Defense Policy

Hon. James E. Baker: A Marshall Plan for Public Health (ABA Podcast)

The DPA: A Marshall Plan for Public Health with Judge James Baker

ABA National Security Law Today | April 9, 2020

Judge James Baker is the the Director of the Syracuse University Institute for Security Policy and Law, former Chief Judge of the US Court of Appeals for the Armed Forces, and former Chair of the Standing Committee on Law and National Security.

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William C. Banks: Beware the Military on US Soil

Beware the military on US soil: City and state leaders should be careful what they wish for

By William C. Banks 

“de Blasio and other New Yorkers are still urging a more robust federal military response. Tread carefully.”

(NY Daily News | April 6, 2020) By and large, New York officials have exhibited admirable leadership and clear-headed decision making in response to the worst public health crisis in a century. With staggering numbers of COVID-19 infections and badly overstretched hospitals, New York City and surrounding communities are in dire need of help — and Gov. Cuomo and Mayor de Blasio have been properly beseeching the White House to commit federal resources to help stem the tide of the virus.

But as it involves the use of the military, this response should have clear limits. Legally and historically, we limit its engagement on U.S. soil for very good reason.

Although Cuomo called up New York National Guard forces early in the crisis to help with the expected medical surge, and although the USNS Comfort has arrived to provide hospitals with desperately needed surge capacity, de Blasio and other New Yorkers are still urging a more robust federal military response.

Tread carefully.

There is no doubt that the U.S. military has always played a key role in society. Soldiers have always stood ready to use their special training, equipment and discipline to help out in emergencies when no one else could.

Most of the time, however, America’s military forces have remained in the background, waiting for direction from civilian leaders to respond to crises and then only in limited ways …

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Why Is Trump So Timid With the Defense Production Act?

By the Hon. James E. Baker

“Why isn’t the government bringing its full arsenal to the fight?”

(The New York Times | April 3, 2020) Every Marine knows better than to pull a knife in a gunfight. But so far, that appears to be the federal government’s approach to battling Covid-19. The president has “invoked” the Defense Production Act, but the government has not used the full authority of the act. There is a difference between invoking a law and using it, just as there is a difference between talk and action.

Governors and health officials tell us that there is a profound gap between the protective equipment, hospital equipment and testing resources that are needed (and will be needed) and what is available (or in the pipeline). Bill Gates reminds us that we will need to produce millions, perhaps billions, of doses of vaccine in 12 to 18 months. This isn’t a passing crisis; we will need more of everything in two months, six months and maybe years.

Don’t let debate over the details of General Motors’ and Ventec’s honorable effort to build more ventilators hide the bottom line: The federal government has all the authority it needs to close the supply gap, allocate resources among states, and prepare for the production and distribution of the vaccine to come. Until the federal government demonstrates — with statistics, contracts and timelines — that the gap is closed and the vaccine pipeline is ready, we should ask: Why isn’t the government bringing its full arsenal to the fight? …

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Hon. James E. Baker Signs Letter Urging Use of the Defense Production Act

National Security Veterans Urge Trump to Invoke Emergency Mobilization Law

(The Wall Street Journal | March 25, 2020) A bipartisan group of more than 100 former national security officials are urging President Trump immediately to use a Korean War-era defense mobilization law “to the full extent” to support companies making supplies critical to combating the coronavirus outbreak.

In a letter Wednesday, the former officials said the Defense Production Act was designed precisely because the private sector “lacks the ability to process incoming requests, prioritize the most urgent needs and coordinate with other companies absent more concerted government involvement.”

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LA Times Quotes Hon. James E. Baker on COVID-19 & the DPA

Trump’s refusal to use wartime powers to direct scarce medical supplies has left states fighting it out

(Los Angeles Times | March 25, 2020) When President Trump invoked emergency war powers last week to fight the coronavirus outbreak, many were hopeful that the federal government would take charge in addressing the nation’s dire shortage of ventilators, protective masks and other critical gear for patients and medical staff.

“If there is a gap between voluntary production and what is needed, or anticipated to be needed, the DPA is the mechanism to close that gap.”

But Trump has not made actual use of the powers granted in the Korean War-era law known as the Defense Production Act, even though state governors, health experts and lawmakers of his own party have appealed to the administration to employ that authority to bulk up production of medical equipment and supplies, and just as critically, to ensure that they’re distributed to areas of most urgent need …

… New York Gov. Andrew Cuomo has grown increasingly angry as COVID-19 cases have exceeded 26,000 in his state, about half of the infections recorded in the United States. On Tuesday he lashed out at the Trump administration’s failure to use the DPA, saying the law was made precisely for a time like now.

“When we went to war, we didn’t say, ‘Any company out there want to build a battleship? … Maybe a couple of you guys can get together and build a battleship … maybe, you think,’ ” he said, dripping with sarcasm. “That’s not how you did it. The president’s said it’s a war. It is a war. Well, then, act like it’s a war.”

Cuomo said that New York has received only 400 ventilators from the federal government. “FEMA says, ‘We’re sending 400 ventilators.’ Really? What am I going to do with 400 ventilators when I need 30,000?”

Jamie E. Baker, former legal adviser to the National Security Council and a professor at Syracuse University, said: “If there is a gap between voluntary production and what is needed, or anticipated to be needed, the DPA is the mechanism to close that gap” …

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Hon. James E. Baker Explains the Defense Production Act for The New York Times

How the Defense Production Act Could Yield More Masks, Ventilators and Tests

(The New York Times | March 21, 2020) President Trump issued an executive order this week invoking the Defense Production Act to battle the coronavirus pandemic, but his advisers have resisted making aggressive use of the law to mobilize private industry.

“If these tools are being used, then the government should be more transparent in their use.”

Mr. Trump has given mixed signals about whether his administration has actually used the law at all to spur the production of scarce and necessary items like ventilators; testing kits; and protective masks, gloves, and gowns.

Here is an explanation of the law.

What is the Defense Production Act?

It is a law that permits the federal government to impose some control over private-sector industry to ensure the production of material that is deemed necessary for national defense. It traces back to the Korean War.

Congress enacted it with military necessities like steel and tanks in mind, but lawmakers expanded it after the Sept. 11, 2001, attacks to cover other areas, including public health and safety. It was reauthorized last year until 2025.

Notably, an existing government panel created under the law, the Defense Production Act Committee — made up of officials from various agencies — already has a process and a system in place to implement it.

“If I were advising the president, I would say, ‘Mr. President you have a lot more tools available under the D.P.A. than are being used. Moreover, some of the tools have lead times,’” said Jamie E. Baker, a former legal adviser to the National Security Council and a professor of national security law at Syracuse University.

He added: “And, if these tools are being used, then the government should be more transparent in their use so that the public and our first responders are aware that help is on the way” …

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Hon. James E. Baker: Use the Defense Production Act to Flatten the Curve

By the Hon. James E. Baker, Director, Syracuse University Institute for Security Policy and Law

“There remain, and will remain, genuine questions involving the police power, public health, and the constitutional role of federalism in allocating responsibility between state, local, and federal authorities.”

(Just Security | March 20, 2020) The novel coronavirus bell curve is coming. We are not quite sure when or what form it will take. But it is coming, and we have rapidly diminishing time to influence its shape. One way we can do so, health experts state, is with more data about who has COVID-19 and who does not. That takes tests. More tests than, apparently, we have. Another way we can influence its shape is through social distancing. That takes widespread discipline and a commitment to our larger communities and not just ourselves. But where we cannot or should not distance, in health facilities and in supermarkets, it may require more surgical masks, gowns, gloves, eye protection, nasopharyngeal swabs, and wipes. More than we have. And, when the curve comes, we know from Italy, China, and South Korea that we will need hospital beds and ventilators–again, more than we have.

We know these things now. Why doesn’t the federal government act? It has the legal authority to do so: The Defense Production Act (DPA). On March 18, President Trump signed an Executive Order invoking the DPA to delegate authority found in Section 101 to the Secretary of Health and Human Services. However, various public statements by the president and vice president cast doubt on whether the DPA will be operationalized at this time or held in abeyance until some unspecified future date after the crisis has worsened. It is time to clear up the confusion, stop talking about the DPA, and start putting it in action.

DPA Background

In moments of crisis, time is sometimes lost because policymakers are unsure of the facts. Not here. We essentially know now what we will need. Time is also sometimes lost because there is genuine policy debate about the best course of action. Not here. We know now what we need to produce and where to send it. And, time is sometimes lost because of uncertainty about the government’s legal authority to act. Again—not here. The DPA provides broad authority for the government to take the necessary actions.

One hopes that the government’s lawyers have considered most, if not all, potential scenarios on a contingency basis. But sometimes new facts beget new and genuine questions of law that in a democracy ought to be resolved before action is taken. Sometimes, too, policymakers hide behind the law to explain inaction. Lacking the will to act, they blame the law and the lawyers for limiting or eliminating their options. But not here. There remain, and will remain, genuine questions involving the police power, public health, and the constitutional role of federalism in allocating responsibility between state, local, and federal authorities. However, there is no doubt the federal government has the authority to direct the industrial strength of the United States to produce more tests, more masks, more ventilators, and more hospital beds and do so now. The answer is the DPA.

The DPA is a Cold War era statute (1950) that derives in turn from World War II era statutes intended to harness the industrial capacity of the United States for war. The statute was drafted with steel and tanks in mind. However, the statute has been reauthorized over fifty times since 1950 and amended to include within its reach not just the traditional defense industrial base, but also the nation’s critical infrastructures, like public health and critical technologies …

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World War III Alarmism: It’s Time to Press for Sober, Rational, & Contextual Analysis of the Iran Situation

By Corri Zoli

Let’s begin with the obvious to self-aware observers of the region: “Iran’s so-called retaliation was not smart, to say the least. It was theater for its gullible constituents, and the US seems willing to let it slide.” So said Hassan Hassan about Iran’s ballistic missile attacks on Iraqi bases (Ain Assad and Erbil), which house US forces.

“To state this point as clearly as possible: we are not on the verge of World War III with Iran, despite social media trends.”

Hassan directs the Non-State Actors Program at the nonpartisan Center for Global Policy, focused on improving Mideast governance and US foreign policy. As if on cue, however, Iran’s state media is reporting “heavy US military casualties.”

Hassan is not the only one piercing the veil of alarmism (largely coming from US observers), confusion and ignorance, and disinformation (coming from Iran).

Ali Vaez, Director of the Iran Project at the CrisisGroup, explains Iran’s need for “face-saving measures” and symbolic revenge. Likewise, Illan Goldenberg at the Center for New American Security (CNAS), decodes Iran’s strategy: “This is our response, don’t hit us back. Regional players stay out or suffer the consequences. This may not be escalation just the response they felt they needed to make. Again, everyone CHILL.”

Pentagon officials, as Jake Tapper reported, explain that “Iran deliberately chose targets that would not result in the loss of US life,” emphasizing “[d]eliberate targets, minimum damage, maximum warning/effect.” Even Iran’s foreign minister Javad Zarif is eager to announce the attacks as “concluded,” even while he justifies this newest round of missile attacks once again on Iraq (after the Dec. 27, 2019, Kirkuk airbase and December 31 embassy attack) as “self-defense.”

“Facing complex conflict dynamics also means we must be open to unexpected or countervailing developments.”

To state this point as clearly as possible: we are not on the verge of World War III with Iran, despite social media trends.

Quite the opposite, the US government has set limits—first economically, now militarily with the Soleimani strike—on Iranian regional escalation dynamics at least since 2017, which caused a bipartisan Congress to reissue sanctions. Historically and in recent years, Iranian asymmetric warfare—with Soleimani at the helm—has hurt stability in the region. It has also become increasingly brazen—targeting Saudi refineries, downing US and Israeli drones, attacking vessels in the Gulf of Oman, and going after civilians in Syria.

Reasonable people can disagree over whether the best US-Iranian foreign policy approach today is limit setting to reestablish deterrence, as per the Trump Administration, or appeasement, engagement, and integration into the geopolitical community, for the previous Obama Administration.

Every public policy—particularly in the demanding domains of international security and foreign affairs—has strengths and weaknesses. What is not fair or good faith analysis, however, is to ratchet up global public fears about impending war as a way to win support for one’s “side.” That confuses policy with politics, without doing the hard, nonpartisan analytical work of contextual analyses, producing facts and evidence, and trying to include multiple—often contradictory—perspectives.

Such an approach reveals a lack of genuine concern about the people facing conflict dynamics first-hand in the Middle East, those who already face extensive human rights violations and are currently protesting such conditions, caused most often by their own leadership and unaccountable forms of governance.

Just last month Iran faced what The New York Times called its “worst unrest in 40 Years,” with anti-government protests across 21 cities—not to mention across the region—followed by the typical “brutal crackdown,” with Islamic Revolutionary Guard Corps help, resulting in more than 1,500 protesters killed.

For deeper analysis of how Iran and Soleimani’s approach to covert asymmetric warfare destabilized and stalled progress in governance across the Middle East, there are plenty sources for thoughtful, contextual analysis. Hassan’s Guardian essay explains the blow in the defeat of Soleimani to Iranian regional hegemony, domination, and military imperialism. Such an ambitious project was already facing grassroots challenge in Iran, Iraq, Lebanon, and Syria from cross-community protests. Moreover, Kim Ghattas notes that Soleimani was not only a problem for the US, but “haunted the Arab world,” so that his death has been greeted with often quiet “elation.”

Facing complex conflict dynamics also means we must be open to unexpected or countervailing developments.

Some analysts see the post-Soleimani moment as a win for the region, whether for a stronger Iraq, or a weakened Quds Force. Even non-Trump supporters—such as political risk analyst, Ian Bremmer—note that while there is no “end” to the US-Iran conflict, no “mission accomplished” yet, “for everyone who thought killing Soleimani was going to lead to war, no; it established red-lines and deterrence,” and, more importantly, potentially opened “ a real window” for diplomacy. Ultimately, Bremmer sees the Iran choice as a big “win” and a “big opportunity going forward.”

While it is a bit early to tell, scholars at their best have a public duty to pursue the truth wherever it leads—which may result in inconvenient facts and discoveries—but that ultimately helps to advance society in some way. As a cross-culturally focused law and security scholar, I believe that truth-seeking must include multiple and diverse perspectives, particularly needed to get a complete picture of “wicked problems” or complex social phenomenon, like conflicts.

Yet, the public should also ask hard questions about information accountability today, particularly as information technologies disrupt traditional news reporting standards and methods: why ratchet up ordinary Americans’ fears? Who is responsible and what is their motive for spreading such fear? Is it just to get “clicks” or are we purposely misunderstanding a situation that involves the most serious issues as war, peace, life, and death?

I won’t answer those questions in this analysis, but we all need to insist that public—especially expert commentary and journalism—elevates the discussion and that analysts base their claims in facts, evidence, and informed inquiry, particularly when understanding is such a priority in cases of active conflict.

 

Iran & LOAC: William C. Banks Joins ABA National Security Podcast

Iran and the Law of Armed Conflict (LOAC) with Bill Banks & John Bellinger

(ABA National Security Law Podcast | Jan. 6, 2019)

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