“We shall never understand one another                                                                                           until we reduce the language to seven words”                                                                                                          – Sand and Foam, Khalil Gibran

In September 2016, Rhode Island-based defense industry manufacturer Textron Inc. announced in a Securities and Exchange Commission filing that it would discontinue production of its Sensor Fused Weapon system, effectively bringing to an end the last cluster munition manufactured in the United States. Textron cited both decreased international demand and requisite White House and Congressional approval for exports as the reasons for discontinuing the product, while still maintaining the weapon fully complied with DoD cluster munitions policy. Yet the harbinger of the end for U.S. domestic-produced cluster munitions production perhaps came earlier this year in May, when the Obama administration prevented a shipment of the company’s CBU-105 cluster weapon from reaching the government of Saudi Arabia after international evidence mounted that Riyadh had used a stockpile of the weapons indiscriminately against civilian population centers which were allegedly shielding Houthi Rebel insurgents in neighboring Yemen.

Human Rights Watch (HRW) conducted the core of the primary-source reporting, with downstream news services amplifying the topic in the U.S. domestic news space.

yemenclusters0516_map-01Cluster munitions had long been out of favor in the international community, and HRW succinctly articulated the case against them. Textron’s security filing must have been a win for organizations such as HRW and the Cluster Munitions Coalition (CMC) which argue against cluster munitions on the moral grounds that they cause excessive civilian casualties.

However, it wasn’t the moral indignation of world public opinion alone that served as the true nail in the coffin for U.S. domestic cluster munition production.

For U.S. Cluster Munitions policy, there are actually two central issues about which advocacy or admonishment must be cognizant: tactical usage and Unexploded Ordinance (UXO). Both are addressed in the modern (albeit to the general public, obscure) DoD policy on Cluster Munitions and Unintended Harm to Civilians (hereafter, CMP2008) which was promulgated in the waning days of the Bush administration under Secretary of Defense, Robert Gates. Both issues have a moral component and a technical component. Given the preponderance of historical evidence which speaks to the enduring physical and psychological destruction sown by cluster munitions, it is tempting to conclude that Textron’s weapons were simply on the wrong side of history – that morality won out over technology or military need.

A closer look at cluster munitions reveals something different, something the defense industry inherently knows about weapons: their design is the artifact of a conversation about morality and law. In an endless cycle, those morals and legalities shape policy options, those policies then dictate the weapon’s actual use; the results and reaction to their use then shapes the next round of moral and legal discussion. Thus, the technical details matter just as much and go just as far in waging ethics as do discussions of cluster weapon’s deployment and usage. As such, the more nuanced nail in the coffin for Textron wasn’t “ethics” or outrage alone.

The end of cluster munitions production in America is a story that begins over half a century ago in the small Southeast Asian nation of Laos, whose land was so heavily littered with the remnants of war that for decades since they have come to fear the ground itself. It is also the story of the U.S. defense industry challenged to meet the strictest design requirements for their weapons before they could be used to dominate the skies of our allies. Between the ground and the sky was the gap. U.S. policy makers sought to fill it with a policy that recognized, “as above, so below”. Thus, the story of how munitions ceased production in the United States is also the story of CMP2008 itself. Or rather, of its insistence on a single metric of acceptable rates of UXO, and of its wording. The arbiter between the fear of the Ground and the dominance of the Sky was a policy which defined what constituted UXO, and it did so in just one clause. The effect of that clause has since become undeniable. In fact, the fate of U.S. domestic cluster munition production, usage, stockpiling, and sale really came down to just seven words.

Definitions

Generally, the term “Cluster Munition” is used as a catch-all term covering a wide variety of technologies which are, as defined by U.S. policy, “minimally composed of a non-reusable canister or delivery body containing multiple, conventional explosive submunitions.”

As such, non-conventional munitions such as chemical, biological, radiological or nuclear are excluded, as well as obscurants, pyrotechnics, non-lethal systems, electronic effects and non-explosive kinetic effect submunitions. Further, cluster munitions are not limited by their delivery systems, and rather can include deployment by any of the following: aircraft, cruise missiles, artillery, mortars, missiles, tanks, rocket launchers, naval guns, etc. In practice, landmines are typically excluded from the cluster munition category, as the U.S. deals with them in separate policy. In all cases, cluster munitions, by definition, deliver explosive submunitions that detonate via target acquisition, impact, self-destruction, or at-altitude.

Internationally, conventional nation states militaries generally consider Cluster munitions as, by and large, legitimate weapons with clear military utility. They are effective against a range of area targets, such as massed enemy formations, convoys, armored vehicles, and enemies whose location is not known precisely, all while minimizing the collateral destruction resultant from each submunition. In this way, cluster munitions fill a gap which multiple, unitary munitions are incapable of fulfilling without significantly greater collateral destruction.

Policy Background: The Explosive Remnants of War

CMP2008 was promulgated during a time of heightened attention to cluster munitions world-wide. That year, the 2008 Convention on Cluster Munitions was introduced globally, was ultimately ratified by 100 parties, signed (but not ratified) by 19 additional States, and came into full effect August 2010. The convention was the culmination of years of research, reporting, and lobbying internationally to outright ban cluster weapons and prevent their modern use in states like Saudi Arabia where they were likely to be used out of destructive convenience more so than out of military necessity.

The central issues in 2008 were the same as have been contested since the mid-1960’s and continue to be central to the legacy of the U.S. wars in Vietnam, Cambodia, and Laos – that, despite being designed as anti-armor and anti-personnel (i.e., enemy troop formation) attack munitions, in actual use they 1) historically have resulted in killing and maiming mostly civilian personnel; and 2) in the modern day, decades after the cessation of formal hostilities, they continue to kill civilians. Saturation bombing sorties with high levels of UXO have not only resulted historically in immediate Explosive Remnants of War (ERW) issues, but also a more enduring “Legacy of War” in which restricted and contaminated land has remained unfarmable, inescapable, and rife for multi-generational civilian re-victimization. Countries bombed by cluster munitions come to fear the ground on which they walk, work, and live.

That moral aversion to weapons which perpetuate an enduring, persistent legacy of War cannot be taken as the hysteric hyperbole of conflict hypochondriacs; consider what the international community largely does not complain about in arms stockpiles. 2008 certainly saw global opposition to cluster munitions, but there was no commensurate outcry against Multiple Independently Targetable Reentry Vehicles (MIRV). Yet, both technologies are designed and based on an acknowledgment that area-target weapons serve legitimate military necessity and they are lawful. Both are indiscriminate insofar as potential civilian casualties are concerned. The difference is that multiple warheads typically kill immediately, while cluster munitions have a penchant for killing gradually and long-term. Hence, it is not the possible, indiscriminate killing of civilians with which the global community has expressed consistent moral outrage, per se. Instead, MIRVs have been largely exempt due to their additional quality of being Strategic weapons; they get lost in the big-picture abstraction of the contest and survival of continent-spanning civilizations. Cluster munitions are not likewise subject to the grandiose think-pieces and PhDs of armchair military philosophers, because they are far more likely to actually be used. Cluster munitions excite moral abhorrence because they are not tools of brinkmanship between states, but more so tools of immediate, distributed destruction and delayed victimization of civilians.

U.S. Policy:  7 words which set the course

While refraining from signing the 2008 Convention on Cluster Munitions, the DoD still wished to promulgate a policy which conformed to the spirit of the convention, but without entirely abandoning the flexibility a cluster munition arsenal provides to military planners. As such, CMP2008 was crafted to express two major policy stipulations: 1) by December 2018, all DoD CM stockpiles would be fully cataloged and then reduced to only those weapons which leave behind, after their arming and deployment, no more than 1% Unexploded Ordinance (UXO); and 2) those weapons non-compliant with the policy would either be destroyed, or sold off to foreign nations which promised to both fully expend the weapons by December 2018, and to do so entirely within the confines of the United States’ own intended-use policy.

Those broad strokes did much to restrict the use of cluster munitions and, in good faith, appear to have been sincerely concerned with limiting civilian suffering and casualties. Yet the policy did one more thing, with far-reaching implications and consequences. Near the middle of the document read the following words:

“Although the use of self-deactivation devices or mechanisms can reduce the hazards            to civilians, self-deactivated submunitions will still be considered UXO.”

Today/Tomorrow

The language of CMP2008 challenged Industry to build smarter, precision munitions; Textron’s CBU-105 was the response – a 1000 lb-class, non-guided Sensor Fused Weapon which smartly sought out and destroyed legitimate military targets or deactivated and fell to the ground harmlessly when no such targets were found.

CBU-105 was a straight-forward answer to the military requirements and moral conversations in and behind CMP2008. In the end, though, it still couldn’t escape the “1% UXO” rule; HRW and the CMC cited that seven-word clause in CMP2008 to argue that Textron had run afoul of DoD policy. In May, the Obama Administration cancelled the planned CBU-105 shipment. In June, a U.S. House of Representatives motion to block cluster munitions sales to Saudi Arabia long-term was narrowly defeated, 216 to 204. In July, nonprofit organization Massachusetts Peace Action staged a protest outside a Textron facility in Wilmington, MA, calling for an end to cluster munitions production. By September, Textron was pulling out of the submunitions market. The effect of seven words from a 2008 policy was readily apparent in 2016. But what of the future? Going forward, were submunitions production to ever resume in the United States, what lessons might manufacturers glean from the Textron example?

(Lost) Distinctions

The CBU-105 is a highly-engineered, multi-component weapon system which is itself comprised of the Wind Corrected Munitions Dispenser, the CBU-97 Sensor Fused Weapon, and BLU-108 submunition; in a word, it’s Smart. It is Airborne, filling the sky with passive infrared sensors and an active laser sensor to acquire legitimate military targets, reach a fire solution, and then detonate its explosively-formed penetrator warheads. The CBU-105 is, in fact, so Smart that it knows not to attack illegitimate targets, to instead disarm, and to fall to the ground inert. However, CMP2008’s clause stating that self-deactivating submunitions still count as UXO treats that Smart technology as if it were no different from the UXO left over from saturation bombing sorties run in Southeast Asia in the 1960’s and 70’s. That is simply not accurate. The “dumb” munitions of the Johnson/Nixon era (e.g., the CBU-25) typically contained BLU-14/B submunition bomblets, which were spin-armed and spin-decay detonated, i.e., they stopped spinning when they hit something – anything – and then achieved their only objective: detonation. Any UXO left over from their deployment meant the weapon had failed. In contrast, Textron’s Smart weapons of the modern era are different – they must Find, Fix, Track, Target, and Engage –they engage if all steps in the kill chain are met, and do not if any are not. The fact that CBU-105 munitions were discovered and photographed laying inert on the ground and self-disarmed in Yemen means that as smart weapons, they succeeded; they did exactly what they were designed to do. Textron Inc. CEO Scott Donnelly said much the same in his own response to protesters outside his office. Clearly, Sensor Fused Weapons have had a significantly- higher standard for usage than any previous cluster munitions packages in DoD history, yet CMP2008 still doesn’t acknowledge that fact. It rather makes all remnants of war into UXO, and all UXO synonymous with ‘Failure.’ That is a lesson the U.S. Defense industry is not likely to forget.

 Pursuing 0% Failure: An Incentive for Total Destruction

Future, would-be cluster munitions manufactures looking back on the social, military, and policy parameters which Textron faced in 2016 would likely find themselves constrained to a limited number of winning solutions. Seemingly, the only way forward for successfully reviving cluster munitions production and meeting the inevitable military need would be building weapons which detonate between 99-100% of the time over the entirety of their engagement footprint, and without the benefit of self-disarmament technology. The fallout from CBU-105 deployment in Yemen in 2016 will come to be that future manufacturers had to acknowledge that self-disarmament was simply a losing design strategy; no reasonable manufacturer would bother pursuing it, because it wouldn’t meet the guidelines of CMP2008. Thus, the technology developed to help munitions avoid illegitimate targets such as civilian population centers could not and would not be a component of future cluster weapons design.

Given the incentive to develop weapons within those parameters, further consider if 99-100%-expenditure munitions were achieved and put into production to meet war-time needs. At an average dispersal area of 460m x 150m (approximately the size of two New York city blocks, and a typical engagement footprint for CBU-105s), the user of those munitions would necessarily be, in the short-term, committing to attacking everything on the grounds of those two blocks, regardless of what they were. In the long-term, combatant commanders could be encouraged to use more cluster munitions in more battle spaces, precisely because they didn’t have to consider long-term UXO cleanup costs anymore. 100% expenditure munitions would also mean that the onus for appropriate, moral use would be shifted exclusively onto the combatant and the available tactical intelligence, with no safeguards built into the weapon itself. Therefore, unless both a futuristic Cloud of War gave Fire Control Officers (FCO) near-omniscient intelligence with which to better refine their targeting grids AND munition cluster groupings convolved to tighter ellipses, then those FCOs would face an unenviable dilemma: either mass the fires, destroy entire areas of the battle space, and throw principles of “proportionality” and “military necessity” aside – or simply, stand-down. Either option would represent extreme positions which CMP2008 intended to avoid exactly by its adoption of what it deemed the acceptable, balanced rate of 1% UXO.

Limited to 1% … But of What?

In the Human Rights Watch article, the presence of disarmed CBU-105 munitions was cited as evidence that Saudi Arabia violated the terms of CMP2008; clearly more than 1% of the expended munitions had not exploded. But what does 1% actual mean? The heart of CMP2008’s policy stipulations is a prescribed percentage, and percentages are problematic without a meaningful estimate of the total volume of ordinance a military is willing to deploy. For example, during the U.S.’ secret war in Laos, over two million tons of ordinance were dropped from 1964 to 1973 – more than all the munitions dropped in WWII by Allied and Axis forces combined. Postulate the same 1% UXO rule existed then as it does now – that would still mean that 20,000 tons of UXO were left over. For context, this is what a 1 ton bomb looks like when it explodes.

Hence, the fact that UXO still kills Laotians to this day (and by some estimates, will continue to do so for the next 150 years) is not inherently a weapons design failure – it is the artifact of a policy and strategy decision.

As the war in Vietnam became evermore unpopular domestically, the American public would have never tolerated conventional U.S. ground troops additionally operating openly in Laos; “dumb” cluster bombs like the CBU-25 may not have been cheap, and they were not particularly efficient, but politically, they were easier to deploy into Laos than ground troops would have been. Thus, all 17 provinces ofthe country were bombarded, at an average rate of one planeload every 8 minutes, 24 hours per day, for 9 years. 2016-09-laos-asia-us-arms-obamaSecretary of Defense Robert McNamara wrote in his 1995 memoir, “we were wrong … terribly wrong. We made an error not of values and intentions, but of judgement and capabilities.” Crude weapons like the CBU-25 were designed reflecting the moral values and intentions of that era’s senior military planners, but they were not designed with any built-in safeguards against those planners’ judgement nor any limit on their capabilities. It is not clear how many legitimate military area-targets existed in all 17 provinces of Laos for those nine years, and its not clear that any level of forecast UXO would have been enough to alter the bombing strategy. What is clear, is that if the total tonnage the United States dropped in combat stayed the same, but the UXO rate had been 1%, then logically the detonation rate would have been higher. Arguably then, there wouldn’t be nearly as much UXO leftover today for the Obama administration to pledge cleaning up, but only because there wouldn’t be much left of Laos itself to clean up. Either way, Laos was caught in a Catch-22 through a combination of crude cluster munitions design, an unlimited capacity for the U.S. to launch them, and a bombing strategy based on the poor judgement of a handful of officials. The people of Laos have paid for those policy flaws ever since, and the ground-truth is, 1% UXO would have done nothing to change that.

Where We Go from Here

Going into post-election 2016, much about the defense policies of the incoming Trump administration remain unclear. The stipulations of CMP2008 could survive intact or they could be rescinded and replaced entirely. Or, in the dash of a pen, the seven-word clause equating self-deactivating submunitions to UXO could alone be line-item deleted. What is clear is that the threat to deployed U.S. troops by near-peer conventional enemy formations and convoys will not abate. Long into the future states like Russia and China will legitimize the need for an effective area-target engagement capability, but the options  to meet that need may not be readily available. If U.S. stockpiles are destroyed by 2018, if domestic manufacturers like Textron are out of production long term, and if no suitable alternative munition is developed, then U.S. military planners may face a critical capability gap fighting our nation’s next major land war. CMP2008 explicitly wanted to avoid that gap while limiting civilian casualties. Realistically, a CMP2017 from the Trump administration could achieve both if it were written with authentic moral commitment tempered by prudent military judgement – if it understood the gap between the ground and sky. But. We shall never understand that gap until we reduce from our policy language seven words.