Wielding a "very long, people-intensive spear": inherently governmental functions and the role of contractors in U.S. Department of Defense unmanned aircraft systems missions.

AuthorClanahan, Keric D.
  1. INTRODUCTION A. Abstract B. Introductory Case Study C. Issue Preview D. Chronology of Analysis II. BACKGROUND: UNMANNED AIRCRAFT SYSTEMS A. The Growth of Unmanned Systems B. Recent Media Attention C. Primary Unmanned Aircraft Systems, Missions, and Operations 1. Large and Medium Unmanned Systems 2. Small and Micro Unmanned Systems 3. Remote-Split Operations 4. Line of Sight Operations D. Personnel Requirements III. INHERENTLY GOVERNMENTAL FUNCTION LAW AND POLICY A. Origins of the "Inherently Governmental" Classification B. Recent Evolution of "Inherently Governmental Functions" Law and Policy 1. Office of Management and Budget Circular No. A-76 2. Federal Activities Inventory Reform Act of 1998 3. Federal Acquisition Regulation 4. Office of Federal Procurement Policy Letter 11-1 5. Department of Defense Workforce Planning 6. Understanding "Combat" and "Direction and Control of Intelligence (a) Department of Defense Guidance (b) The Law of Armed Conflict C. Moving Forward: A Synthesized Approach to Analyzing Government Functions IV. ANALYSIS OF CURRENT UAS FUNCTIONS AND CONTRACTOR ROLES A. Contractors and Contingency Operations B. The Role of Contractors in the Current UAS Mission 1. The Kill Chain 2. Logistics and Maintenance (a) The Blended Maintenance Workforce (b) Battlefield Contract Maintenance (c) Battlefield Contract Maintenance and Inherently Governmental Functions (d) Contracted UAS Maintenance (e) UAS Battlefield Contract Maintenance (f) Military Preferred, but Contractors Allowed 3. Intelligence Analysis (a) The Current Debate on Contracted Intelligence (b) Contracted Intelligence Activities within UAS Missions (c) Retaining Control over Contracted Intelligence 4. Aircraft, Sensor and Weapons Operations (a) Medium and Large UAS (b) Small Tactical UAS (c) Contractors Connected to the Kill Chain and Inherently Governmental Functions (d) Limiting Contractor Involvement in the Kill Chain V. KEEPING CONTRACTORS FROM CROSSING THE LINE: PROPOSED ACTIONS A. Procurement Planning for UAS Human Capital Requirements B. Creating Transparency and Accreditation Regimes C. Developing a Cadre of UAS Personnel Within the DoD D. Rebuilding the Defense Acquisition Workforce VI. CONCLUSION Attachment A: FAR 7.503(c)-(d) Example Functions Attachment B: Department of Defense UAS Platforms TABLE OF FIGURES FIGURE 1: REMOTE SPLIT OPERATIONS ARCHITECTURE FIGURE 2: LINE OF SIGHT OPERATIONS ARCHITECTURE FIGURE 3: CATEGORIZING THE GOVERNMENTAL NATURE OF UAS ACTIVITIES I. INTRODUCTION

    1. Abstract

      In the last decade of war, unmanned aircraft systems (UAS) have played a major role in the disruption of A1 Qaeda, Taliban, and other insurgent enemy forces. Due to the lethality of these weapon systems, many critics have challenged the legality and morality of drone strikes. However, little scholarship has focused on the human capital requirements of the very diverse UAS mission, namely the personnel performing logistics and maintenance, video and imagery analysis, vehicle and sensor operation, and kinetic force delivery. This Article investigates the numerous roles necessary to sustain and perform the Department of Defense (DoD) UAS mission, and attempts to identify which roles are being performed by military, federal civilian, and/or civilian contractor personnel. Based on the nature of certain roles, this Article identifies rules that only Government personnel should perform certain activities because they are inherently governmental functions, or for other policy reasons. In conclusion, this Article provides recommended actions for both the DoD and Congress to ensure they avoid outsourcing certain inherently governmental UAS functions to contractors.

    2. Introductory Case Study

      Uruzgan Province, central Afghanistan, February 21,2010, just a few hours before dawn. (1) A United States military special operations team, air dropped a few miles outside of the village of Khod, waits in the rugged mountain region getting ready for a raid to root out and capture insurgent forces suspected of operating in the area. Their mission is very similar to one the same team executed in the same district almost one year previously--on that day, firefights between U.S. military and insurgent forces erupted and one of our soldiers was killed. In 2009, the special ops team went in without any air support--in 2010, they have an AC-130 gunship, two Army Kiowa helicopters and a fully armed Predator unmanned aerial vehicle (UAV) watching over them.

      Around 5:00 a.m. that morning, the AC-130 aircrew identifies a convoy of two sports utility vehicles (SUVs) and a pickup truck traveling along the dark mountain roads about seven miles away from, but heading toward, the team. At that moment, the American aircraft begin tracking the three vehicles. At 5:08 a.m., the AC-130 notices one of the vehicles flashing its headlights, and radios the information to the Creech Air Force Base (AFB), Nevada Predator flight crew, explaining that the vehicles appear to be sending signals. The Air Force pilot positions the Predator where it can best follow the vehicles; the Predator's cameras and sensors focus solely on the convoy. Back in Florida, a team of intelligence analysts and video screeners at Air Force Special Operations Command, Hurlburt Field, begin pouring over images as they are collected by Predator sensors. In real time, the screeners feed assessments to the Predator crew who are in communication with the ground force special operations team commander.

      At 5:15 a.m., the Predator pilot thinks he identifies a rifle in one of the trucks; the camera operator concurs. The primary screener reports that her Florida team verifies about 20 military aged males (MAMs) with what appeared to be "possible weapons." The screener also reports the presence of possible children in the convoy. As the Predator continues tracking the vehicles, cell phone calls in the area are intercepted and translated. According to linguists providing intelligence support, the phone calls indicate that a Taliban unit is in the area preparing for an attack. Around 6:15 a.m., as dawn is breaking, the convoy stops. Several men exit the vehicles and begin unfolding what appear to be blankets, which they spread atop the nearby ground. The Predator crew watches as the men from the vehicles begin to pray. By 7:40 a.m., the screeners, after reviewing a couple of hours of fuzzy video, modify their report to the Predator crew and ground force commander: 21 MAMs, no females, and one adolescent--likely teenager.

      With this last report from the screeners, the ground force commander concludes he has the positive identification necessary to engage a hostile force. By 8:40 a.m., the vehicles are driving away from the ground forces. Fearing a flanking maneuver, the ground force commander orders the Kiowas to stand ready for an attack. At 9:00 a.m., when the convoy reaches a section of open road, the ground commander calls for an airstrike. The aircraft unleash two Hellfire missiles that slam into the first and third vehicles, which burst into flames. Dead and wounded are everywhere. Very soon, the Nevada crewmembers and Florida screeners realize something has gone horribly wrong.

      The investigation that soon followed would reveal that at least 15 Afghan civilians had been killed, to include one woman and three children, and 12 wounded. They were travelling together as a group for safety through the insurgent stronghold region of Uruzgan Province. Some were businessmen, others students returning to school, and a few were simply travelling to visit family. General Stanley McChrystal, then Commander of NATO and U.S. Forces, immediately offered his personal apologies to the people of Afghanistan and assured President Hamid Karzai that actions would be taken against those who acted inappropriately, and that measures would be implemented to prevent similar accidents in the future. Four U.S. military officers--two who could be considered senior officers--were administered career-damaging letters of reprimands. No disciplinary action, however, was taken against the primary screener from Florida who provided imagery analysis that contributed to the decision to attack. There wasn't much that the military could do--she was a contractor.

    3. Issue Preview

      The Uruzgan Province incident raises numerous concerns about current U.S. military unmanned aircraft systems (UAS) missions, in particular, the role of contractors in UAS operations. Indeed, the role of contractors in military operations has been a subject of concern for several years. In the last decade alone, the United States spent hundreds of billions of dollars on contract support for military operations in Iraq and Afghanistan. (2) General concern over such expenses has been elevated to outrage in many through the discovery of the vast amount of taxpayer dollars that were lost to fraud, waste and abuse. (3) Defense contractors have been further disparaged in the press, academia and political circles for their involvement in activities many believe were not appropriate for contractors to perform. Serving as linguists and interrogators at the now infamous Iraqi Abu Ghraib prison, and as private security forces involved in the Nissour Square shooting deaths of Iraqi civilians, contractors were suddenly placed under intense scrutiny by the highest levels of government and the international community. (4) In short, there has been resurgence of interest in pulling away from reliance on contractors for critical government missions. Any such insourcing, however, should not be reactionary, but rather performed in conjunction with a determination of the appropriate role of contractors during war. Such an evaluative approach would best serve our nation's military UAS mission.

      While unmanned aircraft strike operations have generated a lot of criticism, (5) UAS undeniably have played a major role in the disruption of Al Qaeda, Taliban, and other insurgent enemy forces. (6)...

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