Aug 16, 2021

Our Vietnam: Reflections on Operation Enduring Freedom

One of those questions GWOT (Global War on Terror) vets has never wanted to know the answer to from the previous generation of veterans was what it felt like to lose Vietnam. We have a bit more of an understanding of how that feels today. However, I will never know what it could have felt like for those returning veterans to face the ire and disdain from their fellow Americans for going to Vietnam, voluntarily or not. I was not a soldier in Afghanistan; I was a civilian working side-by-side active-duty Airmen in Kandahar for 14 months. I was a soldier in Iraq, and watching the Taliban take Afghanistan this weekend is more disheartening than it was to see ISIS rise to power. The sadness and frustration I feel are being echoed universally across my veteran-oriented social media groups/pages. We did our duty to our nation and our fellow service members, and we will need to be satisfied with that.

It was common knowledge in Iraq in 2009, once we left, a terrorist group would rise, we did not have a name for them, but we knew their tactics, techniques, and goals. ISIS filled that void in our absence. We were uncertain what our response would be? Luckily we did respond, and we defeated ISIS in 2016. As best as I can tell, Iraq has been a mostly stable nation in the region since 2016. The particularly disheartening factor with Afghanistan now is knowing it will be more challenging to go back in than 2001. I will attempt to describe my understanding of what went wrong in Afghanistan and why we are watching what we are.

The first failure of Operation Enduring Freedom (OEF), aka the War in Afghanistan, was the lack of clarity about the objective or victory conditions. It was not a war because Congress did not make a declaration of war; instead, like most of our overseas military operations, it was a police action via the Authorization for Use of Military Force (AUMF). President Bush repeatedly claimed we would make Afghanistan into a democratic nation. A democratic republic like that of the Western countries was a foolish goal. As we have seen with numerous non-Western nations (to include Russia and China) who have not had an Enlightenment like the European nations, democratic governments have been less stable, to say the least. To think we could create a Western country in the “Graveyard of Empires” was a demonstration of hubris and foolishness. I would point to the American Founders who described the social conditions necessary for a democratic republic to survive. The lack of understanding of what conditions are required to create a democratic nation is one of my significant criticisms of the neoliberal foreign policy model. A model we have been engaging in the post-Cold War and GWOT periods. Yet, President Bush repeatedly claimed this was the goal.

President Obama had less lofty goals. As Iraq withdrawals began in 2009 following my first deployment, President Obama surged US forces to Afghanistan. A month after we killed Osama Bin Laden, President Obama started to withdraw US Forces in 2011. I left Afghanistan in December 2011. President Obama wanted to have a complete withdrawal before the 2016 election but did not. President Trump sought to continue withdrawal and negotiated with the Taliban from 2018-2020, scheduling US Forces to leave by May 2021. This war, this failure, is one of the most bipartisan ventures of my lifetime.

In my view, the failure to have realistic, attainable victory conditions was the critical factor that lost public support. The American people were sold on a false bill of goods. What was attainable? Prevent Afghanistan from becoming a haven for terrorist groups like Al Qaeda. We often forget Al Qaeda and the Taliban were not the same. In 2001, Al Qaeda was about a thousand personnel by our highest intelligence estimates. Following 9/11, the refusal of the Taliban lead government to turn over Al Qaeda is what prompted our action. We took on tens of thousands of those protecting them in the pursuit to go after hundreds of Al Qaeda members. The war itself was to depose the government, which harbored terrorists. The prevention of future attacks should have been the explicit goal. There were no attacks on the homeland planned in Afghanistan from 2002 - Spring 2021.

After the initial victories in northeast Afghanistan with the Northern Alliance, US forces did not engage in major combat until 2005. From 2009-2011 were the peak combat casualties. By 2014, there were fewer combat casualties in Afghanistan than training deaths in the US Military. That is not to say those deaths were any less valuable or costly in any way. It does go to say the job of the military is inherently dangerous. If they are going to do their job, their lives will be at risk. Because of this inherent risk is why many of us recognize the sacrifice in military service, even during peacetime. The primary burden of making policy is accepting the costs which come from it. One cannot responsibly take the “just one life is worth it” position for any policy when limited resources (to include time) are in play. I hold this view on every policy.

Does this mean I support endless wars? No, not at all. At the same time, I do have a strong “you break it, you buy it policy” that we should not leave a situation worse than we started. As of today, Afghanistan is worse off than it was on September 10, 2001. We should seriously consider and deliberate before we get involved in overseas actions. Still, once we are there, we need to maintain support sustainably until they can support themselves. What else could we have done? Between General Petraeus and the Brookings Institute, I think the “Five Thousand for Five” plan was reasonable. It is worth noting that it took more than 20 years to turn South Korea into a democratic republic. Was Afghanistan an example of the sunk cost fallacy? No, because each year we stayed, it got a bit more secure. The initial decision to invest in this was made 20 years ago by our elected representatives. The idea that one can support action and then change one’s mind about it before the action is complete is a unique benefit in American politics. When bombs have dropped, blood shed, there are no redos. It should serve as a sharp reminder to deliberate well over significant decisions. We are witnessing now the cost of not completing the mission; it certainly can look like it was all for nothing.

What were the conditions in Afghanistan before the Taliban’s major offensive? For the last five years, the US forces secured the major bases. They did not go out on the particularly hazardous patrols or raids that marked our operations tempo from 2009-2012. Our bases were secure; US personnel were safely assisting the Afghani military fight the Taliban. Our primary role was supporting the Afghan military via air support and logistical supplies. The air-dependent military force was how the United States fought the war. The terrain in Afghanistan is brutal. In many areas, the elevation of the mountains hinders the effectiveness of our attack helicopters’ ability to provide close air support. If we remember back to Operation Red Wings, which was one of the deadliest operations in Navy SEAL history, altitude was one of the major factors contributing to the destroyed Chinook. The downed Chinook accounted for 16 of the 19 killed. The high altitude prevented the escort helicopters from staying with the ground force team on the twin-rotor cargo helicopter. At the strategic level, the United States operated and trained the Afghan military to rely upon air support and airdrops to supply isolated bases, the same way we did. To expect the Afghan ground forces to keep fighting without air support or resupply was contrary to the methodology of warfare we had taught them for the last 20 years. Thus, when we withdrew our air support and the ability for the Afghan Air Force to operate, this was a done deal. Who should we look to for that decision?

President Trump negotiated with the Taliban for withdrawal by May 2021. The deal has two main parts, what the United States will do and what the Taliban (Islamic Emirate of Afghanistan) will do. It does call for the total pull out of “all military forces of the United States, its allies, and Coalition partners, including all non-diplomatic civilian personnel, private security contractors, trainers, advisors, and supporting services personnel.” It is not a ratified treaty. It is an executive agreement in which the new administration can change without needing any legislative action to accept or reject the change. The requirements for the Taliban were to not “use the soil of Afghanistan to threaten the security of the United States and its allies,” “not to cooperate with groups or individuals threatening the security of the United States and its allies,” among other conditions. As with any agreement, contract, or deal, if one side violates the terms of the agreement, the other is not required to honor it. Thus even if the current administration was merely following the previous administration’s deal, if the terms were violated, they were under no obligation to continue to follow through with our requirements.

Based on the way we designed and trained the Afghan military, to lose their Air Force was to ensure the failure of the Afghani ground forces. The Afghani forces were well equipped and trained to fight the Taliban. They have been doing for the 20 years we have been fighting too. They still relied on foreign support for repairing and maintaining the aircraft they operated. By withdrawing even the contractors from supporting the Afghan military, policymakers should have known the army would fall as soon as aircraft broke down. For those who have not been around aircraft, I spent two years in helicopter units, the ratio of maintenance to flight hours is significant. The AH-64 Apache attack helicopter, for instance, requires about 3.4 Maintenance Man Hours for every one flight hour. The Afghani military did not have sufficient training or qualified personnel to maintain their aircraft. In the last desperate weeks resorted to zoom calls to get assistance with their aircraft. We expected the Afghani Army to fight without support, relief, or hope by cutting off the air support.

We saw this coming. The mobilization of the Taliban has been growing for months. In March, the New York Times reported on the Taliban’s gains. Helmand and Kandahar are the Pashtun strongholds; it should have been entirely predictable to take Southern Afghanistan. As the news kept coming in May and June, it was clear the Taliban had no interest in honoring any part of the deal. There was plenty of time available for the US to reverse course in Spring and early Summer. But we did nothing. According to Google Trends, there were small spikes of interest (28 from 17) in the second weeks of April and July (35) from its present peak at present (100). Unlike ISIS, the Taliban controls the major airports in the nation. The tribal warfare will continue as it has existed for decades, if not centuries before. Whatever allies we had will know we abandoned them twice now. If they manage to survive, they would be foolish to depend upon us again. It is sadly a bit of a hallmark of neo-liberal foreign policy more broadly. For now, the news cycle will be filled with sad emojis and disappointment by those who were not aware of the situation. It is doubtful a recoverable situation like Iraq was. This is my reflection on 20 years, 2222 American lives, almost 21000 wounded Americans, and over 820 billion dollars spent. I think I am going to watch Charlie Wilson’s War now.

Mar 8, 2021

Can You Drive Through a National Park without Paying the Fee?

*This is not legal advice, if a lawyer wants to spend their time pro bono to correct me, please do so*

I have significant experience being in and around National Parks, in almost all of those experiences I only ever passed through those federal properties. Over those years, I have also heard numerous reports of federal employees requiring others to pay the entrance fee of those National Parks even after people have disclosed their destination was not in the Park. My curiosity getting the better of me (I should be writing my dissertation, but I need to answer this before my brain will let it go), leads me to this path.

My legal basis for this assertion is with the structure of the Constitution and more specifically, the Court’s ruling in the Slaughterhouse Cases (1873), which in the very limited understanding of the Federal Privileges and Immunities, included a right to travel between the states. “The right to move with freedom, to choose his highway, and to be exempt from impositions, belongs to the citizen. He must have this power to move freely to perform his duties as a citizen.”(page 57) This is where I just might know enough law to get me into trouble, but let’s take this spontaneous assertion together. It is also worth recognizing the doctrine concerning the Right to Travel is not entirely clear. My contention is under my federal right to travel, I ought to be able to freely travel through the federal property without paying a fee. Mind you, there are collections of anti-government extremists known as Sovereign Citizens, who can be dangerous and are generally confused about the legitimacy of the American legal system. I am writing this in real-time, the ending TLDR conclusion may result in me being wrong. At no point am I advocating or arguing that one does not need to have a state-issued Driver’s License or current vehicle registration for this exercise.

The National Parks are governed by the National Parks Service, which is under the Department of the Interior (This link does a pretty good job of explaining the hierarchy of laws, rules, and regulations). They, like most executive branch agencies, are authorized by Congress to make rules and regulations which carry the force of law. Additionally, executive orders can “fine-tune” the laws passed by Congress to interpret the execution of such laws in a more specific (or not) manner. So the aspects of governance over National Parks are based on Federal statutory law (US Code), the Code of Federal Regulations (CFR), and Executive Orders. I want to confirm, if my legal understanding/analysis is correct, that under federal law, I can freely travel through National Parks, without having to pay a fee for a pass. This is specific, I cannot stop on the federal land to park or enjoy any of the sights, this is ONLY to pass through. If my findings confirm my suspicions, to use this knowledge to avoid paying entrance fees and park use is wholly unethical and one can and ought to be fined for not paying said fees if they use the National Park without paying the proper fees.

Let me start with the Executive Orders because this will be the easiest thing to address. Of the list provides by National Parks Service, none of the executive orders would apply to my inquiry.

Next up, the Federal Law, I predict it will provide for broad authorization, and the specifics will be addressed, defined, and enforced via the Code of Federal Regulations.

54 U.S. Code § 100101 - Promotion and regulation
(2) 1978 reaffirmation.—
Congress reaffirms, declares, and directs that the promotion and regulation of the various System units shall be consistent with and founded in the purpose established by subsection (a), to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of the System units shall be conducted in light of the high public value and integrity of the System and shall not be exercised in derogation of the values and purposes for which the System units have been established, except as directly and specifically provided by Congress
.

In the link, one will see “System” and “System Units” are hyperlinked terms, which refers to “section 100501” for definition. This path leads us to “The System shall include any area of land and water administered by the Secretary, acting through the Director, for park, monument, historic, parkway, recreational, or other purposes.” So basically, this is the grand authorization by Congress to the Department of the Interior to do all the details. This is going way too smoothly so far, in your best Billy Mays voice, say to yourself “but wait there’s more!”



Now I am on to the fun (tedious) part! In case you did not know, the Code of Federal Regulations dwarf the US Code (federal statutes) by at least 20x, to be honest, no one actually knows. The truly fun part is this, not only does the Department of Interior get to write the rules, but they also get to enforce the rules, and interpret the rules. If you are thinking this may violate the separation of powers, then welcome to the debate concerning the Administrative State, it has been going within the Conservative legal movement for over 30 years, call it the best-kept secret in American government. At a more layperson level, this is known as the federal bureaucracy. Before I continue a rabbit trail on this broader issue, let me dive into the CFR and see what I can find.

The bulk of the relevant rules and regulations are found in Title 36 Chapter 1 Part 71.  In addition to the CFR, there are also the Management Policies of the National Parks System which references the Park Roads Standards. I might just be bragging about how much research I did for this... Let us begin with a look at the relevant CFR concerning the National Park entrance fees.

My prompt is only concerned with entering the National Park for the purpose of passing through. Of the three types of fees authorized in the CFR, only the Designated Entrance Fee Area (DEFA) would apply. No recreational activities or special recreation is to take place in this hypothetical. Therefore, the only potential legitimate fee would be the DEFA. As one continues reading the CFR, the designated areas are described and defined. My interest perks up at subsection 71.3. There is a helpful carveout, “(3) In no event shall any of the following, whether used singly or in any combination, be designated as facilities for which recreation use fees shall be charged: Drinking water, wayside exhibits, roads, overlook sites, visitors' centers, scenic drives, toilet facilities, picnic tables, and boat ramps.” To further solidify the position, at subsection 71.13, exemptions to the text above (71.1-71.12) include,

(b) No entrance fee shall be charged for travel by private noncommercial vehicle over any National Parkway, or any road or highway established as part of the National Federal-Aid System, which is commonly used by the public as a means of travel between two places, either or both of which are outside the Designated Entrance Fee Area; (c) No entrance fee shall be charged for travel by private noncommercial vehicle over any road or highway to any land in which such person has any property right if such land is within any Designated Entrance Fee Area.

Therefore, between 71.3 and 71.13, the CFR clearly states one can use the “roads” and “scenic drives” without having to pay the DEFA, particularly if you are traveling between two places outside of the National Park. To answer my question, “Can I travel through a National Park without paying the Entrance Fee?” Yes.

I also checked
 Part 7, for special instructions of the Parks I have experience with, Sequoia and Kings Canyon and recently Joshua Tree, no relevant information about my inquiry is in that section.