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The Army Lawyer


Back to the Future


Transforming the Rule of Law to Compete

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On 19 September 2018, Lieutenant General (LTG) Eric J. Wesley—dual hatted as the Deputy Commanding General, Army Futures Command (AFC), and the Director, Army Capabilities Integration Center (ARCIC), U.S. Army Training and Doctrine Command—briefed LTG Charles N. Pede and his senior leaders on building the future Army.1 Lieutenant General Wesley’s message was clear—the paradigms of war are rapidly changing, now our Army must too.

The Thucydides Trap2

In ancient Greece, during the late fourth century BCE, the rise of Athens threatened Sparta, the dominant super power of its time. War resulted, devastating both city-states.3 Lieutenant General Wesley offered this historical backdrop to contextualize today’s geopolitical landscape, warning that history does in fact repeat itself.

Lieutenant General Wesley opened his brief with a grim picture of the future of America, arguing that traditional U.S. dominance is fleeting. He acknowledged China’s ambition to be the preeminent worldwide super power by 2049 as a large and looming threat, but focused on Russia’s global aspirations since the Department of Defense has directed the U.S. Army to assess the threat Russia represents to the U.S. and its allies. In Russia, LTG Wesley sees a nation that has learned from its combat failures in its botched 2008 invasion of Georgia, a nation that now embraces the benefits of operating “to the left of conflict.”4 Within this theoretical sphere, Russia has successfully disrupted the effectiveness of its near-peers, both individually and as blocs, by employing drivers of instability aimed at their general populations. Examples of Russian interference include “little green men”5 securing land in Crimea and Ukraine for Russia without Russia officially firing a single shot; voter interference in the Europe, in Catalonia, and in the U.S.; and infiltration of U.S. service member social media accounts in order to mine data as well as propagate divisive and often misleading information. It is this middle ground, this competition space, between peace and conflict where Russia is thriving, and we are absent.

“Americans operate in a cognitive paradigm. Our adversaries do not.”

Russia understands they cannot defeat American forces in close combat. They can, however, achieve their revanchist agenda, perhaps more effectively, using nonmilitary means.6 As such, they have doctrinally shifted focus to counter our combat prowess with two prongs: 1) creating standoff7; and 2) shifting their attack from traditional conflict to political subversion, deception, electronic warfare, and proxy forces.8

The Russian employment of these methods to compete for global power often comes close to, but does not cross, thresholds triggering a declaration of war or other decisive determination by its opponents. The U.S., on the other hand, culturally craves, and by law often requires, a triggering activity to act. This doctrinal gap allows Russia to compete around the clock, but stifles us from keeping pace. In order to confront adversaries in this new competition space, the U.S. must redefine cultural paradigms—shifting away from the binary conceptualization of war and peace. However, recasting our cultural definition of conflict from an abnormality into a holistic concept of enduring competition will not be easy. Further, revising our laws and regulations to reflect that change will prove even more difficult.9

“We have been here before.”

Russia has firmly entrenched itself into our organizations, systems, and psyche using nonmilitary means. The U.S., however, does not possess the agility to respond.10 Developing laws, doctrine, and organizations to compete during these interwar years will be paramount. Although this threat is new, the conception and successful execution of large-scale reorganization within the U.S. Army is not.

There are blueprints to successfully implement sweeping doctrinal modernization within our Army’s history. In 1973, General Creighton W. Abrams, Jr., Chief of Staff of the Army, assigned Major General Donn A. Starry to analyze lessons learned from the Yom Kippur War. The Starry report resulted in major overhauls to doctrine and training that changed the Army in significant ways.11 Again in 1982, doctrinal concepts were turned on their head with the development of AirLand Battle. Now, ARCIC will assist the newly minted AFC in the development of its regulatory framework so that the Army can effectively face today’s threat.

In its current form, our rule of law—the law and polices established in order to maintain rule—constrains U.S. military intervention against Russia. It must be modernized in order to authorize military intervention prior to what we currently consider acceptable triggers for conflict. Powering down to lower-level commanders so that they can immediately deter nefarious activity will be key in a world where response time to constant threats is limited. The U.S. can no longer wait for antiquatedthresholds; it should be competing right now. TAL


MAJ Chard is an associate professor in the Contracts and Fiscal Law Department at TJAGCLS.


1. This article captures some of LTG Wesley’s comments as a presenter for the 2018 Worldwide Continuing Legal Education Conference at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

2. Graham Allison, Destined For War Can America And China Escape Thucydides’s Trap? (New York: Houghton Mifflin Harcourt Pub Co., 2017).

3. “When a rising power threatens to displace a ruling power … danger ahead.” Id. at vi.

4. LTG Wesley anticipates doctrinal changes in multi-domain operations where “competition space prior to conflict,” and “conflict” replace phasing of operations.

5. Mark Galeotti, “Hybrid War” and “Little Green Men”: How It Works, and How It Doesn’t, in Ukraine and Russia: People, Politics, Propaganda and Perspectives 156–164 (Agnieszka Pikulicka-Wilczewska & Richard Sakwa, eds., 2015).

6. Valery Gerasimov, The Value of Science Is in the Foresight: New Challenges Demand Rethinking the Forms and Methods of Carrying out Combat Operations, Mil. Rev., Jan. 2016, Vol. 96, No. 1. (Robert Coalson trans., Prague: Radio Free Europe/Radio Liberty, 2016) (2013).

7. Standoff hampers the U.S. force’s ability to stage for combat. It consists of four tiers, as follows: 1) propagate information and social media that disrupts opponents internally, and confuses and disorganizes target populations; 2) anti-access area denial; 3) long-range precision fires; and 4) hybrid warfare.

8. “Russia’s overall aim in competition is to disorganize and confuse their opponents while making it increasingly difficult for us to make decisions, coalesce a coalition, and develop policy decisions that can be executed.” Lieutenant General Eric J. Wesley, Deputy Commanding General of Futures Command, Remarks at the 2018 Worldwide Continuing Legal Education Course at The Judge Advocate General’s Legal Center and School (Sep. 19, 2018).

9. “Title 10 speaks to duties, responsibilities and functions of the U.S. Armed Forces to sustain readiness in peacetime. We are a break glass in case of war institution, culturally. The bottom line is the Constitution reinforces a legacy notion reflecting our binary conception of war in which we are either at war or not.” Id.

10. “The mid-February indictment of these 12 Russians illustrated enormous stakes … they’re embedded in our knickers, and we are reconciling it in a courtroom.” Id.

11. “The Starry report assessed what our peers can do for us. This drove us to build a concept, and battlefield development plan that ultimately transformed the Army in a fundamental way and resulted in the institution every one of us have grown up in … across the DOTMLPF and a fundamental rebuild of our organization.” Id.