Mixed Messages On Trump’s Missile Defense Review

By Matt Korda and Hans M. Kristensen

President Trump personally released the long-overdue Missile Defense Review (MDR) today, and despite the document’s assertion that “Missile Defenses are Stabilizing,” the MDR promotes a posture that is anything but.

Firstly, during his presentation, Acting Defense Secretary Shanahan falsely asserted that the MDR is consistent with the priorities of the 2017 National Security Strategy (NSS). The NSS’ missile defense section notes that “Enhanced missile defense is not intended to undermine strategic stability or disrupt longstanding strategic relationships with Russia or China.” (p.8) During Shanahan’s and President Trump’s speeches, however, they made it clear that the United States will seek to detect and destroy “any type of target,” “anywhere, anytime, anyplace,” either “before or after launch.” Coupled with numerous references to Russia’s and China’s evolving missile arsenals and advancements in hypersonic technology, this kind of rhetoric is wholly inconsistent with the MDR’s description of missile defense being directed solely against “rogue states.” It is also inconsistent with the more measured language of the National Security Strategy.

Secondly, the MDR clearly states that the United States “will not accept any limitation or constraint on the development or deployment of missile defense capabilities needed to protect the homeland against rogue missile threats.” This is precisely what concerns Russia and China, who fear a future in which unconstrained and technologically advanced US missile defenses will eventually be capable of disrupting their strategic retaliatory capability and could be used to support an offensive war-fighting posture.

Thirdly, in a move that will only exacerbate these fears, the MDR commits the Missile Defense Agency to test the SM-3 Block IIA against an ICBM-class target in 2020. The 2018 NDAA had previously mandated that such a test only take place “if technologically feasible;” it now seems that there is sufficient confidence for the test to take place. However, it is notable that the decision to conduct such a test seems to hinge upon technological capacity and not the changes to the security environment, despite the constraints that Iran (which the SM-3 is supposedly designed to counter) has accepted upon its nuclear and ballistic missile programs.

Fourthly, the MDR indicates that the United States will look into developing and fielding a variety of new capabilities for detecting and intercepting missiles either immediately before or after launch, including:

  • Developing a defensive layer of space-based sensors (and potentially interceptors) to assist with launch detection and boost-phase intercept.
  • Developing a new or modified interceptor for the F-35 that is capable of shooting down missiles in their boost-phase.
  • Mounting a laser on a drone in order to destroy missiles in their boost-phase. DoD has apparently already begun developing a “Low-Power Laser Demonstrator” to assist with this mission.

There exists much hype around the concept of boost-phase intercept—shooting down an adversary missile immediately after launch—because of the missile’s relatively slower velocity and lack of deployable countermeasures at that early stage of the flight. However, an attempt at boost-phase intercept would essentially require advance notice of a missile launch in order to position US interceptors within striking distance. The layer of space-based sensors is presumably intended to alleviate this concern; however, as Laura Grego notes, these sensors would be “easily overwhelmed, easily attacked, and enormously expensive.”

Additionally, boost-phase intercept would require US interceptors to be placed in very close proximity to the target––almost certainly revealing itself to an adversary’s radar network. The interceptor itself would also have to be fast enough to chase down an accelerating missile, which is technologically improbable, even years down the line. A 2012 National Academy of Sciences report puts it very plainly: “Boost-phase missile defense—whether kinetic or directed energy, and whether based on land, sea, air, or in space—is not practical or feasible.” 

Overall, the Trump Administration’s Missile Defense Review offers up a gamut of expensive, ineffective, and destabilizing solutions to problems that missile defense simply cannot solve. The scope of US missile defense should be limited to dealing with errant threats—such as an accidental or limited missile launch—and should not be intended to support a broader war-fighting posture. To that end, the MDR’s argument that “the United States will not accept any limitation or constraint” on its missile defense capabilities will only serve to raise tensions, further stimulate adversarial efforts to outmaneuver or outpace missile defenses, and undermine strategic stability.

During the upcoming spring hearings, Congress will have an important role to play in determining which capabilities are actually necessary in order to enforce a limited missile defense posture, and which ones are superfluous. And for those superfluous capabilities, there should be very strong pushback.

DoD Seeks New Authority for Drone Countermeasures

Unmanned aerial systems (UAS, or drones) could be used by malicious actors to conduct unauthorized surveillance or to deliver hazardous payloads within the United States. But defending against such threats may violate the law as currently written.

“Some of the most promising technical countermeasures for detecting and mitigating UAS may be construed to be illegal under certain laws that were passed when UAS were unforeseen,” the Department of Defense said in its legislative proposals for the FY 2018 defense authorization act. “These laws include statutes governing electronic communications, access to protected computers, and interference with civil aircraft.”

DoD therefore asked Congress to enact legislation that would authorize development of drone countermeasures for domestic use without violating “many provisions” of existing law. See section 1602 of the DoD draft defense authorization act for FY 2018, submitted to Congress on May 25.

“Certain statutes are especially problematic” for defending against UAS threats, DoD said. Several sections of Title 18 of the US Code “might be construed to prohibit access to or interception of the telemetry, signaling information, or other communications of UAS.”

“Furthermore, any attempt to interfere with the flight of UAS that pose a threat” could violate the Aircraft Sabotage Act, which prohibits damage to or destruction of aircraft.

“The proposed legislation would generally allow research, testing, training on, and evaluating technical means for countering UAS,” including monitoring, tracking, re-directing, disabling or destroying such aircraft.

A broader look at Countering Air and Missile Threats was recently published by the Joint Chiefs of Staff (Joint Publication 3-01, April 21, 2017).

Army Explores Counter-Drone Techniques

Having developed and utilized unmanned aerial systems (UAS, or drones) for surveillance, targeting and attack, the US military now finds itself in the position of having to defend against the same technology.

The US Army last week issued a new manual on Counter-Unmanned Aircraft System Techniques (ATP 3-01.81, April 13, 2017).

“UASs have advanced technologically and proliferated exponentially over the past decade,” the manual notes. “As technology has progressed, both reconnaissance and attack capabilities have matured to the point where UASs represent a significant threat to Army, joint, and multinational partner operations from both state and non-state actors.”

The unclassified Army document describes the nature of the threat and then considers the options that are available for dealing with it. These range from various forms of attack avoidance (“Operate at night or during limited visibility”) to active defense, such as surface-to-air weapons.

“Defending against UAS is a difficult task and no single solution exists to defeat all categories of the… threat,” the manual says.

Last week, the Islamic State released video footage of one of its drones dropping a bomb on an Iraqi target, Newsweek reported.

Defending U.S. Forces Against Enemy Drones

Enemy use of unmanned aerial systems (UAS) is a growing threat to U.S. forces because of their low cost, versatility, and ease of use, according to a recent U.S. Army doctrinal publication.

“The UAS is the most challenging and prevalent threat platform to combined arms forces and therefore, a logical choice for enemy use.”

See Techniques for Combined Arms for Air Defense, Army Techniques Publication (ATP) 3-01.8, July 29, 2016.

As is the case with U.S.-operated drones, enemy UAS can be used to perform a range of functions from battlefield surveillance and targeting to precision strike, the Army document said. “The enemy will use UAS to fulfill multiple attack roles.”

The drone may deliver a weapon or be used as a weapon itself. “As an indirect attack platform, the UAS has the ability to carry the improvised explosive device or become the improvised explosive device.”

“Perhaps the most dangerous COA [course of action]… is the Swarm” in which “clusters of UAS” are used by an adversary simultaneously for surveillance, indirect attack and direct attack.

What to do about this? The answer is not fully articulated in the Army manual.

“Proper planning by leaders will ensure that units employ adequate force protection measures to counter the UAS threat. Units must develop tactics, techniques and procedures to counter this threat in their respective areas of operation.”

Simply destroying the enemy drone is not necessarily the right move, the manual said.

“Defeat does not equate [to] kinetic means; however, it is an option. Other defeat solutions could be limiting a surveillance threat from gaining information or following the air path of the UAS to the operator.”

Islamic State forces have used drones bearing explosive devices, the New York Times reported this month. See “Pentagon Confronts a New Threat From ISIS: Exploding Drones” by Michael S. Schmidt and Eric Schmitt, October 11.

Just last week, the U.S. Air Force detected and destroyed a drone “in the vicinity” of U.S. forces, Air Force Secretary Deborah Lee James said yesterday. See “Air Force: Small, weaponized drones a growing combat problem” by Jacqueline Klimas, Washington Examiner, October 24.

Delivery Drones, Confederate Flags, and More from CRS

The growing prospect of the use of drones for commercial delivery purposes is considered in a new memorandum from the Congressional Research Service.

“Can you prevent a drone from flying over your house to deliver a package to your neighbor? Until now, that question has been of purely theoretical interest. However, the Senate recently passed a bill that could significantly change the operational landscape for unmanned aircraft systems (UAS or drones) and make these kinds of hypothetical delivery drones a reality,” the CRS memo begins. See Delivery Drones: Coming to the Sky Near You?, CRS Legal Sidebar, May 6, 2016.

U.S. Army policy “allows a small Confederate flag of a size not to exceed that of the U.S. flag to be placed on Confederate graves at private expense, either on Memorial Day or on the day when Confederate Memorial Day is observed” (which is today in North Carolina and South Carolina). However, it must be removed on the first workday thereafter. See Display of the Confederate Flag at Federal Cemeteries in the United States, CRS Insight, updated May 4, 2016.

New Interior Department regulations “aim to reduce the risk of an offshore oil or gas blowout that could jeopardize human safety and harm the environment.” See The Department of the Interior’s Final Rule on Offshore Well Control, CRS Insight, May 5, 2016.

The “Senate should not confirm a nominee to the United States Supreme Court whose professional record or statements display opposition to the Second Amendment freedoms of law-abiding gun owners, including the fundamental, individual right to keep and bear arms,” a recent House Resolution opines. A May 6 CRS brief therefore asks: What, If Anything, Has Judge Garland Said About the Second Amendment and Guns?

The amount of money sent by migrants in the U.S. to their home countries exceeded $432 billion in 2015, which is larger than official development assistance and more stable than private capital flows to these countries. See Remittances: Background and Issues for Congress, updated May 9, 2016.

The Administration’s FY2017 budget request for the Department of Justice “includes proposals to either increase funding for existing programs or fund new programs that seek to address several issues that have risen to national prominence recently, such as concerns about gun violence in cities across the country, the relationship between law enforcement and the communities they serve, violent extremism and ‘home-grown’ terrorism, preparing inmates to return to society after a period of incarceration, cybersecurity, and an increase in heroin addiction.” See FY2017 Appropriations for the Department of Justice, May 4, 2016 and FY2017 Appropriations for the Department of Justice Grant Programs, May 4, 2016.

Individuals who are not regular congressional employees can provide assistance to congressional offices as interns, volunteers, fellows, or pages, which are all distinct functions. See Internships in Congressional Offices: Frequently Asked Questions, May 6, 2016.

“The House is expected to vote on a dozen or more bills related to heroin and prescription opioid abuse during the week of May 9, leading some to dub this week ‘Opioid Week’ in the House.” See Active Opioid Legislation in the House: In Brief, May 9, 2016 and The Sentencing Reform Act of 2015 (H.R. 3713): A Summary, May 5, 2016.

The proposed Trans-Pacific Partnership (TPP) “is perhaps the most ambitious [Free Trade Agreement] undertaken by the United States in terms of its size, the breadth and depth of its commitments, its potential evolution, and its geo-political significance.” See The Trans-Pacific Partnership (TPP): Key Provisions and Issues for Congress, May 4, 2016.

DoD Use of Domestic Drones Complies with Law, IG Says

The domestic use of unmanned aerial systems (UAS, or drones) by the Department of Defense in support of civil authorities has been conducted in accordance with law and policy, the DoD Inspector General said in a 2015 report of an evaluation that was released last week.

“DoD is fully compliant with laws, regulations, and national policies for UAS support to civil authorities,” the DoD IG report said.

“We found no evidence that any DoD entity using UAS’s or associated PED [processing, exploitation, and dissemination] in support of domestic civil authorities, to date, has violated or is not in compliance with all statutory, policy, or intelligence oversight requirements.”

Oddly, that conclusion was marked “For Official Use Only.”  See Evaluation of DoD Use of Unmanned Aircraft Systems (UAS) for Support to Civil Authorities, DoD Inspector General report DODIG-2015-097, March 20, 2015. The partially redacted report was released last week in response to a Freedom of Information Act request.

DoD support to civil authorities using drones can be provided, given proper authorization, for domestic emergencies, support to law enforcement, or to provide added security for high-profile “special events.”

Domestic use of drones by DoD for such purposes is comparatively rare. The DoD Inspector General reported that between 2006 and 2015 there were “less than twenty events that could be categorized as DoD UAS support to domestic civil authorities,” and that that number included “both approved and disapproved requests.”

The Department of Defense provided updated Guidance for the Domestic Use of Unmanned Aircraft Systems last year in a February 17, 2015 policy memorandum.

“Armed DoD UAS may not be used in the United States for other than training, exercises, and testing purposes,” the memo said.

Drones in Domestic Airspace, and More from CRS

A survey of policy issues raised by the use of unmanned aerial systems (UAS) in domestic U.S. airspace was presented in a new report yesterday from the Congressional Research Service.

The report described the current and projected market for UAS, applications of UAS in government and industry, safety and security issues, the current regulatory environment, and pending legislation affecting UAS. See Unmanned Aircraft Operations in Domestic Airspace: U.S. Policy Perspectives and the Regulatory Landscape, January 27, 2016.

“As UAS technology develops rapidly, the United States faces significant challenges in balancing safety requirements, privacy concerns, and economic interests,” the CRS report said.

“Hundreds of thousands of small UAS are already being operated as recreational model aircraft and hobby drones that are permitted under a special rule for model aircraft…. In addition, several hundred public agencies and more than 3,000 businesses have been granted approval to operate UAS on a case-by-case basis. Once regulations and guidelines are put in place, large growth in UAS operations is anticipated.”

“As UAS operations have increased, a number of safety concerns have emerged, particularly with regard to use of model aircraft and hobby drones. UAS flights have interfered with airline crews near busy airports and with aircraft fighting wildfires, and have posed safety and security hazards at outdoor events and in restricted areas.”

“To address both safety and security concerns, a number of technology solutions are being examined to detect airborne UAS and pinpoint the location of the operator. Technologies to disable, jam, take control over, or potentially destroy a small UAS are also being developed and tested.”

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In another new report issued yesterday, CRS presented statistics on how the Senate responded to judicial nominations in the eighth year of the Reagan, Clinton and GW Bush presidencies.

“More than half of the circuit court nominations that were pending before the Senate during each President’s final year in office were not confirmed by the Senate,” the report found. See Final Senate Action on U.S. Circuit and District Court Nominations During a President’s Eighth Year in Office, January 27, 2016.

Also newly updated this week is Ozone Air Quality Standards: EPA’s 2015 Revision, January 25, 2016.

Defense Support of Civil Authorities, Updated

Before the Department of Defense can use an unmanned aerial system within the United States for domestic operations such as search and rescue missions or disaster response, specific authorization from the Secretary of Defense is necessary.

However, if DoD wants to use a UAS to help control domestic civil disturbances (such as a riot or insurrection), then further authorization from the President of the United State is required.

The patchwork of legal authorities and requirements for domestic military missions is presented in a newly updated DoD manual on Defense Support of Civil Authorities (DSCA).

Military support to civil authorities may be prompted by a variety of natural disasters and emergencies, including wildfires, earthquakes, floods, chemical, biological, radiological, and nuclear accidents or attacks, and — a new addition — cyber incidents. But such domestic missions have their own peculiar characteristics.

“Operations conducted by the US military in the homeland and US territories are very different from operations conducted overseas,” the DoD manual says, particularly since they are executed “under the authority and within the limitations of federal, state, and local laws.”

In particular, “For fear of military encroachment on civil authority and domestic governance, the PCA [Posse Comitatus Act] and policy limit DOD support to LEA [Law Enforcement Agencies],” the manual says.

More specifically, “DOD directives prohibit interdicting vehicles, searches and seizures, arrest, and similar activities (e.g., apprehension, stop, and frisk). Furthermore, engaging in questioning potential witnesses; using force or threats to do so, except in self-defense or defense of others; collecting evidence; forensic testing; and surveillance or pursuit of individuals or vehicles is prohibited.”

On the other hand, “the Insurrection Act permits the POTUS [President of the United States] to use armed forces under a limited set of specific circumstances and subject to certain limitations.”

(The President has used the authority under the Insurrection Act twice in recent history. In September 1989 the President ordered federal troops to the US Virgin Islands to restore order in the aftermath of Hurricane Hugo. In April 1992 the President ordered federal troops to restore order in Los Angeles during riots following the Rodney King verdict.)

The updated manual includes a new appendix presenting a matrix of domestic military missions along with the relevant approval authority and policy guidance.

For the first time, the manual includes “cyberspace-related incidents” among the circumstances that may trigger military involvement in domestic matters.

“Large-scale cyber incidents may overwhelm government and private-sector resources by disrupting the internet and taxing critical infrastructure information systems. Complications from disruptions of this magnitude may threaten lives, property, the economy, and national security…. State and local networks operating in a disrupted or degraded environment may require DOD assistance.”

See Multi-Service Tactics, Techniques, and Procedures for Defense Support of Civil Authorities (DSCA), Army, Marine Corps, Navy, Air Force, September 2015.

The authorized use of DoD unmanned aerial systems in domestic operations is described in Guidance for the Domestic Use of Unmanned Aircraft Systems, Policy Memorandum 15-002, February 17, 2015.

Drones, Pope Francis, Encryption, and More from CRS

A new report from the Congressional Research Service looks at the commercial prospects for the emerging drone industry.

“It has been estimated that, over the next 10 years, worldwide production of UAS for all types of applications could rise from $4 billion annually to $14 billion. However, the lack of a regulatory framework, which has delayed commercial deployment, may slow development of a domestic UAS manufacturing industry,” the report said. See Unmanned Aircraft Systems (UAS): Commercial Outlook for a New Industry, September 9, 2015.

In advance of the September 2227 visit to the United States by Pope Francis, another new CRS report “provides Members of Congress with background information on Pope Francis and a summary of a few selected global issues of congressional interest that have figured prominently on his agenda.” See Pope Francis and Selected Global Issues: Background for Papal Address to Congress, September 8, 2015.

Another new report from CRS on encryption and law enforcement presents “an overview of the perennial issue involving technology outpacing law enforcement and discusses how policy makers and law enforcement officials have dealt with this issue in the past.” See Encryption and Evolving Technology: Implications for U.S. Law Enforcement, September 8, 2015.

Other new and newly updated publications from the Congressional Research Service include the following.

Syrian Refugee Admissions to the United StatesCRS Insight, September 10, 2015

An Analysis of Efforts to Double Federal Funding for Physical Sciences and Engineering Research, updated September 8, 2015

Cybersecurity: Data, Statistics, and Glossaries, updated September 8, 2015

Cybersecurity: Legislation, Hearings, and Executive Branch Documents, updated September 8, 2015

The EMV Chip Card Transition: Background, Status, and Issues for Congress, updated September 8, 2015

Cyprus: Reunification Proving Elusive, udpated September 10, 2015

Saudi Arabia: Background and U.S. Relations, updated September 8, 2015

Jordan: Background and U.S. Relations, updated September 10, 2015

Iran Nuclear Agreement, updated September 9, 2015

Statutory Qualifications for Executive Branch Positions, updated September 9, 2015

Federal Reserve: Emergency Lending, September 8, 2015

 

Domestic Drones & Privacy, and More from CRS

The anticipated deployment of thousands of unmanned aerial systems (UAS) — or drones — in American skies raises unresolved privacy concerns that have barely begun to be addressed, according to a new report from the Congressional Research Service.

The CRS report provides “a primer on privacy issues related to various UAS operations, both public and private, including an overview of current UAS uses, the privacy interests implicated by these operations, and various potential approaches to UAS privacy regulation.” See Domestic Drones and Privacy: A Primer, March 30, 2015.

This week, the Electronic Privacy Information Center (EPIC) filed suit against the Federal Aviation Administration arguing that the FAA was obliged to establish privacy rules for commercial drones and that it had failed to do so.

The privacy implications of drones have been discussed in several congressional hearings over the past two years, yielding these published hearing volumes:

U.S. Unmanned Aircraft Systems: Integration, Oversight, and Competitiveness, House Transportation and Infrastructure Committee, December 10, 2014

Eyes in the Sky: The Domestic Use of Unmanned Aerial Systems, House Judiciary Committee, May 17, 2013

The Future of Drones in America: Law Enforcement and Privacy Considerations, Senate Judiciary Committee, March 20, 2013

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Other new or updated CRS reports that Congress has withheld from online public distribution include the following.

Cyberwarfare and Cyberterrorism: In Brief, March 27, 2015

The United Kingdom: Background and Relations with the United States, March 27, 2015

Yemen: Civil War and Regional Intervention, March 26, 2015

Peace Talks in Colombia, March 31, 2015

Membership of the 114th Congress: A Profile, March 31, 2015

Supervised Release (Parole): An Overview of Federal Law, March 5, 2015