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Practice Notes

Army Transformation and Experimentation

The Role of National Security Law Attorneys

By Major Thomas G. Warschefsky

On 30 August 2022—the first anniversary of the withdrawal of U.S. military forces from Afghanistan—Secretary of Defense Lloyd Austin signed an order ending issuance of the National Defense Service Medal for the War on Terror, effective 31 December 2022.1 Although the fight against terrorism continues, Secretary Austin’s order signals closure of the broad-scale, twenty-one-year-long War on Terror.

While the War on Terror has waned, competition between nation-states, also called “great power competition,”2 has seen a resurgence. The People’s Republic of China is engaged in an “increasingly aggressive endeavor to refashion the Indo-Pacific region and the international system to suit its interests and authoritarian preferences” and “seeks to undermine U.S. alliances and security partnerships in the Indo-Pacific Region.”3 Meanwhile, Russia, “[c]ontemptuous of its neighbors’ independence . . . seeks to use force to impose border changes and to reimpose an imperial sphere of influence.”4 To counter these threats, the 2022 National Defense Strategy identifies four top-level priorities including “building a resilient Joint Force and defense ecosystem.”5 Achieving this objective will require a focus on “moderniz[ing] the systems that design and build the Joint Force, with a focus on innovation and rapid adjustment to new strategic demands.”6

Against this backdrop, the practice of national security law (NSL) in the military is also changing. Gone are the days where numerous NSL attorneys regularly sit on an operations center floor as an active part of a strike cell. Likewise, NSL attorneys are no longer regularly helping commanders and Soldiers understand the rules of engagement or reviewing operations concepts for combat patrols. Instead, the return of great power competition has created new areas of emphasis for legal practitioners. One such area is the role NSL attorneys must play in the Army’s transformation and modernization efforts.7 While Army transformation and modernization naturally lend themselves to fiscal and contract law practice, they also provide unique opportunities for NSL practitioners to apply their skills in support of experimentation. This article uses the Army’s flagship experiment, Project Convergence, to demonstrate the unique role NSL practitioners can play in supporting Army experimentation, modernization, and transformation.8

Soldiers from the 82d Airborne Division maneuver a High Mobility Artillery Rocket System for testing during Project Convergence 2022 at Clemente Island, CA. Project Convergence is an exercise designed to test the capabilities of the U.S. military’s newest technologies and its ability to integrate with future command-andcontrol partners. (Credit: SGT Marita Schwab)

First, it is important to differentiate military experimentation from military exercises. Simply put, experiments are designed to test and understand things—a materiel solution or a military formation or tactic—while exercises are designed to test people, to prepare units for no-fail military operations.9 To further explain:

Most training exercises are designed using contemporary equipment and doctrine and follow a sequential progression of actions that result in a [U.S.] or coalition force victory at the end of the exercise.

During experiments, deliberate attempts are made to control variables and identify changes in outcomes. Frequently, comparisons between technologies, new doctrine, or planned capabilities are required to achieve experimental objectives.10 

In exercises, a base-line level of unit performance is a requirement. Failures negatively reflect on the unit, demonstrating that it is untrained and unprepared. In contrast, during experiments, failure is expected, designed for, and even welcomed to better understand the experiment’s subject and to answer discrete questions known as “learning objectives.”11

As mentioned above, the Army’s flagship experiment is Project Convergence. Project Convergence is a multi-year “modernization learning, experimentation, and demonstration campaign.”12 Project Convergence began in 2020, and Project Convergence 2022 (PC22) was the calendar year 2022 iteration of this experiment. Approximately 7,000 Service members, Civilians, and contractors participated in PC22, with 3,000 taking part in a scenario that replicates the Pacific theatre, and 4,000 taking part in another scenario that replicates the European theatre.13 Project Convergence 2022 also sought to integrate sister services and several partner nations. As Lieutenant General Scott McKean, the director of PC22, explained:

[Project Convergence 2022] is an all-service experiment that includes Special Operations Forces, and our U.K. and Australian partners. Using existing and emerging technologies from space to land and sea, PC22 [experiments] with capabilities that protect against air and missile threats as well as those that will allow us to defeat anti-access defenses.14

With this background, legal practitioners can begin to understand their role in experimentation. First, it is important to note that any military activity involving thousands of individuals, whether a deployment, exercise, or experiment, requires a baseline level of legal support to ensure the event can successfully take place.15 While legal services such as fiscal law and ethics are critical, experiments also provide a unique opportunity for NSL practice in furtherance of the Army’s transformation.

During experimentation, commanders, staff, and technicians actively seek to understand issues with experimental items.16 National security law attorneys are wise to utilize this open and receptive mindset to raise legal considerations related to experimentation, modernization, and transformation. These legal considerations could have near-term implications (such as ensuring we are not violating Federal Communication Commission policy by testing a specific device in a specific area), but they should also be forward-thinking (such as considering the legal implications of different national interpretations of what constitutes an “autonomous weapon system” in combined operations).

While NSL attorneys must be forward-thinking, it is equally important for them to determine how to integrate their legal insights as part of an experiment staff. To do so, NSL attorneys should offer a value proposition to commanders and fellow experiment participants by understanding and applying the doctrine, organization, training, materiel, leadership and education, personnel, facilities, and policy (DOTMLPF-P) organizational and acquisition analysis.

This tool “allows senior leaders the ability to analyze their organizational capabilities from the perspective of [DOTMLPF-P] when making future strategic decisions.”17 While many of these areas present potential legal implications, NSL attorneys involved in experimentation should be particularly interested in policy. Policy, as defined by Army Regulation 5-22, includes “[a]uthoritative written guidance that affects capabilities development. When examining this, [one] should consider any Department of Defense, interagency, or international policy issues that may prevent effective implementation of changes in the other DOTMLPF–P components.”18

National security law attorneys are wise to utilize this open and receptive mindset to raise legal considerations related to experimentation, modernization, and transformation.

In this context, NSL attorneys should see a natural connection between the practice of law and the policy portion of the DOTMLPF-P analysis. While others may test a particular materiel solution or organizational structure, experiments present a ready-made opportunity for NSL attorneys to take ownership of “policy” analysis. In doing so, NSL attorneys should anticipate and predict policy concerns that will create future hurdles for experimental technology. For example, “Does policy X prevent us from using item A in a certain manner or location?” Or, “Can modifying policy Y allow for more efficient use of item C?”

As many astute legal scholars know, policy and the law are not the same, and one should be cautious not to conflate the two. Nevertheless, NSL attorneys should consider both domestic and international law and their impacts on experiments during a well-rounded “policy” analysis.19 NSL attorneys should seek out policy and legal issues and ensure other participants know to engage the legal section upon discovering these issues during experimentation.

However, legal practitioners cannot just establish themselves as the “owners” of an experiment’s policy and legal implications. Instead, they must also consider what to do with the information they collect. As a threshold matter, NSL attorneys must determine if a concern is, in fact, a policy or legal issue. National security law attorneys should gain a working understanding of the experimental item as well as the action and policy or law in question. This allows the practitioner to render an opinion on whether or not there is a violation of law or policy. In some situations, what initially presents as a policy or legal concern could simply be a misunderstanding of fact.20

If an actual policy or legal concern exists, NSL attorneys should identify and quantify the concern next. Specifically, what are the implications of violating the policy or law? In other words, what happens in the event of a violation? Finally, they should consider if a policy violation will take place every time the unit used a new technology, or only in certain circumstances.21

Having thoroughly examined and quantified the potential policy or legal concern, NSL attorneys must identify the mechanism to create new policy where gaps exist or revise or seek an exception to existing policy. A forward-thinking NSL attorney will be on the lookout for opportunities to change statutory law and influence international law to better accommodate new capabilities. This means that, in an experimental context, NSL attorneys should identify those moments of potential statutory or international law violation that require analysis, thoughtfully identifying where U.S. law needs change or international law needs influence.

What should NSL attorneys do with this well-thought-out and prepared analysis? First, NSL attorneys should pass any “legal lesson learned” along to the Center for Law & Military Operations at The Judge Advocate General’s Legal Center & School to share throughout the Corps. If the situation involves a violation or gap in law or policy that a modification, creation of, or an exception to a policy or law can rectify, NSL practitioners should appraise commanders of the concern and provide them with courses of action to seek such a change. In doing so, legal advisors should be prepared to offer well-thought-out alternate language to solve the issue at hand. Both the Army Futures Command Office of the Staff Judge Advocate (AFC OSJA) (which serves as a subject matter expert for policy and legal implications discovered during experimentation) and the National Security Law Division at the Office of the Judge Advocate General are well positioned to collaboratively resolve and staff issues. These offices can raise such policy issues in appropriate working groups and interagency meetings to inform decision makers, so they may pursue policy or statutory changes or exceptions as needed.

Second, commanders may prefer to change the actual test item so it complies with current policy or legal guidelines. In these situations, NSL practitioners who understand both the policy concern and the experimental item can advise on the changes necessary for compliance. Again, the AFC OSJA is an excellent entry point in assisting legal practitioners with the process of changing an experiment item.22

Under Secretary of the Army, Honorable Gabe Camarillo, speaks with MG Richard Angle, Commanding General of 1st Special Forces Command (Airborne), during Project Convergence 2022 at Camp Pendleton, CA. During the first of two demonstration days for Project Convergence 2022, all-service and multinational leaders gathered at Camp Pendleton to discuss lessons learned and ways ahead after several weeks of transformational future-force experimentation. (Credit: SGT Thiem Huynh)

Finally, forward-looking NSL attorneys may identify large-scale, holistic legal issues that require an evolution of academic thought over time. In these situations, attorneys may coordinate with the AFC OSJA, which is robustly involved in academia to advance laws related to Army transformation. Likewise, the National Security Law Department at The Judge Advocate General’s Legal Center and School is rooted in academia and can encourage students to conduct legal research and write on legal interpretations related to experimentation.

While involvement in the policy portion of the DOTMLPF-P analysis is an excellent starting point for legal practitioners to add value to experimentation, NSL attorneys should not limit themselves to passively collecting legal concerns through non-legal learning objectives. Instead, by properly planning and an understanding experiments and experiment items, NSL attorneys can anticipate legal concerns and work with experiment designers to directly incorporate legal-based learning objectives. For example, if an NSL practitioner knows a particular item will be subject to a law of war compliance weapons legal review, they can request experimentation to test compliance with the law of war and applicable policies. Likewise, an NSL practitioner concerned that an item’s use may result in a policy violation could request experimentation to help determine if a policy concern exists.

In sum, experimentation provides a unique opportunity for NSL practitioners to contribute to Army transformation. When legal practitioners actively engage and participate in experimentation above base-line legal support, they can identify and offer paths to rectify legal concerns before they become problems on a real-world battlefield. As our National Defense Strategy shifts from a focus on anti-terror operations to great power competition, it is imperative that NSL practitioners adapt to support military transformation. Supporting experimentation is one way they can accomplish this objective. TAL

MAJ Warschefsky is a judge advocate in the National Security and Administrative Law Division at U.S. Army Futures Command in Austin, Texas.

Notes

1. End of an Era: The National Defense Service Medal, Pieces of History: U.S. Nat’l Archives (Dec. 7, 2022), https://prologue.blogs.archives.gov/2022/12/07/end-of-an-era-the-national-defense-service-medal; Patricia Kime, Here’s Why the Pentagon Will Stop Issuing the National Defense Service Medal, Military.com (Sept. 7, 2022), https://www.military.com/daily-news/2022/09/07/heres-why-pentagon-will-stop-issuing-national-defense-service-medal.html.

2. See Frequently Asked Questions, Def. Acquisition U., Great Power Competition, https://www.dau.edu/gre‍atpowercompetition/pages/faqs.aspx (last visited Feb 22, 2023). “Great power competition is the contest between the United States and its adversaries to shape security architectures, as well as norms and practices worldwide, including trade and investment regimes and the development and regulation of new technological infrastructures.” Id.

3. U.S. Dep’t of Def., 2022 National Defense Strategy of the United States of America 4 (2022).

4. Id. at 5.

5. Id. at 7.

6. Id. at 2.

7. There is a difference between the terms transformation and modernization. Although neither appears in the Department of Defense Dictionary of Military and Associated Terms, transformation is comprehensive in nature and encompasses a “whole of Army” approach, while modernization is more commonly used when specifically referencing materiel items. ‍See, e.g., The Posture of the United States Army: Hearing Before the S. Comm. on Armed Servs., 117th Cong. 1 (2022) (statement of Christine E. Wormuth, Sec’y of Army, and Gen. Games C. McConville, Chief of Staff, U.S. Army), https://www.army.mil/e2/downloads/rv7/aps/aps_2022.pdf. “As the Army continues its most significant transformation in over 40 years, our priorities continue to be people, readiness, and modernization.” Id. “Modernization is future readiness, and we remain firmly committed to the six modernization portfolios we defined to Congress in 2018: Long Range Precision Fires, Next Generation Combat Vehicle, Future Vertical Lift, the Network, Integrated Air and Missile Defense, and Soldier Lethality” Id. at 4.

8. Project Convergence 2022 to Demonstrate Futuristic Joint, Multinational Warfighting Technologies, U.S. Army (Sept. 19, 2022), https://www.army.mil/article/260345/project_convergence_2022_to_demonstrate_futuristic_joint_multinational_warfighting_technologies [hereinafter Project Convergence 2022].

9. Zachary Vogt, Jeffrey Huisingh & Randal Zimmerman, The Exercise-Experiment (E-E): A New Reality, Air Land Sea Space Application (ALSSA) Ctr. (May 1, 2021), https://www.alsa.mil/News/Article/2585478/theexercise-experiment-e-e-a-new-reality (“Experiments are conducted with the understanding that systems or TTP, CONEMPs, and CONOPs will not work as intended and require refinement or, in some cases, wholesale change. In contrast, exercises are conducted to prepare units to execute combat operations for which failure is not an option.”).

10. Id.

11. An example learning objective could be “Can radio X communicate with radio A?” or “what effect will new technology Y have on the ability of a squad-size element to conduct resupply?”

12. Project Convergence 2022, supra note 8.

13. Project Convergence 2022, supra note 8; accord Joe Lacdan, Project Convergence 2022: Army to Work Closely with Allies in the Future Fight, U.S. Army (Nov. 16, 2022), https://www.army.mil/article/262055/project_convergence_2022_army_to_work_closely_with_allies_in_the_future_fight.

14. Project Convergence 2022, supra note 8.

15. For example, Soldier misconduct will take place and commanders and their advising attorneys must handle it. Issues with contracts will arise. Working with partner nations raises unique questions related to acquisition and cross-servicing agreements and gift exchanges.

16. In Project Convergence 2022 (PC22), roughly 300 items were subject to experimentation, seeking answers to hundreds of learning objectives.

17. DOTMLPF-P Analysis, AcqNotes (Nov. 1, 2022), https://acqnotes.com/acqnote/acquisitions/dotmlpf-analysis.

18. U.S. Dep’t of Army, Reg. 5-22, The Army Force Modernization Proponent System 13 (28 Oct. 2015) (defining “policy”).

19. National security law attorneys should always ensure they clearly differentiate between law and policy when presenting an analysis.

20. For example, Department of Defense Directive 3000.09 requires various approval authorities for autonomous and semi-autonomous weapons systems. U.S. Dep’t of Def., Dir. 3000.09, Autonomy in Weapons Systems (25 Jan. 2023). However, the directive specifically does not apply to autonomous or semi-autonomous cyberspace capabilities or mines. Id. at 3. As a result, determinations such as “this a cyberspace capability” or “this a mine” are elemental to applying correct policy.

21. For example, a signals intelligence collection device could raise significant legal and policy concerns related to collection on U.S. persons if used for training in a crowded civilian urban environment. These same concerns would be largely eliminated during large-scale conflict in a foreign country. Likewise, a (fictional) semi-autonomous weapon system could occasionally confuse armored personnel carriers with school buses. Use of this system would create significant law of armed conflict concerns in a city. Using this weapon in the Arctic Circle, where there are no school buses, would mitigate these concerns.

22. For example, a signals intelligence device could be designed with a reduced-range mode that reduces concerns regarding collection on U.S. persons during its operation in a training environment. Likewise, a (fictional) semi-autonomous weapons system that occasionally confuses armored personnel carriers and school buses could be modified to require human confirmation every time it identifies an armored personnel carrier.