Op-ed | The legal mandate for a U.S. Space Force

Space

Mitchell is now considered the father of the U.S. Air Force, but the Air Force has forgotten the lessons of his experience when it comes to the new combat domain of space

This op-ed originally appeared in the Oct. 8, 2018 issue of SpaceNews magazine.

Since President Trump announced he would form the U.S. Space Force, there has been a lot of debate over the validity, possibility, and even sanity of his proposal. Existing military services deny the need while they persist in stultifying US space utilization to only providing services to existing fighting forces on the ground, in the air and on the seas, while ignoring the growing space industry and work by some, like SpaceX, intent on settling Mars.

I am reminded of the 1920s and 1930s, when U.S. air power was controlled entirely by the Navy and Army. Most of their air power was in the form of blimps, which they used as forward observers for artillery and for anti-submarine warfare. They had a couple old bombers left over from World War I, and a lot of wartime and postwar biplanes that served as “pursuit” planes (the previous term for fighter planes, as their primary job wasn’t to fight each other but to pursue balloons, blimps, and bombers to shoot them down.) Their typical airspeed ranged from 120 kilometers per hour up to as much as twice that, but not much more.

The Navy liked biplanes because they could easily be launched from short catapults mounted on battleships to act as forward observer scouts, ranging out hundreds of kilometers seeking enemy fleets, and they could take damage: losing part of one wing was not a big deal. The Army liked that biplanes were cheap, because, like the Navy, they saw little use for airplanes other than as weapons against other airborne vehicles and, therefore, not weapons for use in their main missions to dominate land and sea. The idea of the air being another domain to gain superiority over did not occur to them.

Then U.S. Army Brig. Gen. William “Billy” Mitchell came along and, with his airplanes, sunk some of the very largest German battleships (the Ostfreisland, in particular) in 1921 that had been surrendered in the armistice, proving you could use aircraft against capital ships and other major weapons systems. He argued that airplanes should be considered as important as ships, tanks and artillery, and that the air was now a domain of war to be dominated in order to achieve domination on land and sea.

Mitchell’s demonstration proved to the public that, in 1921, battleships were obsolete in the face of air power, but the military establishment refused to recognize such a reality, and rather than admit that he was right, they dismissed him and assigned him to breaking up union riots in West Virginia. When later Navy negligence resulted in the catastrophic crash of a blimp with significant loss of life, Mitchell made public statements charging the top brass with such negligence and he was court-martialed, but those responsible for the actual negligence got away scot-free.

U.S. Army Brig. Gen. Billy Mitchell, an outspoken supporter of air power, often butted heads with superiors who believed the airplane was better suited for observation. In 1921, Mitchell finally persuaded the Army and the Navy to allow him to demonstrate the warfighting capabilities of the airplane by attempting to sink captured German warships. Credit: U.S. Air Force via Wikimedia
U.S. Army Brig. Gen. Billy Mitchell, an outspoken supporter of air power, often butted heads with superiors who believed the airplane was better suited for observation. In 1921, Mitchell finally persuaded the Army and the Navy to allow him to demonstrate the warfighting capabilities of the airplane by attempting to sink captured German warships. Credit: U.S. Air Force via Wikimedia

The U.S. was caught so far behind at the start of World War II that we tried to stay out of the war while desperately working to modernize our military forces, including our air capabilities. However, at Pearl Harbor, what was sunk was most of the battleships of the Pacific Fleet. We had only two aircraft carriers in the U.S. Navy that were operable, but that one day proved what Mitchell tried to prove back in 1921. It took the U.S. 20 years to learn that lesson, and nearly lost a war before it started because of that refusal to learn. It was not until 1947, well after World War II was over that the Air Force became an independent military service, and was the sole wielder of the atomic bomb, the most powerful weapons in history.

Mitchell is now considered the father of the U.S. Air Force, but the Air Force has forgotten the lessons of Mitchell’s experience when it comes to the new combat domain of space. It is now as staid, calcified, and stuck in Earthbound paradigms as the Navy and Army was then and is now. They see space solely as a domain for providing data services and observation of ground and sea forces, air bases and missile silos. The last time the Air Force advocated for crewed military vehicles was the Air Launched Sortie Vehicle in the early 1980s (which you’ve probably never heard of), and the last time it had an active program to build crewed vehicles was the Manned Orbiting Laboratory and X-20 Dynasoar programs of the 1960s, which were canceled by Robert MacNamara to save money for spending on Vietnam.

Today, both China and Russia are actively developing anti-satellite weaponry, in some cases generating significant amounts of debris. They are not backing down despite warnings of the potential catastrophic problem of making space unusable due to space debris. There are valid ways to test weapons in space that do not contribute to the space junk problem, which the U.S. practices.

We are entirely capable of deploying a fully-fledged strategic defense infrastructure capable of stopping major nuclear attacks. We have boost-phase and terminal-phase ABM interceptors on Aegis cruisers in the Navy. We have THAAD terminal-phase interceptors installed in Alaska capable of intercepting one or two missiles (due to limitations on deployment, not the capabilities of the technology).

We also have midphase weaponry we can mass produce and deploy to space if we so choose. Lockheed Martin has high-energy lasers powerful and accurate enough to do the job: I have seen the prototypes and plans. As Ashton Martin, a noted Strategic Defense Initiative (SDI) critic, admitted in the ’80s, “The debate is no longer scientific, the debate is political.” In other words, we have the technology to defend the nation against nuclear attack, we simply choose not to do so, neglecting our duty to the country.

But the need for a Space Force goes far beyond the strategic defense of our nation on the ground. Space has become a huge economic marketplace. From GPS products using the military’s Global Positioning System satellites for navigating here on Earth, to television, radio and internet services, earth observation and other services, space has become a big market. The Satellite Industry Associations own market reports estimate that the annual revenues of the satellite industry, globally, at $261 billion in 2016, with estimates of global growth of 100 percent over the next 10 years. Of the global revenues, U.S. industry revenues are around $110 billion. The global space economy was $339 billion in 2016, according to another report. There are now 1,500 operational satellites in orbit around Earth, a growth of 47 percent in five years. The U.S. alone operates 594 of these satellites.

Since 2016, SpaceX has become the globally dominant space launch provider with over 60 percent of global commercial space launches in 2018, after starting from almost nothing in 2012. They are providing the lowest-cost launches, and promising to lower those costs further as they continue to pioneer their rocket recovery and reuse technologies. SpaceX has proposed and is building their BFR super-heavy-lift rocket not just to send massive amounts of payloads and passengers to Mars, but to create a global point-to-point passenger travel service to compete against airlines, enabling travelers to travel anywhere on Earth in about 30 minutes. Obviously, these passenger ballistic shuttles will be significant targets of hostile nations and terrorists. Nations like Russia and China may seek to hinder SpaceX’s ability to colonize Mars, as might some environmental extremist groups.

Which brings us to why there is a legal mandate for a Space Force. While the critics parrot false claims that the Outer Space Treaty prohibits military use of space, in fact it does not: it prohibits military bases on the moon and other celestial bodies like asteroids. The treaty does ban nuclear weapons in space, but not other weaponry. As we have seen, various nations have tested conventional weapons in space: kinetic kill ABM and anti-satellite weapons in particular, but also guns. The Soviets used to mount a 23mm machine gun turret on their Salyut space stations, which they tested three times, evidence suggests.

The battlefield in space is not just in Earth orbit. It is in the asteroids. A half-dozen companies, with potentially billions in capital, and working right now to develop technologies and plans to mine asteroids. A single one-kilometer diameter ferrous asteroid has enough nickel, iron, gold, platinum, and palladium in it to exceed the entire global mining industry productivity. Some estimate that the market value of exploitable elements in the asteroid belt to exceed $700 quintillion: enough wealth for every human being on Earth to be worth $100 billion.

A hundred billion dollars for every human on Earth also means a lot of tax revenues, and a lot of reasons for people to compete to get to the most valuable asteroids to claim and exploit them, and to worry about the security of those resources. Either private enterprises that develop those resources will receive protection from a U.S. Space Force, or be left to arm their own ships and have their own private wars in space over these resources when governments refuse to resolve their disputes.

Why should governments resolve such issues off Earth? Because they already agreed to. There is another treaty, the Space Liability Convention, which states that the nation that launches or operates a rocket or spacecraft, or the nation from which rockets are launched or the corporations or agencies operating spacecraft are based, is fully liable for any damages done by those rockets and spacecraft (and by extension, their passengers, if any.)

This means many things. If a booster reenters the atmosphere and lands on your home, the nation that launched it owes you a new house, as well as any compensation for injuries or deaths that result. But it also means, as humans and their spacecraft operate in space on a permanent basis that conflicts between spacecraft, space stations, and their crew and passengers out there in space fall under the legal jurisdiction of the nations from which they are launched, or the nations that they are flagged under, much like any oceangoing vessel.

When President Trump announced plans for a Space Force, it triggered a legal debate on the justification for such a force. Credit: NASA/Bill Ingalls
When President Trump announced plans for a Space Force, it triggered a legal debate on the justification for such a force. Credit: NASA/Bill Ingalls

If two humans on a moon base get drunk and have a fight and one kills the other, where does the killer get tried? In whose courts? Under the convention, he or she falls under the jurisdiction of the nation that they came from, or the one that operates the base the event occurred at. Same goes for Mars colonies, asteroid mining ships or bases, and so on.

This jurisdictional requirement imposes a duty upon spacefaring nations to build a means of enforcing their jurisdiction in space. Not just space lawyers and judges, but when it comes to larger problems of disputes between nations over space resources, those disputes will be enforced, one way or another, by whoever has the biggest guns in space.

In the 17th century, France’s King Louis XIV, the Sun King, used to engrave on his naval cannon “Ultima Ratio Regum,” which in Latin means “Last Argument of Kings.” When it comes to disputes between sovereign powers, whoever has the biggest guns wins, far more often than not. The modern “relative” peace between powers internationally is built on a foundation of blood and death fought in the last century’s world wars, experiences that we do not want to repeat by allowing totalitarian regimes to gain superior military power in any domain. Enforcing international law still mandates military power. This mandates that the U.S., as the largest spacefaring nation, to build a U.S. Space Force.

If we want space to be a jurisdiction in which the rule of law is stable, trustable, not corrupted, and operates by the principles of jurisprudence and diplomatic peacekeeping the U.S. aspires to, we must have a U.S. Space Force capable of enforcing the jurisdiction of the U.S. in space just as it does on the high seas defending the interests of Americans.


Mike Lorrey is CEO of Galactic Systems Inc., which specializes in virtual reality and blockchain technologies. He is a U.S. Air Force veteran and has worked in newspace startups, including creating flight simulations for XCOR Aerospace. This article originally appeared in the Space Review, a SpaceNews sister publication.

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