Will Better Buying Power 3.0 bring the Pentagon and Silicon Valley Closer?

Led by California’s Silicon Valley, America leads the global economy in technological innovation.  At the same time, official Washington seems to realize that the federal acquisition system is obsolete for the Information Age.  As such, the military is losing its technological margin with potential rivals.

In September 2014, the Defense Department released a concept draft of Better Buying Power 3.0.  It details changes in acquisition designed to spur and capture innovation for military purposes.  The acquisition process is guided by the Defense Federal Acquisition Regulations Supplement (DFARS), and most programs are implemented by a combination of government management and contract law.  Of course the entire system is ultimately governed by the Constitution which diffuses power, interests, and accountability among many.

Today much technical innovation comes from small companies, and indeed individuals.  In Silicon Valley’s ecosystem, most startups die, but more still get funded with some getting acquired and others growing into their own.  That process amounts to research and development in and of itself.  As Clay Christensen writes, ironically because some large companies are well managed with resources aligned for the present, they often cannot react to inventions from smaller companies.

Thomas P.M. Barnett says that the role of the Pentagon is to “predict the threat, buy the force.”  Much of that “force” consists of “programs” for goods and services.  The contracts for those programs begin with requirements.  A growing problem is that the “threat” to be predicted mutates a lot faster than during the Cold War.  In the twelve months prior to this writing, the Syrian government’s Syrian Electronic Army has quickly become a force hacking into Western media sites to get their narrative out.  Also, ISIS has taken control of territory with a speed that has destabilized the entire Middle East.

This amounts to making planning and programming for the Defense Department exceedingly difficult.  In other words, the threat is rapidly changing as are the technologies we need to buy for the force.  Writing requirements for contracts will become a dynamic process.  Changes to the DFARS and new contractual vehicles like awarding prizes can be expected.

An substantial growth in business between the Pentagon and Silicon Valley would be difficult for both.  There are some vast differences between Silicon Valley (a metonym for the ecosystem  and spirit of the Bay Area’s technology industry) and the community of defense related firms, many concentrated in the Washington, DC area.  For starters, many Defense software firms begin with a public policy goal in mind.  Over time their business models tend to become addicted to capturing the next government contract and focus all energy on the regulated bureaucracy that is the Pentagon.  Silicon Valley firms generally begin with an attractive idea that may or may not be immediately monetizable.  A company will be as innovative as its market is dynamic, so much value is to be derived out West.

Other differences will complicate the Better Buying Power 3.0 initiative. The tech business moves very quickly, the federal government does not.  Entrepreneurs may have difficulty understanding the role of government, even though they understand the product or service for delivery. 

There is also the issue with the federal government’s efforts with subcontracting to small and socio-economically disadvantaged businesses.   To integrate configuration control and intellectual property, commercial tech firms are generally more vertically integrated than defense contractors.  This would make subcontracting more difficult.  Interestingly, a lot of commercial tech firms that have little to no revenue may have very high market capitalizations in the private sector, since their products have so much potential.  An economic reality generally unknown to small businesses in the defense world, which are focused on getting the next contract extension.

It is clear that the Defense Department intends to buy more commercial products, spend more on research and development, and use incentive based contracts.  The latter not only includes structuring more profit for performance, but also prizes and “challenge” awards for technologists who make products most meeting specification.   Military acquisitions will become more of a science fair, and less of a business plan contest.

In the end, the government needs to focus on how to skim the cream of technology ideas, without spending a lot on trial and error.  To do that, it will need to become an attractive customer to do business with.  This includes simplifying registration for startups to be vendors, and make the requirements and solicitation process move quickly.

A Legal Path for the 1033 Program

Civil policing is not soldiering.  It is indeed intellectually more difficult.   The “militarization of American police” over the past decade has been the most talked about domestic issue this month, with support from many parts of the political spectrum.  Even the president himself ordered a review  of the Defense Department’s program for supplying local police with its excess equipment.  This post seeks to outline a centrist legal path for the program moving forward.

Sixteen months ago, the Boston area population readily submitted to a curfew as heavily armed and armored police searched Watertown for a bombing suspect.  He was suspected of detonating a bomb with hundreds of casualties, shooting a police officer in cold blood, and, with his accomplice brother, hurling homemade bombs at police officers in a shootout.  I was surprised that day by the level of armament of the police as well as the lack of commentary about it.  As the suspect was captured, the Boston area police were cheered by the townsfolk and widely celebrated across the country.

This month, the police shooting of an unarmed black man in suburban St. Louis set off much controversy and intense national media scrutiny.  Police procedures regarding the shooting itself in the hours and days following have drawn criticism  for a lack of accountability and respect for the public.  However, the focus of this post is the Ferguson, Missouri Police’s show of force against protesters who were largely peaceful.  Armored vehicles and snipers appeared at protests.  Video footage showed police officers with guns drawn and pointed up at protesters.  All of these actions are against convention.

The police show of force has sparked a public debate on the level of armaments the police should have.  Congress is out on recess at this writing, but this initiative, known as the 1033 program, will likely come up during the next session.

My take is that in an era of mass shootings, criminals with body armor, and the threat of domestic terrorists intent on mass murder, police ought to have a reserve of heavy equipment.  Simply put, a trained cop with a semi-automatic rifle (e.g. and AR-15/M-16) should be within a ten minute response time, anywhere in America.  Surplus from the Defense Department is a free, logical way to put the materiel to use.  But that implies local police commanders who know how to tactically deploy the materiel, as well as officers who know how to use it.

Ferguson, Mo has laid bare the weak underbelly of this federal program.  This police department does not have the organizational discipline to handle the powerful equipment, and their officers were demonstrably ill-trained.

The U.S. Justice Department has programs to coordinate and provide support to local police.  However, it is its Civil Rights Division that may show the way forward.  Those attorneys sue departments that systematically deny civil rights to their citizens.  This often occurs from organizational dysfunction.  Thus many of their consent decrees have guidance for managerial reforms and processes to lead to more professionalism.  From studying those legal agreements, I have come up with some basic guidelines:

-With individual crimes, in hot pursuit or with warrants, procedures should be established and understood regarding how and when high power weapons and armored vehicles should be deployed.

-Similar procedures need to be established for large protests and civil disturbances.

-Training for marksmanship and properly brandishing weapons should be funded and planned before the receipt of any equipment.

-Using military style weapons needs to be documented after every use.  This data must be collected and continually evaluated.

The 1033 program is free regarding the Defense Department.  Training costs money, and could be provided by municipalities themselves if they feel it is that important to them.  Alternatively, the Department of Justice could assist with money.  The Department of Defense is not expert in the use of tactics for civil policing, and there could be issues under the Posse Commitatus Act if there is deemed to be undue influence of the military on law enforcement.

The 1033 program should continue, but only in departments which prove to the Justice Department that they are ready for it.  Hopefully, untrained departments (there are certainly other Fergusons out there) will after the fact, begin to adopt the policies and procedures of their sister cities and change can occur at the local level nationwide.

How do you appropriate funds for Cyber Warfare?

The New York Times last night reported that the U.S. Defense Department is proposing significant cuts across the services. Funding for special operations and cyber warfare will be preserved as it is deemed the way of the future. Warfare in the digital space would be significantly different that the kinetic use of force we are familiar with.  Also, raising and maintaining these offensive cyber forces will be different.  This post focuses on the issues appropriations and oversight of offensive cyber capability, and makes the point that this seriously challenges the constitutional prerogatives of the Congress.

The ability to measure the strength of land and naval forces has for centuries been an inexact art and science, but one that could be roughly measured.  Technological advancements like transitioning from arrows to single-bullet guns, and single-bullet guns to machine guns initially challenge war planners. But empirical evidence over time allows for mathematical planning.  During World War I, Frederick Lanchester came up with equations to dynamically measure infantry units, in traditional formation, and game out their relative strength over the course of a battle.[i] More advanced models were used to predict outcomes for air forces, and weapons with uncontrollable effects like nuclear weapons (and their radiation).[ii]

In the Defense Department, units are formed, trained, and equipped based on systemic programming, which in turn is based on needed capabilities.  Knowing the strength of an armored division, or a carrier battle group, or a nuclear missile is needed to allocate money to meet the goals of policymakers.[iii] The U.S. Congress ultimately passes legislation annually authorizing these programs, and separately, appropriates the money for them.  Furthermore, Congress oversees the spending and operations of the Department.

What the U.S. Government might have done offensively is classified, but it is believed by this writer that there have not been hostilities with another country in the cyber realm.  This does not include intelligence and counterintelligence.  Cyber warfare is profoundly different than warfare in the physical space.  Software is exponentially scalable, and even regenerates for free.[iv]  Damage can be done to an adversary’s physical infrastructure or IT systems.  As for IT systems, the damage can also be undone, if the software self-destructs.

As math and physics equations can guide military war gamers, and the politicians who provide long term resources, we really have no algorithm to plan, program, and budget for offensive cyber attacking.  How many personnel are needed?  What types of equipment are needed?  That confounds budgeting at a very elemental level.   A more legalistic concern is the “color” of the money.  Appropriations legislation mandates certain amounts of money to be titled for things like Operations & Maintenance, Research, Development, Testing & Evaluation, Personnel, and so forth.  Malicious software might be created by a defense contractor during a Development phase with those funds, or even an Operations and Maintenance phase with O&M funds.  Or a botnet’s code might be copied and pasted for free off the internet.  A free fighter plane has never been found.

The business community has a saying, “what cannot be measured, cannot be managed.”  The same is true in Washington, DC where overseeing the development of programs will be as challenging as determining the existence of, and progress of a cyber conflict.  We have fairly detailed knowledge of enemy airfields, ports, and factories.  We do not have a clear picture of the designs of other IT systems, ongoing defensive software improvements, or the discipline of their personnel, the latter being the crucial variable to cyber defense.[v]  As difficult as it will be for the Pentagon’s intelligence to guess, it will be nearly impossible with Congress’ meager resources.

Needless to say, raising this force in the executive branch will require Congressional committee/agency staff who can tackle legal issues like proportionality in an information war, the use of private contractors in offensive, military cyber attacks, technological breakthroughs, and putting an economic measurement on the capability of Cyber Command.

Ultimately, this will be another example of technology forcing the government to adapt to fulfill Constitutional duties.

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[i] O’Hanlon, Michael. The Science of War. 2009 Princeton University Press.

[ii] Ibid

[iii] Feltes, Lorentz, A.   Planning, Programming, and Budgeting, a search for a management philosopher’s stone. 2003. http://www.airpower.maxwell.af.mil/airchronicles/aureview/1976/jan-feb/feltes.html

[iv] Singer, P.W. and Friedman, Allan. Cybersecurity and Cyberwars, what everyone needs t know.  Oxford University Press. 2014.

[v] Ibid