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State Dept Blocking Hillary’s Emails on TPP

It was several months ago that there was a major controversy on the Transpacific Partnership Pact. Everyone was and sorta is against it, when no one especially knew why as none of the text has been released that spells out any controversy. It is quite curious that even the leader of WikiLeaks put out a reward for anyone to provide chapters of the trade pact. Many in Congress have not even seen the documents while others have to go to a special room and read under an ‘eyes only’ condition.

If Hillary has a position in electronic communications over the trade deal, it is a legitimate part of her vetting but now we have John Kerry the current Secretary of State apparently running interference for Hillary or….for the trade deal….or both. It appears this is once again a case where FOIA requests on certain topics and certain people are forwarded to the White House for pre-approval, so in this case, the Obama top leadership could have their fingerprints on this matter as well.

The other curious item is, are these emails part of a separate Hillary release that is unknown to us?

This is like trying to nail jello to a wall. Could it be that Hillary’s emails prove she is against the TPP?

State Department Blocks Release Of Hillary Clinton-Era TPP Emails Until After The Election

IBTimes: Trade is a hot issue in the 2016 U.S. presidential campaign. But correspondence from Hillary Clinton and her top State Department aides about a controversial 12-nation trade deal will not be available for public review — at least not until after the election. The Obama administration abruptly blocked the release of Clinton’s State Department correspondence about the so-called Trans-Pacific Partnership (TPP), after first saying it expected to produce the emails this spring.

The decision came in response to International Business Times’ open records request for correspondence between Clinton’s State Department office and the United States Trade Representative. The request, which was submitted in July 2015, specifically asked for all such correspondence that made reference to the TPP.

The State Department originally said it estimated the request would be completed by April 2016. Last week the agency said it had completed the search process for the correspondence but also said it was delaying the completion of the request until late November 2016 — weeks after the presidential election. The delay was issued in the same week the Obama administration filed a court motion to try to kill a lawsuit aimed at forcing the federal government to more quickly comply with open records requests for Clinton-era State Department documents.

Clinton’s shifting positions on the TPP have been a source of controversy during the campaign: She repeatedly promoted the deal as secretary of state but then in 2015 said, “I did not work on TPP,” even though some leaked State Department cables show that her agency was involved in diplomatic discussions about the pact. Under pressure from her Democratic primary opponent, Bernie Sanders, Clinton  announced in October that she now opposes the deal — and has disputed that she ever fully backed it in the first place.

While some TPP-related emails have been released by the State Department as part of other open records requests, IBT’s request was designed to provide a comprehensive view of how involved Clinton and her top aides were in shaping the trade agreement, and whether her agency had a hand in crafting any particular provisions in the pact. Unions, environmental organizations and consumer groups say the agreement will help corporations undermine domestic labor, conservation and other public interest laws.

If IBT’s open records request is fulfilled on the last day of November, as the State Department now estimates, it will have taken 489 days for the request to be fulfilled. According to Justice Department statistics, the average wait time for a State Department request is 111 days on a simple request — the longest of any federal agency the department’s report analyzed. Requests classified as complex by the State Department can take years.

Earlier this year, the State Department’s inspector general issued a report slamming the agency’s handling of open records requests for documents from the Office of the Secretary. Searches of emails “do not consistently meet statutory and regulatory requirements for completeness and rarely meet requirements for timeliness,” the inspector general concluded.

Last year, a Government Accountability Office report found that at the agencies it surveyed, there was not political interference in responding to open records requests. However, last month, a conservative group filed a lawsuit alleging that an Obama administration directive has deliberately slowed the response to open records requests that deal with politically sensitive material.

Nate Jones of the National Security Archive told IBT that whether or not the State Department’s move to delay the release of TPP-related correspondence is politically motivated, it reflects a systemic problem at the agency.

“In my opinion it is more incompetence than maliciousness, but either way, it is a gross error by FOIA processors to not get these documents out before the election,” said Jones, whose group helps journalists obtain government records. “Their inefficiency is doing great harm to the democratic process.”

 

How the Military is Defeating Hackers

Here’s how the US military is beating hackers at their own game

US Soldiers IraqStaff Sgt. Stacy L. Pearsall/USAF

TechInsiders: There’s an unseen world war that has been fought for years with no clear battle lines, few rules of engagement, and no end in sight.

But it’s not a shooting war; not a war where combatants have been killed or wounded — at least not yet.

It’s a war that pits nations against each other for dominance in cyberspace, and the United States, like other nations employing professional hackers as “cyber soldiers,” sees it as a battlefield just like any other.

“It’s like an operational domain: Sea, land, air, space, and cyber,” Charlie Stadtlander, chief spokesperson for US Army Cyber Command, told Tech Insider. “It’s a place where our presence exists. Cyber is a normal part of military operations and needs to be considered as such.”

As US military leaders warn of the growing progress of Russia, China, and North Korea in cyberspace, the Pentagon has ramped up its own efforts in what it calls the “cyber domain” after the release of a new cyber strategy in April 2015.

“This ephemeral space that’s all around us, literally, is a space where operations can be performed against us,” Frank Pound, a program manager who leads DARPA’s “Plan X” cyber warfare platform, told Tech Insider. “And how do we defend against that? How do we detect that?”

Building a cyber army

In its cyber strategy, the military proposed 133 teams for its “cyber mission force” by 2018, 27 of which were directed to support combat missions by “generating integrated cyberspace effects in support of … operations.” (Effects is a common military term used for artillery and aircraft targeting, and soldiers proclaim “good effect on target” to communicate a direct hit).

The cyber mission force will comprise some 4,300 personnel. But only about 1,600 of those would be on a “combat mission team” that would likely be considered to be taking an offensive hacking role. They are up against China’s own “specialized military network warfare forces,” North Korea’s secretive Bureau 121 hacker unit, other nation-states, hacktivists like Anonymous, and criminal enterprises alike.

They have been further tasked with breaking into the networks of adversaries like ISIS, disrupting communications channels, stopping improvised explosive devices from being triggered through cellphones, or even, as one Marine general put it, just “trying to get inside the enemy’s [head].”

Online hacks can lead to offline outcomes, and the military has become keenly aware of that power. In 2009, the US and Israel reportedly infected Iranian computers with the Stuxnet malware that destroyed roughly one-fifth of the country’s nuclear centrifuges. And as recently as February, hackers were used against ISIS as others fought on the ground, quite possibly for the first time ever.

“These are strikes that are conducted in the war zone using cyber essentially as a weapon of war,” Defense Secretary Ash Carter told NPR. “Just like we drop bombs, we’re dropping cyber bombs.”

As one Army officer said during a 2015 training exercise, the cyber war seems to just be getting started: “Future fights aren’t going to be guns and bullets. They’re going to be ones and zeroes.”

soldiers cyber commandBrian Rodan/US ArmySoldiers work together during a training exercise in 2011.

‘Prepping the battlefield’

That the Pentagon would employ specialists to defend itself in cyberspace is not surprising, since government and military systems are attacked regularly by nations trying to read soldier’s email, or others who want to uncover personal details on millions who undergo background checks for security clearances.

But the defense of networks — while still an important function — has been supplanted in some cases by an offensive strategy. That is, soldiers hacking into computers overseas for intelligence or to disrupt the enemy on the battlefield — a kind of digital tit-for-tat.

“If there’s something that you can do to prep the battlefield before a kinetic attack or to disrupt defenses during kinetic attacks, why wouldn’t a combatant commander turn to that?” Stadtlander said.

Stadtlander couldn’t talk about ongoing operations that Army Cyber Command is involved in, mainly due to the unique nature of cyber warfare. An enemy who knows the US is developing a next-generation fighter jet might develop something in response that could take years, but with a cyberattack, a fix can be developed sometimes within days.

“The unique thing about cyber activity and defense is you’re talking about building a couple thousand lines of code or having a certain electronic device, or some sort of cyber capability. And just based on the nature of this space, a lot of times it can only be used once,” he said. “Once it’s known … it’s no longer a viable tool.”

Still, some insight into what the US military is capable of can be found within its own training manuals, presentations, and the few news stories by the military’s own writers. And it’s likely that hackers with Army Cyber Command, subordinate to US Cyber Command and NSA, benefit from top secret initiatives to infect “millions” of computers with malware in an effort aimed at “owning the net.”

“Denying the ability to coordinate, communicate, and assess,” Stadtlander said. “That’s an advantage that we might be able to leverage.”

Inside the Army’s cyber warfare ‘Bible’

Perhaps one of the most important publications on cyber warfare was released with little fanfare in Feb. 2014. Known as Army Field Manual 3-38 Cyber Electromagnetic Activities, it proclaimed itself as the “first doctrinal field manual of its kind,” unifying a number of other publications on network operations, electronic warfare, and intelligence into one 96-page document.

In FM 3-38, the Army defined offensive cyberspace operations as actions “intended to project power by the application of force in or through cyberspace,” while noting they are to be carried out in support of command objectives and within legal frameworks.

But what can soldiers do in cyberspace that can affect what happens on the battlefield? Quite a bit, according to the manual.

us army cyber soldierUS Army

“A cyberspace attack may be employed in conjunction with” other methods of attack “to deceive, degrade, destroy, and disrupt a specific enemy integrated air defense system or enemy safe haven,” it says.

As an example, the manual offers an early warning radar site as a target which, if soldiers can get inside the network, could possibly be destroyed or degraded.

That’s just what students trained for during an exercise in March, according to the Fort Gordon Globe. Acting just as they would on the battlefield, cyber soldiers patrolled to their objective — a simulated enemy air defense control system — then searched for their target’s wireless network so it could be exploited or neutralized.

There’s little need for stealth coating on aircraft when a guy behind a computer can disable the radar site for you. The manual also offers other systems Army hackers may consider breaking into, such as enemy telephone networks, servers, and smartphones.

“Even if you think about the way that IEDs are triggered,” Stadtlander said, using the acronym for improvised explosive devices. “Or an adversary’s [intelligence, surveillance, and reconnaissance], a lot of these are done through electronics and with internet connections.”

Getting into the Army’s ‘hacker university’

Located just southwest of Augusta, Georgia is Fort Gordon, an Army installation that brings together most of the service’s cyber warriors under one roof. In 2013, the Army chose the site as the home base of its Cyber Command after the unit was established in 2010.

Also home to a 604,000 square foot operations center for the National Security Agency, Gordon is where cyber warriors are taught their craft at what the Army calls its Cyber Center of Excellence. But before they get to the military’s “hacker university,” enlisted soldiers need to score high technical scores on the military entrance exam, and sign on for five years of service, instead of the normal four-year tour.

army cyber commandUS ArmyInsider Fort Gordon’s Cyber Operations Center.

Due to the classified nature of their work, cyber training is often conducted in secure compartmented information facilities (SCIFs) where cell phones and other outside recording devices are not allowed, and all soldiers will have to obtain a Top Secret clearance prior to being assigned to their unit.

Soldiers go through a lengthy period of training after basic training: Six months spent at the Navy’s Center for Information Dominance in Pensacola, Florida followed by six months at Fort Gordon.

Army officers go through their own training program at the Georgia base, called Cyber Basic Officer Leader Course. The course takes nearly nine months to complete and is the longest officer training program in the Army.

Enlisted soldiers train with members of all military branches over six months at the Navy’s Cyber Analysis Course, according to Bloomberg. Since students can come from a variety of skill sets and backgrounds, the first two-thirds of classroom time focuses on basic programming, mathematics, and how networks and operating systems function. But later on they learn the steps to research and infiltrate targets, defend networks, and even hack a simulated network with Metasploit, a common tool hackers have used since its release in 2004.

Meanwhile, officers receive similar training, though their position merits other coursework in leading operations as opposed to carrying them out. Though a cyber officer can likely step in and be more than capable, given the certifications they obtain, to include Cisco’s Certified Network Associate (CCNA) and the independent Certified Information Systems Security Professional (CISSP) credential.

“They are really valuably trained after that [schooling],” Stadtlander said.

So valuable in fact that the Army is seeing a challenge in retaining its talent from heavyweights in Silicon Valley.

Is hacking considered an ‘act of war’?

Chinese Army Hackersvia Flickr

“There is no international standing or framework that is binding over any one nation-state in terms of offensive cyber operations,” Bradley P. Moss, a national security lawyer, told Tech Insider. “It’s whatever rules we put in place for ourselves.”

In essence, the US, China, Russia, and others are operating in a sort-of “digital Wild West” with few overarching guidelines outside of the Law of War that predates our interconnected world.

Cyber warfare continues unabated because there is no governing body such as the United Nations telling nations not to hack one another. Not that that would necessarily make a difference, as a 2014 UN report criticized mass surveillance programs employed by NSA and others as violating privacy rights “guaranteed by multiple treaties and conventions,” The Intercept reported.

Still, Moss explained that nations are less concerned with the legalities of hacking each other, and instead, worry about the potential diplomatic and political fallout should they be exposed.

“More or less, we all engage in some manner of warfare these days, we just don’t go to ‘war’ over it,” Moss said.

How foreign nations would likely respond to being hacked by the US is something that is considered before any offensive operation, according to a top secret presidential policy directive leaked by ex-NSA contractor Edward Snowden.

The document, made public in 2013, listed cyber attacks resulting in “loss of life, significant responsive actions against the United States, significant damage to property, serious adverse US foreign policy consequences, or serious economic impact” as requiring presidential approval.

And for US military hackers who may be on a battlefield in Iraq, Syria, or elsewhere, their self-imposed rules for cyber attacks are clear:

“Military attacks will be directed only at military targets,” reads the Pentagon’s cyberspace operations document.

us army cyber commandUS Army

But what of cyber attacks that have potentially devastating effects on foreign nations, such as US-made worms that cause nuclear centrifuges to fall apart, or alleged Russian-made malware that knocks out power and heat to people in the dead of winter?

Are these “acts of war”?

“From a strictly legal matter, you could designate the US Army hacking the Russian Army’s [computer] system as an act of war,” Moss said. “Just as much as if we were to have infiltrated and damaged a Russian bomber, that would be an act of war.”

But, he added: “There’s nothing that necessarily stops us, except the political and diplomatic ramifications.”

Ballistic Missile Subs VS. China?

Chairman Meets USS Alaska Sub Crew During Kings Bay Visit

NAVAL SUBMARINE BASE KINGS BAY, Ga., May 20, 2016 — “I hope we don’t ever need them, but if we do, these guys are ready,” the chairman of the Joint Chiefs of Staff said after meeting with sailors from the Ohio-class ballistic missile submarine USS Alaska here today.

Marine Corps Gen. Joe Dunford said he was impressed by the sailors and Marines he met at the base on the Florida-Georgia border. The Senior Enlisted Advisor to the Chairman of the Joint Chiefs of Staff, Army Command Sgt. Maj. John W. Troxell, accompanied the chairman during his visit.

Dunford said he wanted to “further his education” about the strategic nuclear triad. The USS Alaska is a nuclear powered ballistic missile submarine that carries 24 Trident D-5 nuclear-tipped missiles. It is, as one sailor said, “floating deterrence.”

 

A crew of 155 live in and around the various bits of machinery and weapons aboard the Alaska, which in Navy parlance is called a boat, like other submarines. It is a big boat, measuring 560 feet long and 42 feet wide. Blue and Gold crews take turns manning the boat to optimize the time it is on patrol. It is one of six ballistic missile submarines and two guided-missile submarines based at Kings Bay as part of Submarine Group 10.

   

Trident Training Facility

Dunford met with officers and enlisted personnel, and visited the Trident submarine training facility here. This is a 500,000-square-foot facility, where sailors can train up even as the submarine is being sailed by another crew.

The training facility — one of the largest buildings in Georgia — allows sailors to simulate the jobs they would perform on the boat. This includes everything from patching leaks and fighting fires to rehearsing the launching procedure for Trident missiles and loading and firing torpedoes.

Dunford boarded the Alaska, which was floating inside a huge building the sailors call “the barn.” Security was extremely tight, as it should be when nuclear weapons are in the mix. The general observed sailors conducting a drill aboard the boat and then toured it.

Future Visits

The chairman will visit bases housing the other two legs of the strategic nuclear triad — strategic bombers and intercontinental ballistic missiles — in the coming months. He has already visited U.S. Strategic Command at Offutt Air Force Base, Nebraska, and the Joint Interagency Space Center in Colorado Springs, Colorado.

***** What is going on and why is this news?

China’s Nuclear Subs Are Ready to Terrorize the Sea

Beijing will soon be able to launch nuclear missiles from the sea. And that’s going to make it harder to deter any future Chinese aggression.

DailyBeast: China’s about to join an exclusive club for nuclear powers. After decades of development, 2016 could be the year the Chinese navy finally sends its ballistic-missile submarines—“SSBN” is the Pentagon’s designation—to sea for the first time for operational patrols with live, nuclear-tipped rockets.

If indeed the Jin-class subs head to sea this year, China will achieve a level of nuclear strike capability that, at present, just two countries—the United States and Russia—can match or exceed.

“China will probably conduct its first SSBN nuclear deterrence patrol sometime in 2016,” the Pentagon warned in the latest edition of its annual report on the Chinese military, published in mid-May (PDF). Once the Jins set sail, Beijing will command a nuclear “triad” composed of ground-, air-, and sea-launched nuclear weapons.

 

That’s a big deal, according to the dominant theory of nuclear warfare. “The theory is that a diverse array of delivery systems creates survivability by complicating a first strike,” Jeffrey Lewis, an expert on nuclear geopolitics with the James Martin Center for Nonproliferation Studies, told The Daily Beast.

In other words, if a country possesses all three kinds of nukes, it’s harder for an enemy to wipe them all out in a surprise attack. And if you can’t destroy your enemy’s entire atomic arsenal, he can nuke you back—so you’d better not attack at all.

The word for that is “deterrence.” And China could be on the verge of gaining a deterrence capability that most countries simply can’t afford. China reportedly possesses several hundred atomic warheads, but no one outside of the Chinese Communist Party leadership and, perhaps, top foreign intelligence agencies, knows the exact number.

Regardless, that’s far fewer than the roughly 7,000 warheads that the U.S. and Russia each possess but more than any of the world’s other nuclear powers, with the possible exception of France. And compared to Beijing only Moscow and Washington boast a wider range of launchers for their nukes.

The Chinese military’s rocket branch maintains around a hundred long-range rockets in land-based silos. The Chinese air force’s H-6 bombers first dropped atomic bombs back in the 1970s—and modern versions of the bombers can fire cruise missiles that are compatible with nuclear warheads. When the Jins are finally war-ready, they will complete Beijing’s land-air-sea atomic triad.

To be fair, the Chinese vessels are, in a sense, playing catch-up. The Soviet Union and the United States deployed the first nuclear ballistic-missile submarines at the height of the Cold War in the 1960s—and France and the United Kingdom soon followed suit. Today the U.S. Navy’s 14 Ohio-class missile subs take turns quietly sailing deep in the Pacific and Atlantic Oceans, ready to fire their 24 nuclear-tipped rockets on a moment’s notice.

Russia, France, and the U.K. still operate SSBNs, and India is developing one of its own. The Chinese navy began tinkering with missile subs in 1981. The experimental Xia-class vessel and its JL-1 rocket were technological failures and never sailed on an operational mission.

Since 2007, the Chinese navy has completed four of the follow-on Jin-class subs and is reportedly planning on building four more. More than 400 feet long, a Jin can carry as many as a dozen JL-2 rockets, each with a range of 4,500 miles. A Jin sailing in the central Pacific Ocean could strike targets anywhere in the United States.

If the Jins finally deploy this year, a whopping 35 years will have passed since China first tried to develop a functional SSBN. But developing a missile sub is hard.

Expensive, too. China has not disclosed the cost of the Jins, but consider that the U.S. Navy plans to spend $97 billion replacing its 14 Ohios with a dozen new submarines. Missile subs are big and complex—and their rockets are, too. Training reliable crews and designing an effective command-and-control system are equally difficult to do. Chinese subs have been plagued with quality-control problems.

“While it is clear that the [Chinese navy] is making strides towards correcting these issues, the capabilities of China’s nuclear-powered submarine fleet remain in a process of maturity,” the Nuclear Threat Initiative, a Washington, D.C.-based advocacy group, explains on its website.

To Beijing, achieving a nuclear triad is apparently worth the labor and expense. But Lewis cautions against reading the development of the Chinese atomic triad as the result of some sort of clear, top-down policy.

Officials in the U.S. and Russia take for granted the wisdom of a nuclear triad. But in fact, the triads in both of those countries developed as a result of rivalries within their respective militaries. During the early Cold War, the U.S. Navy lobbied lawmakers and the president for missile submarines in part to wrest from the U.S. Air Force some of the funding and prestige that came with being America’s main nuclear strike force.

The same internal conflict could be behind the Jins’ development. And whether China’s missile subs set sail for the first time this year could depend as much on politics as on technology and training. “There are a lot of rivalries and intrigues playing out that might result in a triad—or not,” Lewis said.

 

‘Unsafe’ intercept over South China Sea

Pentagon: ‘Unsafe’ intercept over South China Sea

 

Washington (CNN)At least two Chinese J-11 tactical aircraft carried out an “unsafe” intercept of a United States EP-3 reconnaissance aircraft that was conducting a routine mission in international airspace over the South China Sea, a U.S. defense official told CNN Wednesday.

The Chinese jets came within 50 feet of the American aircraft at one point, the official said.
The incident took place on Tuesday.
 
“We have made progress reducing risk between our operational forces and those of the People’s Republic of China by improved dialogue at multiple levels under the bilateral Confidence Building Measures and the Military Maritime Consultative Agreement,” Capt. Jeff Davis, a Pentagon spokesman, said.
“Over the past year, we have seen improvements in PRC actions, flying in a safe and professional manner,” he said. “We are addressing the issue through the appropriate diplomatic and military channels.”
A separate defense official told CNN this type of incident is not something the U.S. military frequently sees in that region with Chinese aircraft. Incidents with Russian aircraft in the Black Sea that have been well documented over the past year are much more common.
This is an incident that “definitely has people’s attention” at the Pentagon, the second official said.
“This is potentially part of a disturbing trend line as the Chinese try to push their military envelope into greater parts of the sea surrounding their mainland,” Sen. Chris Murphy, a Democrat who serves on the Senate Committee on Foreign Relations, told CNN’s Wolf Blitzer.
Murphy said that it is important that the U.S. does not overreact to these types of occurrences, which have recently involved Chinese and Russian militaries.
“What the Chinese and the Russians are trying to do is to provoke us into some kind of action that will feed into their domestic narratives, both in China and in Russia,” Murphy said.
****
What is China doing?
 

China’s Putting Anti-Stealth Radar in the South China Sea

Radar installed on an “artificial” island could detect the B-2, F-35, and F-22.

PopularMechanics: China appears to be building an anti-stealth radar system on an artificial island in the middle of the South China Sea, where a military-grade system would be useful in detecting stealth aircraft in the contentious and contested area.

Satellite imagery obtained by the Center for Strategic and International Studies’ Asian Maritime Transparency Initiative and DigitalGlobe (which provided the images above and below) shows the Cuateron Reef recently enlarged by dredging and now measuring about 52 acres. Beijing didn’t stop there. The imagery also shows that China has built or is building two radar towers, a lighthouse, a communications tower, bunker, and quay for the docking of supply ships. The most interesting development is a large field covered with evenly spaced 20 meter poles. This is the kind of thing you’d need for over-the-horizon high-frequency radar systems, which can detect objects at up to 3,000 kilometers (1,864 miles), including stealth aircraft.

While HF radars can spot stealth planes, they cannot guide missiles to targets—for now. Even so, the radars are useful in providing an early warning network, cueing Chinese fighter planes such as the J-11—also based on an artificial island in the South China Sea—to the probable location of stealth aircraft.

The position of the radar would be ideal for detecting American and allied aircraft operating from bases in the Philippines. The Philippines, embroiled in a dispute with China over the Scarborough and Second Thomas shoals—has made its air and naval facilities available to the United States.

In recent years, China has laid claim to 90 percent of the South China Sea. While many countries claim part of the South China Sea, none have claimed—and seized—as much as China. To support its claim, China has taken several shoals and reefs and expanded them dramatically with sand dredged from the sea floor. China believes (or at least claims) that this bit of terraforming amounts to a legal transformation of these shoals from nuisance navigational hazards to full sovereign territory, complete with a12-mile territorial boundary and a 200 mile exclusive right to economic development.

The radar site, first noticed in 2015, became particularly newsworthy after last week’s announcement that China had deployed HQ-9 long-range surface-to-air missiles on another artificial island in the South China Sea. Although the two systems are too far apart to support one another, together they do support the argument that China is fortifying the South China Sea.

Cheat Sheet on the Defense Authorization Bill

Guantanamo Bay:

Since Congress specifically provided the president with the authority to acquire the U.S. Naval Station at Guantanamo Bay, Chairman Royce’s legislation asserts Congress should have to approve any decision to give it away, which certainly shouldn’t happen with this communist and hostile Cuban government.

As Chairman Royce has said, “the U.S. Naval Station at Guantanamo Bay is critical to our national security and humanitarian operations that have saved countless lives.  We must protect against executive overreach during this administration, and the next, and the next.”

****

DefenseNews/WASHINGTON — Responding to fears the US military’s technological superiority is at risk, the Senate Armed Services Committee advanced an annual defense policy bill that would open competition to commercial industry, seen as a spur to innovation and cost-efficiency.

The marquee change, if the SASC’s version of the 2017 National Defense Authorization Act passes Congress and is signed by the president, is the proposed closure of the Pentagon’s chief weapons buyer’s office and reassignment of its duties to two new defense undersecretaries for innovation and acquisitions management. It also contains far-reaching language to curb a major concern of SASC Chairman John McCain: cost-plus contracts.

In February, McCain made headlines when he vowed not to authorize the Air Force’s Long Range Strike-Bomber so long as it was procured using a cost-plus contract. The SASC bill does not check that box, but it promises a broader impact, to discourage cost-plus contracts, where a contractor is paid for all of its allowed expenses to a set limit, plus additional payment to allow for a profit.

In a background briefing on Monday, a senior committee aide — who likened DoD’s dependence on cost-plus to a drug addiction — said the venerable contracting vehicle has its uses, but too often fuels cost overruns and is out of step with the way commercial firms in Silicon Valley and elsewhere do business. Fixed-price contracts, on the other hand, give firms an incentive to work as efficiently as possible to maximize their profits.

“All of this reform is because the Cold War has ended, and post-Cold War, American technological military dominance is over, and not only can our adversaries see that they can replicate what we can do with the traditional defense marketplace, they are seeing there is a lot of technology in the commercial marketplace,” said the aide. “If they can access that quicker than we can access that and derive defense products from that new base, they can potentially leap ahead of us.”

The bill, which the SASC voted to advance to the full Senate last week, contained 130 acquisition reform provisions — a continuation of the committee’s work last year. Some language aimed at curbing bid protests would mean any large firms that lose a protest they file would have to pay a penalty, while other provisions would curb barriers to entry for so-called non-traditional firms.

Complex, DoD-unique cost-accounting standards geared toward the minutiae of cost-plus contracts have not only created a barrier for commercial firms but an auditing backlog within DoD that is preventing 30- and 40-year-old contracts from being closed, the Senate aide said.

To address this, the bill would set up a new accounting standards board aimed at pro-competition changes.

“We’re looking to move more and more companies away from that [accounting standard], and make sure the way accounting looks in the department is more and more commercial-like, so companies aren’t creating new accounting systems just to deal with the Department of Defense,” the aide said.

For a company like SpaceX, which is developing its own rocket engine, assessing a reasonable price is a tricky proposition, the Senate aide said. For DoD, which uses cost-plus contracting, it’s the agreed-upon cost of production plus a reasonable profit, while for a commercial firm, it’s about what the market will bear.

“In the fixed-price world, your profit margin is about how well you execute,” the aide said. “A government contractor is more like a utility, and the argument is who’s more innovative, someone with a high margin or a public utility?”

A four-year pilot program established by the bill would exact fees to fund advanced prototypes purchased through fixed-price contracts. The penalties would amount to, for a cost-plus technology development contract, an additional 1 percent of DoD’s year-to-year obligation, and on a procurement contract, 2 percent. This requirement would begin in 2018.

Among other measures, the bill would establish a phased-in, internal approval process for cost-plus contracts, which by 2020 would apply to any cost-plus contract over $5 million.

Ultimately, the Defense Department will not be kept from using cost-plus contracts where needed, particularly for defense-unique platforms like, say, a nuclear submarine. However, the aide stopped short of saying the proposed bill, if enacted, would have precluded the current acquisition strategy for the bomber. Instead, the bill reinforces the signal that arrangements of this type will face new scrutiny.

“We would hope the department would look at that in a different manner,” the aide said. “Ultimately it will be discretionary. We don’t want to impinge on the [defense] secretary.”

Bid Protests

Acknowledging the value of the bid protest process as a policing function for defense acquisitions, the aide said it also creates a risk-averse culture among acquisitions officials that is stymying innovation. Hence the proposed “loser pays” provision.

That language would apply to a protest-losing company with more than $100 million in annual revenue, or an incumbent firm that protests the loss of a contract, keeps the business via a bridge contract and then loses. The penalty would equal the Government Accountability Office’s cost to process the protest.

What’s driving the language, the Senate aide said, is that Wall Street analysts have begun to tout protests as being part of the fiduciary responsibility of a losing firm. Members of the committee fear that this thinking, unchecked, will fuel a boom in protests.

Another concern was that the risk aversion among contracting officers was leading to contract awards for lowest-price, technically acceptable, offerings over offerings that were neither the most innovative or the best value for the government.

 

Table 1. FY2017 National Defense Authorization Act (H.R. 4909)

amounts in millions of dollars of discretionary budget authority

Bill Title Budget Request HASC reported bill (H.R. 4909) Senate committee- reported bill Conference Report
National Defense Base Budget
Procurement 101,971.6 103,062.3
Research and Development 71,391.8 71,629.8
Operation and Maintenance 171,318.5 169,325.3
Military Personnel 135,269.2 134,849.8
Defense Health Program and Other Authorizations 36,557.0 37,025.6
Military Construction/Family Housing 7,444.1 7,694.0
Subtotal: DOD Base Budget 523,952.1 523,586.9
Atomic Energy Defense Activities 19,240.5 19,512.1
Other Defense-Related Agencies 211.0 300.0
TOTAL: National Defense Budget Function (050) Base Budget 543,403.6 543,399.0
DOD OCO Budget 58,798.0 58,793.5
GRAND TOTAL: FY2017 NDAA 602,201.6 602,192.5