The new Defense Guidance is being driven first and foremost by the fiscal crisis. The 2011 budget agreement requires the Pentagon to reduce spending by $487 billion, with $263 billion of that over the next five years! And that’s only if “sequestration” isn’t implemented in FY 2013, a move that would require another $600 billion in cuts!

Geographic and mission shifts

The Guidance shifts the focus of military planning to the Asia-Pacific area, calls for deep reductions of Army and Marine ground forces in favor of air and naval forces, abandons the “2-war” capability concept, and says good-bye to nation building and counter-insurgency operations.

Specifically, the Army will be reduced to 490,000 troops from 570,000 and the Marines to 175,000 from 202,000. The President and Secretary of Defense Leon Panetta justified the downsizing by emphasizing that the U.S. is now “looking beyond the wars in Iraq and Afghanistan,” and is unlikely to be engaged again in long-term nation building with substantial ground force commitments. The document directly states that “U.S. forces will no longer be sized to conduct large-scale, prolonged stability operations.”  The Pentagon leadership hastened to add that we would retain the “know how” to conduct COIN operations if necessary and the ability to “regenerate” appropriate force levels if required. That might be very hard to achieve.

Panetta said the U.S. will increase its power projection capabilities, “focus on enhanced presence,” capitalize on our “technological edge,” maintain a force that is flexible, adaptable and nimble, and, above all, be cost effective. Hmm? Does this sound like Don Rumsfeld 10 years ago?

Geographically, the shift of emphasis to the “Asia-Pacific” theater portends a major rethinking of our base and force presence in Europe. Look for a major drawdown of our presence there and a demand that our allies take on more of the regional commitments as well as assisting in our global responsibilities. This all makes strategic sense given the low threat level presently in the European theater.

The enhanced presence will mainly be in the waters south of east Asia, but not with respect to Korea, ironically considering the turmoil in Pyongyang following the death of Kim Jong Il. Nor does it say anything about Japan. The focus is on China and the oceans and seas nearby.

The Guidance is quite clear with respect to the abandonment of any pretense of maintaining the ability to fight two major contingencies simultaneously. In reality we lost that option years ago, if we ever really had it, but this is the first time that it has been acknowledged. We now will have the ability to fight one major war while handling other minor contingencies. Realistic.

What is driving the new focus of the Guidance clearly are concerns over the growing military might of China and what is seen as the PRC’s expansionist goals in the South China Sea and beyond. Thus in place of the “Air-Land Battle” doctrine of the Cold War era, the Defense Guidance emphasizes the priority that the “Air-Sea Battle” doctrine now has.

What are the weapon choices for implementing this guidance?

The President stated that, “We will continue to get rid of outdated Cold War-era systems so that we can invest in the capabilities that we need for the future.” What might these weapons be? Probably nuclear weapons for starters, although they are relatively inexpensive. Secretary Gates already cut the buy on the F-22, thinking that there is no country that could significantly challenge our air superiority. The F-35 Joint Strike Fighter, hobbled by cost overruns and serious technical issues, might be a candidate for reduced purchases. Ironically, given the stress on power projection, the Pentagon also plans to reduce our aircraft carriers from 11-10 (probably reflecting valid conclusions that the Chinese will soon have missile capabilities to take out carriers and surface ships rather quickly).

Cyber warfare is highlighted often in the Guidance, so expect significant increases in denial capability as well as offensive cyber intrusion capabilities. Look for an expansion of unmanned aerial vehicles (UAVs) like the Predator drones, which have become a mainstay of our counter-terrorism operations and will be more fully integrated into war planning for major contingencies.

Any capability that enhances the work of Special Operations forces will be given a high priority since CIA-JSOC forces and requirements will receive more attention. In countering threats in places like Yemen, Somalia, or even Pakistan, the direction will favor the employment of aerial drones and Special Operations forces. They are cheaper and less politically intrusive.

The Defense Guidance comes under quick and heavy criticism

Critics were quick to dump on the new Guidance. Some feel the focus on a singular threat (China) in place of “strategic pluralism” fails to anticipate where threats may arise. They note that we have been very weak in forecasting where U.S. forces might need to be committed over the past 20 years, and the Guidance foregoes flexibility on that front. They also point out the maintaining “multiple capabilities” complicates a potential enemy’s planning.

Nearly everyone adversely impacted by this shift has raised alarm bells, including organizations that protect military retiree and health benefits, which will certainly be reduced! Army and Marine related groups are understandably apoplectic, as are major defense firms producing weapons for the current environment or for the “fight two major wars simultaneously” contingencies. Not too many main battle tanks to be coming off the assembly lines in the future.

In sum however, these critics fail to take under consideration the fiscal crisis the country faces. Reductions across the board are coming down the line and the Pentagon cannot be exempted. Indeed, as the President pointed out, we will continue to spend more on defense than the next 10 countries combined! And with a public mood decisively shifting away from “foreign entanglements,” the Defense Guidance does reflect political as well as economic realities.

Do you agree? For your information the Defense Guidance is available here. Take a shot at rewriting it!

The two individuals who played the most prominent roles in bringing about the end of the USSR were President Ronald Reagan and Soviet General Secretary Mikhail Gorbachev. The policies formulated and implemented by both had very different objectives in mind, but the end result was the same.

Beyond Détente: Promoting Fundamental Change in the Soviet System

Early in the Reagan administration a fierce fight had erupted regarding the wisdom of engaging the Soviet Union. Many conservatives were convinced that détente had shown that any attempt at negotiations or engaging Moscow was doomed to failure. They also tended to believe that the USSR was on the ascendancy, particularly in the global arena, witness the success of Moscow’s backing for “National Liberation Movements” in Africa, Southwest Asia, and Central America. They leaned toward the sense that the regime, albeit aging, was firmly in control in Moscow and that any real change seemed impossible.

I was asked in 1981 by the National Security Council, through the then Military Assistant, ADM John Poindexter, to prepare a series of point papers on the state of the USSR and what US policy initiatives might be considered. I had just completed a 2-year IREX fellowship, which brought me to the USSR off and on the past two years.

My view was: The Soviet leadership was aging, the economy was in difficult straights (my dissertation was on the Soviet economy/energy dilemma), and the U.S. could pressure the USSR to achieve political and military change. Not sure how much impact the memos had, but they fed into the cauldron of competing opinions erupting within the Administration.

President Reagan was opposed to détente, but open to negotiating with the Soviets. This would come, in his mind, only after he had reversed the American military decline, resuscitated the economy, and restored confidence within the U.S. body politic. By 1983 he felt that we should reconsider our stance of not engaging the Soviets, based on what he perceived to be further Soviet decline and U.S. restoration of power and confidence. Yes, the 1984 elections and Nancy’s prodding had a role in his thinking, but he was also buffeted in the other direction continually by the naysayers.

Reagan’s policies were laid out in 1983 in NSDD–75, titled “U.S. Relations with the USSR.” The document directed two core objectives: first, “to contain and over time reverse Soviet expansionism,” and second, “to promote the process of change in the Soviet Union toward a more pluralistic political and economic system.”

The directive also laid out specific goals: In Eastern Europe, loosening Moscow’s hold on the region; with respect to Afghanistan, it was to “keep maximum pressure on Moscow . . . and ensure that the Soviets’ political and military costs remained high” while the occupation continued.

NSDD-75 was a very ambitious strategic guide, one that overtly would attempt to “change” the Communist system by ending the Party’s monopoly on power and bringing about the weakening of the Soviet economy. The directive called for a more ambitious media penetration (RFE, Radio Liberty) into the USSR and its vassal states, assistance to groups in the Soviet empire who would topple the Communist regimes, and use of our technological and economic leverage (e.g., to stop the Soviet gas pipeline to Europe).

Reagan and Gorbachev: One wanted to reform the Soviet system; the other to fundamentally change it

For Reagan the immediate goal was to insure that the Soviets bore the burden for actions they were taking to support anti-Western political movements and for pouring a considerable portion of their national wealth into the defense-industrial sector. For Gorbachev, who came to power in 1985 after years of desultory “leadership” behind aging and infirm General Secretaries–Brezhnev, Andropov and Chernenko–the objective was to reform a stagnating economic system through restructuring (“perestroika”) and greater openness (“glasnost”).

We did not fully appreciate at that time that Gorbachev, unlike his predecessors, was fully aware of the depths that the Soviet economy had fallen. It also appears that Gorbachev was deeply concerned about the President’s SDI program (“Star Wars”), believing that what was at stake was more than just a space defense program. He believed that if the United States once and for all combined its technological superiority with its economic potential, America would make an enormous “skachok” (leap) ahead. The General Secretary knew that he needed to redirect resources away from the defense sector to rejuvenate the stagnating Soviet economic system, but first he must stop the U.S. potential to jump ahead—which he feared our pursuing SDI would do.

To do that he had to put a brake on Reagan’s military build-up. He also realized that deep and fundamental reforms of the corrupt, centrally managed political system needed to be undertaken. While he recognized that this would cause some disruption, he failed to anticipate that the changes he was implementing would soon spiral out of control.

Reagan was not content to allow events to proceed in the USSR on Gorbachev’s timetable. The United States took several measures to impose a burden on Moscow if it chose to continue its aggressive support of national liberation movements, its domination over East Europe, and its extensive funding of the military. Reagan directed that the U.S. support resistance movements against the Soviets in Central America and Africa, provide advanced missiles (e.g., Stingers) to the Mujahideen in Afghanistan, and support revolutionary movements in East Europe.

Specifically, working closely with Pope John Paul II (not well known even today!), the U.S. provided intelligence and economic support for the Solidarity movement in Poland that led to the first crack in the Soviet Empire. Reagan also secured support from Lane Kirkland, head of the AFL-CIO, which provided key assistance to Solidarity.

America also persuaded its friends to assist in these efforts, including encouraging Saudi Arabia to “turn on the oil spigot” and flood the world with cheap petroleum in 1986. This act severely undermined the Soviets’ primary means to secure hard currency, depleted its foreign exchange reserves, made it difficult for the Soviets to import badly needed grain, and deeply impacted the thinking of the Soviet leadership.

By 1986 the war in Afghanistan led to increased public discontent, the Chernobyl nuclear plant disaster seemed to personify the regime’s ossification and inability to handle crises, and the economy declined in the face of bad harvests and low global oil prices. Glasnost had led to the appearance of more popular media outlets, which then proceeded to highlight corruption in the highest echelons, rampant alcoholism, what the Stalinist regime had really done to the populace, and other formerly taboo topics.

The Empire Crubles: 1989-91

James Mann argues persuasively that Ronald Reagan defied the advice of his more hard line advisers and skillfully led the negotiations with Mikhail Gorbachev that led to the fall of the Soviet Union (“The Rebellion of Ronald Reagan”). I would agree. In fact, the President was constantly told by his chief intelligence experts, principally then Deputy Director of the CIA, Bob Gates, most Pentagon officials, and many State Department experts, that the General Secretary was not seeking fundamental change of the Soviet system and that at any rate it remained strong and impervious to outside leverage. Reagan disagreed and on many occasions overruled his advisors and directed that we engage the Soviet leadership in negotiations while continuing to exert pressure on the USSR’s economy. I believe that history has shown Reagan to be right in the course he chose.

By 1989 Moscow was faced with increasing challenges. Afghanistan was clearly a failure, and the regime agreed to withdraw Soviet forces that year. Confronted with large street demonstrations in East Europe against the puppet regimes, Gorbachev and Foreign Minister Shevardnadze refused repeated pleas from their Warsaw pact allies to intervene militarily—as they had done in Hungary in 1956 and Czechoslovakia in 1968. As a result the Berlin Wall tumbled down, Germany was reunited, and Solidarity assumed power in Poland and Vaclev Havel’s “Velvet revolution” succeeded in Prague. And in 1991, following a failed coup attempt, the USSR itself dissolved.

In the end, the combination of greater political and social freedoms instituted by Gorbachev and the proactive policies implemented under Reagan to impose severe economic and political burdens on Moscow together led to the collapse of the Soviet Union, on Christmas Day, 1991.

High level defense sources confirm that the drone the Iranians have displayed on TV is, in fact, an intact RQ-170 Sentinel. The capture—however it was done—is a severe blow to America’s super-secret surveillance program, leaving advanced, highly sensitive technology in the hands of an arch-enemy.

The sources also confirm that the beige-colored drone is a CIA adaptation of the craft. It is programmed to automatically return to its base of operation should it lose communication with its control central. No one is sure why it apparently “landed itself” safely in Iran, over which it was probably conducting surveillance. The Iranians claim they penetrated the drone’s internal communications and brought it down. This is highly doubtful, even should the Iranians have had Chinese or Russian “assistance”, which is also unlikely.

Why the Sentinel did not have a self-destruct mechanism is not known. It may have and the drone simply “thought” it was returning to its base of operations. Whatever the cause, the Iranians have a golden opportunity to sell the drone intact or in pieces to certain adversaries. U.S. officials are concerned that others may be able to reverse engineer the chemical composition of the drone’s radar-deflecting paint or the craft’s sophisticated optics technology that enables operators to make positive identifications of terror suspects from tens of thousands of feet high. The sensors would be very important for countries like China to exploit.

In Russia, voters, despite a fraudulent election, hand Putin a major defeat

Vladimir Putin’s “United Russia” party suffered a major setback at the polls, potentially losing its parliamentary majority just months before Putin seeks to return to the Presidency. The results will likely force the Party to form a coalition with opposition parties. United Russia garnered at best 47% of the vote, compared to its 64% in the previous election four years ago, and it probably would have gotten much less if the authorities hadn’t resorted to ballot stuffing and illegal voting.

The election has emboldened the opposition, which has staged huge rallies and parades in Moscow, this time with the grudging permission of the authorities. Putin himself has been booed when he has made public appearances, something that he claims—as only a former KGB officer could suggest—was the result of American “meddling” in Russia (specifically Secretary of State Clinton).

Before anyone starts rejoicing, keep in mind that the major beneficiaries of United Russia’s fall have been the Communist Party and the strongly nationalist Liberal Democratic Party led by the erratic Vladimir Zhirinovsky. So far those reaping the fruits of Putin and Medvedev’s downturn have not been the forces advocating for greater democracy and liberalization, although corruption and nepotism have been a focus. So far this is not a “Russian Spring”, perhaps more a “Russian revanchism” (return to the days of a “strong leader”?), but hold on—this shift is far from over.

Europe avoids a collapse—for now—but the debt crisis is far from solved

The 27-nation European Union summit ended with a band-aid being placed on the continent’s economic crisis, enough to get by for now but far less than what is necessary to seriously address Europe’s burgeoning debt crisis. While some breathed a sigh of relief that a global economic meltdown was averted, in fact the EU tried—and failed—to come up with a grand plan to fix the underlying fundamental challenge. At best they kicked the can down the road for a few months. That’s all.

The only “concrete” result of the Summit was a pledge—nothing more—to work toward a new treaty binding them together in an effort to save the Euro. Leaders have tried, and repeatedly have failed, to come up with a solution to the debt crisis, especially among the southern “PIGS”—Portugal, Greece, Spain and Italy. The pact that emanated from this meeting is very complicated, may require national referendums to pass, must be accomplished in a matter of months when it has taken years in the past to achieve even modest changes, and must overcome powerful employee unions’ opposition to any austerity measures.

The big winner, if there was one, from the meeting was Chancellor Angela Merkel, and the session signaled the growing clout of Germany. At the same time it marked a further distancing of the United Kingdom from the Continent and the increasing isolation of Britain from Europe—much of that due to PM David Cameron’s refusal to join in the commitment to a new treaty. Cameron himself sought a face-saving compromise, one that would allow him to satisfy the intense anti-Europe sensitivities of his Conservative Party. Cameron had incurred the wrath of his own party back home by suggesting the UK should be helpful in assisting its neighbors save the Euro. Ironically, Cameron is very much in synch with Germany and France as a leading advocate of austerity that Merkel and Sarkozy are pushing.

Both Merkel and Sarkozy said they had no interest in trying to placate Cameron and the UK. As a result, Britain is even further isolated in Europe.

The net result of the Summit is that the crisis has once again been delayed, Germany—and to a lesser extent France—has solidified its leadership and dominant position in European economic issues, Britain is even more isolated, and the countries on the southern rim must take domestically impossible austerity measures to reduce spending and rein in government employee compensation. Hmm—sound familiar?

JCS Chairman Dempsey reiterates that the most critical security issue is the Economy

Former Chairman of the JCS Admiral Mike Mullen raised some eyebrows when he stated explicitly that the biggest threat facing the U.S. was the national debt. This week the current Chairman, Army General Marty Dempsey, extended that worry further by saying that today “We are extraordinarily concerned about the health and viability of the euro….because of the potential for civil unrest and the breakup of the European Union”. Wow—very unusual for a CJCS, to say the least.

The comments illustrate two points. First, one would expect the country’s top military man to comment on global terrorism threats, the military challenges in the Mideast, or what rogue nations like North Korea or Iran do. Here the Chairman is again saying that the economy, and particularly the debt crisis, are at the top of the list of challenges we face. Second, his focus illustrates that the European economic crisis is also an unexpected concern and focus of our military commanders—the health of the economies of our key allies.

The national budget has also fixated the top military and civilian leadership at the Pentagon. Not surprisingly, since the failure of the so-called “Super Committee” means that the stipulations proscribed in the Budget Control Act passed by Congress now come into play. This “sequestration” means that government spending will be automatically cut by $1.2 trillion in 2013, with the axe falling primarily on the Defense Department. In addition to the $350 billion of cuts already agreed on, DOD could lose up to another trillion dollars—nearly a fifth of the total—from its projected spending plans through 2023. If that happens, according to Secretary of Defense Leon Panetta, America would have the smallest ground force since 1940, the fewest ships since 1915, and the smallest air force in its history.

Well, it’s doubtful that sequestration will actually happen, but given the paralysis that now encompasses the nation’s capital, who knows?

NRC Chairman Jaczko is causing the nation serious damage, his colleagues charge. So why has he not been removed?  

Even though NRC Chairman Greg Jaczko has been the subject of an extremely scathing report by the Inspector General of his own agency, and even though  all four of his fellow commissioners of the Nuclear Regulatory Commission say that they have “grave concerns” that he is causing “serious damage” to the Commission and has created a horrible work environment marked by “bullying” and a total “lack of understanding”, he has not been removed.

How could this be? This is the Chairman who overrode a Technical Panel review that concluded that closing the Yucca nuclear waste repository was illegal. But he brushed aside that conclusion and ordered the Repository to be shuttered anyway. Congressman Darrell Issa says that the letter of complaint from Jaczko’s fellow commissioners shows a serious breach of trust. Commissioners and staff have complained about the Chairman’s “brusque” style, that the Commission’s staff operates in an atmosphere of intimidation, and that his behavior is “absolutely unacceptable”.

So why has he not been replaced? President Obama has the authority and has been urged to do so by Congressional representatives? How is that such incompetence, corrosive behavior, widely condemned unilateral decisions, and having created a “chilled work environment”, could permit him to stay on, you might ask. How could it be that a Chairman of a key agency who has been lambasted by his own Inspector General could stay on?

Oh, silly us. We forget that Jaczko formerly worked for SEN Harry Reid, the Majority Leader and key ally for the President’s legislative agenda, whose opposition to the Yucca repository is well known. It appears that Reid will not permit his one time lackey, or staffer, to be replaced. In fact, just today, SEN Reid labeled the charges against Jaczko as nothing but “a politically-motivated witch hunt.” Did he forget that two of the four Commissioners are Democrats appointed by President Obama?

It also appears that Nevada’s senior leadership, including SEN Dean Heller, GOV Brian Sandoval, and former SEN Dick Bryan, who heads up the state Committee on Nuclear Projects, are content to not raise any concerns and leave this corrosive individual in charge of the very important NRC, despite his demonstrated incompetence and lack of trust and support. And that’s a shame, isn’t it?

Image courtesy of NASA.

The U.S. has confirmed that it lost an RQ-170 Sentinel UAV that was the same kind reportedly used to keep watch on Osama bin Laden’s compound in Pakistan. The drone is equipped with stealth technology which allows it to fly at lower altitudes, but remain safe from anti-aircraft missiles. American sources said that the plane was flying over Western Afghanistan but they “lost control of the UAV”. It really wasn’t flying over Iran, you understand. Hmmm.

Iran claims that it either shot down the RQ-170 or managed to break into the communications system and bring it down electronically. If true that would be very worrisome, but these claims are highly doubtful. However, we do know that only six weeks ago Russia delivered the “Avtobaza” ground-based electronic intelligence and jamming system to Iran. The S-300 is more than a traditional AAA system in that it is designed to jam side-looking and fire control radars and manipulate guidance and control systems of enemy missiles and aircraft. Was this system able to break into the communications link that permits a UAV to be controlled from a remote location? So far doubtful—we think that the RQ-170 simply lost guidance and crashed in Iran. Still, if the drone did not self-destruct after losing guidance and is largely intact, this could be an intelligence windfall for Tehran.

There is growing evidence that the West is engaged in a covert war against the Iranian regime and, specifically, its nascent nuclear weapons program. According to Michael Hirsch (writing in the Dec 4 edition of the National Journal), this may include the Stuxnet virus, the blowing-up of facilities, and the assassination or kidnapping of scientists. He notes that Israel’s 1981 attack on the Osirik nuclear reactor was preceded by assassination attempts on Iraqi scientists.

In turn Iran is taking precautionary steps. The top leadership of the nuclear weapons program, such as Mohsen Fakrizadeh, are hidden way from sight, and the regime is burying its facilities deeper underground. Iran is also employing offensive tactics against the West. This includes the Revolutionary Guards’ attempt to blow up a Washington, D.C. restaurant while the Saudi Ambassador to the U.S. would be dining there, as well as a less-known attempt to bomb the Israeli Embassy. They have stepped up their involvement in Iraq in an attempt to undermine stability there. The Quds force and other elements are funneling arms, money, and supplies to militant groups throughout the world, including Hezbollah in Lebanon, the Syrian minority dictatorship, and Hamas in Gaza. Much of this has been going on for some time but the pace seems to have been picking up.

The West has employed sanctions against Iran, specifically trying to strangle its oil and petrochemical infrastructure, and has increased financial measures designed to cripple Tehran’s economic potential. At the same time, Western nations worry that applying too much pressure on the oil industry could lead to a collapse of that sector, resulting in a severe reduction in the supply of oil to the world market. They also worry that Tehran could retaliate by closing the Straits of Hormuz, through which 40% of the world’s oil trade flows.

China and Russia are likely to veto any deeper sanctions; thus, the attraction of employing covert measures against the regime.

Observers are speculating that certain Western agencies were also behind recent bombings of Iranian nuclear program sites, and have been secretly supporting the Green Movement in an attempt to further weaken the regime and spread discontent. Whether this turmoil is really driven by outside forces or reflects growing Iranian domestic discontent with the regime, the Mullahs, the Military, and the Revolutionary Guards are clearly worried. It is good that they are and good that they are off balance.

I have advocated that while the U.S., Israel, and their allies should not “take the military option off the table”, there is no viable strike option on Iran that really could do much damage. It might, in fact, rally the dissidents to support the regime. The best options are to continue to increase sanctions on Tehran’s petrochemical sector, impede its financial systems, maintain secret surveillance over key areas, provide extensive support to anti-regime elements, and employ intrusive Cyberwar techniques.

Image courtesy of the Associated Press.

The shift in DOD’s strategic emphasis was clearly laid out recently in a major speech given by the Vice-Chairman of the JCS, Admiral James “Sandy” Winnefeld.  According to the Vice, the military is moving past COIN at a rapid velocity and must now plan for a new threat environment that will be centered in Eastern Asia and the Western Pacific. “We are not likely to have as our next fight a counterinsurgency,” the Admiral said. This means that while for the past decade we have been training troops in fighting insurgencies on land, assisting the troops in learning Arabic, securing villages and winning friends by drinking “Three Cups of Tea,” the “world has changed,” Winnefeld stated.

Future conflicts will likely occur in “a far more technically challenging environment.” The fight will be much closer to a conventional military conflict characterized by “intense electronic warfighting,” swarm attacks and cyber warfare. America’s enemies are coming up with “new asymmetric advantages,” with electronic warfare at the forefront. National borders will mean little as it will be difficult to ascertain origins of these attacks—for espionage, to cripple our commercial networks, or to neutralize our ISR systems, Winnefeld pointed out.

No more population-centric counter insurgencies. However, military force will still be a core aspect of the new mode of conflict. Special Forces type units and stand-off systems such as drones will be increasingly employed (Biden strategy for Afghanistan wins?), as will very mobile strike forces. The center of the force of the future will very much be air and naval as embodied in the emerging “AirSea Battle” doctrine.

China the Obvious Focus

While it is not explicitly stated, the obvious target of U.S. maneuvering and strategic realigning is what is perceived as the growing threat represented by increasing Chinese assertiveness and power. Indeed, “China bashing” seems to be widespread. Not that the PRC’s actions are without legitimate concern. China is involved heavily in cyber-espionage directed at American security interests and intellectual property theft aimed at U.S. financial institutions. It manipulates its currency to assure that Beijing maintains a healthy balance of trade advantage, human rights violations are omnipresent, the vast use of coal is contributing to global environmental damage, and the country is guilty of “orbital littering.”

However, the primary concern is in the security realm. China has close relationships with nations that export terror or weapons to insurgent groups, particularly Iran and North Korea. The PRC has expanded its military capabilities, to include the development of a (primitive) aircraft carrier, anti-ship missiles, and a modernized submarine fleet. Beijing has been very vociferous in maintaining that it has the right to control much of the South China Sea, a policy line that has been somewhat muted this year but has sounded alarm bells in neighboring countries. In response, East Asian and Pacific Rim nations have been more critical about Chinese power and intentions in the region.

This was made quite explicit in the most recent report by U.S. counter-intelligence experts calling China out for being the world’s “most persistent and active perpetrator of economic espionage.” One Senator (Democrat Sheldon Whitehouse) calls this the “biggest transfer of wealth through theft and piracy in the history of mankind.” A Congressional task force, the China Economic and Security Review Commission, has cited increased Chinese aggressiveness against Japan on the high seas, PRC attempts to hack into U.S. satellites, disputes with the Philippines and Viet-Nam over territorial rights, and threats over American arms transfers to Taiwan.

The Launch of the AirSea Battle Concept and the Emergence of a China Containment Policy

The Air Force and the Navy are developing a new warfighting strategy called the “AirSea Battle.” While China is never explicitly mentioned, there is no doubt that the strategy is aimed at the conduct of a major conflict with the PRC. The U.S. has been seeking closer ties with China’s traditional and new adversaries, most importantly Viet-Nam, the Philippines, and now, even India and Burma! Yes, Burma—that nation moving toward reform and now being welcomed back into the club of nations.

The Pentagon has indicated that the emerging operational philosophy was aimed at the threat of “anti-intervention and regional obstruction,” which China is developing, including long-range precision strike ballistic missiles, advanced anti-air missile defense systems, advanced electronic warfare capabilities, and modernized submarines. The U.S. is rapidly developing better anti-submarine techniques to counter the growing Chinese capability, and new U.S. “allies” Viet-Nam and Malaysia are ordering, in turn, new submarines from Western defense firms.

The implementation of “AirSea Battle” will rely on closer ties with regional powers. The U.S. Navy is making more port visits to China’s neighbors, most strikingly to our former adversary, Viet-Nam, with whom we are developing strong defense ties. Ah, the irony of it all! The Pentagon announced that a Marine Expeditionary Force will be based in Darwin on the north coast of Australia. Not that anyone thinks a MEF would be all that effective against a conventional Chinese threat, but it serves both as a “trip wire” and as a base for possible rapid reinforcement for the Navy.

Most importantly, in President Obama’s recent trip to Asia that included two Summits and several key bilateral discussions, the thrust was clearly focused on “containing China.” Philippine presidential spokesman Ricky Carandang exclaimed at the recent Asian Summit in Bali that the “enhanced U.S. presence bolsters our ability to assert our sovereignty over certain areas.” This year Viet-Nam signed its first defense cooperation agreement with the U.S. and the two navies have conducted joint exercises. India and Viet-Nam have expressed a desire to discuss trilateral cooperation in the South China Sea area, interesting given its distance from the subcontinent.

The upshot of this activity will be (1) American military strategy will be rapidly shifting away from the stress on COIN; (2) U.S. naval and air capabilities will get new emphasis for future defense acquisition programs; (3) The key role the Army has played in defense policy implementation will fade; (4) The U.S. will develop closer military ties with China’s neighbors, perhaps not formal alliances, but enhanced military cooperation; (5) The AirSea Battle doctrine and American diplomacy will be increasingly oriented on “Containing China.”

Image courtesy of the United States Government.

Recently, there has been a tremendous uproar over the targeted killing of Anwar al-Awlaki, a suspected al-Qaeda affiliate in Yemen. Glen Greenwald, criticizing the Obama administration, claims, “The Executive Branch decided it has the authority to target U.S. citizens for death without due process, but told nobody (until it was leaked) and refuses to identify the principles that guide these decisions. It then concluded in a secret legal memo that Awlaki specifically could be killed, but refuses to disclose what it ruled or in which principles this ruling was grounded.”

Al-Awlaki’s death by a United States drone strike differs from the elimination of other Al-Qaeda operatives in Afghanistan and Pakistan in two key ways: al-Awlaki was not technically in a “hot zone” or battleground and he was an American citizen. This post will suggest that we as a nation need to address due process concerns regarding American citizens by constructing new institutional safeguards.

While both factors are vitally important, al-Awlaki’s American citizenship deserves special attention. Most Americans have an intuitive sense that among our constitutional rights is the right not to be killed by the state, without the exercise of due process. The Fifth Amendment of the Constitution supports this intuition by stating that “No person shall be…deprived of life, liberty, or property, without due process of law.”

Al-Awlaki is the first known American citizen actively targeted for death under the Obama Administration’s campaign against al-Qaeda and its affiliates. In this sense, the Obama Administration has broken new ground, going further than the Bush Administration, which sought only to detain American citizens as enemy combatants, but never sought to eliminate American citizens through targeted strikes.

The Obama Administration has followed the Bush Administration in having the Department of Justice prepare a secret memo reportedly justifying the decision to target al-Awlaki (which it has so far refused to release). The Bush Administration’s secret memo did not deal with targeted killings, but with the interrogation practices of the CIA, which it justified by adopting a narrow definition of torture. It was only after the memo emerged into the public sphere that its legal reasoning could be analyzed and critiqued. This process was so harrowing for the Bush Administration that the torture memos were recalled and superseded by more carefully drafted memos.

If we have learned anything over the past decade, it is that memos prepared in secret by the Department of Justice cannot always be relied upon to fully consider the grand scope of our constitutional tradition and can be easily influenced by the urgent pressures of necessity. If outside observers and commentators—the news media, Congress, and the public—are not allowed to examine the legal conclusions of an OLC memo, the foundations underlying that memo should not to be trusted. The Executive Branch cannot be trusted to dispassionately analyze and understand the issues when dealing with the immense pressure of keeping the nation safe. Issues of such vital importance to every American citizen ought to be brought out into the open, debated and discussed. As Justice Brandeis proclaimed, “Sunlight is said to be the best disinfectant.”

Revealing the legal analysis of the constitutional issues enabling the American government to target American citizens does not endanger our national security. There are no secret agents undercover in Yemen whose lives are on the line and no foreign assets or sources to protect. There should be no fear that, by reading the memo, the enemy can discover our plans to strike against then. Our enemy is surely already aware that we will target them wherever and whenever—revealing the secret memo justifying why we can dispatch our fellow Americans would not endanger American security.

The United States must be able to respond to threats, including those posed by our own citizens. Citizenship cannot be a magical talisman that our opponents can wave in our faces to protect themselves when they seek our destruction. On the other hand, citizenship must mean something. The Fifth Amendment guarantee of Due Process must mean more than what it seems to have meant in this case—secret meetings between unidentified lawyers and invisible policymakers in a locked and highly secure room and a secret memo leading to the death of an American citizen.

The government’s legitimate interest in responding to threats could be balanced in the following way: when seeking to put American citizens on a targeted killing list, the Government should be required to approach a duly appointed court and engage in an adversarial process, where the American citizen is represented in absentia. The fact that a trial is occurring must be publically announced, including the name of the individual who is considered for targeting. The ultimate result of the trial must also be announced. These procedures serve the function of formally providing notice and allow the accused a chance to turn himself in or to contest the proceedings in some manner.

Almost all citizens have someone who can represent them—in this case al-Awlaki’s father attempted to vindicate his son’s rights through the courts, only to be turned away. If there are no family members or friends who can represent a suspect’s interests, we have many organizations dedicated to civil liberties, such as the ACLU, who would gladly stand up and defend the rights of their fellow citizens.

This trial can be held in secret, subject to reasonable restrictions. The government does have a need to protect the secrecy of its evidence and procedures, but a court designed to allow in camera examination of the evidence would provide a far greater check on the government than the complete lack of judicial review that presently exists.

The result of any in abstentia trial should be formally certified by the Attorney General, the Secretary of Defense, the Secretary of State, the Vice-President, and the President of the United States. Once this is done, the American citizen can be placed on the targeting list, having had due process (at least in absentia) and having been given formal notification of the proceedings before they occurred, notification of the proceedings while they occurred, and notification of the eventual result. Any American citizen placed on a targeted killing list should be removed from that list if he surrenders himself to American law-enforcement or the military. If he chooses to surrender, he will be tried for treason, with the results of the previous trial mooted.

Will this make the war on terror more difficult to prosecute? Yes, probably, at least with regards to American citizens. However, this is a price worth paying in order to preserve the values and protections that we commonly associate with American citizenship and to fully vindicate the Fifth Amendment guarantees of Due Process.

Image courtesy of the Journal of Foreign Relations.

While the United States has built one of the most sophisticated export control regimes in the world, the regime’s Cold War era architecture is outdated and must be transformed to reflect today’s realities and meet tomorrow’s challenges. In August 2009, President Obama directed the National Security Council and National Economic Council to coordinate an interagency review of U.S. export controls with the dual objectives of advancing national security and bolstering key manufacturing and technology sectors. This review culminated a year later with the President’s decision to launch a comprehensive Export Control Reform Initiative to pursue fundamental reform in four areas: (1) what we control; (2) how we control it; (3) how we enforce those controls; and (4) how we manage our controls. The Initiative’s guiding philosophy is to “build high walls around a smaller yard by focusing enforcement efforts on our crown jewels.” Once implemented, these much-needed reforms will mark a vital step toward promoting U.S. national security and industrial competitiveness in the 21^st century.

The present system’s weaknesses stem from an overly complicated structure that is rife with redundancy and attempts to protect more than it should. United States exports are currently managed under two control lists administered by separate departments with differing definitions and approaches toward protecting goods. The Department of State manages export of items on the United States Munitions List (USML) under the International Traffic in Arms Regulations, which implement section thirty-eight of the 1976 Arms Export Control Act (22 U.S.C. § 2778). Concurrently, the Department of Commerce controls export of “dual-use” items that have the potential for both commercial and military applications on the Commerce Control List (CCL). It does so through the Export Administration Regulations authorized under the Export Administration Act (P.L. 96-72 (1979)) and, since 2001, through an emergency power pursuant to the International Emergency Economic Powers Act (P.L. 95-223 (1977), 50 U.S.C. § 1701 et seq. (2009)).

The USML and CCL were intended to complement one another. In practice, however, the dual lists have created uncertainty and contributed to lengthy jurisdictional disputes that delay licensing, sometimes for years. Adding to the complexity, three different agencies are responsible for granting licenses, each operating under its own procedures that yield unequal requirements for virtually identical items. Enforcement is left in the hands of numerous bodies with overlapping authority, contributing to inefficient and uncoordinated disciplinary action, while the information technology (IT) systems employed by each licensing or enforcement agency are poorly compatible with one another. Given these shortcomings and the extensive list of controlled items – almost 130,000 licenses were granted in 2010 – it is perhaps unsurprising that the United States government often lacks even the basic capability to determine what it has approved or denied for export.

In recent years, various expert panels, think tanks, and industry groups have submitted proposals to overhaul the export control regime, reflecting growing concerns about the system’s obsolescence. The Obama Administration’s Export Control Reform Initiative aims to incorporate these into a comprehensive framework that advances four major reforms:

(1)  SingleControl List: The key reform involves replacing the two existing export control lists with a single, tiered, “positive” list, which classifies items using objective metrics such as technical parameters rather than broad, open-ended, or subjective criteria. This will reduce uncertainties and disputes that hamper the current system. Items on the new control list will be classified within three tiers: (1) highest tier items provide a critical military or intelligence advantage to the United States and are available almost exclusively from the United States, or are weapons of mass destruction or related items; (2) middle tier items provide a substantial military or intelligence advantage to the United States and are available almost exclusively from our multilateral partners and allies; and (3) lowest tier items provide a significant military or intelligence advantage to the United States but are available more broadly. This streamlined yet flexible approach will enable the government to adjust controls over a product’s life cycle to ensure that they accurately reflect each item’s relative maturity and sensitivity.

(2)  Single Licensing Agency: Licensing decisions will be consolidated within a single licensing agency, which will apply a uniform set of policies to each tier of controlled items. This will ensure clarity and consistency across the system while focusing government review on the most sensitive products. A license will generally be required for items in the highest tier exported to all destinations. Many second-tier items will be authorized for export to allies and multilateral partners under license exemptions or general authorizations. For items in the lowest tier, a license will be required for some, but not all, destinations.

(3)  Single Primary Enforcement Coordination Agency: The President will create an Export Enforcement Coordination Center to strengthen and manage enforcement efforts across all relevant departments and agencies, reducing duplication and eliminating gaps in the current system. Enforcement will also be enhanced through additional end-use assurances against diversion from foreign consignees, increased outreach and on-site visits domestically and abroad.

(4)  Single Information Technology (IT) System: All agencies involved with export control licenses will transition from multiple IT platforms (and, in some instances, even paper) to a single system. American exporters seeking to ensure that they are not violating export controls currently face a maze of forms and protocols across different departments, placing a burden on industry that disproportionately harms small businesses. Going forward, exporters will be able to download a consolidated list of entities with special export requirements from the central Export.gov website, saving time and expense while increasing industry compliance.

The Obama Administration has adopted a three-phase approach to implement these reforms. Phases I and II are currently underway and involve reconciling definitions and regulations, notifying Congress of changes that will remove controls or transfer items from the more restrictive USML to the less restrictive CCL, and seeking additional funding to upgrade enforcement mechanisms and IT infrastructure. The fully revamped export control system will be rolled out in Phase III, including creation of the single control list, single licensing agency, enforcement coordination center, and unified IT platform.

Last July, the Department of Commerce announced the latest step in implementing these reforms: a regulation that outlines the transfer of less militarily significant items from the USML to the CCL. To demonstrate proof-of-concept, the proposed Commerce rule applies this methodology to one category of the USML, finding that approximately 90 percent of the 12,000 items falling under restrictive munitions controls could be transferred to the more flexible CCL without compromising national security – while simultaneously eliminating nearly 55 percent of licenses currently required. Such clear efficiency gains underscore the need to rapidly implement the final phase of the President’s Export Control Reform Initiative, which will enable American manufacturers to compete aggressively abroad even as the government protects our nation effectively at home. As the United States faces a rapidly changing geopolitical arena in which multiple powers cooperate and compete for influence, our foreign policy demands a sophisticated rebalancing of economic and security objectives. The Obama Administration’s revamped export control system reflects this reality and once established will strengthen American leadership in the new era of global politics that lies ahead.

Image courtesy of NOAA.

At issue was a statute requiring the State Department “to record the place of birth as Israel” in the passport of any child born in Jerusalem, if the child’s parents so request. The Administration believes that whether Jerusalem is part of Israel is for the Executive to determine, not Congress. The Administration had originally appeared to rest that argument upon the Executive’s recognition power. In oral argument, however, the Administration (Donald Verrilli, the Solicitor General) asserted a much broader theory of presidential power when pressed by Justice Kagan:

JUSTICE KAGAN: Suppose, General Verrilli, suppose that this statute, there was a―the section that’s there now and then there was another section, and the section said: “The recording of Israel as a place of birth on a passport shall not constitute recognition of Israel’s sovereignty over Jerusalem.”

Would that be constitutional?

GEN. VERRILLI: I don’t think it would change the analysis, Justice Kagan.

I―I think―of course, that is not this statute, which has a title which says “United States policy with respect to Jerusalem as the capital of Israel.” But―

JUSTICE KAGAN: No, my statute has a title which says “Identification of Persons Born in Jerusalem.”

GEN. VERRILLI: I still think that would be within the scope of the Executive’s power to decide because the content of the passport insofar as the Executive believes that it constitutes an expression of―of, an incident of recognition, is a judgment that the Executive makes.

Justice Kagan later returned to the issue for clarification:

JUSTICE KAGAN: General Verrilli, is the textural basis for your argument that the President has exclusive power here? Is it the receipt of ambassadors clause alone, or is it something else? Because I was frankly a little bit surprised that your brief put so much weight on that receipt of ambassadors clause, which arguably was meant to give the President a purely ministerial function. And so literally, on any other power that the President has.

GEN. VERRILLI: So―here’s our position on that, Justice Kagan. We do think that the reception clause is the source of the recognition power. Hamilton identified it as the source of the recognition power in the Washington administration. I think it’s now understood that it’s hornbook law that that’s the textual source….

And I would say in addition―I would say in addition, to the extent that there is a question, we do think, as I think we indicated in our brief, that―that one can see this power as part of what the Court in Garamendi described as the vast share of responsibility that the Constitution assigns to the Executive. Now, we don’t think all of that shared responsibility is exclusive to the Executive―but we think this responsibility is exclusive―

JUSTICE KAGAN: So if that provision were not in the Constitution, would you be making the same argument you are now?

GEN. VERRILLI: If the reception clause were not in the Constitution―but we had the same history that we have now and the same functional considerations about the need for it being in the control of the executive, yes, we would.

 Chief Justice Roberts, as the argument drew to a close, also picked up the point:

CHIEF JUSTICE ROBERTS: You told―you told Justice Kagan it didn’t―your position didn’t depend upon a textual commitment, that your position would be the same if the receive ambassadors clause were not in the Constitution.

GEN. VERRILLI: But I―I didn’t mean that it wouldn’t be a textual commitment. It would be―it would be a commitment that one would read as the historical gloss on the vesting power, which is what―Garamendi said.

CHIEF JUSTICE ROBERTS: That sounds to me like not in the text.

 American Insurance Association v. Garamendi, 539 U.S. 396 (2003), to be clear, had nothing to do with separation-of-powers constraints. The case involved a federalism issue―the validity of a California statute that the Court found to interfere with the federal government’s conduct of foreign relations. The authority of Congress to enact such a statute―or of the Executive to ignore it―was not at issue in Garamendi. The Supreme Court, indeed, has never invalidated an act of Congress based upon a “historical gloss on the vesting power.”

This case is not the place to begin. A “historical gloss on the vesting power” is a formula for presidential power that has no beginning and no end―not a description of executive authority in a modern, politically accountable constitutional democracy.

Image courtesy of Britannica.