Concerned about how the U.S. transfers arms, defense services (and much more)? Read on!

How does the U.S. ensure that the weapons and defense services it provides allies and partners will be used in a way consistent with U.S. and international law, not to mention America’s values?   Moreover, what is the U.S. Department of Defense doing to enhance the rule of law through its activities with militaries around the globe?  What about efforts to mitigate the civilian harm our weapons can cause?

You won’t find many answers in the traditional media, so we invited LTG Charles “Hoop” Hooper, the Director of the Defense Security Cooperation Agency (DSCA), to our 25th Annual National Security Law Conference.  As the keynote speaker for last Saturday’s session, LTG Hooper spoke about these issues, and we want to share his remarks with our Lawfire^,® readers.

A little background first. Formally, DSCA’s mission is to “advance U.S. national security and foreign policy interests by building the capacity of foreign security forces to respond to shared challenges.”  But in real terms, what does that mean?

It is true that DSCA enabled $55 billion in sales of defense articles and services in Fiscal Year 2019 but, as LTG Hooper told us, it’s a mistake to think DSCA is only about weapons as his organization is very much in the business of “institutional capacity building, international education and training programs, and humanitarian assistance and disaster relief efforts.” 

One of those training programs that LTG Hooper discusses is the Defense Institute for International Legal Studies (DIILS).  While I was on active duty I did a number of DIILS training missions to a variety of places including South Africa, Iraq, Colombia and Uruguay, and I can attest to their value.  My bet is that a good chunk of the public doesn’t have any idea that legal education is part of what the U.S. is doing in the defense cooperation realm. 

As LTG Hooper will explain more below, law plays a major role in his agency’s activities.  I very much appreciate that DSCA makes the point with allies and partners that, as LTG Hooper puts it, “like the law, civilian harm mitigation efforts do not detract from an effective military capability – they are an essential element of a military capability.”

A bit about LTG Hooper:  He has a truly awesome resume with degrees from West Point, Harvard, and the Army War College.  Before becoming a Foreign Area Officer he earned the Ranger Tab, the Expert Infantryman Badge, the Senior Parachutist Badge, and the Air Assault Badge.  Among his many assignments is service as the U.S. Defense Attaché to the Arab Republic of Egypt, and also to the People’s Republic of China.  Oh, yeah, he speaks fluent Mandarin – something he demonstrated to us in a good-humored way at the Conference!

Note all photos and illustrations are my “adds” and were not part of LTG Hooper’s presentation.  Guest posts do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Duke Law School National Security Law Conference

DSCA Director LTG Charles Hooper Keynote Remarks (As Prepared)

Saturday, February 29, 2020, 0800-0830 

Introduction

Good morning, everyone, it is a real pleasure to be here. It is not lost on me that it is early in a Saturday morning, and we are all up and dressed at Duke University and NOT watching a basketball game.  I know that I better be good!  

I would like to thank Major General Dunlap for that kind introduction and for the invitation to address such a distinguished group here at the LENS conference. I am truly humbled by the opportunity to speak to you—our national security legal scholars and practitioners—about Security Cooperation and how our efforts are shaped and informed by the concept of the rule of law.

Whenever I visit a college campus, I get a bit nostalgic for my time as a cadet at the United States Military Academy.

And, since we are in the midst of college basketball season, my thoughts naturally turned to another young man who was just starting his career as the head coach of our team at West Point when I arrived in 1975. Maybe you’ve heard of the guy – he’s put a few banners up in the rafters over there at Cameron Indoor Stadium. Little did I know that the the young coach shouting at the basketball team while my track teammates and I did intervals would become one of the world’s most famous basketball coaches. 

When we think of Coach K, we think of a leader. In fact, he has said he doesn’t look at himself as a basketball coach, he looks at himself as a leader who happens to coach basketball. Throughout my career, whether serving at an Embassy overseas, commanding a battalion, or working at the Pentagon, I have tried to live by this same ethos. Leadership comes first.

But, of all my assignments, the leadership role I have enjoyed most, and the one I have found the most rewarding, is the job I have right now – Director of the Defense Security Cooperation Agency. I would like to use my time today to tell you a bit about why that is, why Security Cooperation is so vital to our national interests, and how U.S. laws and norms continue to be the guideposts for our alliances and partnerships.    

Why Security Cooperation, And Why Now? 

Serving as DSCA’s Director is, in many ways, the culmination of my career, and I am privileged to be the Agency’s leader at a time when Security Cooperation has been elevated to a tool of first resort in achieving U.S. national security and defense objectives.

I like to joke that DSCA is the agency that does more but is known by fewer people than anywhere else in Washington. And, while it is true that we have not historically been on the radar screen; in the last few years, things have changed.  

This is a transformational time for Security Cooperation. Strategic guidance from the White House, the Pentagon, and the U.S. Congress is aligned in a way I have never seen in my more than 30 years in this business. As just one example, the Number 2 Line of Effort in the U.S. National Defense Strategy is “strengthening alliances and attracting new partners.” In a matter of only a few years, the DSCA Director went from flying a middle seat in coach, to flying with the Secretary of Defense.

Of course, many people view Security Cooperation as primarily an arms transfer business. And, certainly, executing the Foreign Military Sales program under the authority of the U.S. Department of State is a large part of what we do. I’m sure you have seen recent headlines about these programs – articles about big, expensive, supersonic, shiny objects sell newspapers.

However, Security Cooperation is much more than “pushing tin” as we sometimes say.  It includes institutional capacity building, international education and training programs, and humanitarian assistance and disaster relief efforts. The United States is not just looking to help partners modernize equipment, we are also helping them develop effective government processes, encouraging civilian control of the military, training and educating all levels of leadership, and building a full spectrum capability to help them reach their—and our—strategic objectives.

In my capacity as the Director of DSCA, I lead a community of more than 20,000 people in executing Security Cooperation programs. The approach that I take in leading this community is rooted in four core values that underscore the importance of relationships.  I want to say that again.  The foundation of everything we do is based on VALUES! Those values are transparency, responsiveness, integrity, and commitment.

Transparency:  Everything about the sale of weapons by the United States is a matter of public record.  In fact, the entire step-by-step process is online.

Responsiveness: To not only foreign militaries, but foreign legislatures, financial specialists and auditors.

Integrity:  A corruption-free system where the books are always open for inspection and there are no payoffs or under the table deals; and finally,

Commitment:  To a long-term relationship beyond the point of sale where we share not only our weapons, but also our thoughts on law, good governance, and respect for human rights.

As Secretary of Defense Esper said recently: “Forged over decades of shared sacrifice, the United States’ network of alliances and partnerships provides us an asymmetric strategic edge our adversaries cannot match.” And, it is our values-based approach that forms the bedrock of our Security Cooperation network and distinguishes us from our competitors, ensuring that the U.S. will remain the partner of choice in this era of renewed Great Power Competition. 

A Uniquely American Approach 

Security Cooperation is certainly not new to international relations. From the first city states to the modern nation states, whenever and wherever people have organized to protect themselves and their territory they have sought strategic alliances and partnerships.

What is uniquely American, however, is the concept that by strengthening your allies and partners you are also strengthening your own security.

From our efforts to rebuild Western Europe and Japan after World War II, and helping to create the South Korean military from scratch, to our current Security Cooperation efforts that prioritize building the capacity of foreign security forces to respond to shared challenges, the American approach differs from all other world powers throughout history and from our strategic competitors.

Security Cooperation and the Rule of Law 

Now, let me be clear and honest. We certainly enjoy transactional benefits from each of our Security Cooperation partnerships. We reap significant military, economic, political, diplomatic, and policy benefit from our arms sales.  But, that is not enough for the United States; we have set a higher bar for ourselves and our allies and partners.  We are not perfect, but we are the only Great Power that cares about the values I mentioned earlier and it is that aspiration to the better angels of our nature that separates us from our great power competitors.

In keeping with these principles, we at DSCA  aim to provide our allies and partners with a “full-spectrum capability” informed by our fundamental belief in values and the rule of law as a “foundation of commonality” that allows alliances and partnerships to flourish.

I spend a significant amount of time on the road, traveling to international trade shows, bilateral engagements, and other meetings with our allies and partners around the world. I also meet with my foreign counterparts frequently in Washington.

They all have various issues they want to raise with me, but there is always a common thread in all of my meetings: partners want to buy from – and therefore align with – the United States.  Not only because we make the best equipment in the world, but also because they trust us; and they trust our processes.

They trust us, and our processes, because throughout our history we have proven that we have a system and an overarching principle of governance in which all persons, institutions, and entities are accountable to laws. As the UN has stated, this concept of the rule of law “is fundamental to international peace and security and political stability.”

From this vantage point, and considering what I said earlier about the uniquely American approach to Security Cooperation, it is imperative that through our Security Cooperation institutional capacity building efforts we emphasize our commitment to the rule of law.

I would like to highlight three areas that I consider prime examples of how we are using Security Cooperation activities to promote the rule of law around the world, thereby creating a network of like-minded allies and partners that ensure our collective global security:  

First, DSCA’s Defense Institute for International Legal Studies, or DIILS, which engages globally to strengthen partner nation legal capacity.

Second, DSCA’s End Use Monitoring regime, which ensures that weapons provided to allies and partners are used for their intended purpose and not contrary to U.S. laws and values.

And, finally, DSCA’s civilian harm mitigation efforts, which have recently expanded to include promotion of civilian protection in security assistance.

DIILS 

The Defense Institute of International Legal Studies, known as DIILS, is the lead Security Cooperation resource of the United States Government for professional legal engagement with the defense and security sector institutions of partner nations. Its primary mission is to strengthen institutional legal capacity of partner nations through activities that promote the rule of law, accountable defense and military institutions, civilian control of the military, democratic governance, and enhanced compliance with international humanitarian and human rights law.

DIILS, on average, engages with more than 50 countries annually across the globe through four programs: 

• Multi-year institutional capacity building projects;
• Resident courses at the DIILS campus in Newport, RI that provide advanced substantive legal training;
• Mobile education teams in partner nations to provide tactical level legal training; and
• Statutory mandated law of armed conflict and human rights seminars for partner nation units that will receive military equipment or training from the United States.

DIILS’ main effort focuses on institutional capacity building projects, while substantive classroom legal training complements and supplements on-the ground institutional level reforms in a partner nation Ministries of Defense. DIILS seeks to help partner nations enhance or develop institutional legal capacity to conduct military and security operations in compliance with domestic and international legal obligations.

The thrust of our approach is to demonstrate to our partners that the law is integral to developing an effective military capability.  Selling or giving a country equipment alone, or even teaching them to operate a weapon system, does not equate to a military capability. The partner also needs command and control, logistics, maintenance, intelligence, human resource development and fiscal management to truly develop a capability. 

We include the law as a critical element in this calculus. Our rationale is, once it is appropriately viewed as essential to developing military capability, we can begin to reinforce a conceptual understanding that the law is a force multiplier as opposed to a force constrainer, which in of itself provides a pragmatic incentives for compliance.

DIILS develops custom-tailored plans with partner nations that look toward ensuring that allied and partner defense and security sector institutions have:

• The laws and legal authorities needed to operate;
• The policies and processes to implement and monitor compliance;
• The organizational structure that facilitates strategic and professional oversight of legal implementation;
• The proper management and employment of legal resources such as attorneys to maximize the availability of legal advisors during combat operations; and
• The necessary foundations for sustaining legal knowledge through enduring legal professional development policy mandates.

As an example, DIILS has been engaged for the past several years with one of our Middle Eastern partners that came to realize it had an issue with employing a legal capability during the conduct of military operations. DIILS is helping them to develop legal authorities, legal organization management, force structure, legal resources management, and legal professional development policies. In addition to this, DIILS has complemented the institutional effort with substantive legal training to help combat commanders develop knowledge, awareness, and appreciation of the application of law to military operations.

End-Use Monitoring 

Developing the legal capacity of our allies and partners is important, but when you sell weapons it is important to have additional safeguards in place. As sales figures for U.S.-origin defense equipment continue to rise, so does the risk that this equipment will be used for purposes we did not originally intend and that may not be consistent with our values. We expect all recipients of U.S. origin equipment to abide by their end use obligations and not retransfer equipment without prior U.S. Government authorization, but many want to know how do we ensure our allies and partners meet this expectation?

The term “end-use monitoring” includes all activities designed to ensure partner nations and international organizations comply with requirements outlined in the Arms Export Control Act and the Foreign Assistance Act. These laws require assurances that defense articles and services are:

1) Used only for authorized purposes;

2) Are not transferred without U.S. Government consent; and

3) Receive substantially the same degree of security protection as the U.S. provides.  

Recipients of U.S.-origin defense articles MUST agree to make items available for end-use monitoring inspections for the life of the equipment and may not re-transfer equipment to a third party without first receiving U.S. authorization.

DoD’s Golden Sentry program monitors the end-use of defense articles transferred under the government-to-government Foreign Military Sales program and the Department of State monitors the end-use of commercially exported defense articles and services through the Blue Lantern program. 

DSCA has taken great steps to improve the execution and administration of the Golden Sentry Program. In addition to the scheduled periodic inspections we have always had, last year we instituted Focused Verification Checks that allow U.S. Government personnel to conduct no-notice “spot” inspections if there are concerns regarding the use, transfer, and physical security of U.S.-provided weapons.

End-use monitoring is an important program that minimizes security risks inherent with any transfer of U.S.-origin defense articles.  Minimizing these security risks protects the investments made by the U.S. taxpayer, as well as, once again, emphasizing the legal and values-based approach that the United States takes with respect to Security Cooperation. 

Civilian Harm Mitigation Efforts 

And, finally, let me say a few words about DSCA’s civilian harm mitigation efforts. The Administration’s 2018 Conventional Arms Transfer Policy states that, “With respect to arms transfers, it shall be the policy of the executive branch to … facilitate ally and partner efforts, through U.S. sales and Security Cooperation efforts, to reduce the risk of national or coalition operations causing civilian harm.”

DSCA is expanding its efforts to integrate civilian harm mitigation across the spectrum of its work, to include Foreign Military Sales and Security Cooperation programs. While political will is an essential component to ensuring a country’s military operations respect the rule of law, many of the other components that affect the risk of civilian harm are the same ones we focus on when assisting partners in building an operational capability.

As a mentioned earlier, you need command and control structure, logistics, and the law, but also, operational doctrine, rules of engagement, accurate targeting procedures and good intelligence.

Once again, our focus is on demonstrating to the partner that like the law, civilian harm mitigation efforts do not detract from an effective military capability – they are an essential element of a military capability. 

We have four main lines of effort, which are being led by DSCA’s Senior Advisor for Civilian Harm Mitigation, a new position for us that shows how seriously we are taking this issue. 

First, we are developing a curriculum that operationalizes the law and teaches best practices on topics ranging from civilian protection in conflict zones, use of weapons, tracking and assessing civilian casualties, and accountability mechanisms. What makes this unique is that it’s not just lawyers teaching the law, it’s also operational subject matter experts teaching what this means in practice based on their own combat experiences. DSCA has held four public sessions with NGOs and academia to incorporate their feedback into the curriculum.

Second, we are improving and expanding system specific targeting capabilities training, TTPs—or tactics, techniques, and procedures—and targeting infrastructure that can be provided to partners. Integrating targeting infrastructure and training, to include collateral damage estimation, as a default part of our total package approach ensures the employment of U.S. origin munitions in a manner that mitigates risk of civilian harm.

Third, DSCA is seeking to expand its engagement with partner nations on the protection of civilians through the provision of advisory materials. Recognizing that a one-size-fits-all approach is not sufficient, but that there are overlapping themes of concern across partner nations, DSCA is developing advisory materials that are tailored to the unique conditions each of our partners face.

Finally, in coordination with the State Department, we are developing and sharing a civilian harm risk framework to assess country capabilities and risk factors. This includes identifying partners’ capacity to prevent, investigate, and prosecute the use of military force in a manner consistent with international human rights law and international humanitarian law. When appropriate, the framework will help identify specific mitigating measures to address such risk, including potentially through the transfer of different, alternate, or supplemental capabilities.

And, all of this is not just talk, our efforts are already bearing fruit. We see evidence that many of our partners are beginning to see that use of military power in a manner consistent with international law and values is not a hindrance, and in fact can enhance not only their international stature, but their stature in their own country as well.

The bottom line is that we can and will win this great power competition and remain the global security cooperation partner of choice. We already have the best equipment, training, and education in the world, but what will guarantee our victory is leveraging those uniquely American qualities that place us apart from and above our competitors; transparency, integrity, commitment and respect for human rights, and, most importantly, the rule of law.

Closing and Advice for Students 

I have spoken for long enough now, but I hope I have conveyed how vital Security Cooperation is for U.S. national security, and how valuable a tool it can be for promoting our fundamental U.S. values such as the rule of law.

As I look out at all the students in the audience just embarking on their careers, let me provide just a few closing thoughts on the importance of public service from someone who is reaching the end of his tenure:

**Concentrate on WHO you want to be, not WHAT you want to be.

**Values matter, character matters, courtesy and respect matter; and finally,

**In this life you get one ticket and one ride; if you are not enjoying what you do, do something else! 

Thank you again to Charlie and the LENS team for the wonderful opportunity to speak with you all this morning. I would now be happy to take some of your questions.

We can’t share the questions and answers because that part of the presentation was under the “Chatham House Rule” which essentially means only the attendees get to hear.  If you want to make sure you don’t miss anything next year, please mark your calendar for 26-27 February 2021 and plan to come to the 26th Annual National Security Law Conference!