New RAF aircraft.... leased under UORs

(Not all RAF BAe 146s are created equal - here's the rest of the fleet from 32[TR] Sqn)

Some interesting news at a time of further UK MoD cuts: the RAF is to lease two BAe 146-200QC airliners to fly personnel and equipment around Afghanistan. The idea is to take the pressure off the RAF's small C-130 Hercules fleet, which has been on almost continuous operations since the initial deployments to the former Yugoslavia in the early 1990s. Indeed, it was the operations tempo that led to the C-130K fleet finally being retired without replacement - as the Airbus A400M is running behind schedule and over budget.

What's interesting here is that this is being procured under an Urgent Operational Requirement (UOR) which is normally funded directly from the Treasury via an additional appropriation for operations. (This is in addition to the actual additional cost of fighting - known as Net Additional Cost of Military Operations, or NACMO).

(UORs inbound!)

Now, back in ancient history (known as "2001") UORs used to be funded in full, with very few questions asked. This - and the failings of the conventional acquisition system led the UPR system to be the front-line's preferred route of getting the tools needed for the job in hand, and the costs exploded. This was made worse because UORs were by their nature temporary for a single conflict, meaning that the equipment would be withdrawn from service a maximum of 12 months after the end of the conflict - or the MoD would have to find the cash in their existing budget to sustain the equipment (known as bringing it into core MoD capability).

What this meant for the UOR kit was that there were rarely examples in the UK for large-scale training, spares were kept to a minimum (as it was a temporary expedient), and there was none of the conventional engineering and training support associated with conventionally procured equipment. But if the genius point for the hard pressed front line was that off-the-shelf kit arrived and worked (more or less), the fact that the Treasury's reserve paid for it made it a boon for the accountants faced with a deluge of overspends in the procurement budget. (And to the extent that defence industrial policy matters, off the shelf kit was often built outside the UK - often in the US, which didn't help Britain's defence industry too much.) 

And the sums were vast: the UK NAO estimates that UORs for armoured vehicles from 2003-11 consumed £2.8bn - in total, equivalent to about half of the annual equipment budget - whilst £1125m was spent on conventional programmes for similar vehicles, £718m of which actually resulted in ZERO actual armoured vehicles being procured in the conventional route. The net result is that the British military will be short of armoured vehicles until at least 2024-25.

Things got so bad during the mid-2000s with Iraq and Afghanistan, the Treasury finally said no, and told the MoD that there would be a cap, and that instead of UORs being "extra free money", above a ceiling, Treasury would reclaim the UOR cash from future years appropriations, further dragging the MoD's long-term planning into the mire. 

So how does this affect two secondhand BAe 146s?

("I don't care if they go up-diddly-up-up, etc"... a C-27J swoons)

At one level, not at all. The UK is going to withdraw combat forces from Afghanistan in 2014 and it would pointless to procure this niche capability if we were to find it unnecessary in less than 24 months’ time. Indeed, this is precisely the situation the United States have found themselves in scrapping the Joint Cargo Aircraft (JCA)programme, with the expensive embarrassment of having purchased brand-new C-27J Spartans. Instead the UK will spend £6m + defensive modifications to provide a useful intra-theatre airlift option. So far, so good.

But it underscores the lack of planning and delivery of core MoD capability - in this case A400M tactical airlifters - continues to cause the panic button to be hit and UORs to be required. 

USG Opinion on killing Anwar al-Awlaki: Part II

(Admiral Yamamoto's Mitsubishi G4M Betty after crashing in the Bougainville jungle on 18 Apr 43) 

Back at the beginning of this week, we looked at the international legal considerations of the killings of Anwar al-Awlaki and Samir Khan in Yemen last month. Glenn Greenwald of Salon.com characterises this as the "assassination of U.S. citizens without due process has now has become a reality"; Jack Goldsmith (an Assistant Attorney-General under Bush 43) instead favourably compares this with the 1943 targeting of Admiral Isoroku Yamamoto, the architect of the Japanese attack on Pearl Harbour.

In my view, both are mistaken because both make unfounded assertions over over what the controlling law is, as we looked in Part I. Addressing Goldsmith first, unless the US has decided that it is involved in an International Armed Conflict (IAC) with Al Qaeda in the Arabian Peninsula (AQAP), then the Yamamoto precedent is simply irrelevant, as the controlling law in these cases would be fundamentally different. It's hard to see how the US and AQAP could be engaged in an IAC, given that AQAP does not appear to control territory as a de facto government, nor does it enjoy at least the tacit support of a State in the way that AQ did under the Taliban prior to September 2001. 

Equally, to assert, as Greenwald does, that it is possible to take active participation in a conflict against the United States - and it is clear that al-Awlaki's video sermons incited violence against the United States and its allies - whilst retaining your full Constitutional rights as a citizen is self-evidently ridiculous, as it is the basest attempt to have your cake and eat it.

As there is no evidence suggesting that al-Awlaki was coerced into making these statements, so the correct constitutional parallel here is with 2nd Lieutenant Martin James Monti USAAC. Monti was the most prominent of the tiny number of American citizens opted by their own free volition to fight for Nazi Germany in WWII (an IAC)*. After going AWOL from India, stealing an aircraft in Italy, and then defecting to Nazi forces in northern Italy, Monti appears to have become a fully-fledged SS officer. He conducted propaganda broadcasts for the SS in 1944-45, and there is no suggestion that Monti was not an enemy combatant at this point, and that targeting him at this point would have been legal. This is without prejudice to that fact that Monti could - and indeed was - subsequently tried for treason, serving a jail term from 1948 until paroled in 1960.

The point here is that by choosing to become a combatant in either an IAC or a NIAC, then al-Awlaki could be targeted under international law for as long as he retained combatant status. 

 

(Warner Hemicycle: the graveyard of Prof. Dry's freshman Poli-Sci students who hadn't done their reading...)

But much had been written on the implications under US domestic law, I was uncertain, so I was delighted to have the chance to discuss this with Prof. Murray Dry, who had the misfortune to be my supervisor when I was a Middlebury undergraduate. Prof. Dry, (the Charles A. Dana Professor of Political Science at Middlebury), is an esteemed US Constitutional scholar, and I fully expected him to lay out an argument that I should've recalled from his classes, (and hadn't). Instead, he accepted the premise that it would be an absurdity to allow those fighting against the United States to have some sort of right to due process - and implicitly, judicial review - in the midst of a war they are fighting against the United States.

But the US Government memo - or the portions leaked to the New York Times - does not help matters, as it seems to confuse the issue as, 

"The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him." 

As discussed in Part I, this conflates the LOAC notions of the combatant-status ("taking part in the war") with the IHRL requirement to detain and try suspects for crimes, allowing the use of lethal force only in the most extreme cases where the suspect posed an immediate threat to the lives of others. This leaked paragraph, if accurate, does neither, and appears to mis-state the law. Of course, the legal advice could be entirely accurate, but we won't know until it is released.

(US Attorney General Eric H. Holder)

Which brings me the to the final point, which is also the primary point: the use of lethal force by a State in law enforcement usually results in some sort of public investigation in the western world; it is a key element of accountability mechanism, and builds trust in the decision-making processes that frequently require action first, and public consultation second. This is clearly different for the use of force under LOAC, but as the proliferation of official and NGO investigation organisations grows, we can see that there is unprecedented pressure to demonstrate that even in wartime, LOAC is consistently observed; but what is consistent is that standards for accountability are ever increasing.

So for the sake of transparency, and to demonstrate the legality of the approach, please publish the legal advice, Mr. Holder. And do so now, not when it has been drip-fed through convenient leaks.


* This was part of a Nazi plan to induce Allied POWs to fight against the Soviets, and it was spectacularly unsuccessful - around 60 British POWs joined the British element of the Waffen-SS, with at least some of the survivors court-martialed at war's end.