Wednesday, April 28, 2010

The Legality of Drone Warfare

Robert Feidler
Director, Defense Education Forum

The recent program sponsored by the American Bar Association Committee on Law and National Security and the Defense Education Forum focused on legal issues related to targeted killings – the use of drones in our current Overseas Contingency Operations formerly known as the War on Terrorism. With the increasing use and success of drones in killing targets associated with terrorists (such as al Qaeda and Taliban leaders) questions have arisen as to whether our action complies with the principles of the laws of armed conflict and international law. Opponents of the use of drones for targeted killings call them “unlawful extrajudicial killings”; defenders cite the principles of armed conflict and self defense. It is estimated that about 500 high value targets have been killed in drone attacks while 20-30 civilians may have also been killed during these attacks.

Defenders of the use of drones (primarily used by the CIA) defend their position by noting the procedures, practices, and identification of targets are extremely robust. The targeting is also generally quite precise given the advanced technologies and deliberative process involved in identifying and finally shooting at targets. They note that being able to actually see and track a target over a period of time is far more likely to ensure success and limit damage to property and innocent civilians than say a low flying attack where a pilot must react quickly without the benefit of extensive consultation. Certainly nothing prohibits the use of advanced weapons systems as long as they are used in conformity with the laws of war.

Two main legal principles apply: distinction and proportionality. The former limits targets to military objectives; civilians cannot be targeted. Proportionality requires a balancing between the military advantage to be achieved by the attack and the potential for civilian deaths and property damage. The fact that these judgments are not as transparent as some would like makes them question if the balancing process is indeed occurring and how the weights are measured. Defenders of the drone attacks indicate that a rigid process is followed in each attack both in the planning and execution.

The question also arises as to whether there are geographical limits on the use of drones – for example, they might be proper in Afghanistan, but are they in Pakistan when used against safe havens of the enemies of the United States? Does use of drones violate our domestic laws against assassination? Are the legal foundations for the use of drones sufficient? Defenders point to the principle of self-defense as well as the initial Congressional authorization following 9/11 – the Authorization for the Use of Force (although its applicability may diminish with time). They deny the notion that “adequate process” must be extended to terrorists before lethal force can be utilized and emphasize that precision targeting, against belligerent leaders, in self-defense or during armed conflict is not unlawful, thus domestic law limitations do not apply.

Some ambiguities remain. Are individuals not engaged in an imminent attack, but integral to the enemy efforts, legitimate targets? Are there any geographical boundaries – could we attack a purported al Qaeda leader in Egypt? Is current international law sufficient to cover the evolution of technology and things such as targeted killing by drone attack or should the law of armed conflict be revisited and perhaps revised?

Senate Reserve Caucus Breakfast Held at ROA

CAPT Marshall Hanson
Legislative Director

The annual Senate Reserve Caucus Breakfast was held at the Minuteman Memorial building last Thursday with about 90 attendees from Senate offices, industry, the Pentagon, and the National Guard Bureau. This breakfast provides an opportunity for Reserve Chiefs and National Guard Directors to talk about their top three issues in an informal gathering. Lieutenant Generals Charles Stenner, Chief of the Air Force Reserve, Jack Stultz, Chief of the Army Reserve, and Harry Wyatt, Director of the Air National Guard attended. They were joined by General Craig McKinley, Chief of the National Guard Bureau, Vice Admiral Dirk Debbink, Chief of the Navy Reserve, Major General Raymond Carpenter, Acting Director of the Army National Guard, Rear Admiral Daniel May, Coast Guard, Director of Reserve and Leadership, and Colonel Steve McNulty, representing the Commander of the Marine Forces Reserve. Such topics as equipment requirements, military construction, the continuum of service, the effects of deployment and support for the serving members were highlighted.

View photos of this event

Senators and co-chairs Saxby Chambliss (R, Ga.) and Mark Pryor (D, Ark.) spoke about the budget, equipment, challenges, and their commitment to the Reserve Components. As keynote speaker, Assistant Secretary of Defense for Reserve Affairs Dennis McCarthy spoke about the Total Force, resulting changes in the roles of the Reserve Component, and what was needed to continue it as a rotational force even after Iraq and Afghanistan wind down.

The breakfast was opened by Senate Chaplain Barry Black, a retired Navy Rear Admiral. It should be noted the RADM May was joined by his relief RDML Sandra Stosz at the breakfast; the turnover of command occurred on April 28. Hosted by the Senate Reserve Caucus, it was cosponsored by ROA, the Reserve Enlisted Association, the Enlisted Association of the National Guard of the United States, the Navy Enlisted Reserve Association, the Association of the US Army, and the Association of the U.S. Navy.

ROA Attends Post 9/11 GI Bill Hearing

ROA attended a Senate Veterans Affairs Committee hearing April 21 on the Post 9/11 GI Bill.

Following are some of the topics discussed:
  • Chairman Daniel Akaka (D, HI) said he will introduce a bill before Memorial Day on technical fixes.
  • Ranking Member Richard Burr (R, N.C.) confronted the Department of Veterans Affairs (VA) about only answering a third of his questions sent two months ago.
  • The Department of Defense requested a technical fix to allow veterans to be able to use college kickers.
  • The VA described their initiative to completely automate into a single system by the end December 2010. Currently there are four separate IT systems and 33 manual steps. The new system will also allow veterans and families to access a self-service web portal.
  • Other issues discussed were communication, late payments, inconsistencies in rules, separation of tuition and fees, establishing a national baseline for the Yellow Ribbon Program, including non-degree institutions, OJT, apprenticeships, and flight training, as well as other challenges and recommendations.

Friday, April 23, 2010

Caregivers and Veterans Omnibus Health Services Act

Elizabeth M. Cochran
Legislative Assistant

ROA attended a press conference April 21st held in the U.S. Capitol by House Veterans Affairs Committee (HVAC) Chairman Bob Filner (D, Calif.) about the Caregivers and Veterans Omnibus Health Services Act or S.1963.

This landmark piece of legislation addresses many problems veterans face today and it is more inclusive of the diverse groups among veterans.

Caregivers are provided education, counseling, mental health services, respite care, and health care through CHAMPVA.

The approximately 1.8 million women veterans will receive enhanced health service including better sexual assault treatment and care for new born babies.

Mental and medical services will be expanded for veterans as well as transportation for rural veterans.

Vietnam veterans exposed to herbicides and Gulf War era veterans with insufficient medical evidence to establish service connection can receive hospital care.

Pilot programs and studies will address barriers to women seeking health care, reintegration and readjustment, veteran suicides, and dental services.

Also the act prohibits copayments for veterans that are designated catastrophically disabled.

There are several more provisions which can be found at http://thomas.loc.gov by searching S.1963.

The bill was originally passed by the Senate November 7, 2009. The House amended the bill and it passed by 419-0 April 21st.

Accompanying the Chairman at the press conference were HVAC Subcommittee on Economic Opportunity Chairwoman Stephanie Herseth Sandlin (D, S.D.), HVAC Subcommittee on Health Chairman Michael Michaud (D, M.E.), and Representatives Chris Van Hollen (D, Md.), Deborah Halvorson (D, Ill.), Tom Perriello (D, Va.), and Harry Teague (D, N.M.). In addition Army veteran Ted Wade and his wife and caregiver Sarah Wade spoke about the dilemmas they have and will continue to face, but will receive tremendous support through this bill.

The act was unanimously passed by the Senate April 22nd and has been sent to the President to be signed into law. New benefits could go into effect 270 days from date of enactment.

Wednesday, April 21, 2010

Veteran Reemployment Addressed by ROA

For the fourth time this year, ROA was invited to testify before House Veterans Affairs, this time before the subcommittee on economic opportunity that is chaired by Rep. Stephanie Herseth Sandlin (D-S.D.). Two panels at the hearings included administration officials from the Department of Labor, the Congressional Research Service, and the Department of Veterans Affairs. The third panel included six associations - ROA, the American Legion, VFW, Iraq and Afghanistan Veterans of America, Paralyzed Veterans of America, and the National Guard Association of the United States.

ROA’s legislative director, CAPT Marshall Hanson, overran his five minutes limit by seven seconds. He highlighted that ROA’s law center has received 2000 requests for information on legal issues during its first 10 months. He emphasized the reemployment challenge of serving Guard and Reserve members who return from deployment. ROA was the only association to bring up the need to improve the Uniformed Services Employment and Reemployment Rights Act (USERA). CAPT Hanson’s oral testimony included the need to include technical and apprentice programs in the new GI Bill, and that veterans need assistance in converting their military skills and experience into a civilian resume.

ROA meets with new USCG Director of Reserve and Training

ROA meet with the soon-to-be US Coast Guard Director of Reserve and Leadership, Rear Admiral Sandra Stosz, last Tuesday. ROA Executive Director, MGen. David Bockel USA, and Naval Services Director CAPT Marshall Hanson, USNR met at the ROA Minute Man Building with RDML Stosz for over an hour. Changes in the Coast Guard Reserve and its missions were discussed along with how ROA could support the USCGR.

RDML Stosz will be relieving RADM Daniel May next Wednesday, April 28. RDM Stosz will be completing her tour as the Director of Coast Guard Enterprise Strategic Management & Doctrine. Her discussion with ROA reflected strategic vision for the Coast Guard Reserve.

Rear Admiral Stosz is a surface operations officer with 12 years at sea, including command of two cutters – an icebreaking tug on the Great Lakes and a medium endurance cutter that patrolled North Atlantic and Caribbean waters.

Rear Admiral Stosz is the first female Coast Guard Academy grad to earn flag rank. She graduated from the Coast Guard Academy in 1982 with a bachelor of science degree in Government. She was awarded a Master of Business Administration degree from Northwestern University’s J. L. Kellogg Graduate School of Management in 1994. In 2000 she completed an executive fellowship in national security through the MIT Seminar XXI program, and she earned a Master of National Security Strategy from the National War College in 2004. Most recently, in 2009 she attended the Navy’s Executive Business Course at University of North Carolina’s Kenan-Flagler business school.

Reserve and Guard Leadership Testify

Elizabeth M. Cochran
Legislative Assistant

ROA attended the April 15th House Armed Services Military Personnel Subcommittee hearing on the Reserve Components. Assistant Secretary for Reserve Affairs Dennis McCarthy along with the Reserve chiefs and National Guard directors testified.

Chairwoman Susan Davis (D, Calif.) highlighted issues with Reserve retirement and continuum of service (COS), need for an integrated pay and personnel system as well as other areas.

Secretary McCarthy said that the Department of Defense (DOD) is well aware of the issue with Reserve retirement in which individuals lose credit when a changeover to a new fiscal year takes place, and DOD will request legislation to fix the error. In addition, Ranking Member Joe Wilson (R, S.C.) asked about service members in Wounded Warrior Units who don’t receive credit for retirement. The Secretary stated that will be fixed by a DOD directive.

Secretary McCarthy also mentioned that DOD will seek legislative changes in the future to eliminate some duty statuses.

The Army Reserve chief and Army National Guard director, LTG Stultz and MG Carpenter, said a new category of military technician (MT), non-dual status technician, needs to be added. According to LTG Stultz, Active Guard Reserves (AGR) and MTs are essential to have successful transition and sustainment of the operational reserve, contributing to continuum of service (COS).

Recruiting was exceeded by all services combined and retention was mostly successful, but there are still shortages in the mid-grade officers. The Air National Guard is short 1,500 in critically manned mission areas: health care professionals, engineering, intelligence, Chaplains, and mobility aviators. The best way to address existing and future shortages is through COS.

The Army Reserve will work with the Army on potential changes to statutes and policies for COS. The Navy Reserve has a Career Transition Office to counsel service members leaving the service on opportunities available in the reserve, and is working to identifying barriers in law to COS. The Army National Guard recently initiated Job Connection Education, partnered with Army Reserve in an Employment Partnership Office, and began the Guard Apprenticeship Program Initiative. Many other initiatives and programs also assist in transitioning members from active component to reserve component or military service to civilian employment.

Professional Military Education (PME) has made great strides in distance education which is more accessible to the RCs than traditional education. Though RC members returning from deployment need to time to acclimate to their civilian jobs before resuming PME. Fellowships and other margins of PME are not available across the services.

Since DIMHRS was cancelled recently each of the services is allowed to pursue a service-specific system. VADM Debbink, Chief of Navy Reserve, advocated for a community based database. Yet LTG Kelly, Chief of Marine Forces Reserve, cautioned against any ‘cookie cutter’ approach. MG Carpenter said the Guard needs recognition of its various statuses and LTG Stenner said the Air Force Reserve has a system that maps out transition of AC to RC with some interim fixes.

There are 53 remaining Commission on the National Guard and Reserves (CNGR) recommendations to be completed. Secretary McCarthy stated he doesn’t believe the department moved as fast as it could, but nonetheless has made substantial progress. Recommendations number 42 and 43 concerning transparency and accountability of equipment have had some progress, but are still being implemented. The Yellow Ribbon Reintegration Program continues to make progress. The Governors Council has been fully implemented and held its first meeting with the Secretaries of Defense and Homeland Security. Other initiatives are in process, some of which are complicated. Additionally, at a prior event it was announced that the CNGR Chairman will bring the commission group together sometime this spring to discuss the status of implementation and create a report card.

Other areas addressed included equipment recapitalization, readiness, TRS, family support, Yellow Ribbon Reintegration Program, employer support, and NGREA.

Wednesday, April 14, 2010

Petraeus discusses range of topics at think tank event

Andrew Gonyea
Communications Assistant

ROA staffers attended a discussion at the Woodrow Wilson International Center for Scholars featuring Gen. David Petraeus, commander of US Central Command, April 14. Among many issues, Petraeus discussed the planned withdrawal in Iraq, the future of Afghan government, and an emboldened and dangerous Iran.

Petraeus began the discussion on a light note, likening his position as overseer of a region fraught with challenges to that of a plate spinner at a circus. He then took questions and informed the audience of the progress made, and outstanding challenges, in the region.

On Iraq, Petraeus said that the planned withdrawal of US forces remains on schedule, despite the terrorist attacks during the recent elections held there. Soldiers continue to "advise and assist" Iraqi forces in joint operations except in circumstances when lives are in imminent danger. He stated that US forces place tremendous emphasis on obtaining warrants and otherwise following the rule of the law.

Having just returned from Afghanistan earlier in the day, Petraeus discussed his talks with Afghan President Hamid Karzai, to whom he stressed the importance of "inclusivity and transparency" in government. Petraeus claimed that Karzai is receptive to that message and has taken many steps recently to increase both in his government. Petraeus also made clear that Karzai is the leader and commander in chief of a sovereign Afghanistan, and so US efforts to secure the country must involve full cooperation and coordination with the Afghan government.

While discussing the importance of diplomacy for addressing increased extremist threats in places like Yemen and the Horn of Africa, Petraeus alluded to the extensive bilateral and multilateral efforts made in the last year towards Iran. He said the world has been rebuffed by Iran, and so the United States and its allies must switch to the "pressure track" to thwart Iran's nuclear ambitions. Petraeus also accused Iran of numerous destabilizing activities in the region and claimed that Iranian President Mahmoud Ahmadinejad's words and actions have caused concern among Iran's neighbors, leading them to interact positively with US Central Command.

Sharing Petraeus' views regarding the need to switch to a "pressure track," ROA advocates immediate U.S. divestment from Iran to stop it from developing nuclear weapons.

Wednesday, April 7, 2010

United States, Russia to sign nuclear disarmament agreement

Andrew Gonyea
Communications Assistant

President Barack Obama and Russian President Dmitry Medvedev are set to sign a landmark nuclear arms reduction treaty Thursday, April 8, in Prague.

The treaty formalizes the agreement between Obama and Medvedev, made in Moscow in July, to cut the number of warheads each country possesses by about 30 percent, from 2,200 to between 1,500 and 1,675, within seven years.

The treaty, referred to as New START, will replace the recently expired Strategic Arms Reduction Treaty (START), which was signed by President George H.W. Bush and Soviet President Mikhail Gorbachev in 1991 and required the two countries to cut their arsenals by 25 percent to about 6,000.

In addition to reducing each country's nuclear arsenal, New START makes substantial cuts in missiles and other long-range delivery systems. It establishes a combined limit of 800 deployed and non-deployed ICBM launchers, SLBM launchers, and heavy bombers equipped for nuclear armaments, and a separate limit of 700 deployed ICBMs, deployed SLBMs, and deployed heavy bombers.

Moving forward, the question remains: As the United States reduces the size and alters the makeup of its nuclear forces, how can U.S. planners ensure that our country remains safe from outside threats and effective in enforcing stability?

President Obama's solution is partially laid out in the Nuclear Posture Review, released April 6. NPR calls for a reduction of the nuclear weapons maintained in all three Triad legs: ICBMs (land-based intercontinental ballistic missiles), SLBMs (submarine-launched ballistic missiles), and strategic bombers. But NPR does not set any specific target numbers for each leg. Whatever the final determination, the effects will be far-reaching.