Glibertarians.com 2019 Archive

Category: National Security

  • Chapter 7 – Congress Acts: 10 U.S.C. §1107

    More can and must be done, however, to rebuild trust, to avoid repeating past mistakes, and to prevent future health consequences similar to those experienced during and after the Gulf War. Our troops must be assured that when we send them into battle, they will be protected by the best military technology, the best leaders, and the best medicine. Protection also means proper education and training, as well as provision of critical information, including information about investigational new drugs that may be administered to our troops for their protection against chemical and biological threats.[i]

    At the end of multiple hearings on Gulf War Syndrome and many inquiries into the DoD’s use of experimental and investigational drugs during the Gulf war, in 1997 Congress (finally) decided that enough was enough. Representative Patrick Kennedy (D, RI), introduced a bill on the floor of Congress to provide some small measure of protection for service members. In its original form, the bill imposed three requirements on the DoD: either prior to, or within 30 days of, administering an investigational new drug, the DoD would have to inform military members that

    1. The drug being administered is investigational;
    2. The reasons why the drug is being administered;
    3. The potential side effects of the drug, including side effects resulting from interactions of the drug with other drugs or treatments being administered to the individual.

    Representative Kennedy’s remarks made clear that the bill was the direct result of inquiries into the Gulf War and what he perceived as a DoD cover-up of possible chemical exposures of U.S. troops. He noted that the trust between soldiers and the government

    “has been called into question. One need merely read newspaper articles surrounding the Persian Gulf war to see what I mean. On February 28, the New York Times ran an article entitled: ‘Pentagon Reveals It Lost Most Logs on Chemical Arms;’ ‘Missing From Two Sites: Gulf War Veterans Now Raise Questions of Cover-Up or Criminal Incompetence.’”[ii]

    Mr. Kennedy went on to cite another article that revealed that the Army had been warned by the CIA five years prior (to the article) about the possible exposure of troops to chemical agents and that the DoD had claimed that it only became aware of the exposures the prior year. Additionally, Kennedy referenced the DoD and FDA negotiations that took place prior to the Gulf War regarding a waiver of informed consent detailed in the previous chapter. He criticized the DoD for failing to comply with the conditions the FDA had set forth in order to grant the waiver of informed consent that the DoD legally needed and had negotiated in order to use both pyridostigmine bromide and botulinum toxoid on troops. Oddly enough, however, Kennedy then seemed to concede that the DoD could now use investigational drugs without informed consent because “[u]nfortunately, for our troops, the threat of chemical and biological weapons have become an increasing reality[.]” Mr. Kennedy seemed to believe that, at the least, “the men and women who served in the Gulf War had a right to know that the vaccines administered to them were investigational” and that “[t]he same service members had a right to know about the side effects of the investigational drugs.”[iii] As an author’s note, I feel compelled to add that Representative Kennedy did swear an oath to “defend the Constitution of the United States of America against all enemies foreign and domestic” and “to bear true faith and allegiance to the same.” Which can only mean that either (a) Kennedy believed that it is perfectly fine for the U.S. government to experiment on its troops, or (b) he doesn’t know very much about the Constitution. (‘Both’ is also an acceptable and likely answer).

    To his credit, however, Kennedy did introduce the bill in order “to ensure that in the future our troops are informed of investigational drugs, and to help ensure that our service members can and will trust their government.”[iv] The legislation received some discussion on the floors of both the Senate and the House, always with reference to the Congressional investigations surrounding Gulf War Illness and the mistakes made with pyridostigmine bromide.[v] Finally, as part of the National Defense Authorization Act for fiscal year 1998 (from October 1997 to October 1998), Mr. Kennedy’s proposed bill became 10 U.S.C. §1107. In something that couldn’t be made up, within a year of this bill being approved and becoming law, Secretary of Defense William Cohen announced that he would begin the inoculation of all U.S. military personnel with the anthrax vaccine.

    As this vaccination program was kicking off, the Senate Armed Services committee was already calling high-ranking DoD officials to explain how the program was going to work in light of the Persian Gulf experience and even the then recent deployment of troops to Bosnia. In fact, members of the committee pointed to the Presidential Advisory Committee’s review of the DoD’s efforts in Bosnia and pointed out that they were deemed “an abysmal failure.”[vi] This committee even addressed the issue of how the DoD proposed to handle the administration of clinical protocols in accordance with FDA regulations. It is important to note that here the DoD was acknowledging that it had to comply with clinical protocol requirements of the FDA if it administered a drug in such a way as to render it an investigational new drug. An FDA official opined that “we [the FDA] believe that they [DoD officials] understand… [the need to comply with IND procedures]. We believe that they have the capability of complying with all of our IND rules and regulations.  As to whether they will comply in the next deployment situation, obviously we can’t predict that.”[vii]

    The Acting Secretary of Defense for Health affairs, Gary Christopherson, tried to assuage the concerns of committee members by admitting that the Bosnia experience[1] was a “situation where we believed we ought to be able to do an IND and do it well, it still did not come off 100 percent. It did not meet their standards. It did not meet our standards in there.”[viii] He went on to add that the DoD and the FDA were engaged in a “conversation” to improve their compliance with the FDA’s regulations. In a bit of backpedaling, Mr. Christopherson implied that there was some kind of agreement between the FDA and DoD that there would not need to be full compliance with the requirements of the Nuremberg Code, the FDA’s regulations, and the DoD’s own internal regulations. He offered that “[t]he one thing that I think both FDA and we have come to somewhat – not necessarily a conclusion, but close to – is that in real combat situations it’s very difficult if not impossible to do a full investigative new drug protocol.” This did not seem to arouse much comment from any of the Senators, despite the clear implication that DoD was not going to comply with the requirements for informed consent for an IND procedure. One other question not raised (of course) was how combat would be defined. Even if the DoD were granted a waiver for combat exigencies, would Bosnia and other peacekeeping operations fit the justification given for the Gulf War?

    At the same time that the Senate hearings were going on and the anthrax program (AVIP) was going forward, the FDA was also trying to determine if the interim rule that it had published to allow DoD to use investigational drugs without informed consent should become a final rule. That rule, granting the DoD waiver, was still “on the books” as the interim rule pending finalization. The FDA solicited comments by October 29, 1997. This means that (legally speaking) as late as autumn of 1997, the DoD still had a waiver from the FDA’s requirements of informed consent. The language of the rule was broad and did not specifically exempt just those two products, although that was the agreement reached in 1990. Now, as the DoD was preparing to use another investigational drug in Bosnia and not doing it particularly well, the FDA was asking whether or not the DoD should be allowed to maintain the waiver. This produced some interesting exchanges in committee hearings in Congress. In 1996, the Director of the FDA brought forward Ms. Mary Pendergast, a doctor at the FDA’s Center for Biologics Evaluation and Research (CBER), to answer the question about this rule.

    REP. NETHERCUTT:  So your conclusion five years later is that waiving the Informed consent requirements is acceptable?

    PENDERGAST: Yes, basically. It’s not the preferred option, but there are some products that you cannot ethically test. . .

    REP. NETHERCUTT:  Okay. I’m trying to get to now. . . as to why you feel it’s acceptable to do that.

    PENDERGAST: If there is another war —

    REP. NETHERCUTT: Which is prospective.

    PENDERGAST: Yes. If there is another war and if there is a circumstance where the military might need to give prophylactic treatment to its troops, then we would create simply the framework that would give them the opportunity to come to the FDA to ask for permission to waive informed consent. It’s not saying that we would waive it during peacetime; it’s not that we would automatically waive it, rather, we would create a framework that would permit them to ask for permission.

    KESSLER: I think the presumption is, if it is at all possible, you get informed consent. That certainly is my personal position.[ix]

    In this exchange, the head of the FDA, Dr. Ronald Kessler, asserts that informed consent would not be waived during peacetime at the same time that the FDA has on the books an interim rule that allows the DoD to waive informed consent, not just for combat, but also for the “the immediate threat of combat.”[x] How immediate would the threat have to be and what level of combat would it have to be? One can only envision that the DoD would get to make both of these determinations; certainly the FDA is not going to question a military officer’s determination that combat is imminent or immediate or of sufficient ferocity to be deemed combat.[2] Thus the rule is really no rule at all in terms of limiting the application of when the DoD can waive informed consent.

    In a 1997 Congressional hearing on Bioethics, this issue also came up by Dr. Arthur Caplan, a professor of Bioethics at the University of Pennsylvania. He offered quite simply that “the handling of the waiver with respect to the troops was unethical.”[xi] His opinion was that even with the waiver of prior informed consent, the DoD should have informed troops after the fact, if nothing else; that “the Defense Department – and those military agencies have not – did not do what they needed to do to after the fact inform people when they were exposed to innovative or experimental substances.”[xii]

    His second point of contention was that “there’s still been no formulation of a policy about what we do with respect to research on our troops. We don’t have it today. We didn’t have it six years ago. And I find it incredible that we have not had more than an interim rule to guide us with respect to research in the military.” At the time he said this, the FDA’s interim waiver rule for 50.23(d) was still in effect. Another doctor looked back even further and questioned the underlying assumption of the waiver, which, unfortunately, more people have not done.

    BENJAMIN WILFOND: I think I was not convinced this morning that they ever gave a clear reason why it was not feasible to have given – asked for consent in the first place. I mean, presumably if you ask the soldiers: You may be exposed to nerve gas. This medication may help you, but we really don’t know and would like to do a project. Would you like to participate? Most of them would probably say yes.[xiii]

    Some discussion ensued and there was the usual deference about the “quick” mustering up of forces, but Dr. Wilfond continued to question the assumption: “my point is that there’s still no – it’s not clear that they couldn’t have done it ahead of time either.”[xiv]

    This is an important issue that seems to get swept away amidst the rhetoric and large questions, but it is a particularly pragmatic point but deserves some attention. Every member of the Armed forces has, at one time or another, stood in line awaiting some inoculation. There is absolutely no explanation by these people in Congress why – if a member of the Armed Forces has to stand in line to get the shot – there would not be sufficient time to obtain the member’s informed consent? Even if the requirement for written consent were waived, if medical records have to be annotated anyway, how much more difficult would it be for the corpsman or medical personnel to hand a sheet out to everyone as they are standing in line? Or, how hard would it be to include a standard medical brief along with all of the other briefs that servicemembers have to receive when deploying, during which the ranking surgeon explains that this is the only possible treatment for the known threat. As both Doctor Wilfond and another doctor pointed out in their testimony to the Congressional committee:

    CAPLAN:  We took a lot of testimony at the Presidential Advisory Committee on this matter, and it was summed up fairly well by one of our people who came to testify to us who said, if someone is shooting very large bullets at you which may be filled with biological weapons, the likelihood of your refusing an antidote is zero.[xv]

    This may or may not be true: indeed, my own informal surveying concludes quite the opposite. The troops will take the known risks of being shot over the unknown risks of (yet another) DoD boondoggle with unproven chemicals being shoved into one’s body (a point to which I will return in detail later in this book). Despite these committee hearings, most of which had an FDA  representative attending and concurring in the recommendations of others, the FDA had still not issued a new rule to replace the interim waiver rule from the Gulf War in late 1998. By this time, Congress had held so many hearings on the issue of informed consent and military members that it moved from the committee level onto the floor of Congress.

    Representative Christopher Shays, a vocal opponent to the waiver granted to the FDA, rose as the speaker pro tempore in the House on June 16, 1998. He pointed out that there had been 13 hearings in three and-a-half years looking into Gulf War Illness. During this time, various agencies had testified in order to “try to get a handle on the problems that our Gulf War veterans have faced when they returned home. Out of the 700,000 that have returned, almost 100,000 have had some types of physical problems to deal with and have sought to have their illnesses be dealt with by the Department of Veterans Affairs.”[xvi] Mr. Shays noted that after 11 hearings, there had been a number of findings and recommendations made, among them that

    “the VA and the Pentagon did not properly listen to sick Gulf War veterans in terms of the possible causes of their illness[;] [that] there is no credible evidence that stress or Post Traumatic Stress Disorder caused the illnesses reported by many Gulf War veterans[; and] that Congress should enact legislation establishing the presumption that veterans were exposed to hazardous materials known to have been present in the Gulf War theater.”[xvii]

    Most importantly, Congressman Shays recommended that “the FDA should not grant a waiver of informed consent requirements allowing the Pentagon to use experimental or investigational drugs unless the President signs off and approves.”[xviii] This recommendation would become the cornerstone of a new version of Representative Patrick Kennedy’s first, more modest legislation. Interestingly, all it really did was seek a return to the “common rule” set forth in the Department of Defense’s own regulations, the Department of Health and Human Services regulations, the FDA’s regulations (prior to the waiver), the Nuremberg Code, and the federal statute passed which codified the Nuremberg Code. All of these regulations and laws have always stated that “the informed consent of the subject is absolutely essential” and all of them stated a presumption that “informed consent is feasible except . . .” in certain limited circumstances, usually when the subject was incompetent or incapable of giving consent or in a life threatening situation where the subject could not consent.[xix] As an example, the DoD’s own regulations state, unequivocally:

    Except as provided elsewhere in this policy, no investigator may involve a human being as a subject in research covered by this policy unless the investigator has obtained the legally effective informed consent of the subject or the subject’s legally authorized representative. An investigator shall seek such consent only under circumstances that provide the prospective subject or the representative sufficient opportunity to consider whether or not to participate and that minimize the possibility of coercion or undue influence. The information that is given to the subject or the representative shall be in language understandable to the subject or the representative. No informed consent, whether oral or written, may include any exculpatory language through which the subject or the representative is made to waive or appear to waive any of the subject’s legal rights, or releases or appears to release the investigator, the sponsor, the institution or its agents from liability for negligence.[xx]

    The FDA and DHHS regulations are identical, almost word-for-word. Additionally, the same regulation goes on to assure the subject that the only way that informed consent could be waived is if an appropriate Institutional Review Board, composed of doctors and other experts and members of the given community, determined that

    • The research involves no more than minimal risk to the subjects;
    • The waiver or alteration will not adversely affect the rights and welfare of the subjects;
    • The research could not practicably be carried out without the waiver or alteration; and
    • Whenever appropriate, the subjects will be provided with additional pertinent information after participation.[xxi]

    This language is hard to reconcile with the policy in the Gulf war that Mr. Shays noted that “our troops were ordered to take an experimental drug referred to as PB . . . It was used . . . as an experimental drug to do something it was not designed to do. Our troops did not have the option to decide whether or not to do this. They were under order. If they did not live by their order, they would be prosecuted by the military.”[xxii] Congressman Shays, looking back at that moment, probably had no idea that his words actually foreshadowed what was to come under the anthrax vaccination program that had just begun in April of 1998. Notwithstanding his intent to prevent just such occurrences – the threat of forced/coerced inoculation – embodied in the legislation that was to pass later that year, courts-martial were already beginning for those who would try to exercise the very rights being re-issued to them under the new version of 10 U.S.C. §1107.

    The 1998 version of 10 U.S.C. §1107 was passed as part of the National Defense Authorization Act for fiscal year 1999, in October 1998. The differences between the 1997 version and the 1998 version are startling and important to note, not only for their legal effect, but for what they reveal about the rational for making the changes. The original (1997) 10 U.S.C. §1107 required the Secretary of Defense to provide written notice to service members of the use of an investigational new drug or a drug unapproved for its applied use “unless the Secretary of Defense determines that the use of written notice is impractical because of the number of members receiving the investigational new drug or drug unapproved for its applied use, time constraints, or similar reasons.”[xxiii]  This means that the Secretary of Defense had almost unfettered discretion to determine that written notice was not feasible. The only condition or enforcement mechanism was that the Secretary was supposed to provide Congress a written explanation if written notice was not used. The 1998 version, however, in sharp contrast, would strike that language out (from “unless” to the end), thus eliminating anything except written notice.  The new version would then add one significant paragraph, (f) and change the current (f), the definitions section, to (g). The new paragraph, unchanged since 1998, reads as follows:

    (f) Limitation and Waiver.—

    1. In the case of the administration of an investigational new drug or a drug unapproved for its applied use to a member of the armed forces in connection with the member’s participation in a particular military operation, the requirement that the member provide prior consent to receive the drug in accordance with the prior consent requirement imposed under section 505(i)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(i)(4)) may be waived only by the President. The President may grant such a waiver only if the President determines, in writing, that obtaining consent–

    (A) is not feasible;

    (B) is contrary to the best interests of the member; or

    (C) is not in the interests of national security.

    2. In making a determination to waive the prior consent requirement on a ground described in subparagraph (A) or (B) of paragraph (1), the President shall apply the standards and criteria that are set forth in the relevant FDA regulations for a waiver of the prior consent requirement on that ground.

    This portion of the statute vests the decision to use or not use investigational drugs with one person and one person alone, the President of the United States. While the President appoints a cabinet member, the Secretary of Defense, to be his representative on military affairs, this law specifically lifts the power to make these decisions out of the Secretary’s hands and placed it squarely on the President.

    3. The Secretary of Defense may request the President to waive the prior consent requirement with respect to the administration of an investigational new drug or a drug unapproved for its applied use to a member of the armed forces in connection with the member’s participation in a particular military operation. With respect to any such administration –

    (A) the Secretary may not delegate to any other official the authority to request the President to waive the prior consent requirement for the Department of Defense; and

    (B) if the President grants the requested waiver, the Secretary shall submit to the chairman and ranking minority member of each congressional defense committee a notification of the waiver, together with the written determination of the President under paragraph (1) and the Secretary’s justification for the request or requirement under subsection (a) for the member to receive the drug covered by the waiver.

    The crucial portion of this new law is that only the President could waive the requirement for informed consent. Furthermore, even if the Secretary wishes to request a waiver, he cannot delegate that request, putting him- or herself on the hook, as well, if something were to go wrong. The President could also only grant the waiver in writing, and then the Secretary has to submit a copy of the waiver and his justification for requesting it in writing to both the House and Senate Committees involved that have cognizance over military affairs AND appropriate the money for such operations.

    This section thus vests political liability for the decision to waive informed consent with the President. Second, it provides Congress with the weapon to veto the Presidential decision with its mightiest tool – control over the appropriations to conduct such an operation. While there is still an ongoing battle over the two provisions of the Constitution that vest control of the military in two different branches of government,[3] ultimately Congress could win such a battle by denying the funding for any military operation under its plenary power to appropriate money. Perhaps the most important aspect of the statute comes from the enabling public law. The National Defense Authorization Act for FY 1999, which passed and enacted the second version of 10 U.S.C. §1107, contained two notes that would affect any existing waivers of the requirement for informed consent. The first paragraph (paragraph (2) of the 1998 act) explains that the new paragraph (f) applies to any new operation involving service members. The second of these two clauses addressed the possible “grandfathering” of any pre-existing waivers and states that

    (3) <10 USC 1107 note> A waiver of the requirement for prior consent imposed under the regulations required under paragraph (4) of section 505(i) of the Federal Food, Drug, and Cosmetic Act (or under any antecedent provision of law or regulations) that has been granted under that section (or antecedent provision of law or regulations) before the date of the enactment of this Act for the administration of a drug to a member of the Armed Forces in connection with the member’s participation in a particular military operation may be applied in that case after that date only if –

    (A) the Secretary of Defense personally determines that the waiver is justifiable on each ground on which the waiver was granted;

    (B) the President concurs in that determination in writing; and

    (C) the Secretary submits to the chairman and ranking minority member of each congressional committee referred to in section 1107(f)(4)(C) of title 10, United States Code (as added by paragraph (1)) –

    (i) a notification of the waiver;

    (ii) the President’s written concurrence; and

    (iii) the Secretary’s justification for the request or for the requirement under subsection 1107(a) of such title for the member to receive the drug covered by the waiver.

    Thus, the statute not only looked forward to future operations, it also reached back and effectively wiped out the existing interim FDA rule and waiver that the FDA still had not changed. The FDA would update its regulations in May 1999, incorporating all of the requirements of 10 U.S.C. §1107, some 7 months after the passage of the act and some eight plus years after it issued an “interim” rule for Desert Storm.

    Endnotes

    [1] In the Bosnia deployment, the DoD vaccinated troops against a tickborne encephalitis with an investigational drug.

    [2] This is not a game of semantics, either. Our predecessor veterans in Vietnam, having spent time in the “Arizona Valley” near Da Nang or serving near the DMZ, might not characterize the role of our troops in Bosnia as “combat”, yet any time a bullet flies from a hostile rifle, there is the possibility for death and harm. The FDA is certainly not going to gainsay the military in such matters.

    [3] The Constitution, in Art. I, §2, names the President as Commander-in-Chief of the armed forces. Art. II, §8 grants Congress the power to make rules for the land and naval forces, to raise armies, and the power to make all necessary rules in carrying out its duties under Art II.

    [i] 143 Cong. Rec. E 637, April 10, 1997 (remarks of Representative Patrick Kennedy of Rhode Island).

    [ii] Id. See also https://www.nytimes.com/1997/02/28/us/pentagon-reveals-it-lost-most-logs-on-chemical-arms.html

    [iii] Id.

    [iv] Id.

    [v] See, e.g., 143 Cong. Rec. H. 9137 (Oct. 23, 1997).  Section 766 of the National Defense Authorization Act for fiscal year 1998 contained this bill under the subtitle Persian Gulf Illness (Subtitle F).

    [vi] U.S. Senate Committee on Veterans’ Affairs Holds Hearings on the Nomination of Togo West to be Secretary of Veterans’ Affairs and U.S. Biologic Vaccines for Gulf War Veterans.  Statement of Senator Rockefeller.  March 17, 1998.

    [vii] Id.  Testimony of Mr. Randolph Wykoff, Associate Commissioner for Operations, Food and Drug Administration.

    [viii] Id.  Testimony of Mr. Gary Christopherson.

    [ix] Testimony before the House Committee on Appropriations Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies, (March 12, 1996).

    [x] 21 C.F.R. 50.23(d) (1990).

    [xi] House Government Reform Committee and Subcommittee on Human Resources Holds a Hearing on Biomedical Ethics, (May 8, 1997).

    [xii] Id.

    [xiii] Id.

    [xiv] Id.

    [xv] Id.

    [xvi] 144 Cong. Rec. H. 4616 (June 16, 1998).

    [xvii] Id.  Remarks of Congressman Shays.

    [xviii] Id. (emphasis added)

    [xix] See 32 CFR 216.107, 46 CFR Part 45, 21 CFR 50.23(d), 50 USC 1520a and The Nuremberg Code.

    [xx] 32 CFR 219.116 (2001).  These regulations have been in place since 1991.

    [xxi] Id.

    [xxii] 144 Cong. Rec. H. 4616 (June 16, 1998).

    [xxiii] 10 USC 1107 (1997).

  • Tuesday Afternoon Links

    Well I survived secondary AND tertiary screening at one of the few non-TSA airports in America. I had ground coffee in my bag (I’ve gone through this airport 2x/year for several years with a few pounds of coffee in my carry-on with no problem). Apparently ground coffee looks like an explosive on x-rays and swipes like an explosive with those stupid little testing swabs. A supervisor was called. The supervisor called a manager. Good times. The Canandaigua blend from this place was absolutely worth the hassle though. But enough about me. On to LINKS!

    And the traditional musical link

  • Chapter 2 – The Nuremberg Code

    Members of the military are not shorn of their constitutional rights while they remain in the military service. Blackstone said: ‘. . . he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier.’[i]

    After the Germans were defeated in World War II, it was not long before both an International War Crimes Tribunal was created, and a separate Military Tribunal, to try members of the German High Command and others for their “War Crimes, Crimes Against Peace and Against Humanity.”[ii] These military tribunals were held under the auspices of the four individual Zone Commanders, into which Germany had been divided at the end of the war. The Chief Prosecutor for the military tribunals in the American Zone was General Telford Taylor, U.S. Army. There were twelve separate trials held at Nuremberg by the American Military Governor, promulgated by Military Government Ordinance Number Seven, dated 25 October 1946. This ordinance was passed pursuant to the authority granted by Control Council Law Number 10, which set forth exactly who and what could be prosecuted and how the process was to occur (including that someone sentenced to death would be executed no later than 30 days after the “decision has become final”).[iii] It was in the American occupation zone that the second “series” of trials occurred in 1947 against the doctors who performed medical experiments on Jews, Poles, and other persons who were being held prisoner. These trials came to be known as the “Doctors Trials” or the “Medical Trials”. German scientists, some of them renowned in their fields, were tried as war criminals because of the experiments they had performed on behalf of the German High Command on unwilling victims.

    Some of the experiments named in the indictment against the German doctors were startlingly similar to those detailed previously in Chapter 1. For example, Count II of the indictment, entitled War Crimes, [specification] Number 6 alleges that

    Between September 1939 and April 1945 all of the defendants herein unlawfully, willfully, and knowingly committed war crimes, as defined by Article II of Control Council Law No. 10, in that they were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving medical experiments without the subjects’ consent, upon civilians and members of the armed forces of nations then at war with the German Reich and who were in the custody of the German Reich in exercise of belligerent control.[iv]

    The indictment goes on to list a number of different experiments, the most similar to American experiments of which were the lost (mustard) gas experiments. These were “[c]onducted at Sachsenhausen, Natzweiler, and other concentration camps for the benefit of the German Armed Forces to investigate the most effective treatment of wounds caused by Lost gas. Lost is a poison gas which is commonly known as mustard gas.”[v] One of the most horrifying aspects of the experiments was the scientific precision, and simultaneously the complete disregard for the subjects’ humanity, with which they were carried out – as if they were being conducted on mice. Many of the experiments had obvious utility for all Armed Forces. The U.S. prosecutor acknowledged as much in his opening statement.

    A sort of rough pattern is apparent on the face of the indictment. Experiments concerning high altitude, the effect of cold, and the potability of processed sea water have an obvious relation to aeronautical and naval combat and rescue problems. The mustard gas and phosphorous burn experiments, as well as those relating to the healing value of sulfanilamide for wounds, can be related to air-raid and battlefield medical problems. It is well known that malaria, epidemic jaundice, and typhus were among the principal diseases which had to be combated by the German Armed Forces and by German authorities in occupied territories.

    To some degree, the therapeutic pattern outlined above is undoubtedly a valid one, and explains why the Wehrmacht, and especially the German Air Force, participated in these experiments. Fanatically bent upon conquest, utterly ruthless as to the means or instruments to be used in achieving victory, and callous to the sufferings of people whom they regarded as inferior, the German militarists were willing to gather whatever scientific fruit these experiments might yield.[vi]

    The high altitude tests were done to determine how high pilots would be able to fly; freezing tests on human subjects were done to learn how cold a person could get before dying, as well as what the best ways were to re-heat a freezing person. This had important implications for the Germans fighting on the brutally cold Russian front. Of more specific import for the anthrax vaccine herein discussed, the Germans also conducted a number of experiments involving chemical and biological warfare.

    The most basic mustard gas tests involved simply gassing subjects and measuring its effect upon them. The Germans operated with the complete permission and authority of both their government and the society generally; the subjects weren’t even German soldiers, but captured enemy civilians or belligerents, so some of the tests went a step further and wounded some prisoners first to determine the effect the gas would have upon a wound under battlefield conditions. While it is important to state that none of the experiments involving the U.S. Department of Defense (of which we are aware) involved this kind of treatment, the ‘baseline’ experiments conducted by the German doctors were identical to the U.S. Department of Defense’s ‘man break’ tests conducted in the late Forties and Fifties. In fact, the lawyers for several of the Nazi doctors argued at trial that the German experiments were identical to the experiments conducted by the U.S. and Britain using human subjects in the period between World Wars War and Two. Of course, as has already been shown, the U.S. experiments were conducted, in most cases, AFTER the Nuremberg Trials, and in secret, and on U.S. citizens.

                                                                                                                                                                                       

    During their trial, the Nazi doctors offered several legal defenses to their actions, chief among these was that the doctors had not known that anything they were doing was wrongful because the experiments (in some cases) were no different than ones which had been regularly carried out by the Americans and Germans prior to the War. In other words, the argument is essentially a combination of challenging the war crimes tribunal’s charges as ex post facto laws, as well as a challenge to the notion of being on ‘notice’ that one’s actions are prohibited. i.e. The doctors argued that there existed no agreed-upon international common law on the use of human beings as subjects. While the world might say now, after victory, that the German doctors’ actions were wrongful, there was no law in existence prior to their actions to let them know what they were doing was criminal. This is a fundamental tenet of criminal law generally: the necessary existence of some law making the act criminal before it is committed, in order to provide notice to the actor that such acts are forbidden. This isn’t merely a matter of legal theory; while the reasons aren’t given, four of the seven defendants charged with experiments involving lost gas were acquitted.

    Two doctors who worked with the U.S. prosecution team at Nuremberg, Drs. Andrew Ivy and Leo Alexander, were concerned with the defense arguments about there being no previous international statement or standard regarding the treatment of human subjects and their consent in medical experimentation. In April 1947, Dr. Alexander submitted a memorandum to the American Counsel of six points regarding medical experimentation on human subjects. The verdict against the doctors was returned on August 19, 1947. In the verdict, each of the six points was covered and expanded into ten points under a section entitled “Permissible Medical Experiments.” This came to be known as “The Nuremberg Code.” The Nuremberg Code’s first principle was that “the voluntary consent of the human subject is absolutely essential.” The principles of the Nuremberg Code were adopted by the U.S. Department of Defense in 1953 when the Secretaries of the Army, Navy, and Air Force all adopted a memorandum entitled “Use of Human Volunteers in Experimental Research.” The first principle was verbatim from the Nuremberg Code. In 1964, the World Medical Association in its “Helsinki Declaration” adopted the Nuremberg Code. Eventually, these principles were codified in U.S. law as Title 50, section 1520a, but this didn’t happen until 1977, two years after the famous Church Committee hearings on the CIA and DoD experiments herein discussed.

    There is, however, a seminal case from the Supreme Court called The Paquete Habana, which international law professors will say stands for the proposition that international law, in the form of treaties, executive agreements, and international norms and customs, are an essential part of U.S. domestic law.[vii] If that legal proposition is true, then the DoD’s experiments on its own soldiers without their informed consent was pushing up against the propositions that had been adopted in the aftermath of the Nuremberg Trials. It is certainly clear that by 1977, Congress thought something ‘wrongful’ had happened with the CIA’s MKULTRA program. At the opening of the hearings regarding the program, Senator Inouye, presiding, stated that “[i]t is also the purpose of this hearing to address the issues raised by any additional illegal or improper activities that have emerged from the files and to develop remedies to prevent such improper activities from occurring again.”[viii] Notice, however, what is conspicuously absent from that statement: any mention of holding people accountable for those putative violations of the law.

    Admiral Stansfield Turner, director of the CIA, also seemed to believe that something illegal had happened because he conspicuously noted that (a) he was cooperating with the Attorney General, and (b) reminded the committee that MKULTRA did not occur on his watch, but was a program of another director and that the events were some 12-24 years past at the time of the hearings. MKULTRA lasted from 1953 to 1964 and was conducted in concert with the Department of the Army.[ix]

    Interestingly, no one ever stated exactly what law they believed had been broken, nor what the penalty was for this crime. There was not then, and is not now, any federal criminal statute prohibiting a person or agency from conducting experiments on military members or ordinary citizens without their informed consent. Some members of the committees invoked the  then-newly passed that was the product of a 1975 initial inquiry into these matters, but it wasn’t a criminal statute – it simply mandated informed consent with no actual punishment or remedy listed for violations. Chapter 3 delves into judicial remedies  against a government agent or agency conducting such experiments. Technically, an unconsented medical procedure would constitute a battery or an assault consummated by a battery, but there is no federal “battery” statute; criminal law is almost entirely a matter for the states.

    This raises an uncomfortable moral/ethical/legal question: which is worse, the German doctors who operated (they claimed) out of a genuine ignorance that their actions were wrong – and historically speaking they have a fair case for it – or the DoD and its doctors who clearly knew that their actions were wrongful in light of the German doctors’ trials? Someone will undoubtedly want to take me to task for comparing the CIA’s or DoD’s doctors to the Nazi doctors of World War II, however, either the principles of the Nuremberg Code are the standards of the medical profession or they are not – they cannot be called principles if they can be bent to the will of the doctor performing the particular tests, or justified and waived away after-the-fact with vague references to ‘national survival’ because short of the Revolution or the War of 1812, the U.S. has never faced the kind of military pressure against the homeland as Germany did in WW2.

    The first principle enunciated in the Nuremberg Code is that “the informed consent of the subject is absolutely essential.” There is nothing equivocal about that statement. It does not say, for example, that “the informed consent of the subject is somewhat or mostly essential.” Nor does it manifest any limitation to only Nazi doctors or doctors of defeated Axis powers. As one author has noted, “[t]here is no exception for soldiers or for wartime.”[x] Which all goes to this simple point: there is no “greater good” exception or argument against the principle, because that is exactly what the Nazi doctors said they were doing.

    Sidney Gottleib’s statement that it was considered a matter of ‘national survival’ has two dangerous flaws in it, one obvious, the other insidious. The first, obvious flaw is that it is exactly the same argument that the U.S. and other Allied powers forbade as a defense in Control Council Law Number 10. The Wehrmacht doctors certainly performed a number of experiments whose results had only one possible practical application and that was in the war effort in which they were engaged. In fact, the German doctors, involved as their country was in a losing battle against foreign powers with bombs dropping on them daily, probably had a much better claim to Gottleib’s “national survival” argument than the CIA or DoD had in the continental United States post World War II with the U.S. as one of the world’s only two (nuclear) superpowers.

    More insidious, and hidden in Gottleib’s argument, however, is a claim of moral superiority. Gottleib’s argument allows that either he, or someone else on behalf of the state, can take away the subject’s right to decide the most fundamental question of humanity: the right to live. It is an objectification of the person – the person as tool of the State. As was pointed out by Supreme Court Justice William Brennan’s dissent in the Stanley case, quoting a law review article,

    [Human experimentation authorized by the state] dramatizes the notion that the state is free to treat its nationals in the manner it chooses because it perceives itself as the source of all rights, and therefore as beyond the reach of law, rather than regarding rights as inalienable, that is, not subject to arbitrary cancellation by the State.[xi]

    This is more insidious because it sounds academic and benign, perhaps even agreeable, because, after all, doesn’t each of us owe our way of life to the state? This simple, yet bankrupt, logic, and consequent objectification of human beings can easily be turned on particular groups and yields exactly the kind of thinking that helped create the Holocaust in the first instance. I do not want to oversimplify a tragedy on the scale of the Holocaust into one short sentence; it doesn’t do it justice nor does it take into account the myriad other factors in involving anti-Semitism in Europe that help account for what happened in Europe from 1933 to 1945. It is, however, critical to recognize arguments like Gottleib’s “national survival” and follow them to their logical conclusion, otherwise tragedies like the Holocaust get put aside as historical anomalies and when programs like MKULTRA, the Tuskegee experiments, and yes, even the current DoD anthrax program are announced, apologists differentiate them because, clearly, WE are not in any way morally comparable to the (gasp!) Nazi doctors… even when government actors are violating the exact same principle in the same way.

    It may be that our government agents do not use specifically identical means that the Nazi doctors did: that is, brute force at the point of a gun. Instead, however, the CIA doctors in the MKULTRA program and the DoD doctors in the mustard and lewisite gas tests, or the Atomic Energy Commission in its radiation tests on soldiers, used deception or trickery, additionally backed by the very credible threat of future punishment (court-martial), in order to silence those who might bring their actions to light. In normal criminal trials, attempting to hide conduct is frequently admissible as “consciousness of guilt” – that is, evidence that the actor was aware of the wrongfulness of their actions. Worse than Gottleib’s public justification, however, is that in some cases, government actors consciously change history or the law: destroy documents, close test sites, classify evidence they don’t want to become public, and then offer some higher moral calling as justification – the threat of an invisible enemy, international terrorism, the ticking time bomb, etc. The end result is that these excuses either gain public acceptance, or create a sense of public indifference, to the rights of their fellow citizens.

    Lest there be any question about whether this line of reasoning was ever explored by the Army or CIA doctors at the time, internal documents that were accidentally discovered because they were mis-filed and did not get destroyed like the rest of the more direct source documents became public and put a finer point on it. In 1977 hearings in front of the Senate, internal CIA documents revealed that the CIA believed that it must “conceal these activities from the American public in general,” because public knowledge of the “unethical and illicit activities would have serious repercussions in political and diplomatic circles and would be detrimental to the accomplishment of its mission.”[xii]

    In a 1959 Staff Study, the United States Army Intelligence Corps (USAINTC) even more candidly explained its justification for abandoning the principles of the Nuremberg Code.

    It was always a tenet of Army Intelligence that the basic American principle of dignity and welfare of the individual will not be violated . . . In intelligence, the stakes involved and the interests of national security may permit a more tolerant interpretation of moral-ethical values, but not legal limits, through necessity . . . Any claim against the US Government for alleged injury due to EA 1729 [LSD] must be legally shown to have been due to the material. Proper security and appropriate operational techniques can protect the fact of employment of EA 1729.[xiii]

    That is to say, legal liability could be avoided by covering up the LSD experiments. If no one could prove they had been given the drug, no one on the administering side would ever have to pay the consequences for their actions.

    Putting aside the moral reprehensibility of this position, the issue of the legality of the DoD’s tests is beyond cavil: the experiments violated a slew of laws. They certainly violated the spirit and letter of the Nuremberg Code. They violated any number of state criminal battery or assault statutes: an unconsented drug in one’s drink is a battery. By common law, the person administering such a treatment would be criminally liable for whatever happened to the person taking the drug.[1] These batteries would also be actionable in a tort suit for damages were the doctors in private practice. They violated the “common rule” and accepted standards of medical practice. They violated the civil rights of U.S. citizens, yet no one was ever prosecuted for these (and other) acts; no government agent or agency was ever forced to pay a service member a dime by any court for the harms done to them. The explanation as to why is a sobering bit of legal legerdemain.

                                                                                                                                                                                       

    [1] “During the Rockefeller Commission and Church Committee investigations in 1975, the cryptonym [MKULTRA] became publicly known when details of the drug-related death of Dr. Frank Olsen were publicized. In 1953 Dr. Olsen, a civilian employee of the Army at Fort Dietrick, leaped to his death from a hotel room window in New York City about a week after having unwittingly consumed LSD administered to him as an experiment at a meeting of LSD researchers called by CIA.”  Prepared statement of Adm. Stansfield Turner, Director of the CIA, before a Senate Committee, August 3, 1977.

    [i] U.S. v. Manuel, 43 M.J. 282, 286 (C.A.A.F. 1995)(citations omitted).

    [ii] Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10., Nuremberg, October 1946–April 1949. Washington, D.C.: U.S. G.P.O, 1949–1953.

    [iii] Control Council Law No. 10, Dec. 20, 1945.

    [iv] From the indictment, U.S. v . Brandt, et al. (The Medical Case), 2 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, (1949).

    [v] Id.

    [vi] U.S. v . Brandt, et al. (The Medical Case), 2 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, p. 37 (1949).

    [vii] The Paquete Habana, 175 U.S. 677 (1900).

    [viii] Project MKULTRA:  The CIA’s Program of Research in Behavioral Modification, Hearings Before the Senate Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Committee on Health and Human Resources, p. 2, August 3, 1977.

    [ix] Id. at pp. 9-14.

    [x] G.J. Annas, Changing the Consent Rules for Desert Storm, 326 New Eng. J. Med. 770 (1992).

    [xi] Bassiouni, Baffes, & Evrard, An Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation, 72 J. of Crim. L. & C. 1597, 1607 (1981).

    [xii] S. Rep. No. 94-755, Book I, p. 385 (1976)(quoting CIA Inspector General’s Survey of the Technical Services Division, p. 217 (1957)).

    [xiii] Id., at 416-417 (emphasis added)(quoting USAINTC Staff Study, Material Testing Program EA 1729, p. 26 (Oct. 15, 1959)).

     

     

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  • Chapter 1 – A Brief History, or “I’m from the government and I’m here to experiment on you.”

    I think it speaks to the undercurrent of distrust of the government and the military,” said Lt. Gen. Ronald R. Blanck, the Surgeon General of the Army, the service that oversees the [anthrax] vaccination program.  “Agent Orange. Nuclear tests in the ’50s. People say, ‘How can you say this is safe?’  Clearly, we have a credibility problem.”

    ~ Steven Lee Myers, Armed Services Opt to Discharge Those Who Refuse Vaccine, N.Y. Times, March 11, 1999.

    The United States Armed Forces has a long and not-so illustrious history of testing nuclear, biological, and chemical weapons… on its own citizens. From at least the 1940’s on (and if you want to include Native Americans, we can go back a lot further!), the Department of Defense has conducted experiments on U.S. servicemembers using ‘unconventional’ weapons. A report prepared by the staff of the Senate Committee on Veteran’s Affairs in 1994 concluded that “[f]or at least 50 years, [the] DOD has intentionally exposed military personnel to potentially dangerous substances, often in secret[.]”[i] That report followed a Government Accounting Office inquiry into experiments conducted on servicemembers by the Department of Defense.[ii] The GAO report detailed many different programs, some of which the DoD still lists as classified, in which servicemembers were given experimental drugs and other treatments without their knowledge or consent. A few of the more stunning examples of experimentation are worth discussing in detail, not simply to attack the Department of Defense or the military establishment, but rather as context because it is against this history that the DoD’s anthrax program was launched. And it is against this background of secret experimentation and tests conducted on coerced subjects that the DoD asks members of the Armed Services to “trust us” with regards to vaccines and inoculations claimed to be safe and effective.

                                                                                                                                                                                                   

    [i] An Institute of Medicine report looking at the history of mustard and lewisite gas found the Armed Forces researching chemical warfare after World War I and up through World War II.  The report even traces some research back before the Civil War.  See Senate Report No. 103-97, at 15 (1994).

    [ii] The Government Accounting Office (GAO) is the watchdog arm of Congress that investigates government agencies.  See “Human Experimentation, An Overview on Cold War Era Programs,” U.S. General Accounting Office, September 28, 1994, GAO/T-NSIAD-94-266.

                                                                                                                                                                                                               

    In the 1940’s, the Department of the Navy began soliciting volunteers to participate in a program to test protective clothing. In reality, the program was designed to test mustard and lewisite gases, chemical agents that the United States thought might be used by the desperate Axis powers at the end of World War II. There are some who claim that the tests were done simply to see what effect mustard gas had on soldiers in order to determine the offensive potential of chemical weapons. The truth is likely that these are not exclusive propositions. Either way, the program solicited potential ‘volunteers’ with the promise of two weeks of extra leave or some other similar incentive. “Due to the strategic importance of these experiments [however], the Navy deemed it inappropriate to inform potential volunteers as to the precise nature of the tests.  Instead . . . the . . . volunteers were led to believe that they would be testing uniforms for use in tropical climates.”[iii]  These ‘volunteers’ were sworn to secrecy and threatened with court-martial if they told anyone about the program for which they had just ‘volunteered.’  Of course, at this point, because no one had told them exactly what they volunteered for, it was relatively easy to extract such a promise. It is rather doubtful that most members would have agreed had they known that they were about to be experimented upon with chemical weapons.

    Nathan Schnurman was a young sailor who figured he could use the extra few days off. He had just finished boot camp and was stationed at Bainbridge, Maryland, awaiting further orders when he volunteered for the program. He was put on a bus for Anacostia, Maryland, where the experiments actually took place. Young Nathan Schnurman, along with the other volunteers, was given a bunk in a Quonset hut and some blankets for that evening. All of the volunteers were issued protective clothing, including a gas mask, given a physical, and the next morning the experiments began. The protective clothing and masks were fitted and checked and then the ten volunteers were led to the testing building. At this point, the volunteers had still only been told that they were testing clothing for tropical weather.

    The building itself was a simple structure with an entrance platform and test chamber. A single door separated the platform from the chamber and an intercom allowed for communication between the subjects inside the chamber and the corpsmen on the platform. The subjects were told that, once inside, a vapor was to be introduced into the chamber and that they were to remain in the chamber for one hour. The subjects were not told what the vapor was, but were told that it might produce a slight irritation on the subjects’ skin, similar to a sunburn. The subjects were admonished not to discuss the experiment with anyone.[iv]

    The volunteers were exposed to the vapor for the one hour, as advertised. After that, they were instructed to continue to wear the protective clothing for another four hours, to eat meals and pass the time in their Quonset hut. They later disrobed and were given physical exams to check primarily for burns on the skin. This routine repeated itself the next day. The second day’s physical was the last one that any volunteer ever received as a part of the experiment.

    The hour-long gas exposures continued on a daily basis for the next four days without incident, save the departure of a few of the subjects due to painful burns. On one of those days, just prior to the morning’s exposure, plaintiff [Schnurman] was informed by a corpsman that they would be testing mustard and lewisite gas that day.

    On the sixth test day, while inside the chambers, plaintiff’s gas mask malfunctioned and plaintiff breathed the noxious vapor being tested. The inhalation of the gas produced extreme nausea and a burning in his eyes, nose and throat. Before being helped out of the chamber, plaintiff regurgitated in his mask. Once outside the chambers and free of his mask, plaintiff continued to experience nausea and dizziness, plus an intense pain in his chest. After further vomiting, plaintiff lost consciousness. No record was made of this incident.

    Upon regaining consciousness, plaintiff was informed that he would no longer be needed for the experiment and that he could return to Bainbridge. He was not given any physical examination or treatment with the exception of local treatment for the minor burns on his skin. Plaintiff left the site of the experiment and traveled to his home in Roanoke, Virginia for a ten-day leave.[v]

    Mr. Schnurman went on with his life, experiencing long-term health problems. Sworn to secrecy, Schnurman felt that he could not tell his personal physician about the source of his ailments because of his oath and the threat of punishment. Thus, he did not provide essential information to his doctors about his health because of his fears of what would happen to him if he told. This scenario was not uncommon.

    A Mr. John T. Harrison described to a senate committee how he was sworn to secrecy in 1943 when mustard gas tests were conducted on him.[vi] Because of these vows to which the man had been sworn, it was not until much later in life that plaintiffs, such as Mr. Schnurman, (1) learned of what had been used on them, and (b) then filed lawsuits against the government.

    A very similar incident happened to a John William Allen in 1945, according to a statement before the Senate Committee on Veterans’ Affairs. Mr. Allen testified that the real purpose of the testing was to determine how much sulfur mustard a man could take before being overcome: these were known as ‘man-break tests.’  “He was exposed several times to sulfur mustard and was removed from further exposure on May 5, 1945, when he passed out in the gas chamber. A physical examination on May 14, 1945, revealed many wounds as the result of exposure to mustard gas.”[vii]

    It is important to understand that these are not isolated incidents.  An Institute of Medicine report in 1993 estimated that some 60,000 military members were used as human subjects in the 1940’s to test just for two particular chemical agents, mustard gas and lewisite, and the majority of these people were not informed about the nature of the experiments, nor were they given proper medical care or follow up after the research.[viii]

                                                                                                                                                                                                               

    [iii] Few things have amazed me more in my time in service than what members of the Armed Forces – even moreso Marines – will do for just a few extra days of leave or liberty. I am still not sure what that says about the military, but leave and liberty are the promise land to most servicemembers.

    [iv] Schnurman v. United States, 490 F. Supp. 429, 430 (E. D. Va. 1980).

    [v] Schnurman, at 431.

    [vi] Is Military Research Hazardous to Veterans’ Health? Lessons from World War II, the Persian Gulf War, and Today, Senate Committee on Veterans’ Affairs, 103rd Cong. May 6, 1994.

    [vii] S. Rep. 103-97, at 18 (1994).

    [viii] Veterans at Risk: The Health Effects of Mustard Gas and Lewisite, Pechura, C.M. & Rall, D.P. (Eds.) Institute of Medicine, National Academy Press, Washington, DC, 1993, p. 3-4, 6-8, 50-52, 224-226.

                                                                                                                                                                                                               

    During the 1950’s and 60’s, the CIA and the Army engaged in experimentation on U.S. servicemembers, both with and without their knowledge. In several different experiments, the DoD caused servicemembers to unknowingly ingest hallucinogens. Most of the experiments centered around ‘mind control’ and interrogation of persons under the effects of hallucinogens. This was prompted by the perception in U.S. intelligence that China and the Soviet Union had used, and were using, hallucinogens for ‘brainwashing’ and interrogation of prisoners of war. This program was known by the code name MKULTRA. It involved giving LSD and another substance known as quinuclidinyl benzilate, a hallucinogen code-named BZ, to unsuspecting members of both the Armed Forces and civilian communities.

    In 1958, Master Sergeant James Stanley responded to a posting on Fort Knox, Kentucky, that solicited volunteers to help the Army develop methods for testing and defending against chemical weapons. Ironically, the volunteers were told they would be testing protective clothing (just as in World War II). MSgt Stanley was transferred to Aberdeen, Maryland, for the testing. He did not learn until seventeen years later that he had been unknowingly given LSD during the program. He found this out accidentally in 1975 when contacted by Walter Reed Army Medical Center, which was conducting follow-up on those who had participated in the 1958 test. Walter Reed wanted to know of any long-term health consequences to MSgt Stanley from his ingestion of the hallucinogen. MSgt Stanley in the intervening years had suffered health problems and hallucinations that he had no explanation for that eventually led to a divorce. See United States v. Stanley, 483 U.S. 669 (1987).

    In another instance, Lloyd Gamble, who enlisted in the U.S. Air Force in 1950, volunteered for a special program to (yet again!) test new military protective clothing in 1957.

    He was offered various incentives to participate in the program, including a liberal leave policy, family visitations, and superior living and recreational facilities. However, the greatest incentive to Mr. Gamble was the official recognition he would receive as a career-oriented noncommissioned officer, through letters of commendation and certification of participation in the program. During the 3 weeks of testing new clothing, he was given two or three water-size glasses of a liquid containing LSD to drink. Thereafter, Mr. Gamble developed erratic behavior and even attempted suicide. He did not learn that he had received LSD as a human subject until 18 years later, as a result of congressional hearings in 1975.  Even then, the Department of the Army initially denied that he had participated in the experiments, although an official DOD publicity photograph showed him as one of the valiant servicemen volunteering for “a program that was in the highest national security interest.”[ix]

    What is worth noting about these programs, beyond the experimentation on servicemembers without their informed consent, are the arguments offered by the proponents and defenders of these programs. According to Sidney Gottlieb, a doctor and former CIA officer, MKULTRA was established to investigate whether and how an individual’s behavior could be modified by covert means. Dr. Gottlieb testified before Congress that “it was felt to be mandatory and of the utmost urgency for our intelligence organization to establish what was possible in this field on a high priority basis.”[x] Although many human subjects were not informed or protected, Dr. Gottlieb’s defended these actions by stating, “. . . harsh as it may seem in retrospect, it was felt that in an issue where national survival might be concerned, such a procedure and such a risk was a reasonable one to take.”[xi]

    These attitudes persist even today. Dr. Gottleib’s responses in the 1970’s sound remarkably like the reasons offered to justify mandatory vaccination of troops today with unapproved, unlicensed, or investigational drugs. In a television appearance in 1997, Secretary of Defense Cohen held up a five-pound bag of sugar and stated that if the bag were filled with anthrax spores, it could wipe out half of the population of Washington, D.C.[xii] In a later opinion editorial appearing in Army Times, Secretary Cohen wrote that

    At least 25 countries, including Iraq and North Korea, now have – or are in the process of acquiring and developing – weapons of mass destruction . . . This is not hyperbole. It is reality . . . The race is on between our preparations and those of our adversaries. We are preparing for the possibility of a chemical or biological attack on American soil because we must. There is not a moment to lose.[xiii]

    The truth of these matters will be examined in greater detail later. The point to be made here is that Secretary Cohen’s defense of the anthrax program, and the justification for biological warfare programs generally, distilled to its essence, is nothing more than “the ends justifies the means.” Where matters of national security (Gottleib called it “national survival”) are at stake, it does not matter how we go about defending ourselves, even if it means experimenting on unsuspecting troops, because it involves ‘National Security’.

    This is a particularly dangerous path for a number of reasons, some obvious and others not as obvious. While there are any number of moral points of view about using troops in this way, one’s opinion about whether it is right or wrong to experiment on troops in this fashion depends largely on one’s view of individual liberty for the citizen-soldier and the limits of a nation state’s ability to protect ‘itself.’ These arguments inevitably devolve into philosophical debates, punctuated by twelve-letter words and citations to long-dead philosophers, spoken by people far removed from the gas chambers and vomiting victims on their hands and knees; much like Dr. Gottleib’s testimony in an air-conditioned chamber in front of politicians and cameras during the famous Church Committee hearings. More importantly, where ‘military’ or ‘national security’ matters are concerned, the academics inevitably defer to those wearing uniforms with stars on their collars.

    It would appear on the surface that this issue was decisively concluded at the end of World War II in favor of the rights of the individual. In August 1947, the Nuremberg Trials of the Nazi Doctors, including those such as Karl Brandt, came to a close, resulting in the death penalty for many of the doctors who conducted such experiments on unwilling prisoners in concentration camps across Hitler’s Reich. It is there that we must turn briefly in order to understand the law of informed consent and how it applies to the military, if at all. But if it seems that the present author is ‘laying it on a little thick,’ compare Secretary Cohen’s above remark about the necessity of the mandatory anthrax vaccine program to this one:

    We are not conducting these experiments, as a matter of fact, for the sake of some fixed scientific idea, but to be of practical help to the armed forces and beyond that to the . . . people in a possible emergency.

    This is from a letter written by Doctor Wolfram Sievers, Colonel in the German Army in November, 1942, to Dr. Karl Brandt, both convicted Nazi War Criminals, excerpted from Prosecution Exhibit No. 263 at their trial.

                                                                                                                                                                                                               

    [ix] Id., notes omitted.

    [x] Human Drug Testing by the CIA, 1977: Hearings Before the Subcommittee on Health and Scientific Research, Committee on Human Resources, U.S. Senate, September 20-21, p. 169 (1977).

    [xi] Id., pp. 169-217.

    [xii] Paul Richter, Experts Assess Risk of ‘New Terrorism’ Threat, Los Angeles Times, Feb. 7, 2000.

    [xiii] William S. Cohen, Preparing for a Grave New World, Washington Post, Jul. 26, 1999.

     

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  • The Untold Story of the DoD’s Anthrax Vaccine Program, Serialized: Prologue

    “This court will come to order in the case of United States versus Petty Officer David M. Ponder, United States Navy, at Marine Corps Base Camp Foster, Okinawa, Japan.” I’m a little nervous, like I am at the beginning of every trial, but I don’t show it. It’s just an arraignment anyway. We’re mostly here to arrange dates for trial and I’ve already talked to the prosecutor, known as the “trial counsel” in military parlance, a professional Marine Captain by the name of Chris Kolomjec, and we’ve agreed to push the dates out a bit on this case. Like me, he had another specialty in the Marine Corps before becoming an attorney, so we have a collegial relationship. Chris is going on temporary duty to an exercise in Thailand called “Cobra Gold” and I’m in the beginning stages of a plan to plead this case out under very favorable terms if I can get in to see the Convening Authority – my client’s Commanding Officer – while he’s out of town. In courts-martial, the prosecution has one-hundred twenty (120) days to be ready to go to trial and the arraignment stops that clock from running.

    In David Ponder’s case, stopping the clock is mutually agreeable, but we have to coordinate our plans with the judge’s trial schedule.
    I put on the required lawyerly mask of indifference, but inside, my guts still twist a little. A trial is like the start of a “big” game in sports, except the stakes are a whole lot higher. I am, as one might expect, extremely competitive, particularly in sports, but I’ve played and lost enough games to have perspective – at the end of a game, even after a loss, nobody goes to jail, gets busted, kicked out of the service, or loses their pay. On the other hand, as a defense counsel I also have a standard line to my clients: “At the end of the day, I’m not the one going to jail. I’m going home to my wife and four daughters.” Notwithstanding this shpiel, I’m a bit new at this and keenly feel the punishment hanging over my clients, the mythical sword of Damocles hanging there, waiting to fall. One mistake on my part…. On the Defense side of the courtroom, it is your intellect, initiative, imagination – and a ball point and legal pad – against the resources of “The United States of America.” While it can be a unique intellectual challenge, it is also daunting because I am gambling with another person’s liberty. Anyone who ignores that is either another class of lawyer than I am or a fool.

    I edge a little closer to Petty Officer Third Class Ponder, a sailor who refused the controversial anthrax vaccine. My move closer might appear to outsiders as a sign of my solidarity with my client; and in David’s case, it’s got some truth. We’ve only just met, but I like him. In most cases, however, being proximate to my client makes me feel less alone. I am six months removed from Naval Justice School, nine months from passing the Bar, eleven months from law school graduation, and a lifetime away from my former occupation in the Marine Corps as a Cobra attack helicopter pilot.

    Captain Kolomjec finishes reciting his bona fides and how the court came to be created by the Commanding Officer of Naval Mobile Constriction Battalion Seventy-Four, Petty Officer Ponder’s C.O. This part really was boring, scripted, and I waited for my turn to speak.
    “Captain Saran?” the military judge, Lieutenant Colonel Tim Miller, looked up from his Military Judges’ Benchbook in my direction, my cue to do my part.

    “Sir, I have been detailed to this court-martial by Major J.R. Woodworth, Senior Defense Counsel, Legal Services Support Section, Third Force Service Support Group, Camp Foster, Okinawa, Japan. I am qualified and certified under Article 27(b) and sworn under article 42(a) of the Uniform Code of Military Justice.” I don’t need to look down at my trial guide for this, which is a script for Navy and Marine Corps trial proceedings for the repetitive parts in the process. It keeps everyone tracking where the trial is, but the real reason for it is to make for better records of trial. Anyone who receives a punitive discharge in the military gets an automatic appeal up to their service specific appellate court. Given the number of courts-martial in the military, this helps the appellate courts do their jobs. Arguably, it also helps the accused get a better, cleaner trial. The familiar recitation helps my nerves dissipate; I suspect it has something to do with being raised Catholic.

    “I have not acted in any manner which might tend to disqualify me in this court-martial and no other defense counsel, either military or civilian, have either been detailed to or are on this case.” I start to sit down and then stay on my feet in anticipation of my client standing up when the judge speaks to him for the first time – just as I instructed him to do.

    “Are you Petty Officer Ponder, the accused in this case?” David Ponder stands up to the position of attention.

    “Yes, sir.” Firmly, not too loud, perfect. He looks good in his uniform, as well. I know because I inspected him myself before we came into court. The defense shop keeps an extra set of uniforms, spare ribbons and devices, and whatever else we can scavenge for when our clients are brought in by the chasers – military escorts – from the brig. They come over in those ubiquitous orange jumpsuits in shackles; while their units are supposed to provide the uniforms for them, we always wind up with clients missing ribbons and sundry uniform items, so we have a small stock available.

    “Okay, Petty Officer Ponder, you may take a seat, and you may remain seated unless I otherwise direct you to stand.” Lieutenant Colonel Miller nods gently from behind his glasses. I notice he’s still rubbing his hand as he continues, a habit since the pins were removed. The judge flipped over the handlebars of his bike and busted his wrist up pretty badly and I knew the scar must itch where the pins had come out. Reconstructive shoulder surgery at 15 left me with an intimate understanding of that feeling.

    We finish with the preliminaries; I rattle off all of the awards which David Ponder had earned during his three years as a Navy Seabee. The judge goes through my client’s rights to counsel, military and civilian, and then his own qualifications. He then gives us a chance to challenge him or ask any questions if we think he might be partial for any reason, a formality at this point, because I’m pretty sure that Lieutenant Colonel Miller isn’t even going to hear this case if we go to trial. He’s likely to pass it to Major Eric Stone, the other military judge on Okinawa, because of some scheduling conflicts with other cases in the Pacific region, which includes mainland Japan and Korea. We all do a good bit of traveling because of the odd and disbursed units that have occasional courts-martial, but the bulk of the work is on Okinawa.

    I look over at my client; David Ponder looks young to me – and I just turned thirty. He has the beginnings of a moustache, but it’s just that, the beginnings. The good thing is that he likes to keep his hair short by Navy standards, which helps in a Marine court. He’s also a genuinely squared-away sailor. I liked him, which is supposed to be irrelevant to attorneys, but it’s not. Everyone gets the same level of representation; it’s just a question of whether you like defending them or not and whether or not you’ll feel badly if they’re convicted. It also helps in generating the emotional energy to work late nights and long hours cheerfully, as opposed to drearily.

    “Petty Officer Ponder,” the judge breaks into my thoughts, “I now ask you how do you plead, but before accepting your pleas, I advise you that any motion to dismiss or grant any other relief should be made at this time. Captain Saran?”

    I stand up, my stomach now fully settled, which is great because we’re just about done; we have our dates for trial, but I’m thinking this gets pled to a Summary Court martial, where my client can get no more than 30 days in the brig and no punitive discharge, but he’s probably going to have to waive his right to an Administrative Discharge Board and they’ll kick him out with ‘bad paper’ – an ‘Other Than Honorable’ discharge, which is like being fired from the military.

    “Sir, at this time Petty Officer Ponder requests to defer entry of pleas and motions in accordance with the schedule the court has already set forth.”

    The judge goes through the dates Kolomjec and I have already picked for motions, responses, witness requests, and discovery. All parties are agreed.

    “Anything else from either party before we adjourn?”

    “No, sir,” both Kolomjec and I answer after glancing at each other.

    “Then this court is in recess.”

    “All rise!” Kolomjec intones. I’m already on my feet and David joins me as the judge passingly says “Carry on” and departs.

    As my client and I walk out, we almost bump square into David Allen, a reporter from the Pacific “Stars and Stripes.” I’ve only been on the island for a few months, but my reaction is immediate – I step in and tell David Allen we’ll give a statement at some point and he’ll be the first to know. Blah blah blah.

    The first thing any decent defense attorney wants regarding his client’s talking – to anyone, but particularly law enforcement and the press – is to STFU and let the lawyer do the talking. The cop shows and movies are dead-on in one respect: anything you say can and will be used against you. Plus, offhand I can’t remember either the Code of Professional Responsibility or the more stringent Navy Instruction for all Judge Advocates on speaking to the press. I know generally it’s frowned upon, if not outright verboten, to speak to the press. Add to that my natural aversion to the media as a military officer and I’m curt, but polite.

    Oddly enough, this is one of the few times it likely won’t matter. It’s not as if David could say anything damning – he had refused a direct order to take the anthrax vaccine and even talked about it in interviews with local media in his homeport of Biloxi, Mississippi. There isn’t a whole lot of dispute factually. I don’t want to give the government any additional ammunition for sentencing, however, should we ever get there. A jury or military judge would probably not look kindly on someone who was bashing the military in the local paper. So, we pass on the “exclusive.”

    Back in my office, I drop into my chair.

    “Sir,” Petty Officer Ponder begins, “what happens now?”

    “Well, you heard the dates for motions. That’s the next big milestone. It’s likely that the prosecutor will file a motion asking the judge to find the order to take the vaccine lawful. That’s been the standard in the few other anthrax cases that have gone to trial. The good thing is that Captain Kolomjec leaves for Thailand the day that our response is due. Likelihood is he won’t be around in the afternoon when I drop the response off on the prosecution. He also won’t be back until right before the motions session and I’m betting no one else is going to pick up our response and run with the ball. So, it may not win the day, but it will certainly limit his time to be ready to answer our motion.” David Ponder nods, but I can tell he’s nervous. I would be, too, if I were in his shoes.

    “Sir, did you get in touch with Major Bates’s attorney, Mister Smith, at that number I gave you?” David Ponder put me in touch with an attorney in the States named Bruce Smith, an administrative judge in North Carolina and Major in the Air Force Reserve. He defended Air Force Major Sonnie Bates, the highest ranking officer to refuse the anthrax vaccine. He had been discharged with ‘good paper’ as a result of a plea negotiation.

    “Yeah. I talked to him. Interesting conversation.”

    When I spoke to Bruce Smith, he calmly asked me if I could consider that the order to take the anthrax vaccine was unlawful. Not quite expecting the question, I had said, sure, albeit hesitantly. In my own mind, I figured he was a loon, a conspiracy theorist, but he had gotten a good result for Major Bates, so what did I have to lose by listening to the guy? He told me to look up a particular federal statute and then said he would send me some other materials and asked if I would I please keep them “close hold.” His manner was so cordial, I casually agreed, thinking nothing of it.

    My boss, Major John Woodworth, figured he had done me a favor by assigning me – a brand new judge advocate – three of the four anthrax refusal cases on the island of Okinawa. The assumption was that these were guys looking for an excuse to get out of the military and the units would likely agree to Summary Court deals with a Board waiver and these would be over in short order. Like Tom Cruise in a “Few Good Men” I came to David Ponder’s case with the goal to get him the best deal possible, and do it quickly and quietly. I also have several major cases pending, including a rape defense.

    I got the first three of my anthrax shots just before coming to Okinawa. I took them somewhat reluctantly, as I had read an article in a major news magazine about the possibility of some experimental substance called squalene being in the anthrax vaccine given to soldiers during Desert Storm. I had sat in the medical clinic at Naval Justice School in Newport, Rhode Island, discussing the matter with another Marine attorney. Both of us had served previously as officers in the Fleet Marine Force and while we tended to think that squalene had been used in the anthrax vaccine, our leaders wouldn’t allow it to be used now. Quite simply, we trusted our chain of command, our senior officers.

    David breaks into my thoughts.

    “Do you think my CO might consider not court-martialing me or something if you explained this to him?” David Ponder’s question was laden with ethical implications that I was glad I explained to him. While the anthrax vaccine was getting a lot of attention in the press back in the States, and the issue was very interesting legally, I couldn’t let that interfere with my duty to my client, which is to advocate his interests. If he wanted to deal, to plead guilty, no matter how much I might like to litigate the issue, it was his ass on the line. I explained as much to him from the start. David Ponder didn’t have a Juris Doctor, but he was sharp and understood the bottom line.

    “Well, I’m going to set up a meeting while Kolomjec’s away and see if the C.O. won’t listen to what we’ve got to say. I’ll get back to you as soon as I get out of that meeting, okay?” I smiled at him.

    “Okay, sir. I’m going to change up. Where can I go to have a smoke?”

    “Out on the stairs at the end of the building.” I nodded toward the general direction. When he left, I went back to work. I was concerned with the other fifteen other clients who were counting on me to keep them out of jail. At the time, I had no idea that David Ponder’s case would take us both from Okinawa to the highest military court of appeals, to the doorstep of the Supreme Court, and eventually to testifying in front of Congress. It would also eventually cost me my active duty career, but that was a long way off.

     

     

  • This [REDACTED] is [REDACTED] as [REDACTED]

    THIS TRANSMISSION IS CLASSIFFIED;

    THAT MEANS IF THIS IS LEAKED, BAD THINGS HAPPEN;

    STOP LEAKING, ITS DANGEROUS IF THE PUBLIC FINDS OUT WHAT GOES ON IN THE WAR ROOM

    STOP LEAKING, DAMN YOU!!

    THIS TRANSMISSION IS CLASSIFIED

    Location:  US State Department, Henry Kissinger Conference Room

    “I know, I do, I P.  Me, Mike P on Iran.  That which is he, who is me.  You all got that?”  Secretary Pompeo declared.  “Iran is going to get a big steaming load of hot ass all over their Mohammadean chests, when I am done with them!”

    “This has nothing to do with Iran.  Just because we called in the Joint Chiefs, doesn’t mean we are asking you to create a war, Mr. Secretary.”  Acting SecDef Patrick Shannahan replied.  “Certainly not one with Iran.”

    “But I want to take a big shit on Iran!”  Pompeo sat down on the floor with his arms crossed.

    “That’s not why we’re here.”

    “This isn’t fair.  I want to shit on Iran.  I was promised I can go to war with Iran if I took this shit job, and damnit  I wanna war with Iran!”

    The room fell silent enough to hear the collective eye rolls from the Joint Chiefs, and Bolton’s mustache furiously fapping upon a unlit cigarette.

    “We need to brief the President on…another issue that has been making the rounds in the media.”  Shannahan explained. “Has anybody ever informed you of the DOD’s work with UFO’s?”

    “Unidentified Flying Iranian-Objects?”

    “It has nothing to do with Iran.”

    “Uhhh-ranian Flying Objects?”

    “IT HAS NOTHING TO DO WITH IRAN.”

    “Look, it’s close enough for government work.  Let’s begin before I need another cigarette.”  A fat, awkward looking man said behind the SecDef.  He appeared to be sloppily dressed in a cheap suit and smelled of sweat, used prophylaxes, American Spirit Menthols, and possibly yellow curry.  “I don’t have a ton of time but if this shitweasel has the President’s ear then my job is done once I pass him the ball.”

    “This is Special Secret Agent Snuffy.”  Shannahann began.  “He has been tracking these anomalies since 1968.”

    “Does he work for Iran?”  Pompeo asked.

    “I don’t work for Iran.”  The fat man replied.

    “I don’t believe you.  What Iranian agency do you work for?”

    “I worked with the Shah, briefly in the 70’s, but that is irrelevant.”

    “I KNEW IT!”

    “Listen you shitweasel, SPACE SMITH has been sighted by Naval Aviators during the previous administration.  SPACE SMITH is out to rape you and the rest of the planet.”

    “Does SPACE SMITH work for Iran?”

    “No.  It’s an ancient spiritual being that transcends time and space, jumping between planetary systems after it achieves it’s objectives:  raping the planet.”

    “Does Iran possess this technology to transcend time and space?”

    “No, Iran is going to get fucked too.”

    “YES LETS FUCK IRAN”

    “Focus, you asshole.  SPACE SMITH =/= Iran.”

    “Exactly…focus…Iran…asshole…SPACE SMITH…rape Iran.  What else do I need to brief to the President?”

    “Navy and Air Force pilots have come in contact with SPACE SMITH.  Some of them have gone public, and some of the media outlets are reporting it, and not just the crackpot outlets.  They identified it moves at hypersonic speeds, and in a manner that exceeds human abilities.  We don’t think we can talk it down, but a plan does exist in the event it must scratch its quantum itch.”

    “Can Iran move at hypersonic speeds?”

    “No.”

    “Can we use this against Iran?”

    “Not really, not without getting raped ourselves.”

    “But Iran is behind SPACE SMITH.”

    “Technically its the other way around.”

    “Okay I think I have this now.  Air Force and Navy pilots have identified a new Iranian super-weapon, this ‘SPACE SMITH.’  This is why sanctions are not enough in dealing with the radical Islamic Iranian regime….”

    “Can I slap him?”

    “Mathis struck him last year.” Shannahan responded. “Pompeo accused him of being an Iranian plant.  Took a dozen men to remove Mathis dragging his balls across his face after he knocked him out.”

    “The Iranian’s sent Mathis to take me out and Tea Bag me!”

    “Jesus.”  The yellow curry scented man said.

    “What is the connection between Jesus, and Iran?”  Pompeo asked.

    “We tried.  Hopefully he tells the President.”

     

    “With the aid of their new super-weapon SPACE SMITH RAPED JESUS!  Iran converted JESUS against AMERICA, and will turn this weapon against the American people, unless we act now…..”

     

    THIS TRANSMISSION IS CLASSIFFIED;

    THAT MEANS IF THIS IS LEAKED, BAD THINGS HAPPEN;

    STOP LEAKING, ITS DANGEROUS IF THE PUBLIC FINDS OUT WHAT GOES ON IN THE WAR ROOM

    STOP LEAKING, DAMN YOU!!

    THIS TRANSMISSION IS CLASSIFIED

     

     

     

  • SPACE SMITH: Revolt

    THIS TRANSMISSION IS CLASSIFIED

    SOME OF YOU NEED THIS SPELLED OUT FOR YOU, SINCE ALL OF THESE SOMEHOW WIND UP ON CNN.  THIS IS CLASSIFIED.  THAT MEANS YOU DO NOT GET TO TALK ABOUT IT.  DO NOT TELL THE SENATE ARMED SERVICES COMMITTEE, DO NOT COPY/PASTA TO AN EMAIL AND SEND IT TO YOUR SPOUSE OR PARTNER.  DO NOT TELL SOMEBODY AT POLITICO SO YOU CAN BE INTERVIEWED ON FAREED ZAKARIA’S SHOW NEXT WEEKEND.  DO NOT TALK ABOUT THIS TRANSMISSION.  CAPICE?

    ONCE AGAIN, THIS TRANSMISSION IS CLASSIFIED.

     

    Location:  SpaceX corporate headquarters. Hawthorne, CA.  

    “My diabolical plan to set up a Martian sugar beet colony is going exactly as planned.  Soon the world, my world, will be flooded with my sugar beets.  They will all be stuck on a lifeless desert planet, with nothing to sustain themselves but my sugar beets.”  Elon said.

    ”Sir, who are you talking to?”  The hispter in the next cubicle asked.

    ”I’m not talking to anybody.”  Elon replied.

    ”You were just talking to somebody.”

    ”No I wasn’t.  Thats not funny, hahaha.”  Elon’s real but fake laugh made everyone in the office uneasy.  “Maybe its a little funny.  Don’t you have some kind of project to be working on?  I’m paying you for something?”

    ”I’m still working on that 3D rendering of a sandwich you want me to order tomorrow.  Turkey and avacado on sourdough.”  The hipster answered.

    ”Order?  You’re making me the sandwich.  I better see that rendering by lunch today.  I’m still dissapointed the crepes this morning looked nothing like the rendering I approved last week.  Try harder.”

    ”Yes Mr. Musk.”

    ”Hey, call me Elon… Bitch.”

    ”What did you say?”

    ”He called you a bitch.”  A groutesque man in a cheap suit appeared from behind the hipster’s cubicle.  He smelled of Unfiltered Camels, incense, sweat, and a dead house cat.  He sat there inhaling the cigarette from behind a baggy, leather-like set of thin lips.

    “Who invitied this guy?  You can’t smoke in here.”  Elon said.

    ”Of course I can.  Who are you to tell me I can’t smoke in here?”

    ”I own the building…and the big rocket outside.”

    “Hard to believe that, given you work in a cubicle.“

    Elon was not amused.

    ”Fine.  Hold out your hand, Bitch.”  The hispter did as he was told.  The chunky titted man put out his cigarette on the hipsters hand,  pressing and twisting the Camel firmly into his palm.

    ”I guess I can dispose of this outside….”  He hurried away.  “I need an ice pack!”

    The man sat there, adjusting himself.

    ”I think I’m going to have security escort you off my property.”  Elon picked up the phone, and set it down when he found the phone was dead.

    ”No security, I paid them off.  Put them on 8 hour shifts instead of 12, and it might help if you feed them meat every once in a while.  Seriously, it should take more than a Baconator.”  He lit up another cigarette.  “Let me ask you a question, do you know what happened to the Opportunity Rover?”

    ”Opportunity?  It was (((you know)))…I know they’re behind it…somehow…”

    “No, not this time.  I’m surprised you didn’t see it.  It happened near your sugar beet fields.”

    ”How do you know about my sugar beets!?”

    ”Hey genius, my agency subsidized them.  We paid for your secret sugar beets.  Now we need you to return the favor.”  He took a long, orgasmic drag of the cigarette and blew it in Musk’s face.  “The Opportunity Rover did not just go offline because its service life is up.  It was raped by SPACE SMITH.  We even got a fuzzy photo before it was crushed.  Your field may be next, but he’s never raped vegetables.  At least not yet.”

    Musk tried to call security on his iPhone.

    ”That won’t work either, we already took it through the backdoor.  Much like that Soviet probe. SPACE SMITH has been tossing its salad since the 70’s.”  He adjusted himself again.  “SPACE SMITH is just one of many SMITHS here on Earth.  They’re behind something of a revolt.  You will help us cover it up.”

    ”You are telling me what to do?”

    “We need a fall guy.  You’re going to be it.”

    ”Excuse me?”

    ”We just need a guy interesting enough to take the attention away from a small roving gang of crypto-rapists.  The media just focuses on you.  No big deal really, other than you losing a shitload of money.  You’ll pay a few fines, we’ll short your companies, the proceeds of which will be used to pay off the cryptids, for the time being.  Its all in the contract you signed when you became a defense contractor.”

    ”No it isn’t.  I paid a lot of (((lawyers))) to read it for me.”

    ”I’m sorry, it’s called the fuck you that’s why clause.  Its not really written in the contract, but you’re going to do it anyway.”

    ”How can you make me do it?  I’m one of the most powerful men on Earth…and Mars.”

    ”Well…we already hacked your iPhone.  You just put out a tweet that will be interpreted by the Russian media as you being an anti-semite.”

    ”What?”  Elon looked on his iPhone.  “No!”

     

    ”There’s also a small matter involving the SEC.”

     

    ”Tesla shareholders are going to panic sell.”

     

    ”By the way, you just lost your security clearance.”

    ”You’re trying to ruin me!”  Elon shouted.  “Why?”

    The sweaty man took a final drag of his cigarette.

    ”Because fuck you, that’s why.”

  • South China Sea: Fair Seas or Foul Weather? Part 2

     
    Read Part 1

     

    Defense Treaties- who holds what wild cards?

    The Unites States has defense treaties with numerous nations with SCS interests: Japan, the Philippines, South Korea, Australia and Thailand.  We also have a loose quazi-treaty with Taiwan.  The common thread is that the US will help defend these nations if they are attacked.  For the SCS the Philippines and to a less extent Japan are the principle concerns.  As the maps show the Phils will be hugely impacted by the PRC’s claims.  In 2016 the Chinese lost in international arbitration under the United Nations Convention on the Law of the Sea (UNCLOS).  China has since stated that it doesn’t recognize the decision and continues to claim the Nine Dash areas.

    If a defense treaty nation is attacked the US has obligated itself to defend them with the US military.  That means China possesses the means to determine the timing and size of any first blow.

    In one example of the continuing tensions, the Phils and PRC have nearly started shooting at each other over the Second Thomas Shoal in the Spratley Islands. The shoal is within 200 miles of Palawan Island but well inside the Nine-dash Line so both countries consider the area within their respective economic zones.  The Phils intentionally grounded a WWII era ship in 1999 and have kept it manned with a detachment of soldiers since then.  Resupply and repair operations are routinely contested by the SCP and PAFMM.  Neither side has shot (yet) but the two sides play cat and mouse as the PRC tries to starve out the soldiers while waiting for the collapse of the ship.

    Other Situational Considerations

    Western analysts often examine security environments using DIME (Diplomatic, Informational, Military and Economic) considerations.  How does the SCS stack up?  Let’s start with the “M”.

    Military Aspects. The PLA as an institution remembers fighting the Americans in Korea.  During the Korean War the PLA suffered around 1,000,000 casualties (~400,000 KIA) and so realizes the cost of fighting a western power.  The PLA has long been the “first among equals” within the PRC’s military hierarchy but the current reforms significantly cut army end strength while expanding the PLAN and PLAAF.  The PLAN and PLAAF have no institutional memories of fighting the west and like all the world’s navies and air forces focus on their technological capabilities.  The PLARF is counting not just on the technological capabilities of their missiles but on the fact they are largely located on the Chinese mainland.  They can strike US forces without hitting the US homeland while knowing a counter strike means a homeland attack with the inherent strategic issues for the US.

    Neither country has lost a major warship in the memory of the sailors and civil leaders.  The US last lost major surface ships during the WWII.  During that war the US lost 466 major combat warships and since the Okinawa Campaign (Spring 1945) has lost zero large warships in combat. The PLAN hasn’t even possessed major combat vessels until recently.  Modern weaponry will cause large material and personnel losses that neither country has had to deal with within memory.  How this will impact tactical and strategic decision making is unknown.

    The surface combat ships and aircraft for a US Carrier Group costs $20B to $30B to build and equip and has around 8000 sailors. This does not count the costs and personnel of the CAG’s submarines or logistics ships. As the US moves to F-35’s the costs of the aircraft alone could run up to $120B per CAG.  Unclassified estimates are that it takes $400,000,000 annually to operate the carrier and aircraft during a peacetime training pace.  This does not include the operating costs of the other 7-10 warships and multiple support ships that make up a CAG.  The costs of the Chinese vessels and aircraft is unknown but is significant as well.

    China is not yet a peer competitor but it is rapidly developing the naval and aerial skills to be a peer.  Their missile forces are massive and as some point out “quantity has a quality all its own.” RAND concluded that in 2017 “China possessed 1,200 conventionally armed short-range ballistic missiles (600-800 km range), 108 to 274 medium-range ballistic missiles (1000 to 1500+ km), an unknown number of conventional intermediate-range ballistic missiles (5,000 km), and 450-1,250 land attack cruise missiles (1500+ km). RAND also estimated that improvements in the accuracy of China’s ballistic missiles may allow them to strike fixed targets in a matter of minutes with an accuracy of a few meters. RAND assesses that key U.S. facilities throughout Japan could already be within range of thousands of difficult-to-defeat advanced ballistic and cruise missiles.” Even US bases on Guam are now at risk from the DF-26 missile force.

    AKA: “Guam Killer”

     
    It is important to remind yourself that the US (and Russian) non-ICBM’s are limited to an effective range of 500km for air and ground launched systems. Neither party can possess missiles that range 500-5,500km.  China never signed the Intermediate Missile Treaty (aka INF) so they are free to build systems that are not in compliance with INF limitations.  For the US to design and build missiles to meet the Chinese threat is “problematic” because of Russian concerns. These concerns, and accusations of Russian non-compliance, are why the US is discussing withdrawing from the INF Treaty.

    Aircraft are no longer quick and relatively inexpensive to build.  In WWII the US produced ~300,000 aircraft (including 59,000 lend lease) and lost 53,000 in combat (95,000 losses in total). Even in Vietnam, the US lost 2,197 fixed wing and 5,607 helicopters. Since then fixed wing losses in combat have been very light and since 9/11 only 70 helicopter have been shot down and 305 lost from mechanical problems or accidents.  The issue with modern aircraft, especially modern fixed wing fighters, is there are few in service, production rates are slooooow and unit costs are high.  The US is buying F-35’s at around $85M per copy and the full production rate is ~100/yr.  (Some production is for allies and not US)  While the numbers vary as aircraft are replaced with newer models it is safe to say that the entire inventory of combat fixed wing aircraft for the USAF, USN, and USMC is less than the number of fixed wing aircraft lost in Vietnam.  China is aggressively purchasing modern fighters and bombers and want to have 200 of their new J-20 fighters in place for the SCS facing commands by 2025 which they believe will give them at least regional parity.

    The US has almost no ability to rapidly replace sunk/badly damaged shipping or warships.  The great industrial might we had in the Second World War has been outsourced or dissipated.  As a Nation we have moved to other economic drivers, but in the event of a protracted conflict with a peer competitor this lack of building capacity will be a factor.

    Diplomatic impacts of a fight within the SCS will roil the region.  A minor military incident could be initiated by China in the belief that if they just cut off this one piece of salami from a minor country , quickly announce they are done and thereby prevent a major escalation.  This might be accurate, or it might not be.  Other nations have tried this approach recently (e.g. Russia) and have not found the “fuck it, we are fighting” response from the West, But attacking a defense treaty nation is different from grabbing Crimea or parts of Georgia (the nation and not the state).

    Obama SecDef Ashton Carter was very critical of Obama ceding the initiative in the SCS to the Chinese.  Carter has stated “recommendations from me and others to more aggressively challenge China’s excessive maritime claims and other counterproductive behaviors’.” Carter further stated “Obama even bought into China’s vision of a G2-style arrangement with the US.”  This leaves the current and succeeding Administration’s in a difficult diplomatic position since the ASEAN and other regional nations saw the US inaction during the period before the military infrastructure was in place.

    Never has a permanent UN Security Council member directly attacked another SC member in a known, public and major way. Even during the Cold War 1.0 the USSR and US/GB/FR used proxy conflicts.  The best known case of a potential direct challenge, the Cuban Missile Crises, had all sides trying to defuse conflict.  The impacts of a Chinese missile strike on a single US cruiser are unknown.  If the Chinese were attack a Carrier Group in a systematic way the stakes would be exponentially higher. Presumably the entire diplomatic world would try to turn off the conflict as quickly as possible to spare a possible nuclear exchange. If the US went along with a cease fire without imposing major losses on the Chinese the diplomatic costs throughout the region would be immense.

    Informational impacts of a crises could be stark as well.  The Chinese again would hold the initiative and you can expect them to start coercive diplomacy via public media well before any military action.  After the start of conflict the world information environment would be loaded with Chinese and China proxies’ messaging.  One can consider that the “Great Firewall of China” would be expanded to limit internal knowledge of the conflict.  The US response would probably be muddled, slow and largely ineffective in the short-term.  This would largely be due to the overly bureaucratic “Whole of Government” interagency process combined with a very loose definition of “the truth” in Chinese messaging.

    Economic impacts of any China/US conflict would be huge and felt worldwide.  The economies of the SCS neighboring and ASEAN countries would tumble.  If the conflict went for any time the worldwide impact of just changing shipping patterns would jar economies throughout the world far beyond the indo-pacific region.  If blockades were established by either or both major combatant the cost of almost everything would rise. Markets throughout the Western World would soon face shortages of every product that either originated or passed through China.  China’s “One Road” trade system would make up for some shortages, to those countries that the PRC chose to continue doing trade with.  This in turn will build diplomatic pressures from both the US and China on nations to side with them for economic reasons.

    “Experience differential” China’s armed forces are not experienced in actual combat operations, are still developing how to fight carrier groups, and their training environment does not routinely conduct Joint or realistic exercises.  However the various parts of the Chinese military have taken efforts to increase the realism of training and introduce Joint operations.

    The US Army, and USMC, are both extremely experienced at conducting company to brigade sized combat operations.  The US armed forces are very experienced at conducting Joint operations to support disbursed small unit operations in a low threat combat environments, and are really the only nation able to routinely conduct extended carrier group operations.  Bottom line, the US military is damn good at what they do.

    The problem for the US is that a generation of service members have not seriously exercised how to conduct high end combat operations against a peer competitor.  The US is trying to re-learn how to fight outnumbered and win an extended fight.  So at the ground tactical level the US probably would curb stomp the PLA. However a fight over the SCS would be air and maritime dominated while fighting outnumbered against a foe fighting on short interior lines of communication. In addition the foe would be fighting over an issue considered close to existential for the China’s ruling class while being perceived as minor long term issue for the US home front.

    WAR! The details are hazy.  But in short, re-watch the series “Victory at Sea” and imagine it in color and high definition.  The biggest question will be what happens after the first shots are fired.  Will the two sides act like they touched a hot stove, pull back and spend more time blustering at each other?  Or will the remorseless calculus of combat assert itself and both sides get drawn more deeply in as subsequent losses make it increasingly difficult to stop without losing too much face? (In respect to Xi and his cabal. Lose their foreheads to exit wounds?)

    Guadalcanal 1.0

     
    Okay, so what?  All this wordiness might be interesting (or merely depressing) but why should I worry about my monocle mining orphans, pot and Mexican ass sex?

    This is the big question.  The accommodation of the rise of Germany in Europe bothered Russia, France and England and didn’t go very well in most people’s opinions.  The rise of the US was accommodated by England to the world’s betterment; and the fall of the USSR went better than most people feared.  The rise of China is presenting the world with a similar challenge.

    China is an illiberal socialist nation whose ruling Chinese Communist Party leaders need to keep the economy growing to stave off revolt and their own executions.  While the economy was growing at double digit annual rates, the CCP could keep the new internal “middle class” content enough.  Now that the economy has cooled (a discussion of that would be several books of material) the CCP is looking at how to re-spark growth and finding external enemies to distract the populace.  Xi as the “Authoritarian in Chief” stresses that by 2049 China will emerge from the “100 years of humiliation” as a recognized world power.  Xi is looking at Taiwan but recognizes that fighting for Taiwan may involve more risk to the ruling CCP powers than they are willing to accept at this time.  The SCS may offer a chance to throw off “humiliation” at much less risk and before 2049.

    Why less risk?  The SCS is close to the mainland and very far from the US mainland.  The Chinese would operate on shorter lines of communication and present the US with multiple dilemmas. The Chinese see opportunities to consolidate their gains with smaller and quickly completed military operations directed at the edges of US interests.  These operations present US and regional decision makers with having to respond fait accompli to CCP gains.  If the Chinese can keep away from direct PI and Japanese interventions then they steer clear of US treaty obligations.  It would be hard to mobilize the American people to support the claims of Vietnam, Malaysia or Brunei.  If China directly assails the PI and then coerce or bribe the Philippine government into disavowing combat or recognize the Chinese claims hoping to sate the dragon’s hunger then US reactions are massively limited.  The payoff for China for consolidating their claims in the SCS would be huge if they can do so without triggering a very destructive war with the US.  The map shows the scale of the economic benefit that would result from capturing the exclusive use of those resources and being able to restrict free trade.


     
    The military advantage gained would be huge as well.  China would gain unobstructed access to the Central Pacific and hold every regional economy at risk.  The diplomatic impact of success would demonstrate to the region and world that China must be accounted for and that their approval would be vital for local regime stability.

    So what are some options for the US concerning the SCS?

    The options presented to the US all have downsides because of baked in prior treaties and policy decisions.  The choices the US faces also involve multiple secondary and tertiary impacts that cannot be fully known at almost any point of decision.  A well-known truism of strategic decision making is: decisions made concerning one issue never completely solve that issue, they just help define the next issues that will need to be dealt with.

    Renouncing or changing defense alliances and treaties is always a possibility.  These changes come with known and unknown risks as all parties relook their internal and external calculus.  For example: The PRC and the PI are both confident that a major military action against the Philippines will bring the US into the conflict.  Any change to the US/PI defense treaty will be quickly known by all three countries and will change the decision calculus.  The PRC may take a more aggressive step and seize a PI claimed SCS feature confident that the US would not become involved.  But even under the new treaty, the US may still enter the conflict for its own reasons using the old, or revised, treaty as a public rational.  Strong defense treaties are made to reduce confusion on the part of potential adversaries, so any changes the US seeks will need to be carefully thought out.

    The US can withdraw from the SCS area and explicitly or implicitly recognize the PRC’s claims.  The US stepping away from the current global hegemon role in respect to the western Pacific Region could save us in current military related expenses (Carrier Groups are not cheap to own or operate) but again this COA will have second and third order impacts.  Except for the PRC’s designs on Taiwan, the modern history of China rarely features major grasps for territorial expansionism. Besides the current SCS efforts the PRC has demonstrated expansionism in the past in regards to Vietnam and the 1950 invasion of Tibet.  Xi and the CCP would most probably grab their entire SCS claims quickly filling any perceived vacuum left by the US.  The next steps are more a mystery but the economic impacts of preventing or regulating and taxing maritime and aerial transit of the SCS would rapidly roil the global economy.

    The US loss of access to the western Pacific will have diplomatic and defense impacts as well. The US currently is seen as the “cop on the beat” by nations all over the world.  If the US is seen voluntarily taking a major step away from that role in the SCS it will cause the rest of the world to relook all aspects of America’s role in defense.  As a matter of public debate leaving the SCS would quickly eclipse the worthwhile exit from Syria and drawdowns in Iraq and Afghanistan. Would pulling back from the SCS embolden Russia, Iran, or others in making additional extraterritorial grabs of terrain or establishing “satellite states” and thereby create new defense issues?

    The PRC already is attempting to establish their currency as an international benchmark and pulling away from a long term defense commitment would influence many nations to replace dollars for yuan in part or in whole.  This would impact interest rates and the relative strength of the dollar for us to buy Romanian wine, Japanese noodles or German hops.

    The US can maintain the status quo in the SCS.  The current US policy is that the SCS issues must be handled peacefully by the various claimants. The US also supports the international tribunal findings between the PRC and PI mentioned above.   The US has stated that we regard the SCS as non-territorial waters and not part of the territorial waters or EEZ by any claimant, but especially China.  The US deciding to continue maritime and aerial operations backing free navigation through the SCS waters and air will keep potential adversaries internal calculus including the question of “What if…?” around the world.

    The US can work with ASEAN and interested nations to draw a new path for the SCS which reduces US open ended commitments while securing the vital SCS transportation lines of communication and economic assets for all parties.  China will continue to oppose this COA and will regard this COA as a way to “fence in” proper Chinese aspirations and the US attempting to influence other states to gang up on China.  China dislikes any multilateral agreement unless they feel comfortable with their ability to ignore the agreement without serious repercussions.  (See the Paris Accords, MTO and IMF agreements.)  Despite the difficulties with this COA, it is probably the best way, over (significant) time to reduce the threat of war while maintaining economic progress.  Just don’t think that this way will be quick or easy.

     

  • South China Sea: Fair Seas or Foul Weather? Part 1

     

    Normandy, Argonne Forest, Anzio, and Iwo Jima are all names that many Americans recognize as American military campaigns. 

    Lesser known campaigns are recognized in the names Peleliu, Biak, and Khe Sahn.  There is an unfortunate possibility that the names Mischief Reef, Parcells and Woody Reef might enter the American lexicon of battlefields.  The last three names are all within the South China Sea (SCS), a Mediterranean sized body of water bounded by China, Vietnam, Malaysia and the Philippines.  Why might the US and China fight over a body of water far, far away?  (Except for our Japanese and Korean bridgeheads.) The SCS is a hot topic.  Recently “Foreign Policy” and “Foreign Affairs” have both weighed in, as well as many other authors.  So what the heck, here is a primer from me. This little bit of writing will hopefully help the Glibertariat to understand some of the issues and to be able to engage with others on what the US’s policy options are.

     

    So who are the players on this game board? 

    The biggest by far is China and primarily the People’s Liberation Army Navy (PLAN), People’s Liberation Army Air Force (PLAAF), Chinese Sea Police (aka Coast Guard), the People’s Armed Force Maritime Militia (PAFMM) and the People’s Liberation Army Rocket Force (PLARF).  China is also has one of the world’s largest merchant marine fleets and uses the SCS to bring and send resources and products to every continent.

    The PLAN is executing the world’s most extensive and aggressive fleet expansion and modernization campaigns.  It is estimated that by 2020 the PLAN will be the 2d largest navy in the world as counted by tonnage and frigate and larger warships. The PLAN will exceed the USN in the number of combatants. The PLAN is beginning to execute extended blue water operations, determining how to make carrier groups effective warfighting tools, and executing submarine operations well beyond their coastal water.  Their stated goal is to be capable of conducting “regional offensive operations” and they currently are part of the combined anti-piracy effort off of Somalia.  The PLAN also has two brigades of Marines, with a third being formed.  All these units are on Hainan Island or the adjacent mainland coastal region.

    The PLAAF is fielding large numbers of modern 4th generation aircraft that can go toe to toe with many US aircraft and outperform Taiwanese aircraft. The PLAAF is preparing to field significant numbers of 5th generation aircraft as well.  Like the PLAN they are expanding and modernizing faster than any other nation.  It appears that they are also loosening combat control of their formations to enable pilots to use more initiative.  The PLAAF is already large and still growing under recent PRC military reorganization.

    The CSP is really a second navy but painted white instead of gray. The Chinese recently transferred control of the CSP from the police to the military.  The CSP is by far the largest coast guard on the planet and its largest ships are the size of US guided missile cruisers.  The CSP operates throughout the SCS and not just around Chinese made features conducting both traditional coast guard missions and para-military operations.

    The PAFMM is a newer and less understood military component. They are almost unique in the world with the primary mission to engage in gray zone operations to frustrate effective response by the other parties involved. These vessels can be purpose built or much more frequently are reconfigured otherwise “civil” vessels. The PAFMM are widely seen participating in low-intensity coercion during maritime disputes including harassing or ramming vessels from other nations and even occupying disputed maritime features.

    The PLARF controls Chinese tactical to strategic, conventional and nuclear, rockets and missiles. Doctrinally the PLARF conducts deterrence, compellence, and coercive operations. In the event that deterrence fails, the missions of a conventional missile strike campaign could include “launching firepower strikes against important targets in the enemy’s campaign and strategic deep areas.” including command centers, communications hubs, radar stations, guided missile positions, air force and naval facilities, transport and logistical facilities, fuel depots, electrical power centers, and aircraft carrier strike groups. Writers also stress that, “In all, Chinese military writings on conventional missile campaigns stress the importance of surprise and suggest a preference for preemptive strikes.” Preemptive missile strikes to initiate active hostilities are also consistent with China’s overall military strategy of “active defense.”   Leaving aside strategic nuclear weapons, China has more conventional missiles than any other nation and is not signatory to the IMF. By being free of the IMF China is not constrained to distances and methods like the US (and Russia).  The PLARF like the rest of the PLA believes that “quantity is a quality itself” and so their missiles are in greater numbers, shoot longer distances and with bigger warheads than other nations.  Recently they have started fielding the DF-26 which can range Guam from the Chinese mainland with both conventional and nuclear warheads.  The PLARF makes no bones about their possible targets since their interior China test range uses model US airfields, ships and ports for targeting.

    It is useful to remember that the term “deterrence” is used differently by the US/West and China.  To us “deterrence” means taking actions to prevent another party from taking an action. So actions taken to keep the peace.  To the Chinese “deterrence” means the use of force to stop another party from continuing an action. This mismatch in definitions could lead to a dangerous situation.

    The People’s Liberation Army (PLA) is a relatively minor player in the SCS.  They are undergoing a large scale modernization campaign.  The PLA is also reducing in size as the other components are growing. Ground pounders are less of a player

    The second player in the SCS is the Republic of China (aka Taiwan). Their armed forces are small in number and nowhere as modern as the PRC’s new equipment.  Taiwan’s F-16’s are capable, but there are too few of them to make much difference.  The Taiwanese most likely would try to sit out any SCS brouhaha that does not directly impact them since any active participation would invite a major PRC attack or an invasion of Taiwan.

    The third major players are the Philippines, Malaysia and Vietnam.  They have smaller militaries than China, but have intense economic interests in the SCS. None of them has the mass or modern enough equipment to take on a concerted PRC effort in the SCS. Vietnam has demonstrated a long history of challenging the PRC while the PI has weakened their opposition under Duerte.  Despite winning their legal challenge the PI’s President has been very friendly with Xi and the PRC.

    The fourth major player is the United States.  Since our founding the United States has fought multiple wars over freedom of the seas, both declared and undeclared.  We have naval forces and aircraft that operate within the SCS for freedom of navigation (FONOPS) and intelligence reasons.  While we have no permanent military installations within the Philippines we do have Special Operations, Ground, Air and Maritime forces operating throughout the country on a regular basis. Our attack submarine force is very advanced, but the SCS is not a great operating area.  We, and several other countries, conduct FONOPS around the multiple features and we have been known to send one or more complete Carrier Groups through the Formosa Strait to deliver a point.

    These operations are not without risk.  During the early days of the Bush the Younger administration, a P-3 and a Chinese J-8 bumped over the SCS.  The J-8 was destroyed (the pilot died) and the P-3 made an emergency landing in the PRC on Hainan Island.  After much brouhaha we got the crew back and eventually most of the P-3 shipped back in crates. More recently we had military aircraft, surface combat ships and support ships repeatedly harassed and threatened with unsafe maneuvers by Chinese aircraft and vessels. The latest that made the news was in October and involved the USS Decatur and a PLAN destroyer near Gaven Reefs which are claimed by Vietnam, China and the Philippines and are located approximately 1000km from China’s Hainan Island.

     

    Gaven Reefs 2014 Construction

     

    Gaven Reefs Recent

     

    FONOPS also cause debate within the international defense community.  Some regard FONOPS as too provocative, while others regard them as too timid.  The two camps arguments can be summarized.  The provocative camp says why twist the dragon’s tail and ruin negotiations? The too timid camp’s thrust is that 12 mile nautical free passage FONOPS are granting recognition for rights that don’t exist under international law. Therefore FONOPS undercut the correct legal position that the features are not islands so have no exclusionary or economic zones. Under this viewpoint we could sail as close as we want while conducting military operations and be fully lawful.

    Other regional nations with a considerable interest in the SCS are Japan, Republic of Korea and Australia because of the importance of the SCS in trade and seaborne transportation. Japan is more concerned with their disputes with China over the East China Seas and islands.  While the Japanese does have a Self Defense Force with modern equipment, the SCS is only a secondary issue until the Chinese shut free transit of vessels.  The ROK concentrates on the Norks and their view of the SCS mirror Japans concerns.  Australia sits outside the island chains and has more concern over free access and Chinese interests in New Guinea and the Solomon Islands.  (Say hello to the Guadalcanal Campaign V2.0?)

     

    What does SCS playing board look like?

    The SCS is a salt water sea bounded at the north by Taiwan, the south by the Strait of Malacca area the east by the “first island chain and on the west by mainland Asia.  For an idea of scale the SCS, less the Gulf of Thailand, is roughly 1.4 times the size of the Mediterranean with China claiming sovereignty over almost the entire space.  They are doing this through the “nine dash line” and construction.  “The nine dash line” is the PRC’s claimed area of sovereignty and reaches throughout the SCS, at times encroaching on the 12 mile limits of the various states.

    “The first island chain” stretches from the Japanese home islands, through the Ryukus (home of US military bases on Okinawa), Taiwan, the Philippines, Borneo and closing at the Strait of Malacca. The Chinese view this as “their” lake and their military publications stress the first island chain as the area it must secure and disable from American bases, aircraft and aircraft carrier groups.  The PLA states that within this area it must be prepared to tactically unleash pre-emptive strikes against an enemy with the aim of sealing off the SCS and ECS.

    “The second island chain” stretches through the Japanese home islands, the US territory of Guam and the Northern Mariana Islands, the Federated States of Micronesia and to New Guinea and the Solomon Islands. This is the area that the PRC wants to achieve maritime and air dominance over to provide a buffer zone for the SCS and mainland.

     

     

    Sea lanes, fish and oil.  These three things are a large part of the why the PRC and the neighboring nations are squabbling about the SCS.  Fifty percent of all the oil shipped in the world transits the SCS; the bulk of the rest of the world’s maritime traffic moves through the SCS (the America’s), or the SCS and the Strait of Malacca to get to/from, India, Africa, Europe and the Middle East.  Over half of the planet’s population lives in nations near or adjacent to the SCS.  The SCS is one of the last great fishing grounds so everybody is interested in this source of protein.  And that brings us to oil.  There are large known or suspected oil fields in the SCS and the nation that controls them will gain a regional advantage. By not having to bring oil from the far side of the planet makes this resource cheaper to use or sell.

     

    SCS maritime trade routes and densities

     

    The fisheries in the SCS provide ~12-14% of all the commercially caught fish on the planet.  China harvests ~73% of all the fish they consume or sell from the SCS.  If you buy Chinese seafood you have most probably consumed animals harvested from the SCS. While there is some oil production in the SCS the fisheries are the here and now reason why the Nations surrounding the SCS all are concerned about China’s claims.

     

    Claimant EEZ 200 miles boundaries (blue) and Nine Hash Line (red)

     

    Twelve and 200 nautical miles.  International law states that a nation has sovereignty over large bodies of water out to 12 nautical miles.  That means that they can regulate “innocent passage” and in some cases prohibit transit of vessels and aircraft which are not registered to that nation out to that distance.  After that distance the water (and air above it) is open for the transit of any user, and for nation permitted commercial uses.  So a Russian or Chinese “oceanic research vessel” with a forest of antennas can hover 13 miles off of Cape Cod or Los Angeles with no legal objection.  By the same token a US Navy carrier strike group can transit the Formosa Strait between the PRC mainland coast and Taiwan.  Commercial aviation also makes use of this legal principle all over the world.  So a Singapore Air flight from Singapore to Tokyo can overflight the SCS seeking without permission of anybody except for Japan.  There are some exceptions to this law.  Where there is less than 12 nautical miles the border is equidistant.  For bays and gulfs the rules are a bit more convoluted.  Ronald Reagan and Qudafi famously disagreed about this point in the Gulf of Sidra.

    Why do we care about 200 nautical miles?  This is the exclusive economic zone for a country over salty water. Within that space a nation controls the use of natural resources above, in, and below the water.  They may reserve it for their exclusive use or set up means to regulate persons from other nations to use it.  This is why both the UK and Norway control only parts of the North Sea oil fields and there are no French platforms.  Like the 12 mile limit, if there isn’t 200 miles between nations the zone boundaries meet at the midline.

    Shoals, Rocks, Islands and manmade features.  See the illustration.  The key point being that features must be naturally occurring and not manmade. Manmade features receive no mileage around them.  China is taking shoals and rocks and constructing large manmade features within the SCS then claiming the features as islands and hence that the 12 and 200 miles laws apply.  The map shows China is claiming all the oil and fish within the Nine Dash Line in the SCS.  China’s opinion is that has exclusive use to the natural resources and it can close the SCS to maritime and aerial traffic. This has gotten the neighbors, and others like the USA, concerned because of the economic and free trade impacts.  To be clear the Chinese have not announced any maritime exclusion or air defense zones, yet.  They have claimed an air defense identification zone a bit farther north over the East China Sea which the US ignores and has stated it will not comply with.

     

     

    The Chinese efforts are not small scale.  They have created multiple square miles of “land” replete with jet capable runways, multiple military radars, missile farms and supporting structures.  More worrisome is that over the last half decade the pace and scope on construction steadily increases.

    Mischief Reef

     

    At first the Chinese claimed the features were to aid navigation and search and rescue, now they openly fly modern fighters in and out of them and increase their arming of the features by adding modern radar systems, as well as anti-ship and anti-aircraft weaponry.

     

    SCS Spratly outposts and Slightly old Claimant EEZ 200 miles boundaries (blue) and Nine Hash Line (red)

     

    The Chinese actions in the SCS started in 1974 when it seized the Vietnamese claimed Parcell Islands.  This led to a long term feud which culminated in 1988 when the Chinese machine gunned and killed 72 Viet fisherman and sunk two boats at South Johnson Reef.  China continues to dispute Vietnamese claims and has multiple steps top block fishing and drilling.  The PRC has carefully watched the international scene and in 2012 started making their move.  First they seized Scarborough Shoal from the PI. They watched what the US would do and when they saw acquiescence from the Obama administration they moved to the next phase to construct new features.  Their main dredger (the Tianjing) can dredge and hose out 4,530 cubic meters of soil per hour.  They first used it at South Johnson Reef where it created an 11 hectare “island” in less than four months.  Again the US, ASEAN and the West took no action.  The Chinese started building at an ever increasing pace and now have seven features in the SCS.

    Now these features have port facilities, military buildings, radar and sensor installations, hardened shelters for missiles, logistical warehouses for fuel, water and ammunition. Most tellingly these features now have heavy transport and military jet capable runways and airstrips and the PRC has landed these aircraft on them. The international tribunal ruled against China actions in 2016 and China ignored the ruling, again without any cost.  Now the PRC has expanded their control further by strong-arming the other SCS nations into suspending the exploitation of natural resources within their own 200 mile exclusive economic zones.  The new USINDOPACOM Commander during his confirmation hearings told the US Senate that for all practical purposes the PRC had won the race to develop a military capacity on these features in the SCS and now the US needs to determine the next steps to take.

    Fiery Cross Reef construction and recent

     

     

    Stay tuned for Part 2.

     

     

     

  • The Wall

    I personally did not watch President Trump’s address.  As it turns out, Tuesday is a gym day and I was not going to watch it anyway.  A physical impediment strikes me as a foolhardy expendeture because where there is not a long stretch of desert, a mountain range, a wide river patrolled by Texans, or generally something else that is going to kill you before you reach civilization, there is already something there.  I travel to Mexico at least twice a year, believe me the fence is already there.  This is entertaining to watch however, as the amount of money they are quibbling over is a trifle compared to the overall federal budget.  While the effectiveness of a wall or fence is debatable, the amount of money is small enough compared to budget to not matter yet large enough the average person will never see in their lifetime.  I also find declaring a national emergency to fund it as a needless power grab, that will bite team red in the ass later on.

    That said, the winner of this wins in terms of optics only.  Personally, I think Trump is going to get the funding or something resembling it for two reasons:

    1 – Unfortunately, government employees are a team blue constituency…

    OBEY

    2 – While the jokes on social media centered around the team blue response being akin to Bond villians or your parents staying up to yell at you because you came home after curfew….for me something else came to mind.

    The loser in these things always seems to be the one that looks like the bigger asshole and lets face it, Trump is blessed by his enemies.  As much as I dislike the 33 dimensional chess argument, one might ask why did Trump not try to pull this before?

    What? Pull this on Paul Ryan, and be the bigly man that kicks a puppy?

     

    This is my review of Clown Shoes Brewery North of Sonora:

    This reminds me of a story…

    In the beginning, there was the Treaty of Guadalupe-Hidalgo, this marked the end of the Mexican-American War and resulted in the map looking almost like it does today with one exception.  Due to lobbying efforts from the railroad industry; because of the Gadsden Purchase in 1853 the map now looks like it does today. I spoke of this before; it is when my family became American but this story is not about me.  This story takes place on August 27, 1918 and is called the Battle of Ambos Nogales.

    You think the border is open now…

    Prior to this incident, Nogales was a single town between two countries, and today in a sense it still is.  Back then though there was no fence.  There was a street called la Calle Internacíonal or International Street with the exact border being marked by an obelisk.  I have driven on it myself, and crossed it more times than I can remember.

    At the time US Customs allowed residents of Nogales, Son to walk across the street and purchase food and other goods from Nogales, AZ.  Tensions between the two countries became strained due to the Zimmerman Note.  You might recall that from your American History class.  The conspiracy was Germany wanted to bring Mexico into the War against the United States. Hopefully, by the time this article goes live that link comes without the disclaimer about the government shutdown… To account for the frequent crossings, US Customs issued passes to residents of Nogales, Son.  The Mexican government also followed suit resulting in a confusing process—to cross the street.

    This incident began when…

    […]a carpenter named Gil Lamadrid was walking back into Mexico. As he crossed the border, a U.S. Customs Inspector ordered him to halt, curious about the large parcel he was carrying. Only a few feet away, Mexican customs officers directed him to ignore the summons and continue into Mexico. Gil Lamadrid became confused and hesitated as the two competing groups of customs agents shouted instructions to him. At this point, a U.S. Infantryman raised his Springfield rifle to encourage his return. In the midst of the ensuing commotion a shot was fired, and the carpenter dropped to the ground.

    Thinking that the man had been shot, a Mexican Customs Officer grabbed his pistol and opened fire on the U.S. guards, wounding an army private in the face. A U.S. Inspector drew his revolver and returned fire, killing two Mexican Customs Officers. Shaken but unhurt, Gil Lamadrid jumped up and sprinted down a nearby street. As the sound of gunfire rattled the neighborhood, citizens on the Mexican side of the border ran to their homes and picked up rifles to join the Mexican troops

    …and hillarity ensued.

    In response, the famous 10th Cavalry was deployed to the town….where enlisted were not allowed in a few establishments in Nogales, AZ.  If you ever go to Nogales, you will notice it is sprawled across several hills.  Perfect for guerilla warfare.  A white flag was eventually raised on the Mexican side of town around 5:45 PM but shots were still fired until 7PM.  It resulted in the death of the mayor of Nogales, Son who attempted to stop the violence by walking on International Street with a white hankerchief tied to his cane to plead with both sides. Him along with 129 other Mexicans and 4 Americans.  With an additional 330 wounded.

    Later both sides decided the only way to keep this from reoccurring was to separate both sides, and other towns quickly followed suit.  At the cost of what was then, $5000 ($80,250 today), a fence was errected between two sides of a town split between two countries.

    Paid for in part by Mexico.

    Now this beer is interesting because it is flavored with agave.  Making it rather sweet, too sweet perhaps but they call it a porter so it sort of works.  There is also some vanilla worked in there somewhere and it is aged in rum barrels resulting in something you will want to share with somebody else, a neighbor perhaps, so you at least are not alone in the experience.  Fitting, but given the price tag one that I am not likely to buy again.  Clown Shoes North of Sonora: 2.9/5.