DoD Building Foreign Defense Institutions

As part of its international defense cooperation activities, the Department of Defense has long been involved in supporting military institutions in various allied nations.

Yesterday, a new DoD directive was issued to formally structure and to assign responsibility for executing what is called the Defense Institution Building (DIB) program.

“DoD, in coordination with other appropriate U.S. departments and agencies and when authorized by law, will develop the capabilities and capacity of allied and partner nation defense institutions in support of defense strategy,” according to the new directive. See Defense Institution Building (DIB), DoD Directive 5205.82, January 27, 2016.

The directive does not mention any specific nation in which such development is to be performed, but it would presumably include countries such as Afghanistan.

The Washington Post reported this week that “There is a broad recognition in the Pentagon that building an effective Afghan army and police force will take a generation’s commitment, including billions of dollars a year in outside funding and constant support from thousands of foreign advisers on the ground.” (“The U.S. was supposed to leave Afghanistan by 2017. Now it might take decades” by Greg Jaffe and Missy Ryan, January 26).

Defense institution building (DIB) is intended to “increase a partner nation’s ability to organize, administer, and oversee its defense institutions to meet its security needs and contribute to regional and international security more effectively,” the directive said. It will “enable recipients to conduct or support unilateral, combined, or coalition operations that advance U.S. national security interests.”

DIB should be conducted in such a way as to “promote principles vital to the establishment of defense institutions that are effective, accountable, transparent, and responsive to national political systems, especially regarding good governance, oversight of security forces, respect for human rights, and the rule of law. DIB should contribute to the establishment or strengthening of democratic governance of defense and security forces.”

The new DoD directive cited over a dozen existing statutes that it said provided legal authority for specific DIB activities.

Department of Defense Confronts Climate Change

The Department of Defense is organizing itself to address the effects of climate change on the U.S. military, some of which are already being felt.

“The DoD must be able to adapt current and future operations to address the impacts of climate change in order to maintain an effective and efficient U.S. military,” according to a Pentagon directive that was issued last week. See Climate Change Adaptation and Resilience, DoD Directive 4715.21, January 14, 2016.

Among other things, the new directive requires the Under Secretary of Defense for Intelligence and the Director of National Intelligence to coordinate on “risks, potential impacts, considerations, vulnerabilities, and effects [on defense intelligence programs] of altered operating environments related to climate change and environmental monitoring.”

“The Department of Defense sees climate change as a present security threat, not strictly a long-term risk,” DoD said last year in a report to Congress.

“We are already observing the impacts of climate change in shocks and stressors to vulnerable nations and communities, including in the United States, and in the Arctic, Middle East, Africa, Asia, and South America…. Although DoD and the Combatant Commands cannot prepare for every risk and situation, the Department is beginning to include the implications of a changing climate in its frameworks for managing operational and strategic risks prudently.” See National Security Implications of Climate-Related Risks and a Changing Climate, DoD report to Congress, July 2015.

“We are almost done with a baseline survey to assess the vulnerability of our military’s more than 7,000 bases, installations, and other facilities,” wrote then-Secretary of Defense Chuck Hagel in a 2014 Climate Change Adaptation Roadmap. “In places like the Hampton Roads region in Virginia, which houses the largest concentration of US military sites in the world, we see recurrent flooding today, and we are beginning work to address a projected sea-level rise of 1.5 feet over the next 20 to 50 years.”

“Politics or ideology must not get in the way of sound planning,” Secretary Hagel wrote.

“The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive,” said Republican presidential candidate Donald J. Trump in a 2012 tweet that has been retweeted more than 24,000 times. (h/t Ed Husain)


The Domestic Role of the American Military

The role of armed forces in an open society may be likened to a potent medicine that is life-saving in the proper dosage but lethal beyond a certain proportion. Military forces have proved to be indispensable for securing the political space in which free institutions can flourish, but they may also trample or destroy those institutions if unconstrained by law and wise leadership.

A rich and thoughtful account of how the U.S. military has protected, supported, clashed with and occasionally undermined constitutional government in this country is presented in the new book “Soldiers on the Home Front: The Domestic Role of the American Military” by William C. Banks and Stephen Dycus (Harvard University Press, 2016).

The authors, who are law professors, trace the role of the military back to its constitutional roots, which are not as precisely defined as they might have been. The Framers of the Constitution “knew that troops would sometimes be needed to help enforce the civilian laws. They just neglected to tell us precisely when.”

And so, Banks and Dyson write, U.S. military forces have played a multiplicity of domestic roles over time, both constructive and abusive.

“In the middle of the twentieth century, [troops] helped integrate Southern schools and universities, and they were sent into cities around the country to help control race riots. Federal forces were also used to suppress political protests during the Vietnam War. All the while, the unique capabilities of the military were welcomed in communities recovering from natural disasters.”

The authors devote chapters to military detention of U.S. citizens, trial by military commission, domestic military intelligence gathering, and the imposition of martial law– each of which is a matter of sometimes astonishing historical fact, not simply of speculative possibility, from Revolutionary times to the Civil War and World War II to our own post-9/11 era.

One of the surprising themes that emerges from “Soldiers on the Home Front” is that even after centuries of legislation, litigation and historical experience, many of the underlying policy questions and some of the basic legal issues remain at least partly unresolved:

“Whether a president has inherent constitutional authority, or may be authorized by Congress, to order the military imprisonment of a civilian without charges, perhaps indefinitely, is a question that has not yet been definitively answered by the courts. As a practical matter, however, the president may do so if no court will intervene.” (p. 116)

“Even after more than two centuries of experience, appropriate limits on military investigations of civilians are ill-defined and controversial.” (p. 167)

“The small number of episodic judicial opinions about martial law have left many questions unanswered. With no mention of martial law in the text of the Constitution, we might have expected Congress to adopt policy for resort to such a drastic measure. But it has so far failed to do so.” (p. 211)

“Ambiguity remains about who in the United States may be imprisoned, upon what grounds, and pursuant to what process.” (p. 249)

“The rules, in other words, are a mess.” (p. 263)

More fundamentally, “Soldiers on the Home Front” reminds us that constitutional values are not self-enforcing, and are liable to be eroded in times of political stress or national emergency. Defending those values is the task of an alert, informed citizenry. This fine book should help.

DoD Seeks FOIA Exemption for Military Doctrine

The Department of Defense proposed a new exemption from the Freedom of Information Act last year for information on unclassified “military tactics, techniques and procedures.” The measure was not adopted by Congress in the FY 2016 defense authorization act, but DoD is preparing to pursue it again this year.

The proposal that was submitted to Congress last year would have exempted from disclosure military doctrine that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed.

“The effectiveness of any United States military operation is dependent upon the enemy not having knowledge of how U.S. military forces will be used,” DoD stated in its justification for the exemption. “Commanders need to have all advantages at their disposal to be successful on the battlefield; if the enemy has knowledge of the tactics, techniques, or procedures that will be used, a crucial advantage is lost and success of the operation and the lives of U.S. military forces are seriously jeopardized.”

DoD claimed that it would have been able to exercise this withholding authority until 2011, when a Supreme Court ruling in the case Milner v. Department of the Navy“significantly narrowed” the scope of FOIA Exemption 2. “This proposal would reinstate that protection to ensure effective operation of U.S. military forces and to save lives.”

The first thing to say about the proposed DoD FOIA exemption is that, given the realities of government information security today, any prudent military commander would have to assume that the adversary already possesses the unclassified military doctrine documents that the exemption would protect from public disclosure. The government has repeatedly been unable to protect many types of information of much higher sensitivity.

If that were not the case, the proposed DoD exemption would make sense up to a point. But it stops making sense where DoD “tactics, techniques and procedures” are themselves the focus of appropriate public attention. For example, U.S. techniques for the interrogation of detained persons have been the subject of intense public controversy as to whether they are illegal or inhumane. Likewise, offensive cyber operations involve important public policy questions that go beyond the tactical interests of the military. The DoD proposal does not appear to make allowance for mandatory FOIA disclosure in such compelling cases.

In another even more ambitious proposed FOIA amendment, DoD last year sought to nullify the 2011 Supreme Court decision in Milner altogether, and to reinstate the pre-Milner status quo with its more expansive withholding authority.

“The effect of the decision in Milner is that it exposes for public release certain critical information previously interpreted as being exempt from disclosure under the ‘High 2’ exemption,” the DoD proposal explained. “The Administration believes that, following the Supreme Court’s decision, there is a critical gap in the exemptions in the current FOIA statute. This proposal is designed to close that critical gap.”

Both DoD FOIA proposals — the specific exemption for unclassified tactics, techniques and procedures, and the broad nullification of the Milner decision — were excluded by Congress from the FY 2016 defense authorization act “due to jurisdictional concerns and process issues (but not content issues),” according to an internal DoD planning document.

But both are expected to be presented again this year. DoD will advance its proposed FOIA exemption for military doctrine, while the proposed Milneramendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.

Intelligence Support to Urban Military Operations

To the eyes of a military planner, a city presents “an elaborate combination of horizontal, vertical, interior, and exterior forms superimposed on a landscape’s natural relief, drainage, and vegetation.”

A newly reissued U.S. Army manual contemplates the difficulties facing military action in the urban environment with a focus on intelligence collection. See Intelligence Support to Urban Operations, TC 2-91.4, December 2015.

“With the continuing growth in the world’s urban areas and increasing population concentrations in urban areas, the probability that Army forces will conduct operations in urban environments is ever more likely,” the manual states.

“Providing intelligence support to operations in the complex urban environment can be quite challenging. It may at first seem overwhelming. The amount of detail required for operations in urban environments, along with the large amounts of varied information required to provide intelligence support to these operations, can be daunting.”

“In urban terrain, friendly forces will encounter a variety of potential threats, such as conventional military forces, paramilitary forces, insurgents or guerrillas, terrorists, common criminals, drug traffickers, warlords, and street gangs. These threats may operate independently or some may operate together. Individuals may be active members of one or more groups.”

“The enemy situation is often extremely fluid–locals friendly to us today may be tomorrow’s belligerents. Adversaries seek to blend in with the local population to avoid being captured or killed. Enemy forces who are familiar with the city layout have an inherently superior awareness of the current situation.”

“Finally, U.S. forces often fail to understand the motives of the urban threat due to difficulties of building cultural awareness and situational understanding for a complex environment and operation.”

Does Building Foreign Military Capacity Help?

The notion that the U.S. should strengthen the military capabilities of foreign partners so that they could assume increased responsibility for regional security is critically examined in a major new report from the Congressional Research Service.

The approach known as Building Partner Capacity (BPC) “has increased in prominence within U.S. strategy, arguably becoming a central pillar of U.S. national security and foreign policy in recent years,” based on the premise that strengthening fragile foreign security institutions abroad will have benefits for U.S. national security.

But despite the growing centrality of BPC, “it remains unclear whether building the capacity of foreign security forces is an effective way to accomplish U.S. strategic objectives,” the CRS report said.

In fact, “Recent events, particularly the battle between the Afghan government and the Taliban over Konduz, as well as the collapse of U.S.-trained and equipped forces in Iraq and Syria in the face of the Islamic State, have called into question whether these BPC programs can achieve their desired effects.”

“Do BPC programs and activities actually advance U.S. national security interests? If so, when? If not, why not?”

One short answer is that “Within the case studies explored, BPC was least effective as a tool for allowing the United States to extract itself from conflict (victory in war/war termination). However, it was most effective as a tool for building interpersonal and institutional linkages, and for alliance building.”

But the purpose of the CRS report was not to simply announce analytic conclusions. Rather, it should “be used as a starting point for further debate and analysis on the subject. There are no clear-cut answers at present. Considerably more intellectual spade work could be undertaken to clarify the conceptual underpinnings of BPC efforts, and whether, and when, BPC is an appropriate tool for advancing U.S. strategic goals.”

Notably, “This report differs from many other CRS products, as it is intended to assist Congress with its oversight responsibilities by helping it think critically about BPC and related programs. Accordingly, it raises more questions than it answers. Among the most important: are BPC shortcomings due to execution issues? Or are they due to BPC being an inappropriate way to accomplish U.S. strategic objectives?”

A copy of the report was obtained by Secrecy News. See What Is “Building Partner Capacity?” Issues for Congress, December 18, 2015.

Other new and updated reports from the Congressional Research Service that were issued last week include the following.

Arms Sales: Congressional Review Process, updated December 17, 2015

Firearms Eligibility for Foreign Nationals in the United States, CRS Legal Sidebar, December 18, 2015

New Circuit Split: Seventh Circuit Rules that Unlawfully Present Aliens with “Extensive Ties” to the United States Have Second Amendment Rights, CRS Legal Sidebar, December 17, 2015

You Win Some, You Lose Some: the Complicated Legal Status of Daily Fantasy Sports, CRS Legal Sidebar, December 18, 2015

Employer Wellness Programs and Genetic Information: Frequently Asked Questions, December 17, 2015

Nationwide Injunctions: Recent Rulings Raise Questions about Nationwide Reach of a Single Federal Court, CRS Legal Sidebar, December 16, 2015

IRS Proposes Controversial Regulations Regarding Charity Donors’ SSNs, CRS Legal Sidebar, December 16, 2015

First Spoofing Conviction Gives Teeth to Dodd-Frank in Prosecuting Commodities Violations, CRS Legal Sidebar, December 15, 2015

Women and the Selective Service, CRS Insight, December 15, 2015

FY2016 National Defense Authorization Act: Selected Military Personnel Issues, updated December 17, 2015

Central America Regional Security Initiative: Background and Policy Issues for Congress, updated December 17, 2015

Australia: Background and U.S. Relations, updated December 14, 2015

Army Terminology and Military Symbols

Military terms and symbols that are used by the U.S. Army have been compiled in an updated reference manual, along with acronyms and abbreviations. See ADRP 1-02, Terms and Military Symbols, December 2015.

Intended to foster a common vocabulary, the manual can also help outsiders to interpret distinctive Army expressions and patterns of speech.

The manual devotes several chapters to “military symbology.”

“A military symbol is a graphic representation of a unit, equipment, installation, activity, control measure, or tactical task relevant to military operations that is used for planning or to represent the common operational picture on a map, display, or overlay.”

“The symbology chapters (chapters 3 through 10) provide detailed requirements for composing and constructing symbols. The rules for building a set of military symbols allow enough flexibility for users to create any symbol to meet their operational needs,” the manual said.

DoD Stresses Importance of Public Affairs

A newly updated Department of Defense publication affirms the importance of public outreach, not simply as a gesture towards democratic governance, but also as an instrument of operational utility.

“The US military has an obligation to communicate with its members and the US public, and it is in the national interest to communicate with international publics,” the DoD doctrinal publication said.

“The proactive release of accurate information to domestic and international audiences puts joint operations in context, facilitates informed perceptions about military operations, undermines adversarial propaganda, and helps achieve national, strategic, and operational objectives.” See Public Affairs, Joint Publication (JP) 3-61, Joint Staff, November 17, 2015.

The public affairs function described in the new publication encompasses most interactions between the Department and the public. It includes all the various ways that the Pentagon tells its own story to the world.

The new iteration of JP 3-61, which supersedes the 2010 edition and is about 50% longer than the prior edition from 2005, describes a hierarchy of “Public Affairs Postures”, ranging from active, affirmative disclosure of information all the way to nondisclosure and absolute unresponsiveness (Appendix B).

Active release” is appropriate “for those plans and activities where it is necessary and/or desirable to be as proactive and transparent as possible in communicating on a subject to include actively soliciting for media and public attention.” Examples include “announcing a personnel policy change” or “promoting an air show.”

Active disclosure can be modulated and limited to a “restricted release” when necessary. Under yet more sensitive conditions, DoD Public Affairs will not initiate disclosure on its own but will adopt a posture of “response to query,” answering questions if and when asked.

Finally, a public affairs posture of “no response” is available “for those plans and activities that due to [classification] and other sensitivities we will not offer any information on, even when directly requested.” Examples include “ongoing special operations” and “capabilities that are classified.”

The new publication also ventures definitions of four categories of interviews that are sometimes confused or misunderstood: On the record, background, deep background, and off the record (Chapter I, p. I-8).

While military deception (MILDEC) to mislead adversaries is an integral part of military operations, it would be counterproductive to employ public affairs (PA) for that purpose, the DoD doctrine says. “PA resources cannot be used as MILDEC capability because such use would undermine the legitimacy of the office and destroy future trust in PA messages” (page II-9).

In any event, “Official information should be approved for release prior to dissemination to the public,” the publication states.

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Another newly updated DoD doctrinal publication addresses Noncombatant Evacuation Operations (Joint Publication 3-68, 17 November 2015).

It notes in passing that “The Department of Justice maintains a world-wide database of biometric data that could be used to positively identify and support security screening of individuals seeking evacuation, if necessary” (page II-8).

DoD Gets Go-Ahead to Counter Islamic State Messaging

There are “substantial gaps” in the ability of the Department of Defense to counter Islamic State propaganda and messaging, the Commander of U.S. Special Operations Command (SOCOM) informed Congress earlier this year.

But now Congress has moved to narrow some of those gaps.

Until recently, the Pentagon’s authority to act in this area had been deliberately curtailed by Congress in order to preserve a civilian lead role for the State Department’s public diplomacy program.

“Congress has expressed concern with DOD engaging violent extremist propaganda on the Internet, except in limited ways,” wrote General Joseph L. Votel, the SOCOM Commander, in newly published responses to questions for the record from a March 18, 2015 hearing of the House Armed Services Committee (at page 69).

“They [Congress] tend to view… efforts to influence civilians outside an area of conflict as Public Diplomacy, the responsibility of the Department of State or Broadcasting Board of Governors.”

By contrast, “We [at US Special Operations Command] believe there is a complementary role for the Department of Defense in this space which acknowledges the need for a civilian lead, but allows DOD to pursue appropriate missions, such as counter-recruitment and reducing the flow of foreign fighters,” he wrote.

General Votel suggested that “An explicit directive from Congress outlining the necessity of DOD to engage in this space would greatly enhance our ability to respond.”

Now he has it.

Without much fanfare, something like the directive from Congress that General Votel requested was included in the FY2016 defense authorization bill that was signed into law by President Obama on November 25:

“The Secretary of Defense should develop creative and agile concepts, technologies, and strategies across all available media to most effectively reach target audiences, to counter and degrade the ability of adversaries and potential adversaries to persuade, inspire, and recruit inside areas of hostilities or in other areas in direct support of the objectives of commanders.”

That statement was incorporated in Section 1056 of the 2016 Defense Authorization Act, which also directed DOD to perform a series of technology demonstrations to advance its ability “to shape the informational environment.”

Even with the requested authority, however, DOD is poorly equipped to respond to Islamic State propaganda online, General Votel told the House Armed Services Committee.

“Another gap exists in [DOD’s] ability to operate on social media and the Internet, due to a lack of organic capability” in relevant languages and culture, not to mention a compelling alternative vision that would appeal to Islamic State recruits. The Department will be forced to rely on contractors, even as it pursues efforts to “improve the Department’s ability to effectively operate in the social media and broader online information space.”

And even with a mature capacity to act, DOD’s role in counter-propaganda would still be hampered by current policy when it comes to offensive cyber operations, for which high-level permission is required, he said.

“The ability to rapidly respond to adversarial messaging and propaganda, particularly with offensive cyberspace operations to deny, disrupt, degrade or corrupt those messages, requires an Execute Order (EXORD) and is limited by current U.S. government policies.”

“The review and approval process for conducting offensive cyberspace operations is lengthy, time consuming and held at the highest levels of government,” Gen. Votel wrote. “However, a rapid response is frequently required in order to effectively counter the message because cyber targets can be fleeting, access is dynamic, and attribution can be difficult to determine.”

No immediate solution to that policy problem is at hand, as far as is known.

The difficulty that the U.S. government has had in confronting the Islamic State on the level of messaging, influence or propaganda is more than an embarrassing bureaucratic snafu; it has also tended to expedite the resort to violent military action.

“Overmatched online, the United States has turned to lethal force,” wrote Greg Miller and Souad Mekhennet of the Washington Post, in a remarkable account of the Islamic State media campaign. (“Inside the surreal world of the Islamic State’s propaganda machine,” November 20).

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The House Armed Services Committee now produces the most informative hearing volumes of any congressional committee in the national security domain. Beyond the transcripts of the hearings themselves, which are of varying degrees of interest, the published volumes typically include additional questions that elicit substantive new information in the form of agency responses to questions for the record.

The new hearing volume on US Special Operations Command notes, for example:

*    USSOCOM currently deploys 20-30 Military Information Support Teams to embassies around the world. They are comprised of forces “specially trained in using information to modify foreign audiences’ behavior” [page 69].

*    “Only one classified DE [directed energy] system is currently fielded by USSOCOM and being used in SOF operations” [page 61]. Other directed energy technology development programs have failed to meet expectations.

*    Advanced technologies of interest to SOCOM include: signature reduction technologies; strength and endurance enhancement; unbreakable/unjammable, encrypted, low probability to detect/low probability of intercept communications; long-range non-lethal vehicle stopping; clandestine non-lethal equipment and facility disablement/defeat; advanced offensive and defensive cyber capabilities; weapons of mass destruction render safe; chemical and biological agent defeat [page 77].

Another recently published House Armed Services Committee hearing volume is “Cyber Operations: Improving the Military Cybersecurity Posture in an Uncertain Threat Environment.”


Army Doctrine on Protection of Civilians

For moral, legal, and tactical reasons, it is U.S. Army policy to protect civilians during military operations, a newly updated Army publication explains.

“To the extent possible, civilian populations (including those loyal to the enemy) must be protected from the effects of combat. In addition to humanitarian reasons and the need to comply with the law of war, excessive civilian casualties create political pressure that limits freedom of action of Army units. Civilian harm creates ill will among the population, with lasting repercussions that impair post-conflict reconstruction and reconciliation.”

And yet sometimes that policy will fail.

“Leaders anticipate that, despite their best efforts to prevent them, civilian casualty incidents occur. Similarly, mass atrocities may occur even if commanders take all possible steps to preclude them. Systems should be established in advance to respond to civilian casualty incidents; these include reporting, tracking, investigation, public response, and making amends to families and communities through the recognition of harm, appropriate compensation, and apologies and dignifying gestures if necessary.”

The necessity and the near-impossibility of employing violence in a way that minimizes its unintended effects on the civilian population are recurring themes in the new Army document.

See Protection of Civilians, Army Techniques Publication (ATP) 3-07.6, October 29, 2015.