The Army is on the precipice of a fundamental shift. Modernization will displace readiness as the Army’s top priority in 2022.1 To be clear, readiness will remain an important line of effort beyond 2022—much like how the renewed emphasis on readiness several years ago did not eliminate the Army’s focus on stability operations. Nonetheless, this scheduled reprioritization will be significant. Force modernization operates “at the intersection of technology and concepts.”2 What this means is that pivoting to modernization involves more than merely developing and procuring technologically mature systems. This effort will incorporate new operational concepts—such as multi-domain operations—and their associated changes to doctrine and organizational structures. It will combine these considerations with upgraded and/or new equipment and capabilities.3 Although the Army stood up Army Futures Command (AFC) in 2018 to spearhead the Army Modernization Strategy, the entire force will see and feel the changes to equipment and doctrine over the next decade. With such an all-encompassing push to modernize how the Army fights, is structured, and leverages emerging technology, judge advocates advising the modernization mission often find themselves at the intersection of several legal disciplines.
Not unlike the Judge Advocate General’s Corps’s emphasis on versatility, AFC has sought to obtain innovative solutions to Army requirements through multi-disciplinary approaches. The engine of AFC’s modernization efforts is the Cross-Functional Team (CFT), which is a case study in multi-disciplinary versatility. In 2017, the Army launched a pilot program of eight CFTs tasked with identifying, prioritizing, and developing capabilities the Army requires to achieve overmatch against its adversaries in the future fight.4 In order of priority, these eight CFTs are: (1) Long Range Precision Fires; (2) Next Generation Combat Vehicle; (3) Future Vertical Lift; (4) Assured Positioning, Navigation, and Timing; (5) Air and Missile Defense; (6) Network; (7) Soldier Lethality; and (8) Synthetic Training Environment. Once the CFTs develop requirements for the future fight (through experimentation and technical demonstrations where necessary), they are charged with rapidly transitioning each capability to the Army Acquisition System for materiel development, testing, and fielding to the force.5 The CFT pilot program was made permanent with the establishment of AFC in 2018.6
The enshrining of the CFTs within AFC, a new four-star Army Command, was revolutionary for two main reasons: (1) it broke down partitioned, stove-piped requirements development by bringing all key stakeholders together; and (2) it provided requirements developers with a multi-disciplinary team, led by a general officer or senior executive service civilian, dedicated to specific modernization efforts. Moreover, the establishment of AFC brought operational concept development (formerly a Training and Doctrine Command responsibility), capability development (formerly an Army Materiel Command responsibility), and overall modernization strategy under one command.
The CFT, by contrast, is a microcosm of the consolidated AFC structure due to its targeting a particular portfolio of modernization efforts at this intersection of technology and concepts. For example, the Next Generation Combat Vehicle CFT has a portfolio that includes such modernization efforts as the optionally-manned fighting vehicle, robotic combat vehicles, the armored multi-purpose vehicle, and mobile protected firepower (a light tank). To bring all subject matter experts together, the CFTs are manned with personnel from the Requirements, Acquisition, Science and Technology, Test and Evaluation, Resourcing, Contracting, Costing, and Logistician communities. In addition, the CFT includes representatives of the end user—senior noncommissioned officers who are technical experts in their respective fields (e.g., infantrymen, armor crewmen, and air and missile defense crewmembers). This conglomeration, charged with leveraging industry and academia in informing its modernization objectives, is not the capability developer of yesteryear.
With all of its various subject matter experts under one roof, the CFT requires innovative legal support. One CFT visit with a defense contractor could raise a myriad of issues. For instance, observing a demonstration of a prototype that uses machine learning in its targeting algorithm may give rise to no less than seven independent legal issues across the spectrum of legal practice, including:
- Ethical considerations of engaging with one defense contractor for a demonstration;
- Contract law implications such engagement may have on any pending or planned procurement;
- Law of Armed Conflict considerations in the technology’s use of artificial intelligence and machine learning to inform a commander’s application of lethal force;
- Acquisition considerations, such as whether the maturity of the technology is sufficient to warrant use of Middle Tier Acquisition Authority or otherwise enter the Major Capability Acquisition pathway at a particular milestone;7
- Fiscal considerations, such as which budget activity of Research, Development, Test & Evaluation funds may be necessary to further develop or integrate the technology;
- The status of the intellectual property applicable to the prototype and the ensuing potential for “vendor lock;” and
- Review of the inevitable gift that Army leaders will receive for attending the demonstration.
These routine legal problem sets vary in complexity; but, the multi-disciplinary nature of modernization legal advice is ever-present.
How the CFTs connect with industry and academia is also unconventional. The CFTs develop emerging requirements through both traditional and non-traditional processes. These approaches include engagements and demonstrations from both large and small businesses, partnerships with academia—such as the Artificial Intelligence Task Force’s arrangement with Carnegie Mellon University, and through non-traditional startup technology companies seeking seed capital through Army Applications Lab.
Much like the Army’s recent collaboration with Microsoft to develop the new Integrated Visual Augmentation System, force modernization in the high tech era looks different than it did in prior decades. This is due, at least in part, to the universal applicability of emerging technologies. For instance, if the Army is looking to create an unmanned ground combat vehicle, it may make sense to leverage traditional defense contractors for improved armor and munitions. But perhaps the autonomous navigation, or “self-driving,” component may be better fulfilled with modified software from a commercial company that has already invested significant time and research into the technology—such as Tesla, Apple, Google, or Uber. It is for this reason that the CFTs (and AFC more generally) must engage with industry, academia, and startups, all while pursuing unconventional ways of conducting market research and experimentation. Yet throughout these unconventional touchpoints, AFC and the CFTs ensure regular Soldier inputs to development, modeling, and simulation by partnering with Army Forces Command and its various subordinate brigade combat teams.
This innovative approach to research and development raises novel legal issues, which are further compounded with various arms control treaties and regulations if any such technology originates from outside the United States. Despite these complexities, Army modernization efforts possess sufficient flexibility within existing laws and regulations to succeed, whether procuring and developing technology domestically or from foreign sources. Army Futures Command’s fresh approach and its challenging of conventional methods, however, will inherently raise unique issues that require adaptable legal advisors. Whether advising Army modernization efforts directly as a legal advisor for AFC, or indirectly as a judge advocate at a brigade or division fielding invitations from industry to provide a technology demonstration, the pivot to modernization will impact the entire Army. What force modernization requires of its legal support over the next decade, therefore, is wide-ranging advice that rethinks how we approach traditional problem sets. The future depends on it. TAL
1. U.S. Dep’t of Army, Strat., The Army Strategy 4 (25 Oct. 2018), https://www.army.mil/e2/downloads/rv7/the_army_strategy_2018.pdf.
2. Email from Commanding General, Army Futures Command, to All Army Futures Command Message, subject: Three Things (22 June 2020) (on file with author).
4. U.S. Dep’t of Army, Dir. 2017–24, Cross-Functional Team Pilot In Support of Materiel Development 1 (6 Oct. 2017).
6. Headquarters, U.S. Dep’t of Army, Gen. Order No. 2018–10 (4 June 2018).
7. U.S. Dep’t of Def., Instr. 5000.02, Operation of the Adaptive Acquisition Framework fig. 1 (23 Jan. 2020).