Missing in Action: Will We Ever Know the Truth Behind the Vietnam Live-POW Claims?

By Spring 2018 M-VETS Student-Advisor Steven Brantley

In February of 1994, almost 20 years after the end of American involvement in the Vietnam War, President Bill Clinton lifted the decades-old trade embargo that the United States of America had in place on the Socialist Republic of Vietnam.[1]  Shortly thereafter, in August 1995, President Clinton officially restored full diplomatic relations between the two nations.[2]  Although these moves were praised by many American companies eager to do business in Vietnam, as well as some Vietnam Veterans, including a few prominent politicians from both sides of the political aisle, the move was largely opposed by scores of other Vietnam Veterans, their families, congressmen, and veterans’ organizations such as the American Legion.[3]  Central to this opposition were the many unresolved questions surrounding the fate of thousands of American servicemen still listed by the Pentagon as Missing in Action (“MIA”) or Prisoners of War (“POWs”) during the Vietnam War.[4]  Those opposed to President Clinton’s restoration of full ties with Vietnam did not believe that this longtime foe had been fully honest and forthcoming in accounting for the fate of all American POWs believed to be in Vietnamese hands at the time of the American military’s withdraw from Vietnam.[5]  Further, many contended that hundreds of American POWs were never released at the end of the War, and continued to be held in Vietnamese captivity for years after.[6]

Then, in 2016, while on a state visit to Hanoi, Vietnam, then-President Barack Obama announced that his administration was lifting the nearly five-decades-old U.S. arms embargo on Vietnam.[7]  The lifting of this embargo allowed the communist government of Vietnam, with whom the United States fought a prolonged, bloody war in the not too distant past, to purchase the same high-tech American military aircraft, ships, and other weaponry available to longtime American allies in the region such as The Philippines, Singapore, and Taiwan.[8]  In fact, defense industry sources have already reported that Vietnam is very interested in acquiring surplus American F-16 fighter jets and Orion sub-hunter aircraft.[9]  When the decision to lift the arms embargo was announced, there was palpable concern among many members of Congress, who would be called upon to approve any such future arms sales to this foe turned friend.[10]  Several members of Congress expressed concern that, with the lifting of the arms embargo, President Obama had removed America’s one remaining bargaining chip to force Vietnam’s government to improve its human rights record, which has been at best questionable since the end of the Vietnam War.[11]  Largely missing from this congressional discussion however, was any concern over resolving the decades-old claims by many Vietnam-era servicemen and politicians that, when direct American involvement in the Vietnam War came to an end in 1973, hundreds of live American POWs were left to languish in Vietnamese prison camps.[12]  Despite this apparent congressional indifference, the mystery of live American POWs left behind in Vietnam, or, rather, held back by the Vietnamese government at the end of the War, has persisted since the end of the War and continues to have a dedicated following among many Vietnam Veterans and their families.[13]

In the early 1990s, just before the normalization of relations between the United States and Vietnam, 2,202 United States servicemen were still officially listed as missing in Southeast Asia as a result of the war fought between the two nations in the 1960s and early 1970s.[14]  Among this number were approximately 135 American servicemen who, at the conclusion of American involvement in the Vietnam War in 1973, were listed as being held captive by what was then North Vietnam.[15]  Although this number has been somewhat whittled down over the years, the question as to the whereabouts of most of these service members persists to this day.[16]

Inseparable from the question of whether any American servicemen were held back by the Vietnamese government at the end of the War is the question of why the Vietnamese would do such a thing.  Practically speaking, it would have been much easier for the Vietnamese to simply release all American POWs in their captivity at the end of the War, or, as tragic as this sounds, quietly kill and bury any POWs that, for whatever reason(s), the Vietnamese did not want to acknowledge holding.[17]  One of the most prominent and credible theories for why the Vietnamese might have held onto a select number of POWs is that, after the War, Vietnam planned on seeking war reparations from the Nixon Administration, with some even insinuating that President Nixon secretly promised such reparations-for-prisoners during the Paris Peace Talks that preceded the end of the War.[18]  Further, another often-touted theory involves the Vietnamese government sending American POWs to their allies in the Soviet Union, Eastern Europe, and North Korea to share with these allied powers the POWs’ knowledge of American military tactics and weapons systems.[19]

Regardless of the Vietnamese government’s reason for holding back live American POWs after the War’s end, this theory continued to persist well after the War, and even continues to this day.[20]  This notion of American POWs left behind in Vietnam has risen to mythical or cult-like status in some circles, even inspiring action movies starring the likes of Sylvester Stallone and Chuck Norris.[21]  However, many other people who continue to espouse this belief are arguably both very knowledgeable and credible sources.[22]  In the early 1990s, after the fall of the Soviet Union, Russian President Boris Yeltsin confirmed that and undisclosed number of American POWs were shipped to the Soviet Union from Vietnam, and continued to be held in Soviet prisons long after the end of the Vietnam War.[23]  This claim by the Russian president added credibility, because, at the time, many high-ranking U.S. government officials already acknowledged that the Soviet Union had done this with Americans captured in other Cold War hot spots, such as the Korean Peninsula.[24]  Additionally, Command Sergeant Major (ret.) Eric L. Haney, a founding member of the elite U.S. Army Delta Force special operations group and current highly-regarded security and international affairs consultant, shared publicly that he believes American POWs were left behind in Vietnam after the War’s end.[25]  Haney stated that in the early 1980s he and his fellow Delta Force operators had reliable intelligence on the location of American POWs still alive in Vietnam, and were, on several occasions, days or even hours away from launching a rescue operation, only for the mission to be scrubbed at the last minute each time.[26]  Further, Haney has even stated that, long after the War’s end and these abandoned rescue attempts, he was asked very candidly by a senior Vietnamese politician why the Americans never tried to secure the release of their remaining POWs after the War.[27]  Finally, in the early 1990s, two United States Senators, John Kerry (D-MA) and Bob Smith (R-NH), both Vietnam Veterans themselves, each stated publically that there was strong evidence American POWs had remained in Vietnamese captivity after the War.[28]  The senators made these statements after being part of an intense Senate investigation into the Vietnam POW/MIA issue, in which a senate select committee issued a detailed report that “held out the possibility that some U.S. soldiers had languished in [Vietnamese] hands for at least a period of time after the hostilities ended.”[29]  Senator Smith even went so far as to say that he believed “that POWs and MIAs have been alive, or were alive [in Vietnam], up through 1989.”[30]

To this day, these claims remain largely unrefuted.[31]  When President Obama announced the lifting of the long-standing arms embargo on Vietnam in 2016, there was noticeable opposition from many Vietnam Veterans and veterans’ organizations, who cited these yet to be resolved POW claims in their opposition to the lifting of the arms embargo.[32]  However, as noted in the second paragraph above, opposition over the POW/MIA issue among members of Congress was conspicuously absent.[33]  This congressional opposition, or rather lack thereof, is extremely important, as it is members of Congress who are responsible for approving any future arms sales to America’s once bitter foe.[34]  Although the anti-Vietnam sentiment in Congress has mostly diminished, having been replaced with the desire to further open up emerging Vietnamese markets to American businesses,[35] and concerns over checking China’s rise as a military power in the region,[36] these new political priorities should not take away from the concerns of those Americans, however few, who still do not have a definitive answer as to the fate of their husbands, sons, brothers, and fellow soldiers.  Were these American servicemen really left behind, or was the thought of those left behind eventually returning a way for many to hold onto some hope in what was a lost war?  In either case, hopefully, if and when Congress is called upon to approve a major arms sale to the Socialist Republic of Vietnam, Congress will use what little bargaining power it has left and find the courage to finally demand a full accounting for all American servicemen that may have been left behind at the end of the Vietnam War.

[1] Alison Mitchell, Opening to Vietnam, The Overview; U.S. Grants Full Ties, Time for Healing, Clinton Says, NY Times (July 12, 1995), https://www.nytimes.com/1995/07/12/world/opening-vietnam-overview-us-grants-vietnam-full-ties-time-for-healing-clinton.html.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] See, e.g., Robert Tait, Phillip Sherwell, Obama urged to press Vietnam over ‘missing’ US prisoners during historic visit, The Telegraph (May 21, 2016), https://www.telegraph.co.uk/ news/2016/05/21/obama-urged-to-press-vietnam-over-missing-us-prisoners-during-hi/.

[7] Krishnadev Calamur, The End of the U.S. Arms Embargo on Vietnam, The Atlantic (May 23, 2016), https://www.theatlantic.com/international/archive/2016/05/vietnam-arms-embargo/483872/.

[8] See Luong Thai Linh, US-Vietnam Relations Take Next Step as Arms Embargo Lifted, Newsweek (May 23, 2016), http://www.newsweek.com/vietnam-arms-embargo-lifted-462782.

[9] Wendell Minnick, Vietnam May Request F-16s, P-3 Orions From US, Defense News (May 25, 2018), https://www.defensenews.com/global/asia-pacific/2016/05/25/vietnam-may-request-f-16s-p-3-orions-from-us/.

[10] Id.

[11] Id.

[12] See Tait, et al., Supra n.6.

[13] Id.

[14] See Mitchell, Supra, n.1.  

[15] No Evidence Found of POWs in Vietnam, CQ Almanac (1992), http://library.cqpress.com/cqalmanac/document.php?id=cqal92-1108641.

[16] Id.

[17] See Tait, et al., Supra n.6.

[18] See, e.g., Barbara Crossette, POWs Were Left, Top Aides Believe, NY Times (Sept. 9, 1992), https://www.nytimes.com/1992/09/22/world/pow-s-were-left-top-aides-believed.html; Tait, et al., Supra n.6.

[19] See, e.g., Doyle McManus, Stephanie Grace, Some Vietnam POWs May Be Alive in Russia, LA Times (Jun. 16, 1992), http://articles.latimes.com/1992-06-16/news/mn-472_1_vietnam-war.

[20] See Tait, et al., Supra n.6.

[21] See id.

[22] See, e.g., John Lancaster, US Baffled by Yeltsin’s POW Disclosure, The Washington Post (Jun. 17, 1992), https://www.washingtonpost.com/archive/politics/1992/06/17/us-baffled-by-yeltsins-pow-disclosure/d20184a6-4fb8-495d-ab70-2c1b51d23a43/?utm_term=.d3ca5feb5e2d.

[23] Id.

[24] See id.

[25] Eric L. Haney, Inside Delta Force, 314-321 (Delacorte Press, 2002).

[26] Id.

[27] Id.

[28] See No Evidence Found of POWs in Vietnam, CQ Almanac (1992), http://library.cqpress.com/cqalmanac/document.php?id=cqal92-1108641.

[29] Id.

[30] Id.

[31] See Tait, et al., Supra n.6.

[32] Id.

[33] Dan Boyer, Obama lifts ban on selling U.S. arms to Hanoi in a bitter irony for Vietnam veterans, The Washington Times (May 22, 2016), https://www.washingtontimes.com /news/2016/may/22/obama-weighs-selling-us-arms-to-hanoi-in-bitter-ir/.

[34] Id.

[35] See, e.g., Calamur, Supra n.7.

[36] See Boyer, Supra n.33.  

VETREPRENEURSHIP: Making the American Dream a Reality for Military Veterans

By Spring 2018 M-VETS Student-Advisor David A.L. Brown

For many recruits to the U.S. military, one of the principal motivations for serving is the promise of success in a post-military career. We’ve heard from commercials, pamphlets, professional conferences, and in countless anecdotes that the military builds the character and skills necessary to be successful leaders in business.[1] Several Fortune 500 companies boast military veterans as CEOs, founders, or presidents—including Nike’s Phil Knight, FedEx’s Frederick Smith, Verizon’s Lowell McAdam, and Johnson & Johnson’s Alex Gorsky.[2]  However, even after accounting for the country’s decreasing percentage of military veterans since World War II, Post-9/11 veterans appear to be starting fewer businesses than their counterparts in previous generations.

A recent article in Slate claims that nearly half of America’s World War II veterans “went on to own or operate” their own businesses, citing a 2013 study conducted by the Institute for Veterans and Military Families (IVMF) at Syracuse University.[3] According to the same study, over 40% of veterans of the Korean War became entrepreneurs following their separation from military service.[4] However, despite Post-9/11 conflicts representing the longest continuous period of military conflict in American history—including two simultaneous wars, for a combined 25 years of occupation—veterans of the Post-9/11 era are the least likely to own or operate their own businesses. Today, only 4.5% of Post-9/11 veterans are “self-employed,” according to the U.S. Bureau of Labor Statistics.[5]

Some suggested causes for this steep decline include the decline of the U.S. manufacturing industry, as military leaders often transitioned into plant foremen or assembly line supervisors while they accrued the skills necessary to start their own businesses. Others point to the decline in small retail businesses (commonly known as ‘Mom & Pop Shops”) in favor of ‘big box’ corporate retailers. Another answer lies in the increasing divide between professional military skills and the rapidly-advancing state of corporate technology, leaving veterans trained by the military in fields from logistics to office administration to medical trauma response at a disadvantage compared to civilian counterparts more experienced with the software, hardware, and tools employed in the private sector.

Most significantly, however, start-up costs for a new business today appear to be substantially higher than they were for a veteran leaving the service in generations past, given disproportionate increases in the prices of everything from real estate to motor vehicles to business insurance compared to the buying power of the U.S. dollar in previous generations. According the U.S. Department of Commerce’s Minority Business Development Agency, the average cost of a new start-up in 2009 was estimated at “just over $30,000.”[6] Adjusted for inflation, $3,577.75 in 1960 had the equivalent buying power of $30,000 today,[7] in an economy where the median house cost less than $12,000; meanwhile, the median cost of an American home today is approximately $200,000.[8] Furthermore, World War II- through Vietnam-era veterans enjoyed a G.I. Bill which included fixed-rate low-interest loans for small business start-ups, a feature prominently missing from the 1984 Montgomery and Post-9/11 G.I. Bills.

Post-9/11-era veterans interested in starting their own businesses must know how to generate this start-up capital in order to be successful in a world where their dollars simply don’t go the distance that previous generations enjoyed. Fortunately, one little-known arm of the federal government can act as a one-stop shop for veteran entrepreneurs: the U.S. Small Business Administration (SBA).

The U.S. Small Business Administration offers several programs designed to enable veterans to own and operate their own businesses. Through its Express Loan Program, the SBA guarantees private loans up to $350,000 for entrepreneurs who cannot secure funding elsewhere, protecting private lenders from default while enabling new entrepreneurs to secure funding for their business start-ups, in exchange for a guaranty fee dependent on the size of the loan itself. Veterans may also take advantage of the SBA Veterans Advantage Program, which reduces or negates guaranty fees for loans secured through the SBA for businesses that are at least 51% veteran-owned.

The SBA also operates sixteen Veterans Business Outreach Centers (VBOCs), which offer assistance to veteran entrepreneurs in the form of free business counseling services. SBA also offers the Boots to Business program, located on military installations as part of the DoD’s Transition Assistance Program. Boots to Business offers classroom-style training in entrepreneurial basics such as market research, business fundamentals, and revenue recording and reporting. Women veterans may also take advantage of special partnership programs in which the SBA participates, including the Veteran Women Igniting the Spirit of Entrepreneurship (V-WISE) training program at Syracuse University’s Institute for Veterans and Military Families. V-WISE includes business training, mentorship, and offers membership in a supporting network of professionals and fellow entrepreneurs personally and professionally invested in the success of women veteran-owned business start-ups.

Since the removal of fixed-rate business loans from the G.I. Bill, the U.S. Small Business Administration has supplanted the Department of Veterans Affairs in providing critical start-up assistance to veteran-owned businesses, and should be the first stop for any would-be veteran entrepreneur. Further information on business assistance through the SBA can be found here: https://www.sba.gov/business-guide/grow-your-business/veteran-owned-businesses.

[1] See, e.g., Chris Gosselin, Why America’s Veterans Make the Best Entrepreneurs, Fortune.com (Nov. 11, 2016), available at http://fortune.com/2016/11/11/veterans-day-leadership-ceo/ (last visited May 18, 2018).

[2] See, e.g., Alex Lockie, 15 Fortune 500 CEOs Who Got Their Start in the Military, Business Insider (Aug. 26, 2015), available at http://www.businessinsider.com/15-fortune-500-ceos-who-got-their-start-in-the-military-2015-8 (last visited May 17, 2018).

[3] Kimberly Weisul, Half of World War II’s Veterans Started Businesses. Less than 5 Percent of Today’s Veterans Do., Slate.com (Oct. 4, 2016), available at http://www.slate.com/blogs/moneybox/2016/10/10/fewer_veterans_are_becoming_entrepreneurs_a_lot_fewer.html (last visited May 18, 2018).

[4] See Veteran Entrepreneur Fact Sheet, Bunker Labs, available at https://bunkerlabs.org/wp-content/uploads/2016/11/Veteran-Entrepreneurship-Fact-Sheet_Nov-27-2016.pdf (last visited May 18, 2018).

[5] Steven F. Hipple & Laurel A. Hammond, Self-Employment in the United States, U.S. Bureau of Labor Statistics (Mar. 2016) p. 10, available at https://www.bls.gov/spotlight/2016/self-employment-in-the-united-states/pdf/self-employment-in-the-united-states.pdf (last visited May 18, 2018).

[6] Minority Business Development Agency, How to Estimate the Cost of Starting a Business from Scratch, U.S. Dep’t. of Commerce (Nov. 25, 2011), available at https://www.mbda.gov/news/blog/2011/11/how-estimate-cost-starting-business-scratch(last visited May 18, 2018).

[7] Value generated using the inflation calculator at DollarTimes.com, available at https://www.dollartimes.com/inflation/inflation.php?amount=3577.75&year=1960 (last visited May 18, 2018).

[8] Emmie Martin, Here’s How Much Housing Prices Have Skyrocketed Over the Last 50 Years, CNBC.com (Jun. 23, 2017), available at https://www.cnbc.com/2017/06/23/how-much-housing-prices-have-risen-since-1940.html (last visited May 18, 2018).

Opioid Crisis

By Spring 2018 M-VETS Student-Advisor

Much has been made of what has been variously termed the “opioid crisis” and the “opioid epidemic” by politicians and the mainstream media. And for good reason. In 2016, more than 42,000 Americans died of opioid overdose,[1] a 28% increase compared to 2015.[2] The number of annual deaths has increased every year since the CDC began keeping statistics on opioid-related deaths in the 1990s.[3]

How did we get to this point, where it’s practically expected that opioid drugs will take the lives of enough Americans this year to fill a Major League Baseball stadium?

The problem can be traced back to the 1990s, when the medical community and the pharmaceutical industry vastly underestimated the addictiveness of opioid painkillers.[4] Doctors then began to prescribe opioid painkillers at a greater rate.[5] By the time the medical community realized that the drugs were indeed highly addictive, dispersion and misuse of opioids had become widespread, and overdose rates began to skyrocket.[6] By 2015, an estimated 2 million Americans suffered from a substance use disorder related to prescription opioids.[7]

The federal government has engaged in a lot of talking about the opioid epidemic. On March 27, 2017, President Donald Trump announced a special commission to investigate the opioid crisis and provide recommendations to the White House.[8] The commission’s final report contained 56 recommendations, which included streamlined bureaucracy and collaboration with states and private entities.[9] On October 26, 2017, President Trump declared the opioid crisis to be a national health emergency.[10] On March 1, 2018, President Trump hosted a summit on the crisis, during which he spoke with recovery and prevention experts as well as members of the law enforcement community.[11]

Not to be outdone, Congress also has had a lot to say on the issue. In April 2018, Congress returned from recess with a full slate of bills on the agenda designed to address the crisis. The Senate was busy on the Opioid Crisis Response Act of 2018, which included many of the programs and initiatives being considered by the White House.[12] In the House, nearly three dozen opioid-related bills had been filed and were awaiting markup in committee.[13]

America’s veterans compose the group that has been most devastated by the opioid crisis. According to a statement by a VA official before the Senate, 60 percent of veterans who return from active service experience chronic pain; this figure is double the proportion of the general population.[14] Given the high incidence of pain among veterans combined with an overburdened VA and the recent emergence of opioid painkillers as the go-to treatment for chronic pain, opioids quickly became the norm for veterans returning home from action in the post-9/11 Middle East.[15] As a result, the number of veterans addicted to opioids rose 55 percent between 2010 and 2015, to a total of 68,000, or approximately 13 percent of the total population of veterans taking opioids.[16]

Veterans are uniquely susceptible to opioid addiction. Many veterans return home with PTSD as a result of the toll taken by combat on the human psyche. Those who suffer from PTSD often turn to alcohol or drugs as a means of coping.[17] With such a high percentage of the veteran population receiving opioids for their pain, there is considerable overlap with PTSD cases, and a vicious cycle often develops.[18]

The enormity of the opioid crisis may seem bewildering to those bound to fix it. Where does one begin to tackle such a problem? One solution that may appear obvious is to start with veterans, for a number of reasons. First, as discussed above, opioid addiction is disproportionately prevalent among veterans relative to the population at large. Second, any problem that afflicts veterans on such a scale deserves our attention, given the debt of gratitude we owe to each of them. Third, as a healthcare and treatment organization run exclusively by the federal government, the VA is uniquely situated to serve as a laboratory for what works and what doesn’t in addressing the opioid epidemic at large.

A glimpse of what this might look like has already been provided by the Louis Stokes Cleveland VA Medical Center, a VA facility in Cleveland, Ohio, which has developed “a culture . . . of evidence-based tests and practices of opioids for over a decade.”[19] Only 3 percent of the Cleveland VA’s patients are prescribed opioids to treat their pain.[20] This rate, the lowest in the country, is due, in addition to the steps taken as part of the overall VA-mandated push to reduce opioid prescriptions, to “a mix of available resources and educating care providers on how best to prescribe opioids.”[21]

According to Dr. Ali Mchaourab, Chief of Medicine, the facility’s success in fighting opioid dependence has been achieved because its “providers, from primary care to the most specialized, have so many tools and so many things available to them, including complementary alternative medicine, advanced technology, surgeries—anything and everything that’s available in science, is available at the Cleveland VA.”[22] In addition, the Cleveland VA’s 13-member pain management team has embraced the philosophy that investment of time is necessary to properly care for their patients.[23] Thus, rather than handing out a bottle of pills, the team ensures that each patient sits down with a psychologist and a physician for as long as necessary to “understand the patient.”[24] The team also looks for innovative ways to use technology to stay up to speed on ways to treat pain without resorting to opioids.[25]

To stop the opioid epidemic, we have to start somewhere. The VA could be the place. Through new partnerships, uniform standards for painkiller prescription, smart allocation of budgetary resources, and the kind of good, old-fashioned hard work seen in Cleveland, the VA may be perfectly positioned to provide America with the blueprint on how to defeat this crisis.

[1] Christopher Ingraham, CDC Releases Grim New Opioid Overdose Figures: ‘We’re Talking About More Than an Exponential Increase’, Washington Post Wonkblog (Dec. 21, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/12/21/cdc-releases-grim-new-opioid-overdose-figures-were-talking-about-more-than-an-exponential-increase/?noredirect=on&utm_term=.eaa4206a4f8e.

[2] Id.

[3] Id.

[4] Opioid Overdose Crisis, https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis (last visited May 19, 2018).

[5] Id.

[6] Id.

[7] Id.

[8] The White House, Trump Administration Response to the Final Recommendations of the President’s Commission on Combatting Drug Addiction and the Opioid Crisis, 1 (2017).

[9] Id.

[10] President Donald J. Trump is Taking Action on Drug Addiction and the Opioid Crisis, https://www.whitehouse.gov/briefings-statements/president-d https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-taking-action-drug-addiction-opioid-crisis/Donald-j-trump-taking-action-drug-addiction-opioid-crisis/ (last visited May 19, 2018).

[11] President Donald J. Trump Is Combatting the Opioid Crisis, https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-combatting-opioid-crisis/ (last visited May 19, 2018).

[12] Sarah Karlin-Smith, Congress Comes Back to a Raft of Opioid Bills, Politico, Apr. 9, 2018.

[13] Id.

[14] Statement of Dr. Carolyn Clancy, M.D. Interim Under Secretary for Health Veterans Health Administration (VHA) Department of Veterans Affairs (VA) before the Cmte. on Veterans’ Affairs, United States Senate, 2 (2015).

[15] Ken Blaker, Bandaging Veterans’ Pain with Opioids Is Proving Deadly, Must Stop, Observer, http://observer.com/2017/11/high-risk-for-opioid-abuse-veterans-become-fatalities-of-overprescription/ (Nov. 16, 2017).

[16] Sarah Childress, Veterans Face Greater Risks amid Opioid Crisis, Frontline, https://www.pbs.org/wgbh/frontline/article/veterans-face-greater-risks-amid-opioid-crisis/ (Mar. 28, 2016).

[17] Sonia Tagliareni, Veterans and Addiction, DrugRehab.com, https://www.drugrehab.com/addiction/veterans/ (May 11, 2018).

[18] Id.

[19] James Clark, The Best Effort to Fight Opioid Addiction May Be at This VA Hospital in the Center of America’s Epidemic, Task & Purpose, https://taskandpurpose.com/va-opiate-prescription-rates/ (Jan. 15, 2018).

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

 

The Most Bang for Your Buck: Are the United States Military Academies the Most Cost-Effective Way of Producing Officers?

By Spring 2018 M-VETS Student-Advisor

The United States Military Academies are hallowed institutions in American culture. Most Americans can name West Point, the Naval Academy, and the Air Force Academy off the top of their heads, and these schools are often mentioned in the same breath as Ivy League institutions. The graduates of the academies include Presidents Dwight D. Eisenhower and Ulysses S. Grant, most of the major generals of the American Civil War, including Robert E. Lee, William Tecumseh Sherman, George McClellan, and “Stonewall” Jackson, sci-fi author Robert Heinlein, and numerous others. To be accepted to one of the service academies is seen as an incredible achievement, let alone graduating from one, and sets young men and women on the path to becoming one of America’s most trusted and respected members: a United States military officer. What most Americans don’t know is that America’s service academies turn out less than one fifth of the nation’s new officers each year[1] but spend four times more per new officer than a typical ROTC (Reserve Officer Training Corps) program and eight times more than typical OTS (Officer Training School) graduates.[2] The key questions then are: (1) why do the academies cost so much more than alternatives like ROTC, Direct Appointment, or OTS, and (2) is that increased spending justified?

The enormous expense in training academy cadets is easy to see. All cadets attending a United States service academy receive a full scholarship in exchange for a mandatory commitment to serve in the United States military following graduation. In addition to paying for the cadets’ tuition, the academies also cover the cost of textbooks and materials[3] and pay each cadet a monthly stipend or allowance of more than $800.[4] Based on these expenses, it’s understandable that the total cost per cadet at a service academy was estimated by the United States General Accounting Office at roughly $300,000.[5]

In contrast, while some ROTC cadets receive partial or full scholarships to their respective educational institutions, many do not. Some ROTC cadets receive living-expense stipends, but most do not and do not have the cost of their books or materials covered by the military. Because of these and other factors, the Tench Francis School of Business found that the academies spent four times as much on their cadets as ROTC programs and eight times as much as OTS cadets, who endure a condensed training program over a few months before commissioning as officers.[6]

If the academies are covering all expenses for cadets, essentially giving their students a “golden ticket,” that expenditure should be justified in the product the academies turn out. No one would seriously question that the academies turn out exemplary officers, but one would reasonably expect the academies to turn out officers superior to those who go through ROTC or OTS, given the sharp increase in spending on academy cadets. It would be fair to expect academy-graduate officers to surpass their peers in quality of performance, quantity of officers, or longevity of military careers, however the facts do not support these conclusions.

In terms of rates of promotion and career longevity, while academy graduates used to outstrip their peers, ROTC and OTS graduates are now staying in the military for longer periods of time and reaching flag-officer level at similar rates as their service academy counterparts.[7] In their analysis, the Tench School of Business concluded that “[d]ifferences in career progression between the three main commissioning sources were indistinguishable in the GAO Report. Ultimately, the quality indicators do not reveal any significant difference between commissioning sources. Thus, the tangible benefits from each program are exceptionally similar.”[8]

While ROTC, Direct Appointment, and OTS program graduates make up an increasing percentage of the military’s active duty officer numbers, active-duty training to fill specialized roles can also be very expensive, so if academy graduates stayed in the military longer than their counterparts, then the added expense could be justified. Walter Winfield Price III, a management consultant and former Navy officer who graduated from the Naval academy, stated, “That kind of longevity helps justify an academy education, especially considering the expensive training most junior officers undergo after college. […] When you look at the cost of educating a fighter pilot or a nuclear submariner – both of which outweigh the Naval Academy education – you want them to stay[.]”

According the GAO report referenced by the Tench Francis School of Business’s analysis, “only about a 6% higher retention rate has been measured for service academy graduates after 15 years of active duty, when compared to ROTC and OCS Graduates.”[9] While initial expenditures on cadets might be justified if the resulting officers remained in the military significantly longer, the slight increase in career duration likely does not justify the academies’ fourfold or eightfold increase in spending per cadet compared to ROTC and OTS.

If the service academies are only filling roughly twenty percent of the total officer requirements of the U.S. military, their graduates perform roughly as well as their counterparts from ROTC and OTS, and do not remain in the service significantly longer than their counterparts, are the academies a justifiable expenditure on the part of the federal government? Would it be fairer to take the money spent on one academy graduate and instead fund four ROTC cadets or eight OTS graduates? What is clear is that if the academies really do produce a comparable product for four to eight times the cost, something must be done to equalize the disparity or to justify the difference. Several potential solutions are discussed below.

The first option is simple and unlikely to be implemented: abolish the academies as an unjustifiable expenditure. Taking the “nuclear option” in this situation would mean abolishing the service academies and having ROTC and OTS absorb the officer production requirements. This option would certainly cut spending tremendously, but it leaves much to be desired in making effective use of the buildings, campuses, and resources of the institutions and honoring those academies’ history and legacy. To alleviate that issue, the academies could be turned into museums or sold off to let businesses or civilian universities take ownership of the sites. While these are feasible options, the backlash from the public, military, and alumni of the academies would make this set of options unappetizing and likely impracticable.

A second option would be to cut funding to the service academies dramatically. OTS graduates put themselves through college before ever entering military service. Many ROTC students do the same and even students on ROTC scholarships often have many additional living expenses that are not covered by taxpayer money. In short, many non-service academy cadets and midshipmen are working part-time jobs and taking out loans to make ends meet. The service academies could be forced to adjust their budget to provide for operational expenses rather than all-inclusive packages for each student. The drawback to this would be that it would be harder to recruit prospective students without the promise of a full-ride. Cadets and midshipmen may find that following the strict, often severe, rules of their service academy is not worth it if they are having to pay for the experience themselves. Essentially, this solution would likely make it significantly more difficult to recruit prospective students and would reduce the service academies to little more than a marginally more prestigious Virginia Military Institute or Citadel. This option would not fix the underlying systemic issue, namely that these institutions are not fulfilling any function that ROTC and OTS are failing to perform.

A third option would be to keep the service academies open for military specific training, but not for degrees. The academies could offer 8-week sessions where cadets from around the nation could attend Airborne, Air Assault, SOAR, SERE, and AFSC/MOS specific training. For example, cadets interested in Cyber could get a chance to attend an intensive designed with that AFSC in mind. Army cadets who have received the 11B Infantryman MOS could attend an 8-week Pre-Ranger course during their senior year prior to commissioning. Midshipmen could go to Annapolis to do anything from sailing to going through a SEAL screener. Some basic academic courses could continue to be offered to keep students on track for graduation.

Of these three potential solutions, it seems that the best course of action would be to turn the academies into sites for cadets and midshipmen from around the nation to receive military specific training and potentially earn a few academic credits. This would foster a greater sense of inclusivity at the service academies and allow for more in-training military personnel to benefit from using their facilities.

Military specific courses would be free to vary between the different service academies. Army cadets could take courses on ground navigation, small unit tactics, and convoy procedures. They could even earn their Airborne wings, Air Assault badge, or complete a Pre-Ranger course. Navy midshipmen could learn to sail, get acquainted with different vessels, and go through SEAL and SWCC screeners. Marine prospects could go through training as riflemen, get experience leading small platoons, as well as do urban combat and other training in austere locations. Air Force cadets could participate in SOAR and SERE programs. Intensives for AFSCs such as Cyber could also be created to teach interested cadets about what the job entails. This solution would allow for the service academies to remain operational while serving far more cadets. Additionally, research and experimental training could be conducted by the professors and instructors stationed at the academies.

Crucially, this solution would foster cohesion throughout the nation’s cadets and midshipman, eliminating any stigma attached to non-academy officers. The academies would no longer retain even the vestige of being an “old boys club,” with all the rumors of nepotism and backwardness that come with that reputation. But perhaps most importantly, this option would push forward the reality of the “citizen soldier” so central to the U.S. military. The military’s future officers would come from and be trained across the nation, exploring civilian life while preparing for military service, and every cadet and midshipman would see the academies as common ground, guaranteeing to every future officer an equal chance to experience and learn from the best military training the nation has to offer.

[1] Dep’t of Def., Population Representation 2010 – Active Component Commissioned Officer Gains, Defense.gov (2012), archived from the original on 26 June 2012, Retrieved 4 October 2017, available at, https://web.archive.org/web/20120626021140/http://prhome.defense.gov/RFM/MPP/ACCESSION%20POLICY/PopRep2010/appendixb/b_30.html.

[2] Comparative Analysis of ROTC, OCS and Service Academies as Commissioning Sources, Tench Francis Sch. of Bus. (Nov. 19, 2004), pages 1-3, available at https://cdn.shopify.com/s/files/1/0059/6242/files/tenchfrancisprose.pdf.

[3] Congressional Guide 2016, Admission to the United States Service Academies, pg. 25, available at https://www.westpoint.edu/admissions/shared%20documents/congressional%20guide%20(2016).pdf

[4] 37 U.S.C.A. § 203 (West), “(c) A cadet at the United States Military Academy, the United States Air Force Academy, or the Coast Guard Academy, or a midshipman at the United States Naval Academy, is entitled to monthly cadet pay, or midshipman pay, at the monthly rate equal to 35 percent of the basic pay of a commissioned officer in the pay grade O–1 with less than two years of service.”; U.S. Air Force Aca., Cadet Pay (Apr. 2009), available at http://www.usafa.af.mil/About-Us/Fact-Sheets/Display/Article/428296/cadet-pay/, (stating that, “U.S. Air Force Academy cadets earn $846 a month in basic pay.”; U.S. Mil. Aca., FAQ – Cadet Life, available at https://www.usma.edu/admissions/sitepages/faq_life.aspx, stating that “A first-year cadet earns more than $900 a month, and the amount increases each year.”

[5] U.S. Gen. Acct. Off., DOD Needs to Enhance Performance Goals and Measures to Improve Oversight of Military Academies (Sep. 2003), available at https://www.gao.gov/new.items/d031000.pdf.

[6] Tench Francis Sch. of Bus., supra note 2, at 1, citing a 1992 GAO Report.

[7] Id. at 1-2.

[8] Id.

[9] Id. at 3.

 

DOMESTIC VIOLENCE AND MILITARY FAMILIES

By Spring 2018 M-VETS Student-Advisor

Domestic violence is an important issue faced by many of our servicemembers in the United States military and their loved ones. It has become a focus of the Department of Defense as it seeks to raise awareness about this sensitive issue that has affected the lives of many of our military families.

It has been suggested that, after several years of decline, domestic violence may be on the rise in military households and may touch the lives of military families more often than those within civilian families.[1]  However, this could be attributed to an increase in awareness of domestic issues within the military and those who are willing to report incidents of domestic abuse.

Some theories suggest that the many unique stressors of military life may lead to the potential for domestic abuse in military families versus in the civilian population.[2]  These stressors include multiple deployments, long separations from family, combat exposure, and reoccurring relocations that come with military life.[3]  However, there is no conclusive reason or cause for domestic violence as it occurs in both military and civilian families and a vast majority of military families do not have any incidents of domestic violence.

While a significant number of victims are women, the problem is not just isolated to women. It is estimated that approximately one-third of domestic violence victims currently serving in the active duty military are men.[4] Out of an average of 8,000 complaints made to the military, approximately 2,500 involved male victims and female offenders.[5]

Additionally, many of the perpetrators of domestic abuse in military families are not servicemembers. According to the Department of Defense’s 2016 Report on Child Abuse and Neglect and Domestic Abuse in the Military, 40% of the perpetrators of domestic violence in military households were civilians.[6]  Therefore, there is no rhyme or reason when it comes to domestic abuse but attempting to identify triggers and raise awareness has been a concerted effort of the military.

One way to help combat domestic violence in the military is to continue to raise awareness about the issue. Often, victims are reluctant to come forward to report abuse for many reasons including fear of retaliation, fear of ruining a loved one’s military career, and the lack of resources for dependents.  With that in mind, the Department of Defense has implemented a Domestic Violence Awareness Campaign and suggests various ways to help promote awareness and prevention, including encouraging people to become active in their community and report suspected abuse.[7]

The Department of Defense has also implemented programs to assist those who suffer from the effects of domestic abuse and those who perpetrate the abuse, including the Family Advocacy Program (FAP). The FAP works to prevent domestic abuse through education and awareness programs.[8]  FAP offers classes, counseling, assistance in finding shelter, awareness campaigns, and coordinating with civilian agencies to help victims and their families.[9]  However, in order to get help to families in need, FAP and other advocacy groups promote awareness

Unfortunately, since the DoD’s jurisdiction in these matters usually covers active duty personnel and their families, services such as FAP are not generally available to reservists, national guard members, veterans or retirees.[10]  In those situations, family members must rely on local civilian agencies and groups for assistance.

If you are a victim of domestic abuse, know someone who is, or you are afraid you might hurt yourself or others, there is help out there and most importantly there is hope. Many military and civilian organizations are dedicated to assisting servicemembers and their families through times of family abuse.  And hopefully one day, the need for these programs will disappear as domestic violence declines.

The following are helpful resources to assist those in need:

  • The National Domestic Violence Hotline[11] (1-800-799-SAFE (7233)
  • MilitaryOne Source[12] (800-342-9647)
  • Real Warriors Live Chat[13] (866-966-1020),
  • and your local Family Advocacy Program are here to help.

[1] Nancy Montgomery, Reports of Family Violence, Abuse Within Military Rise, Stars and Stripes (July 10, 2011), https://www.stripes.com/reports-of-family-violence-abuse-within-military-rise-1.148815 https://www.military.com/spousebuzz/blog/2016/10/3-things-need-know-domestic-violence.html

[2] Lizanne Carlson, 3 Things You Need to Know About Military Domestic Violence, Military.com (October 28, 2016), https://www.military.com/spousebuzz/blog/2016/10/3-things-need-know-domestic-violence.html

[3] http://www.bwjp.org/our-work/topics/military-ipv.html

[4] Andrew Tilghman One-third of Domestic Violence Victims in Active Duty Military Families are Men, Military Times (August 27, 2014), also found at https://www.militarytimes.com/news/your-military/2014/08/27/one-third-of-domestic-violence-victims-in-active-duty-military-families-are-men/

[5] Id.

[6] http://download.militaryonesource.mil/12038/MOS/Reports/FAP_FY16_DoD_Report.pdf

[7] Donna Miles, Military Launches Domestic Violence Awareness Campaign, U.S. Department of Defense, (October 4, 2010), http://archive.defense.gov/news/newsarticle.aspx?id=61131

[8] http://www.militaryonesource.mil/-/the-family-advocacy-program

[9] Id.

[10] www.bwjp.org/our-work/topics/military-ipv.hmtl.

[11] The National Domestic Violence Hotline also found at http://www.thehotline.org/

[12] MilitaryOne Source also found at http://www.militaryonesource.mil/

[13] Real Warriors Live Chat also found at https://www.realwarriors.net/livechat

 

LAND OF OPPORTUNITY? THE AMERICAN DREAM BECOMES A NIGHTMARE FOR DEPORTED MILITARY VETERANS

By Spring 2018 M-VETS Student-Advisor

1U.S. military veterans who have been deported to Mexico are seen honoring fallen soldiers on Memorial Day in Juarez, Mexico. (Herika Martinez/AFP/Getty Images)

[1]The United States of America, a country formed by immigrants, is referred to as the “Land of Opportunity” where dreams of success can come true with hard work and perseverance. The U.S. military is one such opportunity for immigrants. Certain noncitizens are eligible to enlist in the military and are then able to pursue an expedited path to citizenship.  However, the potential consequences for veterans who have honorably served but have not been naturalized as citizens can be severe, with countless veterans deported each year. For these individuals, the Land of Opportunity ignores their contributions and service to the United States and forces them to leave the country they swore to defend.

Opportunities for Noncitizens to Join the Military

Section 504 of Title 10 of the United States Code (“U.S.C.”) establishes the citizenship and residency requirements for serving in all branches of the U.S. armed forces. Under 10 U.S.C. § 504(b)(1), a person may join the military if he is a citizen of the United States or a “lawfully admitted permanent resident,”[2] which is also referred to as a permanent resident alien, resident alien permit holder, or Green Card holder.

In addition to lawful permanent residents being eligible to join the U.S. military, in 2008, the Department of Defense (“DoD”) established the Military Accessions Vital to National Interest (“MAVNI”) program. This pilot program authorizes a limited number of “legally present” noncitizens, including refugees, asylees, and those in certain other non-immigrant categories, to join the military if they possess skills deemed critical, including health care skills and expertise in specified foreign languages.[3]

Under the statute and through programs like MAVNI, noncitizens can and do join the U.S. military. In fact, noncitizens have served in the U.S. military dating as far back as the Revolutionary War.  About 8,000 noncitizens join each year, and approximately 35,000 noncitizens are currently serving in an active duty status in the U.S. armed forces.[4]

Naturalization Opportunities for Noncitizens in the Military

Joining the military provides several benefits for noncitizens, including a fast-track to citizenship. The Immigration and Nationality Act (“INA”) includes special provisions that permit lawful permanent residents who have served in the U.S. armed forces to be naturalized as U.S. citizens through an expedited process.  Under the INA, most naturalization applicants must have continuously resided in the United States as a permanent resident for at least five years.  This requirement is waived for those who have served in the military.[5]  Further, the INA also waives the requirement that an applicant reside in the state in which the application for naturalization is filed for a minimum of three months.[6]  The naturalization process can be further expedited if the individual served honorably during a designated period of hostility,[7] including during the War on Terrorism from September 11, 2001, to the present.[8]

Additionally, the MAVNI program, described above, “allows certain non-citizens legally present in the United States to join the U.S. armed forces in exchange for immediate eligibility for U.S. citizenship.”[9] Individuals who join the military through MAVNI are eligible to apply for U.S. citizenship without first becoming lawful permanent residents.  “An individual who joins the armed forces through this program is able to move from nonimmigrant, asylee, refugee, or [Temporary Protected Status] directly to U.S. citizenship.”[10]

Prior to Fiscal Year 2018, one day of service in the military during a designated period of hostility was sufficient for a noncitizen to be eligible for expedited citizenship. However, on October 13, 2017, the DoD issued new policy that requires noncitizen applicants to first obtain a favorable background and security suitability determination, complete basic training, and serve for 180 consecutive days, or one year in a reserve component, and acquire an honorable characterization of service determination.[11]  While this is more burdensome than prior to the policy change, it still reflects a more expedited process for noncitizens with military service compared to other noncitizens.

Deportation of Veterans Who Have Not Been Naturalized

Under existing laws and policies, noncitizen veterans risk being permanently expelled from the United States if convicted of a crime. Immigration laws provide for deportation and permanent exile of a noncitizen who is convicted of an “aggravated felony.”  While this sounds like it only applies to the most serious of offenses, “an ‘aggravated felony’ does not require the crime to be ‘aggravated’ or a ‘felony’ to apply.”[12] Rather, under the INA, “aggravated felony” covers over 30 crimes – with the list regularly growing – and includes minor drug crimes and many non-violent misdemeanors such as tax evasion and failing to appear in court.[13]  Further, if Congress adds a new crime to the list of aggravated felonies, noncitizens who previously have been convicted of such crime become immediately deportable.[14]

The Supreme Court recently weighed in on the aggravated felony provision of the INA in Sessions v. Dimaya.  In a 5-4 decision, the Court determined that a “crime of violence” under the aggravated felony provision was unconstitutionally vague.[15]  Given the Court’s ruling, noncitizens can no longer be deported for being convicted of a “crime of violence,” defined as a felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”[16]  The decision seems like a win for noncitizens by limiting the types of crimes that may justify deportation, but it is not likely to have a significant impact on the number of noncitizens removed for committing violent offenses as there are several other violent crimes listed as aggravated felonies.  While the case has brought attention to the types of crimes that result in automatic deportation, the Court did not specifically address the less serious, non-violent offenses that are considered aggravated felonies under the INA, so those provisions remain valid.

In addition to being subject to deportation, an aggravated felony conviction also results in the individual becoming ineligible for most forms of relief from deportation, such as cancellation of removal and asylum.[17]  Further, noncitizens convicted of aggravated felonies become permanently ineligible from being readmitted into the United States in the future.[18]  And there is currently no exemption in the immigration laws and policies related to military service.  Therefore, it is possible for a misdemeanor conviction to result in permanent exile from the United States, even for an individual who has demonstrated loyalty to the nation through honorable service in the military.

Ironically, veterans who are deported after being convicted of an aggravated felony can only return to the United States upon their death.[19]  The Department of Veterans Affairs (“VA”) provides that all veterans, without regard to citizenship status or deportation, are entitled to burial at a national cemetery with a Government headstone or marker and full military honors.  The VA will even contribute up to $300 to return the deportee’s remains to the United States for burial.[20]  “Every deported veteran…may be welcomed back and honored as Americans in death, despite being banished from the United States in life.”[21]

While expedited citizenship is an option for noncitizens in the military, many are unaware of this option or commonly have the misconception that their military service automatically confers citizenship.[22]  “[T]he federal government failed to ensure that noncitizens in the military received accurate information about military naturalization.”[23]  The United States does not track how many noncitizen veterans are deported each year, but it is estimated that hundreds – if not thousands – of veterans have been deported over the course of the last several years.[24]  Perhaps if more effort was expended explaining to noncitizens in the military how they may be naturalized and helping those individuals navigate the labyrinth that is the immigration process, deportation of military veterans could be avoided.

The Debate: Which is More Important – Veteran Status or Immigrant Status?

As part of their military service, veterans swore to honor and defend the U.S. Constitution; they risked losing their lives to protect the rest of the nation. Given this commitment and service, should noncitizen veterans be treated as U.S. citizens with respect to criminal sanctions (e.g., charged, convicted, and punished for their crimes, but not deported)?  Alternatively, is deportation and ineligibility for readmission to the United States appropriate given the individual’s immigrant status and criminal conviction?

As mentioned, immigration laws related to deportation do not currently provide any kind of waiver or exemption for those with military service. Members of Congress may be unwilling to fight for modification of these laws to protect veterans facing deportation as it could be perceived as advocating for convicted criminals.[25]  Similarly, some veterans and veterans’ groups argue that although veterans should be held in high regard, they should also follow the law.[26]  Immigrant veterans should not receive sympathy if they have committed a crime, and an honorable discharge should not serve as a “free pass” to prevent deportation.[27]

On the opposite side, this is considered a veterans’ issue, not an immigration issue, and veterans who have honorably defended the United States should be entitled to special treatment for the purpose of immigration law. For instance, Representative Thompson has introduced legislation to amend the INA to protect noncitizen veterans by prohibiting deportation of any noncitizen veteran who has honorably served but has been convicted of an aggravated felony.[28]  As Representative Thompson stated, “[i]f someone is willing to put on the uniform of the United States military, the last thing they should have to worry about is their immigration status…we shouldn’t be deporting them.”[29]  Similarly, Representative Grijalva proposed to amend the INA to prevent the deportation of veterans who commit non-serious crimes.[30]  Under this bill, veterans who commit felonies and serious misdemeanors (including misdemeanors related to domestic violence, sexual assault, and illegal firearms possession, or resulting in a prison term of more than 90 days) would still be subject to deportation.[31]  Despite apparent congressional support for modifying the INA to provide greater leniency for noncitizen veterans,[32] these bills have not advanced within Congress.

Rather than tackling complex immigration laws, another perspective emphasizes addressing the factors that may lead a noncitizen veteran to commit a criminal act resulting in deportation. After separating from the military, many noncitizen veterans return to low-income and/or high-crime neighborhoods and struggle with the transition to civilian life.[33]  These veterans face obstacles ranging from challenges as basic as finding employment to more complicated matters of dealing with physical and mental injuries related to their military service.[34]  The crimes for which deported veterans are convicted may be indicative of the struggles they face with returning to civilian life.  For instance, in 2012, over three-quarters of incarcerated veterans had been discharged honorably or under honorable conditions.[35]  However, these individuals were more likely than non-veterans to have been convicted of violent offenses.[36]  Because there is a requirement that all military enlistees – both citizens and noncitizens – not have a felony criminal conviction before joining the military, some have suggested that this post-military violent criminal behavior indicates a need to provide greater or more effective resources to support veterans separating from the military to prevent this criminal conduct.[37]

As these competing viewpoints may indicate, the future of this debate remains unclear. The current Presidential administration appears focused on tightening immigration laws and policies, but there is some Congressional support for modifying immigration laws to address the deportation rules as they relate to our military veterans.  Regardless of the outcome of this debate on the legislative side, there is evidence that greater attention may be warranted in developing more effective policies and programs to support veterans with the unique struggles they face upon transitioning to civilian life to prevent criminal behavior that could lead to deportation.  Further, improved assistance with navigating the naturalization process could be provided to noncitizens with military service to avoid the deportation debate entirely.

[1] Kristine Phillips, The Story Behind This Powerful Photo of Deported Military Veterans Saluting the U.S. Flag, Wash. Post (Nov. 16, 2017), https://www.washingtonpost.com/news/checkpoint/wp/2017/11/16/the-story-behind-this-powerful-photo-of-deported-military-veterans-saluting-the-american-flag/?noredirect=on&utm_term=.f46944a82810.

[2] 10 U.S.C. § 504(b)(1)(A)-(B) (2006). Additionally, under various international agreements, citizens of Micronesia, the Republic of the Marshall Islands, and Palau may also join the U.S. military. See 10 U.S.C. § 504(b)(1)(C) (2006)

[3] Dep’t of Def., Military Accessions Vital to National Interest (MAVNI) Recruitment Pilot Program 1 (2016). In Fiscal Year 2017, the DoD suspended the MAVNI program and is not currently accepting new applicants. What is MAVNI? Information for Designated School Officials, Dep’t of Homeland Sec., https://studyinthestates.dhs.gov/what-is-mavni-information-for-designated-school-officials (last visited May 11, 2018).

[4] Greg McLawsen, Can Immigrants Serve in the US Military? 8 Q&As About Non-Citizen Service, Avvo Stories (Sep. 6, 2017), http://stories.avvo.com/rights/immigration/can-immigrants-serve-us-military-8-rules-non-citizen-service.html; The U.S. Military Helps Naturalize Non-Citizens, Military.com, https://www.military.com/join-armed-forces/eligibility-requirements/the-us-military-helps-naturlize-non-citizens.html (last visited Apr. 14, 2018).

[5] 8 U.S.C. § 1439(a) (2008).

[6] Id.

[7] 8 U.S.C. § 1440(a) (2003).

[8] Exec. Order No. 13,269, 67 Fed. Reg. 45,287 (July 8, 2002).

[9] U.S. Immigration and Customs Enf’t, F and M Nonimmigrants and MAVNI: A Guide for Designated School Officials 1 (May 2016).

[10] Id.

[11] Jim Caramone, DoD Announces Policies Affecting Foreign Nationals Entering Military, Dep’t of Def. (Oct. 13, 2017), https://www.defense.gov/News/Article/Article/1342430/dod-announces-policies-affecting-foreign-nationals-entering-military.

[12] Am. Immigration Council, Aggravated Felonies: An Overview 1 (Dec. 2016).

[13] See 8 U.S.C. § 1101(a)(43).

[14] See id.

[15] Sessions v. Dimaya, No. 15-1498, slip op. at 1 (U.S. Apr. 17, 2018).

[16] 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(b).

[17] Am. Immigration Council, supra note 12, at 1-2.

[18] Id. at 3.

[19] See, e.g., Carmen George, Deported Marine Veteran Came Home the Only Way He Could – in a Casket, Military.com (Apr. 23, 2018), https://www.military.com/daily-news/2018/04/23/deported-marine-veteran-came-home-only-way-he-could-casket.html.

[20] See Burial Benefits, Dep’t of Veterans Affairs, https://www.benefits.va.gov/compensation/claims-special-burial.asp, (last visited May 11, 2018).

[21] Bardis Vakili, et al., ACLU of California, Discharged, then Discarded: How U.S. Veterans are Banished by the Country They Swore to Protect 23 (July 2016).

[22] See, e.g., Andy Romey, From Service to Citizenship, The Am. Legion (Oct. 1, 2015), https://www.legion.org/citizenship/230107/service-citizenship.

[23] Vakili, supra note 21, at 19.

[24] See, e.g., Kevin Sullivan, Deported Veterans: Banished for Committing Crimes after Serving in the U.S. Military, Wash. Post (Aug. 12, 2013), https://www.washingtonpost.com/politics/deported-veterans-banished-for-committing-crimes-after-serving-in-us-military/2013/08/12/44f81098-ffa9-11e2-9a3e-916de805f65d_story.html?utm_term=.2911cac34ac2.

[25] See id.

[26] Id.

[27] Id.; Roxana Popsecu, They Served in the U.S. Military and Hoped for Citizenship. They Got Deported, Chicago Tribune (June 4, 2017, 5:04 PM), http://www.chicagotribune.com/news/nationworld/ct-deported-vets-20170604-story.html.

[28] H.R. 2346, 115th Cong. (2017).

[29] See Sullivan, supra note 24.

[30] H.R. 1470, 115th Cong. (2017).

[31] Id.

[32] See Popsecu, supra note 27.

[33] Vakili, supra note 21, at 16.

[34] Id.

[35] Jennifer Bronson, et al., U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Statistics, Veterans in Prison and Jail, 2011-2012 1 (Dec. 2015).

[36] Id. Sixty-four percent of veterans had been convicted of violent offenses, compared to 48 percent of non-veterans.

[37] Vakili, supra note 21, at 14.

Mandatory Arbitration Contract Provisions: Beware the Fine Print

By Spring 2018 M-VETS Student-Advisor Nebye Kahssai

Contracts between companies and consumers are ubiquitous these days. Companies like Google and Apple with online and other electronic applications bombard us with dialog boxes that open up on our computer screens or phones that require us to “check the box” indicating that we have read the company’s “Terms of Agreement.”  If you’re like most people, you simply agree so that you can continue checking your email or using any of the dozens of things you need to do with your phone.  A problem is that almost all contracts that consumers enter into these days are what are referred to as “adhesion contracts” which are defined as the following:

“a standardized contract prepared entirely by one party to the transaction for the acceptance of the other; such a contract, due to the disparity in bargaining power between the draftsman and the second party, must be accepted or rejected by the second party on a ‘take it or leave it’ basis, without opportunity for bargaining and under such conditions that the [consumer] cannot obtain the desired product or service [except] by acquiescing in the form agreement.”[i]

So when consumers enter into contractual agreements with large companies like Apple, Google, or practically any other large company, consumers do not have the power to renegotiate the terms of agreement for use of the product or service. The inability for consumers to renegotiate the terms of these agreements can have adverse consequences for consumers when problems arise with the particular product or service. Many of the adhesion contracts that consumers enter into with large companies contain provisions to settle problems related to the product or service through arbitration.  Arbitration is “the out-of-court resolution of a dispute between parties to a contract, decided by an impartial third party (the arbitrator).”[ii]  Here is an example of an arbitration clause that a consumer can find in the fine print of their contract or terms of services agreement:

“Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.”[iii]

These arbitration clauses are often inserted into the fine print and buried in “take it or leave it” agreements between consumers and companies, sometimes with very negative consequences. Arbitration procedures prevent consumers from having their issues related to the purchased products or services adjudicated by the courts.  This hurts consumers because while courtrooms are public forums for parties to “air out dirty laundry,” arbitration proceedings are often held behind closed doors:

“Once a relatively obscure legal issue, mandatory arbitration agreements are now under scrutiny by activists who say they force victims of harassment and discrimination into silence. Opponents of mandatory arbitration say that the closed hearings, which include non-disclosure clauses and are often performed by a third-party arbitrator paid by the company itself, prevent victims from taking further action. . .”[iv]

In addition to courtrooms acting as public forums, courtroom procedures allow parties to engage in “discovery” which is the exchange of information between opposing parties so that each party can learn more about the details of the claims or defenses being made. “The [Federal Rules of Civil Procedure] permit broad discovery, which can involve documents that are not directly relevant to a claim or defense, but which have the potential to lead a party to other documents that do contain such information.”[v]  In arbitration, however, the discovery process, and the exchange of information between the parties, is often much more selective, and “fully within the control of the arbitrator.”[vi]  The American Arbitration Association’s discovery rule, R-22, “frames the process of discovery in a way where the ‘arbitrator shall manage’ whatever exchange of information takes place with a view towards economic efficiency, and equality of treatment.”  Given arbitration’s “dictator-like” discovery rules, a consumer with limited resources challenging a large company is at risk of potentially arbitrary behavior on the part of the arbitrator.

In an example of the adverse consequences of arbitration provisions, Wigdor LLP, a New York law firm, recently filed a class action lawsuit against Uber on behalf of women who claimed they were assaulted or raped by Uber drivers.[vii]  The women blamed Uber’s background check procedures and sought through litigation to understand if Uber’s policies put them in danger.[viii]  Rather than being able to “have their day in court,” however, the women discovered that their agreement with Uber required that they address their issues in arbitration.  A group of fourteen of the women “sent an open letter to the company’s board, asking to be released from the mandatory arbitration clause in the Uber app’s terms of service.”[ix]  The group’s letter reads, in part:

“Secret arbitration is the opposite of transparency. Forcing female riders, as a condition of using Uber’s app, to pursue claims of sexual assault and rape in secret arbitration proceedings does not ‘make streets safer.’  Silencing our stories deprives customers and potential investors from the knowledge that our horrific experiences are part of a widespread problem at Uber.”[x]

The experience of these women demonstrates that companies are dictating the terms of how consumers are able to bring grievances forward. As a result of the widespread use of mandatory arbitration provisions in contracts between consumers and companies, if consumers are harmed by a company’s goods or services, consumers can no longer rely on the right to their “day in court” to obtain appropriate redress.  Companies lock consumers into forced arbitration procedures, reinforced with non-disclosure clauses, to keep cases out of the public view of judges and juries.  Given the lack of transparency, we cannot tell whether an arbitrator’s decisions and procedures are arbitrary or whether they are compatible with a fair and reasonable view of the law and the facts.  What we know for certain, however, is that those important decisions are not made by judges and juries who remain at least somewhat publicly accountable for their actions.

So, what are consumers to do you might ask? One answer comes from what has transpired from the work of that brave group of women who decided to fight Uber’s mandatory arbitration policies.   As a result of those women’s actions, Uber announced that it is “ending mandatory arbitration for individual claims of sexual assault or sexual harassment by Uber drivers, riders or employees.”[xi]  Uber also announced that it “is also ending the requirement that victims sign a confidentiality provision preventing them from speaking out about the sexual assault or sexual harassment they suffered – saying survivors will now have the option to settle their claims with Uber without having to agree to being publicly silenced in order to do so.”[xii]

Public action by consumers can sometimes lead to a change a company’s practices. Such action might even lead to a cascading effect whereby other large companies are forced to rethink their own adhesion contracts.  Unfortunately for most consumers, however, adhesion contracts do not appear to be disappearing from our legal environment any time soon.  The most that consumers can probably do is to scrutinize the contracts that they do have some control over; contracts that aren’t “take it or leave it.”  A consumer agreeing to a mandatory arbitration provision has to consider whether they really want to give up the right to their “day in court.”  In addition to a mandatory arbitration provision, if a consumer has the power or the ability to determine the terms of their contract, they should look at each term of agreement carefully.  At bottom, the consumer must beware the fine print.

[i] Steven v. Fidelity & Casualty Co. of New York, 377 P.2d 284, 297 (Cal. 1962)

[ii] https://www.adr.org/Arbitration, accessed 5/14/2018.

[iii] https://www.adr.org/Clauses, accessed 5/15/2018.

[iv] https://techcrunch.com/2018/04/26/women-alleging-sexual-assault-by-uber-drivers-asked-to-be-freed-from-forced-arbitration/, accessed 5/15/2018.

[v] Paul B. Radvany, Recent Trends In Discovery In Arbitration and In the Federal Rules of Civil Procedure, 34 Rev. Litig. 705, 736 (2015).

[vi] Id.

[vii] https://techcrunch.com/2018/04/26/women-alleging-sexual-assault-by-uber-drivers-asked-to-be-freed-from-forced-arbitration/.

[viii] Id.

[ix] Id.

[x] Id.

[xi] https://techcrunch.com/2018/05/15/uber-ends-policy-of-forced-arbitration-for-individual-sexual-assault-clams/, accessed 5/15/2018.

[xii] Id.

Agent Orange: Then and Now

By Fall 2017 M-VETS Student-Advisor Lindsey Kimmitt

Agent Orange as a War Tactic

Chemical defoliants were first used as a war tactic in the 1950s, when British planes sprayed Malayan jungles during the Malayan Emergency, stripping trees bare, depriving communist guerrillas of cover, and destroying crops that insurgents relied on for food.[1]  A decade later, then-South Vietnam President Ngo Dihn Diem asked the United States to conduct aerial herbicide spraying to aid in their long struggle against Viet Cong and North Vietnamese fighters.[2]  Citing the use of herbicides by the British during the Malayan Emergency as precedent, then-President John F. Kennedy authorized the start of the U.S. Air Force’s herbicide program in Vietnam.[3]

During the Vietnam War, United States military planes sprayed approximately 20 million gallons of herbicides in Vietnam and surrounding areas.[4]  Code-named Ranch Hand, this operation reached its peak from 1967 to 1969.[5]  Of all the chemical defoliants—referred to as “rainbow herbicides”[6]—used during the Vietnam War, Agent Orange, which contained the deadly chemical dioxin, was the most widely used.[7]  “It was available in slightly different mixtures, sometimes referred to as Agent Orange I, Agent Orange II, Agent Orange III, and ‘Super Orange.’”[8]  Agent Orange and its variations accounted for almost two-thirds of the chemical defoliants used during the entire Vietnam War.[9]

Initial Harms from Direct Exposure

As with all the herbicides, the primary purpose of the chemical mixtures was to cause plants to lose their leaves.[10]  Dioxin—the super harmful component of Agent Orange—was not intentionally added to Agent Orange; its existence in Agent Orange was an unintended byproduct produced during the manufacturing process.[11]  The specific dioxin found in Agent orange—2,3,7,8-tetrachlorodibenzo-p-dioxin, or TCDD—had immediate and long-term effects.[12]  Among the many recognized consequences of Agent Orange use and exposure, the health effects of veterans who were directly exposed to the chemical during their time in service is particularly noteworthy.

While in Vietnam, the U.S. government communicated to servicemembers that the chemicals were harmless—telling them not to worry about any potential health consequences.[13]  However, when the veterans returned home they began to experience ill health, reporting a range of conditions: rashes and other skin irritations; psychological symptoms; type 2 diabetes; cancers such as Hodgkin’s disease, prostate cancer and leukemia; and many other afflictions.[14]  Further, many veterans reported instances of their wives having miscarriages or children born with birth defects.[15]  The increase and volume of these unfortunate events led veterans to suspect that the direct exposure to the chemical defoliants was to blame.[16]

Legislative Action to Correct for the Harms

In 1977, veterans began to file disability claims with the Department of Veterans Affairs (VA) for conditions they attributed to the Agent Orange exposure; however, the policy was that unless they could prove the condition began either when they were in service or within one year of their discharge, their claims were denied.[17]  A major victory came for veterans around 1984, when seven large chemical companies that manufactured Agent Orange settled a class action suit filed on behalf of 2.4 million veterans exposed to the herbicide, agreeing to pay $180 million in compensation to veterans or their next of kin.[18]  Another victory for veterans followed shortly thereafter.  In 1991, then-President George H. W. Bush signed into law the Agent Orange Act.[19]  This law “accepted a presumed link to illnesses like non-Hodgkin’s lymphoma, soft tissue sarcoma, and chloracne.”[20]  This legislation stated that veterans diagnosed with those aforementioned ailments were declared eligible for medical and monetary benefits; the presumed link removing any additional requirement for the veteran to have to prove they were exposed to the chemical defoliants.[21]  In other words, if the veteran “set foot” in Vietnam during a certain time-period, the law presumes the veteran was exposed to the defoliant.[22]

Since returning from war, Vietnam veterans have suspected that exposure to Agent Orange harmed their children.[23]  While the government recognizes and compensates for the adverse health effects of veterans exposed to Agent Orange, they have been far less willing to tie the indirect effects of exposure to conditions suffered by veterans’ after born children; even though there is much support that dioxin is a highly persistent chemical compound that lasts for many years in the body due to accumulating in fatty tissue.[24]

The Lingering Issues

Over the past few decades, the VA medical staff has physically examined more than 668,000 Vietnam veterans possible exposed to Agent Orange, documenting health conditions and also asking questions about their children’s birth defects, before and after the war.[25]  Sadly, this data showed that a veteran’s odds of having a child born with birth defects were over one-third higher after Agent Orange exposure than those who were not exposed.[26]  Even when presented with this all this evidence, the VA’s position on compensating offspring of those exposed to Agent Orange is quite narrow.  Essentially, there are three criteria that must all be met in order for an affected child to receive benefits or compensation: the child must (1) have been conceived after the date on which the veteran first entered the Republic of Vietnam; (2) have a covered birth defect not otherwise resulting from a familial disorder, a birth-related injury, or a fetal or neonatal infirmity with well-established causes; and (3) be a biological child of a woman Vietnam Veteran who served in Vietnam during the period beginning February 28, 1961 and ending May 7, 1975.[27]

Although there is currently a large portion of this affected community that is not being served, there is a strong movement to persuade the government that these children need and deserve just compensation for the injuries likely caused by their parent’s military service to the United States. On a promising note, “after repeated recommendations by federal scientific advisory panels, Congress passed a bill that requires the VA to pay for an analysis of all research done thus far on the descendants of veterans with toxic exposure.”[28]  Additionally, the bill requires the VA “to determine the feasibility of future research and, if such studies are possible, to pursue them.”[29]  Until such a time when the government broadens the conditions that are covered by the affected children of Vietnam veterans, groups advocating for compensating individuals suffering health problems linked to Agent Orange encourages the children of veterans to file claims with the VA for benefits related to Agent Orange even though the department currently doesn’t cover most defects.[30]

[1] See Clyde Haberman, Agent Orange’s Long Legacy, for Vietnam and Veterans, N.Y. Times, May 11, 2014, https://www.nytimes.com/2014/05/12/us/agent-oranges-long-legacy-for-vietnam-and-veterans.html.

[2] See id.; William A. Buckingham Jr., Operation Ranch Hand: The Air Force and Herbicides in Southeast Asia, 1961-1971 11-12 (CreateSpace Independent Publishing Platform, 1982).

[3] See Peter Hough, The Global Politics of Pesticides: Forging Consensus from Conflicting Interests 61 (Earthscan LLC, 1998); https://en.wikipedia.org/wiki/Agent_Orange.

[4] See Haberman, supra note 1.

[5] See Haberman, supra note 1.

[6] Rainbow Herbicides, https://en.wikipedia.org/wiki/Rainbow_Herbicides (last visited January 11, 2018).

[7] See Agent Orange, History.com, 2001, http://www.history.com/topics/vietnam-war/agent-orange.

[8] Id.

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See Kenneth J. Hermann; Killing Me Softly: How Agent Orange Murders Vietnam’s Children, Political Affairs, April 25, 2006.

[14] See Agent Orange, History.com, 2001, http://www.history.com/topics/vietnam-war/agent-orange; Agent Orange, https://en.wikipedia.org/wiki/Agent_Orange (last visited January 11, 2018).

[15] Agent Orange, https://en.wikipedia.org/wiki/Agent_Orange (last visited January 11, 2018).

[16] Id.

[17] Agent Orange, https://en.wikipedia.org/wiki/Agent_Orange (last visited January 11, 2018).

[18] See Agent Orange, History.com, 2001, http://www.history.com/topics/vietnam-war/agent-orange.

[19] See Charles Ornstein, Agent Orange Act Was Supposed to Help Vietnam Veterans – But May Still Don’t Qualify, ProPublica, July 17, 2015, https://www.propublica.org/article/agent-orange-act-was-supposed-to-help-vietnam-veterans-but-many-still-dont-.

[20] Haberman, supra note 1.

[21] See Haberman, supra note 1.

[22] See Ornstein, supra note 19.

[23] See Charles Ornstein, Hannah Fresques, and Mike Hixenbaugh, The Children of Agent Orange, ProPublica, December 16, 2016, https://www.propublica.org/article/the-children-of-agent-orange.

[24] See Agent Orange, History.com, 2001, http://www.history.com/topics/vietnam-war/agent-orange; Agent Orange, https://en.wikipedia.org/wiki/Agent_Orange (last visited January 11, 2018).

[25] See Charles Ornstein, Mike Hixenbaugh, and Hannah Fresques, Agent Orange Curse: Vietnam Vets Can Pass Birth Defects to Their Kids, New Data Suggests, The Virginia-Pilot, December 16, 2016, https://pilotonline.com/news/military/veterans/vietnam/agent-orange-curse-vietnam-vets-can-pass-birth-defects-to/article_1c284628-2dbe-510d-98a2-40b639759943.html.

[26] See Ornstein, supra note 23.

[27] 38 U.S.C. § 1812 (2000); see Birth Defects in Children of Women Vietnam Veterans, https://www.publichealth.va.gov/exposures/agentorange/birth-defects/children-women-vietnam-vets.asp, (last visited January 5, 2018).

[28] Ornstein, supra note 23.

[29] Ornstein, supra note 23.

[30] See Ornstein, supra note 23.

Is Fake News the Newest National Security Threat?

By Fall 2017 M-VETS Student-Advisor Anna Dryden

In January 2017, United States Intelligence Officials released a statement concluding that Russian operatives had directly and deliberately influenced the 2016 U.S. Presidential election. The report stated that Russian President Vladimir Putin directly ordered an influence campaign for the 2016 Presidential election, to further Russia’s goal of undermining liberal democracy in the United States, and around the world.

Senator John McCain, Chairman of the Senate Armed Services Committee stated in one of the early Senate hearings investigating Russian hacking operations that “…every American should be alarmed by Russia’s attacks on our nation. There is no national security interest more vital to the U.S. than the ability to hold free and fair elections without foreign interference…Congress must devise comprehensive solutions to deter, detect, and defend against, and when necessary respond, to foreign cyber attacks.”

The Russian interference with the 2016 Presidential election is certainly not the first instance of cyber aggression by foreign nations against the U.S.

Recent nontraditional conflicts (fought against Al Qaeda, and ISIS for example) have exposed U.S. weaknesses when it comes to nontraditional warfare, particularly the vulnerability to cyber attacks. In 2014, North Korea conducted a massive cyber attack against the private American business entity Sony Pictures. In 2015, the United States Office of Personnel Management announced the data breach that targeted the personal information of nearly 18 million government employees, likely sponsored by the Chinese government. While much is still unknown about the recent Equifax data breach that compromised the sensitive personal information of nearly 146 million Americans, Federal investigators have acknowledged evidence that the attack was state-sponsored, though they do not have enough evidence to point to one particular state.

Foreign countries are clearly unafraid to attack American institutions through cyber measures. There is little doubt that if foreign operatives conducted a physical attack or otherwise compromised the sovereignty of the United States, the nation would be justified in responding. In the case of the 2016 Presidential elections, rather than launching missiles, deploying troops, or even hacking weapons systems or nuclear reactors, the Russians weaponized the Internet. Why has the United States not taken action to respond to, or actively deter, such bold and aggressive cyber operations?

Perhaps the answer lies in the fact that the world now relies on social media and related technology that has rapidly become an essential fixture in people’s lives. These diffuse social integrations makes it difficult to draw a line between rogue ‘hacktivists’ and a targeted military attack on a sovereign nation. Therefore, policy makers (members of Congress in collaboration with the Executive branch) and military leaders must develop a framework to identify the line at which a cyber attack constitutes a use of force. But it is important to realize, when formulating a response to active measures, that an influence campaign is only one element of a complex, continuing attack, and an effective response will ultimately be targeted at defeating the enemy’s objectives, not just their cyber capabilities.

Politicians and pundits toss around the term “fake news” so often that the term has lost its true meaning, becoming the butt of political jokes, rather than recognized as a means of conducting warfare. However, fake news is exactly what it sounds like—a fake story designed to appear and sound like the reporting of factual events.[1] While fake news has garnered an infamous reputation in the past year, it is not exactly a novel threat. Rather, fake news is a method of waging psychological warfare. Active measures (AM) is a term for semi-covert or covert intelligence operations to shape adversary’s political decisions. Broadly, active measures encompass the manipulation of the media, disinformation, propaganda, the infiltration of social, political, and religious institutions, even assassinations. Generally, active measures conceal or falsify the source, but it can also involve the spread of forged, or partly forged content.[2] Disinformation, or the Russian term dezinformatsia, is one of many active measures undertaken by Russian intelligence operatives particularly relevant to this analysis because it is the act of intentionally spreading false information, such as fake news.[3] Active measures are designed to use an adversary’s existing weaknesses against himself, for the purpose of driving wedges into preexisting cracks.[4] For example, America’s enemies have actively exploited racial, religious, ethnic, class, or political divisions—all cracks that the U.S. has in abundance.

The Russian active measures campaign, in particular the utilization of fake news, relied heavily upon the dissemination of propaganda. Jacque Ellul defines modern propaganda as having the aim of “no longer to modify ideas, but to provoke action. It is no longer to change adherence to a doctrine, but to make the individual cling irrationally to a process of action. It is no longer to transform an opinion but to arouse an active and mythical belief.”[5]

The modern style of propaganda, as recently employed by Russian intelligence operatives is a means of conducting a type of “information warfare (IW)”. The “information war” is not a war in and of itself. It is first and foremost a tactic used to attain a broader objective. In What is Information Warfare, Martin Libdicki argues there are seven forms of IW, including:

(i) Command-and-control warfare which strikes against the enemy’s head and neck, (ii) intelligence-based warfare which consists of the design, protection, and denial of systems that seek sufficient knowledge to dominate the battle space, (iii) electronic warfare radio-electronic cryptographic techniques, (iv) psychological warfare in which information is used to change the minds of friends, neutrals, and foes, (v)”hacker” warfare in which computer systems are attacked, (vi) economic IW blocking information or channeling it to pursue economic dominance, and (vii) cyber warfare a grab bag of futuristic scenarios. (emphasis added)[6]

The Russian influence campaign was not only psychological warfare. The Russian active measures campaign also involved the use of weaponized technology as a means of disseminating the disinformation, in addition to digital espionage and surveillance in order to obtain information. Ergo, it is a unique, hybrid beast of the Digital Age—part propaganda, part psychological warfare, part espionage; wholly, a danger to liberal democracy.

Russia has a long tradition of utilizing disinformation and deception to subjugate populations.[7] Perhaps the original utilization of the disinformation strategy occurred as early as 1783 when the Russian aristocrat Grigory Potyomkin manufactured fake towns and villages in Crimea in order to impress Catherine the Great when she visited the region.[8] In more recent history, active measures became the norm for Russian operatives and have been used to further much more sinister objectives. The Russian intelligence services pioneered (and coined the term) active measures in the early twentieth century.[9] During the Cold War, more than 15,000 KGB agents were actively involved in disinformation operations.

Now Russia is adapting the disinformation techniques to the current state of the art technology through hacking, leaking, and the use of social media propaganda. Moreover, Russia is conducting IW across the globe. Russia has hacked the entire German parliament, meddled in Latin American affairs, and actively influenced African governments.[10] European fears of Russian hacking are reaching a new high. The United Kingdom and Germany (a recent victim of Russian hacking)[11] are wary of Russian influence, and the Netherlands recently hand counted citizen ballots out of fear that Russia had the ability hack and manipulate an electronic voting system.[12]

While Russia has been asserting influence and furthering its agenda through active measures across the globe, the attack on the United States was unprecedented in scale and sophistication. Russian cyber operations against the United States began as early as July 2015, when Russian operatives began collecting information on both Republican and Democratic-affiliated groups associated with U.S. primary campaigns. Targets included campaigns, candidates and staffers, think tanks, lobbying groups, and the party headquarters themselves (Democratic National Headquarters and Republican National Committee networks were compromised by hacking in the past two years). An essential element of the disinformation operation were Russian “troll factories”, located in former Soviet Bloc countries which employed actual human assets to create fictional social media personas which would in turn publish or “post” fabricated news stories hundreds of times a day.[13] Furthermore, the Russian influence campaign relied on sources with direct Russian links, such as Russian Government agencies, state-funded media, third-party intermediaries, intelligence officers, and press placement.[14]  Russia took advantage of social media platforms, such as Facebook and Twitter, where many Americans update themselves on the news to disseminate fictional news stories focused on political messages, financial propaganda, social unrest and global calamity.[15] These four themes were deliberately and strategically designed to create uneasiness, distrust of democratic institutions, and panic among the American public.

Russian tactics may have evolved since the Cold War days, but the purpose of active measures remains the same—to exploit an adversary’s weakness. The U.S. Intelligence community has concluded that Russia launched a sophisticated and multi-faceted attack on the United States by utilizing a vast array of operatives, all surreptitiously supported by high-ranking Russian officials. Russia outwardly says it wants “friendly relations”, but the campaign to subvert one of the most essential elements of liberal democracy—fair and honest elections—demonstrates more sinister intentions. The United States cannot permit such interference to go unchallenged or unpunished.

Nations have been spying on one another, and interfering in one another’s affairs, since the beginning of time. There comes a time when surveillance and interference impede a nation’s sovereignty and that interference becomes a true act of aggression. Ultimately, America must ask itself, “How much is too much?” The U.S. Intelligence community has stated that the Russian involvement in the election is a “significant escalation in directness, level of activity, and scope of effort compared to previous operations.” The full extent of the Russian campaign against the United States has yet to be uncovered and as new information is revealed, this analysis could become irrelevant. However, regardless of the outcome of the Russia investigation, there is a need for the U.S. to remain flexible and adaptable in responding to the sophisticated technological threats of the future. As the world is becoming increasingly more dependent on technology, data, and information sharing, the Russian assault on liberal democracy around the world may become more aggressive and more successful.

When America is divided, the nation is at its most vulnerable. While politicians and the public are consumed with quarreling and finger pointing, enemies of democracy look on with glee as they watch their handiwork come to fruition. It is no longer the time for internal squabbling, but rather united action. Fortifying America’s defenses against IW and foreign influence will require a sophisticated, multi-faceted approach. The nation must work together—the public, the media, private sector businesses, and the government—to combat the growing cyber threat because no one component of society, or political party, can do it alone. Failure to act could ultimately mean the end of liberal democracy.

[1] Robert Schlesinger, Fake News in Reality, (U.S. News and World Report) (Apr. 14, 2017, 2:00PM) https://www.usnews.com/opinion/thomas-jefferson-street/articles/2017-04-14/what-is-fake-news-maybe-not-what-you-think.

[2] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement by Thomas Rid, Professor of Security Studies, King’s College London).

[3] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement by Roy Godson, Professor, Georgetown University).

[4]Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement by Thomas Rid, Professor of Security Studies, King’s College London).

[5] Jacques Ellul, trans. Konrad Kellen and Jean Lerner, Propaganda: The Formation of Men’s Attitudes, 25, (Vintage Books)(1973 ed.)

[6] Martin Libibki, What is Information Warfare?, Center for Advanced Concepts and Technology Institute for National Strategic Studies, 11 (Aug. 1995).

[7] Martin Libibki, What is Information Warfare?, Center for Advanced Concepts and Technology Institute for National Strategic Studies, 11 (Aug. 1995)

[8] Adam Taylor, Before “fake news,” there was Soviet ‘”disinformation”, Washington Post, (Nov. 26, 2016) https://www.washingtonpost.com/news/worldviews/wp/2016/11/26/before-fake-news-there-was-soviet-disinformation

[9] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement by Thomas Rid, Professor of Security Studies, King’s College London).

[10] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement of Clint Watts, Fellow, Foreign Policy Research Institute and Senior Fellow, Center for Cyber and Homeland Security, George Washington University).

[11] Ishaa Tharoor, ‘Fake news’ threatens Germany’s election, too, says Merkel, The Washington Post (Nov. 23, 2016) https://www.washingtonpost.com/news/worldviews/wp/2016/11/23/fake-news-threatens-germanys-election-too-says-merkel/?utm_term=.8a8f8f7c210c

[12] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement by Eugene Rumer, Senior Fellow, Carnegie Endowment for International Peace).

[13] Target USA: Anatomy of a Russian Attack (Sep. 17, 2017) https://www.podcastone.com/episode/83/pt1/anatomy-of-russian-attack.

[14] Office of the Director of National Intelligence, Intelligence Community Assessment: Assessing Russian Activities and Intentions in Recent US Elections (Jan. 6, 2017).

[15] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement of Clint Watts, Fellow, Foreign Policy Research Institute and Senior Fellow, Center for Cyber and Homeland Security, George Washington University).

The History and Significance of the Navy Jack

[1]

By Fall 2017 M-VETS Student-Advisor Rob Popovitch

The Navy Jack has an interesting but somewhat convoluted history. Throughout many years the flag has symbolized revolution, strength, rebellion and commemoration.

The history of how the modern Navy Jack came to exist is not 100% certain.[2]  However, most believe that the flag originated when the ships of the Continental Navy flew a flag consisting of alternating white and red stripes with the image of a rattlesnake and the motto “Don’t Tread on Me.”[3]  Nevertheless, there is no explicit historical evidence that proves this.[4]

In 1775, Commodore Esek Hopkins of the Continental Navy issued a set of fleet signals to his ships instructing them to fly a striped jack and ensign.[5]  This striped jack is most likely the background of the modern Navy Jack.  A year later, the same Commodore Esek used a “personal standard designed by a Christopher Gadsen of South Carolina.”[6]  This flag is the now famous Gadsen flag which consists of a yellow background and a coiled snake with the motto “Don’t tread on me.”[7]  The Gasden flag was also mentioned in a few letters in the same time period. [8]

[9]

There are also various prints that profess to show Revolutionary era ships with flags flying. Some show a striped flag with a rattlesnake and some do not.  Similar to the other history of the Navy Jack, there are inconsistencies in the depictions.  For example, one print portrays Commodore Hopkins as a young man, but at the time he would have been almost 60 years old.[10]  There is another print where a rattlesnake flag appears, but it appears at the stern and not on the bow of a ship, where a jack would go.[11]

In 1778, Ben Franklin and John Adams described a flag in a letter to the Ambassador of the Kingdom of Sicily, ”… a South Carolina flag with a rattlesnake in the middle of thirteen stripes.[12]  In that same letter, Ben Franklin and John Adams said that “some of the States have vessels of war distinct from those of the United States. For example, the vessels of war… of South Carolina a rattlesnake, in the middle of the thirteen stripes. . . .” [13]

These artifacts evidence that the rattlesnake is significant to the Revolutionary War. The snake’s rattle in many illustrations has thirteen layers, which represents the thirteen original Colonies.[14]  The alternating white and red stripes also symbolize the first thirteen colonies.  The Gadsen Flag was also used by the Continental Marines as an early motto flag.[15]

Since the Navy Jack was such a favored symbol for the Continental Navy during the Revolutionary War, the flag was chosen as an integral part of the War’s bicentennial commemoration.[16]  As part of the commemoration, the Secretary of the Navy released an instruction in 1975 that instructed the use of the Navy Jack in place of the union jack for that year.[17]  A few years later in 1980, the Secretary of the Navy issued another directive that instructed the oldest Navy ship in active duty status to display the rattlesnake jack.[18]

Since 1980, the Navy Jack has been flown on the oldest active duty ship which has included destroyer tenders, repair ships, ammunition ships, aircraft carriers and amphibious transport and command ships. [19]  Since 2014, the Navy Jack has been flying on the USS Blue Ridge, a command ship stationed in Yokosuka Japan.[20]
In 2002 and recognition of the Global War on Terrorism, the Secretary of the Navy directed the use of the Navy Jack in lieu of the Union Jack for all ships.[21]  The instruction emphasized the importance and significance of the Navy Jack by declaring that “The temporary substitution of this Jack represents an historic reminder of the nation’s and Navy’s origin and will to persevere and triumph.”[22]

In September 2001, the fast attack submarine USS Key West, was redirected to the North Arabian Sea and was the first asset on station and within striking distance following the September 11 terrorist attacks. [23]  It is only fitting that the Key West was the first to raise the Navy Jack in September 2002.[24]  Along with being hoisted on Navy ships, the Navy Jack is a sign of strength and heritage that is worn by the Navy special warfare community.[25]

More recently, the Navy Jack has become known for informal memorials, signs of protest or commemoration.[26]  No matter where the Navy jack is flown, its heritage stands for a never give up attitude of resolution and purpose.

[27]

[1] Naval Jack of the United States, Wikipedia (April 6, 2013), https://en.wikipedia.org/wiki/File:Naval_Jack_of_the_United_States.svg.

[2] Even Whitney Smith, the director of the Flag Research Center, agrees that the design of the First Navy Jack is not known. HISTORY OF THE FIRST U.S. NAVY JACK, THE DON’T TREAD ON ME FLAG, United States Flag Store https://www.united-states-flag.com/dont-tread-on-me.html (last visited Jan. 12, 2018).

[3] The U.S. Navy’s First Jack, Naval History and Heritage Command, (July 28 2003), https://www.history.navy.mil/browse-by-topic/heritage/banners/usnavy-first-jack.html#Rattle.

[4] Id.

[5] First Navy Jack, Wikipedia (Oct. 1, 2017), https://en.wikipedia.org/wiki/First_Navy_Jack; The U.S. Navy’s First Jack, supra note 3.

[6] The U.S. Navy’s First Jack, supra note 3.

[7] Id.

[8] John Jay penned a letter in 1776 that remarked, “As to continental Colors, the Congress have made no order as yet respecting them, and I believe the Captains of their armed Vessels have in that particular been directed by their own fancies and Inclinations. I remember to have seen a flag designed for one of them on which was extremely well painted a Rattle Snake rearing his Crest and shaking his Rattles, with this Motto “Dont tread on me”. But whether this Device was generally adopted by the fleet, I am not able to say.” Id.

[9] Gadsden Flag Clip Art, Gadsen.info, http://gadsden.info/clipart.html. (last visited Jan. 14, 2018); see Christopher Gadsden & Esek Hopkins, The Gadsden Flag’s Namesake, http://gadsden.info/Christopher.html. (last visited Jan. 14, 2018).

[10] The U.S. Navy’s First Jack, supra note 3.

[11] Id.

[12] First Navy Jack, supra note 5.

[13] The Revolutionary Diplomatic Correspondence of the United States, Volume 2

Franklin and Adams to the Ambassador of Naples, American Memory, http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(dc002578)). (last visited Jan. 13, 2018); see The U.S. Navy’s First Jack, supra note 3.

[14] First Navy Jack, supra note 5.

[15] Gadsden flag, Wikipedia (Jan. 13, 2018), https://en.wikipedia.org/wiki/Gadsden_flag.

[16] The U.S. Navy’s First Jack, supra note 3.

[17] Id.

[18] Id.

[19] First Navy Jack, supra note 5; see NH 83494-KN “Don’t Tread on Me” Jack, Naval History and Heritage Command, https://www.history.navy.mil/our-collections/photography/numerical-list-of-images/nhhc-series/nh-series/NH-83000/NH-83494-KN.html. (last visited Jan 13, 2018).

[20] USS Blue Ridge, Navy.mil, http://www.public.navy.mil/surfor/LCC19/Pages/Ourship.aspx#.WlwTV9-nE2w. (last visited Jan. 13, 2017).

[21] SECNAV Instruction 10520.6, Wikisource (February 2, 2013), https://en.wikisource.org/wiki/SECNAV_Instruction_10520.6; see The U.S. Navy’s First Jack, supra note 3; Susan Civitillo, All U.S. Navy Ships to Begin Flying First Navy Jack on Patriot Day, Navy.mil (Sept. 9, 2002), http://www.navy.mil/submit/display.asp?story_id=3463.

[22] SECNAV Instruction 10520.6, supra note 21.

[23] Phil Eggman, First Navy Jack Flies Until End of War, Navy.mil (Sept. 13, 2002), http://www.navy.mil/submit/display.asp?story_id=3547.

[24] Id.

[25] See Dan Lamothe, Navy SEALs want more ‘Don’t Tread on Me’ patches, eight months after controversy, The Washington Post (June 16, 2014), https://www.washingtonpost.com/news/checkpoint/wp/2014/06/16/navy-seals-want-more-dont-tread-on-me-patches-eight-months-after-controversy/?utm_term=.fe80548a083d; see also Christian Lowe, Navy announces new patches and insignia for sailors and special operators, We Are the Mighty (Aug. 5 2016), http://www.wearethemighty.com/articles/navy-announces-new-patches-and-insignia-for-sailors-and-special-operators.

[26] Winslow Townson, Photos: Flowers, prayers near the Boston Marathon finish line, The Boston Globe, https://www.bostonglobe.com/2013/04/17/photos-flowers-prayers-near-boston-marathon-finish-line/0kT2re4LgS4qoXflReRibO/story.html?pic=7. (last visited Jan. 14, 2018).

[27] NH 1142 Rattlesnake flag, Naval History and Heritage Command, https://www.history.navy.mil/our-collections/photography/numerical-list-of-images/nhhc-series/nh-series/NH-01000/NH-1142.html. (last visited Jan. 14, 2018).