Tag Archives: law

Experienced Young Military Professionals Discuss The Future of Warfare

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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.

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“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.”

https://rosecoveredglasses.wordpress.com/2019/05/15/military-victory-is-dead/

JIA SIPA

By JOSHUA FIVESON

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.”

https://jia.sipa.columbia.edu/online-articles/disruptive-technology-and-future-international-law

ABOUT THE AUTHOR:

Joshua Fiveson
Joshua Fiveson 

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. 

New “Space Force” Needs Acquisition Law Changes From Congress

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BREAKING DEFENSE

Some 16,000 active duty and civilian personnel being “re-assigned” to the Space Force, and eventually will be officially re-commissioned as “spacemen” or whatever moniker is chosen — something that Thompson told the annual Air Force Association meeting here yesterday will happen soon.

Those processes are not simple, he said, and will require new legal authorities.

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“The Air Force is poised to begin reorganization of how it will transform space acquisition at the end of March and that will require legal changes only Congress can make, says Space Force Vice Commander Lt. Gen. David Thompson.

The report to lawmakers will make “recommendations for what a new acquisition approach should look like,” he told reporters here in Orlando late yesterday. “As you know, Congress gave us established in law the Space Acquisition Council. That already has formed its set of initial recommendations about how that body is going to function, and a whole series of recommendations to approve primarily the acquisition approach for the Space Force.”

The new council, along with the creation of a new assistant secretary of the Air Force for space acquisition and integration, was mandated by the 2020 National Defense Authorization Act. That person will oversee SMC, the Space Rapid Capabilities Office (SpRCO), and the nascent Space Development Agency (SDA). In October 2022, whoever holds that position will also become the Air Force service acquisition executive for space systems and programs.

As Breaking D readers know, one idea rolling around the Pentagon is to lump SMC, SDA and SpRCO together under a new Space Force entity called Space Systems Command. However, there is internal disagreement on whether all the organizations must be moved and a reluctance to change anything hastily, given that DoD has two years to decide what it wants to do regarding space acquisition and perhaps even convince Congress to change its mind. In particular, there is some question as to whether SDA’s acquisition authority will move from Undersecretary for Research & Engineering Mike Griffin to the new space acquisition secretary.

Thompson suggested that the recommendations would go beyond simply laying out the role of the new secretary.

“The good news is, we’ve been given such a tremendous opportunity that we don’t have to stop there,” he said. For example, “we’re looking at the requirements approach.”

Further, he said, it will include requests to Congress to give the Air Force the “authority to create that 21st century, rapid, clean, agile acquisition force.”

But, he cautioned, while there will be a number of “very specific recommendations,” the report will not include “the full and total and complete bounds of the last dotted i and crossed t of every specific aspect.”

In another of the monthly reports on Space Force due to Congress, the Air Force will explain its “total force management approach” for figuring out how many, and by what process, airmen will be shifted to the Space Force.”

Disruptive Technology And The International Law Future

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Image: “Devdiscourse”
JIA SIPA

By JOSHUA FIVESON

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.”

https://jia.sipa.columbia.edu/online-articles/disruptive-technology-and-future-international-law

ABOUT THE AUTHOR:

Joshua Fiveson
Joshua Fiveson 

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. 

So You Think You Know The Constitution?

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(National Archives and Records Administration photo by Jeff Reed)

THE PROJECT ON GOVERNMENT OVERSIGHT (POGO)

The Constitution is central to the American political identity, so it’s at the heart of a lot of conversations not just about the law and politics, but how we go about our lives every day.

______________________________________________________________________________

The First Amendment protects your speech from being shut down or limited by companies. 

Not really. The First Amendment prohibits the government from limiting your right to freedom of speech. That means private companies can restrict what you say, and penalize or fire you for speech they don’t like. It also means social media companies like Facebook can set whatever rules and limits they want for speech on their platforms, and block certain types of speech or kick off users as they choose. The Supreme Court has set some limits on speech restrictions directed at government employees, but has done so on the basis that the First Amendment protects speech from restrictions set by the government, not by an employer per se.

Falsely yelling “fire!” in a crowded theater is never protected by the First Amendment.

It depends. This famous and often-used example comes from Justice Oliver Wendell Holmes in the 1919 case Schenck v. United States, which set a standard that the First Amendment did not protect speech that created a “clear and present danger.” However, in the 100 years since Schenck, this standard has evolved and is now more rigorous: In 1969, the Supreme Court ruled in Brandenburg v. Ohio that the mere likelihood of creating imminent harm doesn’t put speech beyond First Amendment protections—speech also has to be “directed to inciting or producing imminent unlawful action” in order to not be protected. Justice William Douglas wrote in his concurring opinion for the case about the example of falsely shouting “fire!” in a crowded theater, emphasizing that the intent to cause a specific outcome, rather than what is said, is the critical factor.

The police can’t lie to you.

The Fifth Amendment provides you the right not to speak to police, even during a formal interrogation, but it doesn’t limit what the police can say to you. Although it can have a coercive effect and increases the potential for false confessions, the Constitution’s protection for due process (which the Supreme Court has ruled includes a prohibition on the government using involuntary confessions as evidence) does not stop police from lying to you, either in the field (yes, it turns out all those TV characters saying “Are you a cop? You have to tell me if you’re a cop!” aren’t giving sound legal advice) or during a formal interrogation. In fact, the Supreme Court has explicitly ruled that police are allowed to lie to a suspect about whether their associate confessed, or the existence of forensic evidence such as fingerprints. 

The word “slavery” appears in the Constitution numerous times before the 13th Amendment, which abolished slavery.

In fact, the first mention of the word slavery is in the 13th Amendment (ratified in 1865), despite the existence of slavery since the 1500s in settlements that would become part of the United States and the ratification of the Constitution in 1788. This may seem shocking since when the Constitution was created, more than 500,000 people were enslaved in the United States—many of them owned by the signers of our nation’s founding document. So how did the Constitution manage to evade mention of slavery for so long? Cunningly ambiguous wording. Take, for example, the infamous “three-fifths compromise.” Article I, Section 2, in apportioning seats among the states for representation in the House of Representatives, states that

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. [emphasis added]

Eleven clauses of the Constitution directly address slavery or hold implications for slavery, including provisions that prohibited Congress from abolishing the slave trade (Article I, Section 9) and required fugitive slaves to be returned to their owners (Article IV, Section 2). But each of these provisions was deftly crafted to avoid direct mention of the abominable institution of slavery, instead using euphemisms like “other persons.”

The president is the country’s commander in chief, and Congress cannot limit their authority in wartime.

Not really. Article 2, Section 2 of the Constitution provides that the president “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” The president does not have command power over ordinary citizens—and more importantly, Congress has as much authority as the president over matters of war and peace. Article I gives Congress the power to declare war; make rules related to wartime captures; raise, support, and make rules for governing an army and navy; and to define and set punishments for offenses against international laws and treaties. The Senate must also consent to treaties.

You’ll find “checks and balances” mentioned throughout the Constitution.

No, but you will find the concept woven into the structure of our constitutional democracy. The phrase is shorthand for the myriad mechanisms the Constitution sets out to ensure that each branch of government—executive, legislative, and judicial—serves as a check on the other, to guard against the accumulation of power into a single entity of our government. One example is that the power of Congress to legislate is checked by the veto power of the president. Another example is that the framers of the Constitution established the House of Representatives in Article I as a large body, in part to guard against corruption in the Senate, as it was believed that senators may be more susceptible to special interests (rather than the public interest) because of their small number.

Non-citizens are not protected by the Constitution.

No. The bill of rights refers to “persons,” not citizens, and most fundamental constitutional rights apply to all people within the United States. The major exception to this is the right to vote. The 15th and 19th Amendments (which extended the right to vote to racial minorities and women, respectively), the 26th Amendment (which lowered the voting age to 18), and the 24th Amendment (which abolished the poll tax) only apply to U.S. citizens. The Constitution also contains citizenship requirements for members of Congress and the president.

Presidents can pardon anyone convicted of a crime.

The presidential pardon power is broad, but it only applies to federal crimes. So the roughly 1.3 million people in state prisons—by far the majority of prisoners nationwide—are beyond the reach of the power. There’s also an open question about whether there are any situations in which a president can’t pardon a federal offense. The Supreme Court has left the door open to the idea that other parts of the Constitution could limit the power, and some scholars and advocates have argued that the power does not allow self-pardons or pardons that cover up a president’s own wrongdoing.

The Constitution doesn’t contain a “right to privacy.”

Although it doesn’t include the word “privacy,” it is a basic tenet of our Constitution that the Fourth Amendment provides a right to privacy from excess government surveillance and intrusions. The Fourth Amendment goes far beyond just warrants—its prohibition against “unreasonable searches and seizures” provides a range of privacy protections against intrusions in different situations. And as we’ve written, the Fourth Amendment’s guarantee that individuals will “be secure in their persons” goes beyond preventing the police from sifting through your pockets at will. It means we have a basic privacy right that limits how much the government can track the sensitive activities and associations in our lives.

The Constitution defines “treason” as spying for or providing aid to a foreign country, and makes the offense punishable by death.

No. The Constitution limits the definition of treason as follows:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

It leaves it to Congress to set the punishment for the crime. Someone has to intentionally help an enemy of the country to commit treason, and “enemies” refers only to actual wartime enemies of the United States—which is why most famous Cold War spies, from Julius and Ethel Rosenberg to Robert Hanssen, were convicted of espionage rather than treason.”

https://www.pogo.org/analysis/2019/09/so-you-think-you-know-the-constitution/

‘Millions’ Stolen in Decade-Long Buying Fraud At Florida VA Hospitals

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Image: “Projectriskcoach.com

MILITARY.COM

At least 15 Department of Veterans Affairs employees and vendors in Florida were engaged in an “elaborate” fraud scheme that cost the government “millions” since 2009, two government agencies announced in a joint press conference .”

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“Declining to give the exact amount allegedly stolen or say what tipped them off, the U.S. Attorney General for the Southern District of Florida and the Department of Veterans Affairs Inspector General said people affiliated with the Miami and West Palm Beach VA clinics were charged and arrested on charges including conspiracy to commit health care fraud, committing health care fraud and bribery.

Nine of the suspects were “low-level” procurement staff, officials said. They allegedly defrauded the VA by letting vendors charge inflated prices for products or saying vendors supplied an order that was completely or partially unfilled. The employees would then receive a kickback on what the VA paid those vendors, officials said.

“This fraud scheme was clearly carried out, not only by the VA employees but deceptively with those vendors. And both of them are equally culpable in this scheme,” district Attorney General Ariana Fajardo Orshan said.

Officials also announced a separate but similar alleged fraud scheme that they suspect involved disabled veteran Lisa Anderson, 48, of Delray Beach. The attorney general has charged Anderson with false statements on her Service Disabled Veteran Owned Small Business application, accusing her of selling her preferred VA contract status to businesses she was not connected to.

OIG and AG officials praised their work in apprehending the suspects, but they called the investigation “ongoing” and did not comment on whether there will be any more arrests.

Orshan emphasized those arrested in the alleged kickback schemes were not representative of the VA at large.

“However, that does not reflect on the many, many well-intended, hard-working individuals that work for the VA medical services, she said, “and I want to clearly state that so it’s just a couple of bad apples.”

The maximum prison sentence for the charges are as follows: 10 years for conspiracy to commit health care fraud, 15 years for bribery and 20 years for falsifying records.”

https://www.military.com/daily-news/2019/12/11/millions-stolen-decade-long-buying-fraud-florida-va-hospitals-officials-say.html

Chinese-Made Surveillance Equipment Sold To U.S. Military

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Photo: Getty Images

CYBERSCOOP

Aventura Technologies  is accused of lying to customers, including the U.S. military, for over a decade by claiming to make their equipment in Long Island while surreptitiously importing it from China. 

In doing so, Aventura exposed its customers to “serious, known cybersecurity risks, and created a channel by which hostile foreign governments could have accessed some of the government’s most sensitive facilities.

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“U.S. prosecutors on Thursday announced charges against a New York company and seven of its current and former employees for allegedly selling Chinese-made surveillance equipment with known cybersecurity flaws while falsely claiming the technology was made in the U.S.

The U.S. Air Force, Navy, and the Department of Energy were among Aventura’s clients.

Jack Cabasso, the company’s de facto owner, his wife, Frances, and other senior company executives were charged with conspiracy to commit wire and bank fraud and “unlawful importation,” prosecutors said. Four of the defendants were charged with defrauding the U.S. government by falsely asserting that Aventura was owned by Frances Cabasso in order to win government contracts reserved for female-owned firms.

Six of the accused were arrested Thursday morning, authorities said. The fate of the seventh defendant wasn’t immediately clear. U.S. authorities also seized the Cabassos’ 70-foot yacht and froze some $3 million of the defendants’ ill-gotten gains, the Justice Department said.

Neither a spokesperson nor an attorney for Aventura could be immediately reached for comment.

In a statement, U.S. Attorney Richard Donoghue accused the defendants of “padding their pockets with money from lucrative contracts without regard for the risk” to U.S. national security posed by their products. The company made more than $20 million off of federal contracts, U.S. officials said.

The announcement is just the latest example of Chinese technology, which U.S. officials have often tried to exclude from government supply chains, slipping into the government’s procurement process. On Wednesday, Sen. Marco Rubio, R-Florida, wrote to the Department of Defense asking why more than 2,700 Chinese-made surveillance cameras had reportedly been installed at U.S. defense facilities.

The Justice Department announced in April that Fortinet, a U.S. security vendor, had agreed to pay the equivalent of $545,000 to settle allegations it sold the government Chinese-made equipment while claiming the technology originated in North America.

U.S. officials also have gone to great lengths to try to keep equipment from Chinese telecommunication giants like Huawei and ZTE out of federal networks amid espionage concerns. Both companies deny any wrongdoing.

In May, President Donald Trump issued an executive order that warned companies not to use surveillance-enabling telecom equipment coming from overseas. A defense policy bill signed by Trump last year bans U.S. government agencies from using certain Huawei and ZTE components.”

Know Your Options For Government Contracts Disputes and Appeals

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REQUESTS FOR EQUITABLE ADJUSTMENT (REA)

ALTERNATIVE DISPUTE RESOLUTION (ADR)

CLAIMS


INTRODUCTION


The Federal Acquisition Regulation (FAR) contains provisions for contractors and the government to resolve contract disputes.  The disputes often arise due to events during performance, many times surfacing weaknesses in the original contract work definition, technical parameters, schedule factors or related terms and conditions that can lead to change implications effecting cost, schedule and delivery.
In short, when the understanding the parties thought they had at negotiation and execution of the contract is in dispute, there must be a resolution. 

These conditions open the baseline of the contract to further clarification and negotiation. The FAR recognizes that a fair and equitable process is necessary to settle disputes and re-establish a mutually agreeable contract baseline.

GENERAL CONSIDERATIONS

Contract baseline management has been discussed previously in the following article:
Contract Baseline Management

The above article offers six (6) rules of thumb:

1. KNOW – The contract value and its ceiling amount

2. KNOW – The incurred cost to date and commitments

3. KNOW – The scope of work and whether or not your current efforts are supporting it or some other objectives

4. KNOW – The estimated cost at completion based on where you are at today

5. KNOW – Your customer and who among the customer population is prone to direct out of scope effort.6. KNOW – WHEN TO SAY “NO” to “Scope Creep” and say it officially in writing to the contracting officer specified in your contract.

The remainder of this article will discuss the three most common processes that contract disputes undergo when the baseline is in dispute and selecting the best method considering the circumstances that exist on the contract.

REQUESTS FOR EQUITABLE ADJUSTMENT (REA)

An REA is most often the first and the least formal step undertaken by a contractor when there has been a clear and recognizable departure from the contract baseline in terms of events that warrant cost, schedule, technical performance or terms and conditions parameter modification.  It does not start the formal claims process under FAR with associated interest implications.


Submitted in the form of a proposal for contract change, the REA cites the “Before and After” conditions of the contract baseline and the details regarding the delta.  Implicit in the submission are actual cost records, documents regarding government actions and guidance, an estimate of the new baseline impact in terms of cost, schedule or technical modifications to the agreement and a request for contract change. 


The government agency may approve or deny the proposal, further negotiate the details with the contractor and may or may not modify the contact.  The following article is an excellent guide to use and preparation of REA’s:

Difference Between REA’s and Claims

ALTERNATIVE DISPUTE RESOLUTION (ADR)

ADR takes advance planning on the part of the government agency and the contractor.  Not every government contracting office chooses to place an ADR clause in contacts they execute.  Not every contractor is willing to accept one at contract award.

ADR is intended to be an alternative to the REA and formal claims process, whereby the government and the contractor agree in advance to place an ADR clause in the contract and subject any dispute that arises to the ADR process for resolution. 

Below is a quote from the FAR on the use of ADR:

33.214  Alternative dispute resolution (ADR)

(a) The objective of using ADR procedures is to increase the opportunity for relatively inexpensive and expeditious resolution of issues in controversy. Essential elements of ADR include—

(1) Existence of an issue in controversy;

(2) A voluntary election by both parties to participate in the ADR process;

(3) An agreement on alternative procedures and terms to be used in lieu of formal litigation;

and(4) Participation in the process by officials of both parties who have the authority to resolve the issue in controversy.

(b) If the contracting officer rejects a contractor’s request for ADR proceedings, the contracting officer shall provide the contractor a written explanation citing one or more of the conditions in 5 U.S.C. 572(b) or such other specific reasons that ADR procedures are inappropriate for the resolution of the dispute. In any case where a contractor rejects a request of an agency for ADR proceedings, the contractor shall inform the agency in writing of the contractor’s specific reasons for rejecting the request.

(c) ADR procedures may be used at any time that the contracting officer has authority to resolve the issue in controversy. If a claim has been submitted, ADR procedures may be applied to all or a portion of the claim. When ADR procedures are used subsequent to the issuance of a contracting officer’s final decision, their use does not alter any of the time limitations or procedural requirements for filing an appeal of the contracting officer’s final decision and does not constitute a reconsideration of the final decision.

(d) When appropriate, a neutral person may be used to facilitate resolution of the issue in controversy using the procedures chosen by the parties.

(e) The confidentiality of ADR proceedings shall be protected consistent with 5 U.S.C. 574.

(f)(1) A solicitation shall not require arbitration as a condition of award, unless arbitration is otherwise required by law. Contracting officers should have flexibility to select the appropriate ADR procedure to resolve the issues in controversy as they arise.(2) An agreement to use arbitration shall be in writing and shall specify a maximum award that may be issued by the arbitrator, as well as any other conditions limiting the range of possible outcomes.

(g) Binding arbitration, as an ADR procedure, may be agreed to only as specified in agency guidelines. Such guidelines shall provide advice on the appropriate use of binding arbitration and when an agency has authority to settle an issue in controversy through binding arbitration.”

CONTRACT CLAIMS

A formal contract claim is a significant step in the relationship with your customer.  It acknowledges that the REA and ADR (if applicable to the contract) processes have not been effective in resolving the dispute and refers the matter to a formal claim which has the potential for adjudication.  It also starts the interest clock in terms of government payment liability in the event the agency loses the claim during adjudication.
Below are the major clauses regarding formal contact claims and the certifications by the contractor that apply.  They have significant legal implications.

Claims and Certifications

SUMMARY
When contract disputes or the potential for claims and appeals arise it is best to view each instance uniquely in deciding which of the three avenues discussed in this article may be appropriate. 
Contract disputes are serious matters. In the event the impact to the company from a risk perspective is substantial, it is best to involve a law firm that specializes in government contract claims for advice on how to proceed. 

Government Ethics Reforms In the “For the People Act”

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Image: “U.S. Office of Government Ethics”

“THE PROJECT ON GOVERNMENT OVERSIGHT”

This bill would prohibit “golden parachute” incentive payments from private companies to former employees entering government service and would impose stricter limits on former contract procurement officers leaving government service.

These reforms are common sense steps to ensure that those serving in government are doing so with the public, not their own wallets, in mind. “

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“Yesterday, on the first day of the 116th Congress, a group of House Democrats introduced a sweeping reform bill aimed in part at creating and strengthening ethics systems for all three branches of government, and ensuring equal access to voting booths. This ambitious proposal, the “For the People Act,” includes many reforms that the Project On Government Oversight (POGO) has long supported.

For example, for yearsPOGO has advocated for stronger policies to ensure that high-level government officials going through the revolving door between government service and private industry do so in a way that protects government policies from undue industry influence.

Acting in part on longstanding recommendations from civil society, the For the People Act would also strengthen the Office of Government Ethics (OGE), giving the director of the Office final approval over any executive branch recusals, exemptions, or waivers from ethics laws or regulations and requiring those waivers to be publicly posted on OGE’s website. This centralization of authority ensures consistent application of waivers and greatly increases transparency. Further, the bill would give OGE the power to investigate possible violations of ethics laws and the authority to issue administrative and legal remedies when an ethics violation has occurred, increasing the likelihood that those who violate ethics laws will be held accountable. Finally, the bill would limit the President’s ability to remove the director of OGE to only instances where there is cause for firing, allowing the director to truly serve independently. 

Not only does the For the People Act address long-standing ethics concerns, it also addresses deficiencies with the Foreign Agents Registration Act (FARA). FARA requires all American citizens working to influence U.S. policy on behalf of foreign governments to register with the Department of Justice and report information about those lobbying efforts. However, POGO released a report in 2014 detailing routine failures to follow the law and systemic non-prosecution by the Department of Justice. The For the People Act would give the Department the authority to levy civil fines to punish offenders who do not properly comply with the law, increasing the likelihood that the Department would enforce the law.

And the bill doesn’t only reform the executive branch. In addition to the above reforms, the For the People Act would require the creation of a code of ethics that would apply to Supreme Court justices, the only category of judge not currently covered by a code of conduct. It would also strengthen ethics standards for Members of Congress, for example by prohibiting Members from serving on boards of for-profit entities.

The For the People Act has been a decidedly Democratic venture; however, many of the reforms contained in the bill are common-sense ethics reforms that should receive bipartisan support. If they don’t, it is less of a commentary on the need for ethics reforms across all sectors of government than it is indicative of the hyperpartisan time we are in.”

https://www.pogo.org/analysis/2019/01/a-closer-look-at-ethics-reforms-in-hr-1-the-for-the-people-act/

U.S. Department of Justice Adopts Corporate Monitoring Policy

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“NATIONAL DEFENSE MAGAZINE”

Updated guidance on how the Department of Justice will monitor corporations that may have engaged in misconduct.

Reinvigorating compliance programs and bolstering system controls are not only good things to do, but under this new policy, they may allow a company to dodge the bullet of having a monitor appointed.”

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” Assistant Attorney General Brian A. Benczkowski provided updated guidance on how the Department of Justice will monitor corporations that may have engaged in misconduct.

“Where a corporation’s compliance program and controls are demonstrated to be effective and appropriately resourced at the time of resolution, a monitor will likely not be necessary,” he said in the memo.

In other words, if companies do not want a corporate monitor they need to have a fully staffed and effective compliance program with effective controls in place. The company needs to demonstrate this at the time of resolution of the issue that concerned the department — which makes sense, because the business would not be in this situation if its compliance program was effective in the first place.

The thinking is that a reinforced compliance program and fortified controls will prevent the company from getting into trouble again. Compliance is the ultimate goal. The Justice Department does not want to lose sight of the big picture here: preventing bad behavior in the first place.

Ultimately, robust compliance programs, full-bodied oversight of high-risk areas, solid program controls, strong mechanisms for internal reviews and reporting, effective investigatory policies and procedures, and energetic compliance officers will benefit corporations and the federal agencies that contract with them.

The appointment of monitors has increased in recent years. HSBC, General Motors, Deutsche Bank and others have had them, as have many smaller and lesser-known companies.

Curtailing this practice, the Benczkowski memo states that the “imposition of a monitor will not be necessary in many corporate criminal resolutions.”

In remarks at a recent NYU School of Law conference, Benczkowski said: “Our approach to the new policy began with the foundational principle that the imposition of a corporate monitor is never meant to be punitive. It should occur only as necessary to ensure compliance with the terms of a corporate resolution and to prevent future misconduct. That approach is consistent with our longstanding practice of imposing corporate monitors as the exception, not the rule.”

Benczkowski’s memo also addresses the financial implications of monitoring.

“In weighing the benefit of a contemplated monitorship against the potential costs, criminal division attorneys should consider not only the projected monetary costs to the business organization, but also whether the proposed scope of a monitor’s role is appropriately tailored to avoid unnecessary burdens to the business’s operations,” the document states.

The memo lists four factors that prosecutors should consider when appointing a monitor: whether the underlying misconduct involved manipulation of corporate books and records and the exploitation of inadequate compliance or internal controls system; whether pervasive misconduct within the organization was widespread or done with the involvement or approval of senior management; whether the company made significant investments and improvements in compliance and controls after the misconduct; and whether remedial improvements to compliance and controls have been tested to demonstrate that they would prevent similar misconduct in the future.

The memo again emphasizes effective compliance programs and follow-through when it suggests that companies who hold leaders accountable and terminate bad actors may avoid a monitor. It states that a company may avoid a monitor if it terminates “business relationships and practices that contributed to the misconduct” and initiates remedial action to address “problem behavior by employees, management or third-party agents.”

In other words, the Justice Department is looking for compliance officials who take names and then take action.

However, while the significance of the Benczkowski memo cannot be denied, it has its limits. First, it doesn’t even apply to United States attorneys’ offices. It applies only to attorneys in the criminal division. So technically, nothing has changed with respect to how United States attorneys appoint monitors.

Likewise, the memo does not apply directly to the Defense Department, the Securities and Exchange Commission, or other federal agencies. Suspension and debarment officials across the federal government regularly require monitors and they are not subject to the new policy. Nevertheless, Justice leadership, especially the criminal division, has been strong in this area. Suspension and debarment officials will doubtless have studied the Benczkowski memo and will be affected by it in some way. The overall effect may be to curtail the appointment of monitors and tailor the scope of the monitor’s role to specific issues. This policy direction may be further implemented throughout the executive branch.

An undeniable impact of the memo is to support and reinforce the importance of compliance programs and controls. Taking compliance seriously and empowering compliance officers to take action may be the best way for a company to avoid having a corporate monitor in its future. “

http://www.nationaldefensemagazine.org/articles/2018/12/4/justice-adopts-corporate-monitoring-policy

Private Companies And The Government Debate Ethical Use Of Tech

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Image: New Jersey Foundation for Open Government

FEDSCOOP”

The ethical disagreements between tech companies, or employees of those tech companies, and federal agencies made for some of the most eye-catching federal IT headlines of 2018.

“The central issue here: When and how does a company say no when the government is asking for something leadership or employees find, in some way, unethical?”

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“At the top of the pile of such stories: Google’s decision, prompted by protests from company employees, to back away from a Pentagon artificial intelligence project known as Project Maven.

In the spring, “thousands” of Google employees reportedly signed an internal letter expressing concern over the kind of lethal power Project Maven could enable. “We believe that Google should not be in the business of war,” the letter reads. Military work, the employees said, clashes with the company’s pledge to “do the right thing.” Following this, in May, about a dozen employees resigned over the matter.

In June Google told employees that it will not renew a Project Maven contract that expires in 2019. Then the company went a step further and introduced a suite of “AI Principles” — a manifesto for the types of AI technologies it will, and will not, develop.

On the latter, and seemingly in direct response to the whole Project Maven drama, Google stated it won’t help develop AI for “weapons” or technologies “that cause or are likely to cause overall harm.”

It didn’t take long for Google to act on these principles either — come October the company announced it wouldn’t bid on the Joint Enterprise Defense Infrastructure (JEDI) contract, the Department of Defense’s outstanding $10 billion cloud contract.

“We are not bidding on the JEDI contract because first, we couldn’t be assured that it would align with our AI Principles,” a Google spokesman said in a statement at the time.

And Google wasn’t the only company to experience employees that expressed concern about serving controversial government agency missions — Amazon employees protested of the sale of facial recognition software Rekognition to law enforcement agencies, for example; Microsoft and Deloitte employees protested against work done for the Immigration and Customs Enforcement agency.

So did 2018 expose an unreconcilable difference between the culture of tech companies and that of the government? Is this yet another challenge that companies will need to face in an already challenging federal contracting landscape?

The government would argue against this perspective. The Defense Innovation Unit (DIU, formerly DIUx), DOD’s innovative procurement arm in Silicon Valley, told FedScoop that the relationship between tech companies in California and the military is as good as it has ever been.  The agency is getting a “very, very positive” reception in the community, Capt. Sean Heritage, the group’s Navy lead, said in an interview. The number of companies “willing to do business with us” increases with each DIU Commercial Solutions Opening, he said.

The Defense Advanced Research Projects Agency, similarly, saysGoogle’s Project Maven decision “doesn’t have to hamper” its own big AI research project — AI Next. DARPA has seen a “very good, solid response” from industry looking to participate, the agency’s director of defense science, Valerie Browning, said.

At least one company is showing the way forward for others that want to continue government contracting but be sensitive to employee ethics concerns.

In a blog post in October, Microsoft President Brad Smith announced that his company intends to keep working with the government, and specifically with the DOD. “We believe in the strong defense of the United States and we want the people who defend it to have access to the nation’s best technology,” Smith wrote. “We want the people of this country and especially the people who serve this country to know that we at Microsoft have their backs.”

Smith argued that, actually, the involvement of companies like Microsoft and others is what will help keep agencies honest and ethical in their use of technologies like facial recognition. But he also acknowledged that not all employees will agree with this logic, and that’s OK too.

“We understand that some of our employees may have different views,” Smith wrote. “We don’t ask or expect everyone who works at Microsoft to support every position the company takes. As is always the case, if our employees want to work on a different project or team – for whatever reason – we want them to know we support talent mobility.”

The question as we move into 2019: Is Google’s path the way forward, or will companies instead adopt the Microsoft approach?”