security policy adviser to U.S. Rep. Jackie Speier (D-Calif.) worked on passing key provisions of the Military Whistleblower Protection Enhancement Act into law, which expands protections by increasing the level of Inspector General review for complaints, requiring timely action on findings of reprisal, and increasing the time whistleblowers have to report reprisals. Previously an investigator with POGO, she was part of a team that received the Society of Professional Journalists’ Sunshine Award for contributions in the area of open government. Ms. Smithberger received her B.A. in government from Smith College and her Masters in Strategic Studies and International Economics from Johns Hopkins University’s School of Advanced International Studies. She also served as an analyst at the Defense Intelligence Agency and U.S. Central Command.
“The sad truth is that each time a government contract is awarded to a company falsifying its status as a SDVOSB, other veterans operating legitimate, eligible small businesses are denied opportunities that they’ve earned through their service to our nation.“
It’s up to us to ensure these opportunities are safeguarded for our veterans today and tomorrow. It’s the honorable thing to do.“
“Ensuring that each veteran receives our full respect and support as he or she transitions back to civilian life is one of our duties as a nation.
While the personal sacrifice made by our veterans is impossible to measure and represents a debt that can never fully be repaid, it is vital that Americans do what we can to protect the benefits and services our nation’s veterans have earned.
Extending opportunities to entrepreneurial veterans who have suffered service-related disabilities is one way our nation honors their extraordinary service. The Service-Disabled Veteran-Owned Small Business (“SDVOSB”) procurement program was established in 2003 as an extension of the federal government’s policy to maximize procurement opportunities for small businesses. The program provides opportunities for SDVOSBs by establishing a goal that at least 3 percent of all federal contracting dollars be awarded to service-disabled veteran-owned small businesses each year.
Three percent of federal contracting dollars may seem like a small amount—but the reality is this program represents billions of dollars in opportunity for our nation’s veterans. Unfortunately, over the years, this program has become a lucrative target for fraud and abuse. In fact, in a sobering December 2019 report from the Government Accountability Office focused on contracting fraud with the Department of Defense, one of the most rampant forms of abuse documented relates to contractors falsely claiming eligibility for contracts set aside for small businesses owned by service-disabled veterans.
Schemes in which well-resourced, large companies either create fraudulent SDVOSBs or manipulate existing SDVOSBs to capture federal set-aside contracts for themselves are on the rise. These schemes are robbing our nation’s veterans of opportunities that they earned through their service. This is why it is critical that we understand the rules involving contracts set aside for SDVOSBs, as well as how to identify SDVOSB fraud.
First, let us look at the rules of SDVOSB procurement. In order to be eligible for a set-aside or sole-source SDVOSB contract with the federal government, a firm must meet four criteria. First, the firm must be a small business. Second, the company must be at least 51-percent owned by one or more service-disabled veterans. Third, a service-disabled veteran must hold the highest position in the company—such as the role of CEO—and be responsible for the day-to-day operation of the firm. And finally, the eligible veterans must have a service-connected disability.
It’s also worth noting that while SDVOSBs can join forces with large companies to bid on government contracts, to qualify for an SDVOSB set-aside opportunity, at least 51 percent of the net profits earned by the joint venture must be distributed to the SDVOSB and the SDVOSB needs to play the lead role as project manager on the project.
Even though these rules should be easy to understand and follow, the lure of securing set-aside government contracts worth billions of dollars is too much for some large business owners to resist, often leading some to commit fraud by creating small businesses to serve as a “pass through” entity to illegally win SDVOSB set-aside contracts. For example, the Virginia-based defense contractor ADS, Inc. and Luke Hillier, ADS’s former Chief Executive Officer, collectively agreed to pay the United States nearly $37 million to settle allegations that they violated the False Claims Act by fraudulently obtaining federal set-aside contracts reserved for small businesses that ADS was ineligible to receive. Specifically, ADS settled allegations that it had established a “pass through” small business named MJL Enterprises led by a former ADS employee who happened to be a service-disabled veteran. The lawsuit further alleged that ADS managed MJL’s day-to-day operations and supplied the necessary logistical services to allow MJL to perform under its SDVOSB set-aside contracts. In turn, MJL brought in more than $70 million in small business set-aside government contracts that ADS otherwise would not have been eligible to receive.
In the case of ADS, the punishment for allegedly using a fraudulent SDVOSB was severe. Hillier’s settlement of $20 million is among the largest secured against an individual in the history of the FCA. In addition to the $20 million settlement announced by the DOJ in August 2019, the firm also paid the U.S. government a settlement of $16 million in 2017 related to the same conduct.
So, what can be done about the issue? The GAO report underscores that the Defense Department should be doing more to verify who actually owns and manages the companies that supply the agency with goods and services. That sounds great, but the reality is the complex system that includes thousands of vendor companies and hundreds of thousands of contracts and subcontracts makes this kind of additional oversight a herculean task.
Another solution is to encourage those with insider knowledge of potential SDVOSB fraud to come forward as whistleblowers. Whistleblowers with direct knowledge about the ownership and management structure of these organizations are uniquely positioned to shine a light on fraudulent schemes that may otherwise never be uncovered.”
The Pentagon’s budget has stopped growing for the first time in this administration (excluding disaster-relief funding). Lawmakers are still processing the many tradeoffs produced by this belt-tightening. Few were expecting the administration once again to attempt to divert defense funds to border-barrier construction. Last year, Washington’s impasse over “more wall” led to a government shutdown. Ultimately, the president got most of what he wanted.
HASC Chairman Adam Smith said it best: “If you can just grab $7 billion out of your budget, then I think we need to take a closer look at your budget and how to cut it.”
The Defense Department cannot spend the money it currently has, so Congress rightly will want more details.
Nowhere is this truer than in shipbuilding and the retirement of existing aircraft. The Air Force has proposed expansive retirements of geriatric aircraft that strain tight budgets with increasing maintenance costs. Yet Congress has responded poorly to similar plans in the past, as former Air Force Secretary Deborah Lee James recently reiterated. “No member of Congress wants to lose, or stand by and silently lose, a fleet of aircraft or a capability from their state or district, which, of course, translates to jobs,” she said.
The Navy faces a similarly steep charge. Despite commitment to a 355-ship fleet, the latest budget cuts Navy’s shipbuilding. Leaders have warned that the new nuclear submarine would eat into shipbuilding for years. But the Navy has also diverged from last year’s 30-year plan in other ways, cutting planned purchases of attack subs, littoral combat ships, and other programs.
Again, rumblings have already started in Congress. Chair of the Seapower Subcommittee, Rep. Joe Courtney, D-Conn., held no punches: “The President’s shipbuilding budget is not a 355-ship Navy budget…I can say with complete certainty that, like so much of the rest of the President’s budget, it is dead on arrival.”
Nuclear Weapons Bill is Big and Getting Bigger
Modernization of the aging nuclear triad has been repeatedly put off by administrations of both parties. The ability to continue extending the service lives of these strategic platforms has essentially run out. The bills are due, and they are large.
In order to modernize bombers, boomers and ballistic missiles, the Pentagon had to cut other priority procurement to pay for it. One headline earlier this month summed up the difficult tradeoffs: “The U.S. Navy wants more ships but can’t afford them, admiral says.” The Navy’s unfunded priorities list reads like a casualty list of all the programs sacrificed for the new Columbia-class missile subs.
Lt. Gen. David Thompson, vice commander of the U.S. Space Force reiterated the challenges ahead, saying, “Since the creation of the Space Force I’ve gotten questions from people along the lines of ‘So we’ve created the Space Force, but what is it going to do?’”
Over the next year, the new service must rapidly establish the bureaucratic structures it requires to sustain itself. Among various other charges, this means training personnel, deciding where talent will be pulled from, and launching their recruitment pipeline. Congress must be reassured the new service is progressing on schedule, while simultaneously avoiding the temptation to recreate old processes that will fail to serve this unique domain.
Iran, Afghanistan, North Korea and Terrorists
There is much disruption in this year’s defense budget as officials try to instill “irreversible” momentum toward implementation of the defense strategy. But policymakers have seen reality continue to mug the military the past year with repeated flare-ups in regions where the Pentagon would like to shed mission.
Just weeks ago, Rep. Mac Thornberry, R-Texas, warned that “the Middle East is never going to let you pivot away from it.” After a challenging start to 2020, military brass will be pressed to justify their regional decisions. For example, the Army plans to draw down both counter-ISIS fund and Afghanistan security forces funds. It also intends to reduce the European Deterrence Initiative for the second year.
As policymakers and service chiefs prepare for a long season of posture hearings, it’s clear the military has made hard choices. Congress must now live up to its end of the bargain to accept some political pain for great(er) power competition gain.”
[James] “Madison wrote, “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”
“Article I of the Constitution gives Congress the sole power to declare war, raise and fund an army and navy, and “make Rules for the Government and Regulation of the land and naval Forces.” But the United States has been at war continuously since September 18, 2001, and Congress last voted to authorize force in 2002. Children born that year will soon be eligible to serve in the military.
There are signs that Congress is trying to reassert its constitutional authority in the wake of the United States’ killing of Iranian general Qassem Soleimani this January in Iraq. On February 13, the Senate passed a resolution intended to block war with Iran, by a bipartisan vote of 55-45. The House of Representatives passed a similar measure soon after the strike against Soleimani. More recently, the House voted to repeal the 2002 Iraq war authorization (which President Donald Trump invoked as a justification for the Soleimani strike), and to forbid the use of federal funds for an attack on Iran.
Congress’s overdue efforts to reclaim its authority over the use of military force are very welcome. But they’re unlikely to be effective in restraining the executive in the short run. Trump has threatened to veto these measures, and none has passed with the two-thirds majority required for an override.
It is rare for Congress to unite across party lines by a large enough majority to override a presidential veto. The framers of the Constitution did not intend to give the president unilateral authority to start and expand wars unless two-thirds of Congress stopped him. James Madison warned in 1793 that presidents would inevitably be tempted to start, expand, and prolong wars: “War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them.” Because of this, Madison wrote, “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”
Nearly 50 years ago, in 1973, Congress did enact a law designed to prevent “prolonged engagement in undeclared, Presidential war.” The War Powers Resolution states that the president can only deploy the military into actual or imminent hostilities under “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The resolution requires troops deployed without statutory authorization to be removed within 60 days, or immediately upon a vote by a majority of both the House and the Senate.
The vote requiring the removal of troops from a conflict was originally supposed to take the form of a “concurrent resolution,” which is not subject to a veto by the president. But a 1983 Supreme Court decision, INS v. Chadha, held that “legislative vetoes” of executive action are unconstitutional.
The executive branch has weakened the limits imposed by the War Powers Resolution over time.
Perhaps most significant in recent years has been the executive branch’s contorted interpretation of existing authorizations to use force to cover new conflicts—in some cases, to cover conflicts with groups not even in existence at the time the authorizations of force were adopted.
Just days after the September 11 terrorist attacks, Congress passed an authorization for use of military force, known as an “AUMF,” permitting the use of force “against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” The 2001 authorization, however, has been interpreted so broadly since it was adopted that presidents have invoked it to conduct military operations in at least 19 countries, including at least seven where operations are ongoing, according to the Congressional Research Service.
Congress last passed an AUMF in October 2002, when it authorized President George W. Bush to go to war with Iraq. The U.S. government overthrew Saddam Hussein’s government shortly after the war began, and held a ceremony marking the official end of the conflict in 2011. But the Trump administration has threatened to veto the repeal of the 2002 war authorization, and has made the absurd claim that the 2002 war authorization has “long been understood to authorize the use of force” to address “threats directed by Iran.”
In other cases, presidents have claimed that their military actions fell short of war, or of “hostilities” under the War Powers Resolution. The Trump administration used this justification for its military strike against the Syrian government in 2018 and the Obama administration made the same claim when it intervened in Libya in 2011.
It will not be easy for Congress to stop these unauthorized uses of force and reassert its constitutional authority. But a growing number of members of Congress from across the political spectrum recognize the necessity for action. The Project On Government Oversight (POGO) recommends that, beyond votes addressing specific uses of force, Congress reform the War Powers Resolution itself to close the loopholes that have prevented it from fulfilling its original purpose.
Reforms should include:
Requiring that war authorizations include proper nouns and end dates
The executive branch’s expansion of the post-September 11 war authorization to include “associated forces” of al-Qaida that did not exist at the time of the attacks demonstrates the need for greater specificity. Any resolution authorizing the use of military force should include a sunset date, and specify the name of the enemy (whether it is a foreign state or a terrorist group) and geographical locations where the military may use force. Existing authorizations, including the 2001 and 2002 AUMFs, should also be repealed or given an expiration date.
While it is not possible to prevent a future Congress from passing a vague authorization, Congress could provide for expedited consideration of resolutions to authorize force only if they include these specifics.
The 1973 War Powers Resolution did not define “hostilities,” one of its key terms. For decades, presidents have used that omission to argue that military action did not qualify. In 2011, the Obama administration argued that the United States’ involvement in a military campaign against Muammar Gaddafi’s regime in Libya—which lasted over six months, included a U.S. bombing campaign and the deployment of 11 naval ships, and ended in Gaddafi’s violent overthrow and death—did not amount to “hostilities.” In order to close this loophole, Congress should define “hostilities” to include, at a minimum, “armed conflict” or “clear and present danger of armed conflict,” and should make clear that armed conflict includes drone warfare and other situations where U.S. personnel take deadly action even where they face limited risk of casualties.
Requiring increased transparency from the executive branch about all uses of force
The executive branch has not only used the September 2001 AUMF to justify military force against an increasing number of terrorist organizations in an increasing number of countries, but it has also refused to publicly acknowledge many of these actions. In 2013, the Pentagon told members of Congress that the full list of al-Qaida “associated forces” with whom the U.S. was at war was classified. The secrecy has been even greater with respect to CIA paramilitary airstrikes in Pakistan and Yemen. For years, the executive branch has withheld crucial information about the drone campaign from most members of Congress. A new war powers resolution should include requirements for meaningful, prompt consultation with Congress whenever U.S. government employees are involved in armed conflict, and public notice with only very narrow exceptions.
Creating a mechanism for judicial review
Efforts to enforce the 1973 War Powers Resolution in court have not been successful, but Congress needs to keep trying. Unless the courts step in to enforce legal limits on the president’s commander-in-chief power, the Office of Legal Counsel and other executive branch lawyers will have the last word. The Office of Legal Counsel, the entity within the Department of Justice that offers legal advice to the executive branch, has repeatedly concluded that the president may use military force without congressional authorization if doing so serves the United States’ national interest—a test that “provides no meaningful constraint on presidential power,” in the words of former office head Jack Goldsmith and law professor Curtis Bradley. Congress should explicitly authorize the speaker of the House, the Senate majority leader, or the foreign affairs committee of either body to bring suit on its behalf, and instruct the courts that the executive’s compliance with a new war powers resolution is not a political question and thus is subject to judicial review.”