All posts by Guest Author

Pushing or Overstepping? Legal Boundaries in the Fight against Maritime Drug Smuggling, Pt. 1

By Thomas “Buddy” Bardenwerper

Introduction

Every day, U.S. Coast Guard cutters patrol the eastern Pacific Ocean and Caribbean Sea for drug smuggling vessels, seizing more cocaine than all other American law enforcement agencies combined. Federal prosecutors then bring charges against the detained smugglers under a controversial and confusing legal regime. By analyzing the lifecycle of a case – from interdiction to detention to prosecution – this two-part article explores (1) the extraterritorial jurisdiction established by the Maritime Drug Law Enforcement Act (MDLEA); (2) the practice of detaining suspected smugglers aboard Coast Guard cutters for weeks without formal arrest; and (3) the interaction between intelligence gathering and the trial penalty. In each of these instances, a different branch of the federal government is pushing against – if not overstepping – legal constraints in order to empower the Coast Guard in the fight against maritime drug smuggling. This is a fragile system, however, and should one of these government branches become squeamish, the whole apparatus could collapse.

Overview of the Coast Guard’s Counter-Maritime Drug Trafficking Mission

The Coast Guard is both an armed service and a federal law enforcement agency. While the Army, Air Force, Navy, and Marine Corps are barred from conducting law enforcement operations by the Posse Comitatus Act 1 and other federal law,2 the Coast Guard is not.3 Therefore, the Coast Guard has become the lead federal agency for maritime law enforcement on the high seas, which are those waters that fall outside of any nation’s twelve-nautical-mile territorial seas.4

The Coast Guard’s maritime law enforcement mission pits a small sea-going service of approximately 40,000 active duty members against powerful transnational criminal organizations (TCOs). TCOs use various means to transport cocaine north from coca producers in Colombia, Peru, and Bolivia to cocaine consumers in the United States. Maritime smuggling is a preferred option for transport that generally occurs in one of the following two ways: 1) Cocaine is transported by boat from the Pacific coast of South America to the Pacific coast of Central America, at which point shipments are divided into smaller loads for overland transit through Mexico and across the border; or, to a lesser extent, 2) cocaine is transported by boat from the Caribbean coast of South America to either the Caribbean coast of Central America or to various Caribbean islands for further transit – again, in smaller quantities – to the United States. Competition for these drug trafficking corridors has caused destabilizing violence throughout the hemisphere.

The modes of maritime transit can be roughly grouped into the following three categories: slow-movers, go-fasts, and hard-to-detects.5 “Slow-movers” include commercial fishing vessels and coastal freighters outfitted with secret compartments or parasitic devices. Oftentimes, only certain crewmembers are even aware that their vessel is being used for illegal purposes. “Go-fasts” are speedboats that carry contraband openly on deck and rely on speed and maneuverability to evade law enforcement assets. “Hard-to-detects” include low-profile and semi-submersible vessels that are virtually impossible to detect via visual or electronic sensors.

For any successful interdiction, the Coast Guard must be able to find the suspect vessel, stop it, and locate the contraband. The relative difficulty of these tasks varies depending on whether a particular case involves a slow-mover, a go-fast, or a hard-to-detect. In order to find the target of interest, Coast Guard operational planners rely on intelligence regarding the suspect vessel’s anticipated movements. In order to stop the target of interest, Coast Guard law enforcement teams then employ warning shots and disabling fire from agile small boats or helicopters. Finally, in order to locate the contraband, Coast Guard boarding teams use complex space accountability computations and state-of-the-art drug detection equipment.

In September 2019, U.S. Coast Guard boarding team members climb aboard a suspected smuggling vessel in the Eastern Pacific (Image credit: Luke Cla, USCG).

This sophisticated operational and tactical regime only works when and where the Coast Guard has the legal authority to pursue its counter-maritime drug trafficking mission. Thanks to the aggressive legislation, favorable judicial holdings, and proactive executive actions that will be explored below, the Coast Guard enjoys a great degree of latitude in combatting TCOs on the high seas.

Far-Flung Interdictions and the Extraterritorial Jurisdiction of the MDLEA

The Coast Guard can only operate if it has jurisdiction.6 In those situations where there is a clear nexus with the United States – i.e. a target of interest is in U.S. territorial seas, the vessel itself is American-flagged, or the master is a U.S. citizen – jurisdiction is easily achieved. However, when none of those three boxes is checked – as they rarely are in drug smuggling cases – the legal picture is less clear. Given this lack of clarity, how is it that the Coast Guard can board non-U.S. vessels in non-U.S. waters to detain foreign nationals?

The answer to this question is the Maritime Drug Law Enforcement Act (MDLEA), which Congress passed in 1986.7 Grounded in Congress’s Constitutional power to “define and punish Piracies and Felonies committed on the High Seas, and Offences against the Law of Nations,”8 the statute made “drug smuggling on the high seas a crime against the United States and [gave] the Coast Guard the authority to search for, detain, and bring suspected drug traffickers back to the United States for prosecution.”9 Under the conspiracy provision of the MDLEA, even members of trafficking networks who have never set foot on a boat can be extradited to the U.S.10 The most important – and controversial – portion of the MDLEA, however, is that section which extends U.S. jurisdiction over the following six categories of vessels: (1) a vessel without nationality (also known as “stateless”); (2) a vessel assimilated to without nationality;11 (3) a foreign-flagged vessel if the flag state consents or waives objection to the enforcement of United States law; (4) a vessel in U.S. customs waters; (5) a vessel in the territorial seas of another nation if that nation consents to the enforcement of United States law; and (6) a vessel in the U.S. contiguous zone.12

The U.S. government had to be creative in justifying a statute with this degree of extraterritorial reach since universal jurisdiction does not apply to drug smuggling – it is not illegal under customary international law13 – and it is difficult to prove that a particular shipment of narcotics seized in the eastern Pacific Ocean or Caribbean Sea is destined for the United States. Instead, the ostensibly aggressive approach taken by the U.S. government can be tied to the protective principle of international law. Because of “the deleterious effects of drug trafficking in the United States and on regional stability,”14 the U.S. government considers itself justified in proactively combatting this threat through law enforcement operations well beyond its borders.15

Because most Western Hemisphere governments are in favor of fighting drug trafficking, there has been relatively little international pushback against the MDLEA. Furthermore, the reach of the MDLEA is heavily dependent upon the cooperation of international allies, especially with regards to those categories of vessels subject to U.S. jurisdiction. In exchange for economic and military aid, many source and transit zone nations have signed bilateral agreements with the United States.16 These agreements often give the U.S. Coast Guard the authority and jurisdiction to conduct operations in partner-state territorial seas or against partner-state-flagged vessels.17 Not surprisingly, this particularly ambitious jurisdictional aspect of the MDLEA has garnered significant scrutiny from U.S. courts.

MDLEA Jurisdiction over Foreign-Flagged Vessels Boarded with Flag-State Approval

Foreign nationals charged with violating the MDLEA have had varying degrees of success challenging the statute’s extraterritorial jurisdiction. While all circuits recognize U.S. jurisdiction over stateless vessels18 (and their occupants19) – which includes most go-fasts and virtually all hard-to-detects – there is disagreement regarding foreign-flagged vessels boarded by the Coast Guard with flag-state approval. The Ninth Circuit is the most defendant-friendly forum for this issue.

In United States v. Perlaza, the Ninth Circuit reversed the MDLEA convictions of Colombian nationals caught smuggling cocaine aboard a Colombian-flagged fishing vessel. The court held that although the Colombian government granted the Coast Guard permission to board the vessel and detain the crewmembers, the Fifth Amendment right of due process required that “for a United States court to properly exercise jurisdiction [over a foreign-flagged vessel], the Government still needs to establish some detrimental effect within, or nexus to, the United States.”20 The court reasoned that a defendant aboard a foreign-flagged vessel “would have a legitimate expectation that because he has submitted himself to the laws of one nation, other nations will not be entitled to exercise jurisdiction without some nexus.”21 From the government’s perspective, this analysis has made the Ninth Circuit an undesirable forum for many MDLEA cases, an issue that will be discussed further below.

The First and Eleventh Circuits – which handle many MDLEA cases through Puerto Rico and Florida, respectively – have not required a U.S. nexus for MDLEA prosecutions of foreign nationals detained aboard foreign-flagged vessels boarded with flag-state approval. In United States v. Trapp, for example, the District of Puerto Rico denied a motion to dismiss an MDLEA indictment brought by foreign nationals detained aboard a Grenadian-flagged vessel on the high seas after Grenada “waive[d] its primary right to exercise jurisdiction over the [vessel], its cargo, and its crew to the extent necessary for the enforcement of United States law.”22 The court held that the “MDLEA contains no explicit requirement that there be a nexus between a defendant’s criminal conduct and the United States” and that “a vessel ‘subject to the jurisdiction of the United States’ is defined to include ‘a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States.’”23

Likewise, the Eleventh Circuit has found the application of the MDLEA to foreign-flagged vessels boarded with flag-state approval to be constitutional24 because (1) Congress allowed for this in § 70502(c)(1)(C) of the MDLEA;25and (2) the MDLEA is grounded in the “protective principle,” which “does not require that there be proof of an actual or intended effect within the United States.”26 By not finding any Fifth Amendment concerns with this critical aspect of the MDLEA’s extraterritorial jurisdiction, the First and Eleventh Circuits are government-friendly venues for this particular strain of cases. Therefore, it is unsurprising that the U.S. Attorney’s Offices for the Middle District of Florida and the District of Puerto Rico have permanent billets for Coast Guard lawyers.

MDLEA Jurisdiction over Vessels Boarded in Foreign Territorial Seas with Coastal State Approval

The application of the MDLEA to defendants interdicted in a foreign nation’s territorial seas with that nation’s approval was recently held unconstitutional by the government-friendly Eleventh Circuit in United States v. Davila-Mendoza, a case involving a Coast Guard interdiction made in Jamaican territorial seas with the approval of the Jamaican government.27 The court held that the MDLEA was unconstitutionally applied in Jamaica’s territorial seas – regardless of whether or not Jamaica had consented – because extraterritorial jurisdiction beyond the high seas was not justified by the “Foreign Commerce Clause,” the “Necessary and Proper Clause,”28 the “law of nations,”29 or the “Define and Punish clause.”30 Whether this ruling stands, however, remains to be seen, as the case may be appealed to the Supreme Court.31 If it does stand, existing bilateral agreements between the United States and many of its regional allies will lose some of their potency since Coast Guard cutters will no longer be able to target smuggling vessels located within those partner nations’ territorial seas.

MDLEA Jurisdiction Takeaways

All circuits agree that the MDLEA applies to foreign nationals smuggling drugs on the high seas aboard stateless vessels. However, prosecutions become more difficult in the Ninth Circuit if a foreign-flagged vessel is involved and are impossible in any circuit if the interdiction is made in foreign territorial seas. Nonetheless, the reach of the MDLEA is impressive. Through aggressive lawmaking and international deal-making, the U.S. government has created a legal environment that allows its maritime forces to dominate the eastern Pacific Ocean and Caribbean Sea. Both the domestic need for a robust law enforcement presence and the lack of any meaningful international resistance – save from perhaps Venezuela – has made this expansive dominion possible, one upon which the U.S. maritime counter-drug mission is built.

The second installment of this article will discuss the prolonged detention of suspected smugglers aboard Coast Guard cutters and the interaction between intelligence gathering and the trial penalty during prosecution. Read Part Two here.

Thomas “Buddy” Bardenwerper (@TBardenwerper89) served for five years as a Coast Guard officer assigned to cutters homeported in Maine and Puerto Rico. Thanks to the GI Bill and Yellow Ribbon Program, Bardenwerper will graduate with a joint degree from Harvard Law School and the Harvard Kennedy School of Government this spring. His maritime migration-related novel Mona Passage will be published by Syracuse University Press in December.

References

[1] 18 U.S.C. § 1385 (1994) (“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”).

[2] 10 U.S.C. § 275 (2016) (“The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”).

[3] 14 U.S.C. § 102 (2018) (“The Coast Guard shall enforce or assist in the enforcement of all applicable Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States.”).

[4] 33 C.F.R. § 2.32(a) (2020) (“For purposes of special maritime and territorial jurisdiction of the United States […] high seas means all waters seaward of the territorial sea baseline.”).

[5] While “go-fast” is a commonly used term, the author came up with “slow-mover” and “hard-to-detect” for ease of explanation.

[6] 14 U.S.C. § 89 (2018) (“The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States.”).

[7] 46 U.S.C. §§ 70501-08 (2008).

[8] United States v. Campbell, 743 F.3d 802, 805 (11th Cir. 2014) (quoting U.S. Const. Art. 1, § 8, cl. 10).

[9] Stringer, Morgan, The U.S. Coast Guard Is Arresting Drug Traffickers in Ecuadorian Waters. How Does That Work?, The Water Log 7 (The University of Mississippi Press, 2018).

[10] See e.g. United States v. Ballestas, 795 F.3d 138, 145 (D.C. Cir. 2015) (holding that because the substantive offense established by § 70503(a) of the MDLEA applies extraterritorially, so too does the conspiracy offense established by § 70506(b)); United States v. Mosquera-Murillo, 902 F.3d 285, 289 (D.C. Cir. 2018) (“We have held that a defendant can violate the [MDLEA’s] conspiracy provision without personally setting foot on board a covered vessel.”).

[11] Article 6.2 of the United Nations Convention on the High Seas (1958) (“A ship which sails under the flags of two or more states, using them according to convenience, may not claim any of the nationalities in question with respect to any other state, and may be assimilated to a ship without nationality.”).

[12] 46 U.S.C. § 70502(c) (2008).

[13] Aaron Casavant, In Defense of the U.S. Maritime Drug Law Enforcement Act: A Justification for the Law’s Extraterritorial Reach, 8 Harv. Nat’l. Security J. 191, 197 (2017).

[14] Casavant, 197.

[15] See 46 U.S.C. § 70501 (2008) (“Congress finds and declares that (1) trafficking in controlled substances aboard vessels is a serious international problem, is universally condemned, and presents a specific threat to security and societal well-being of the United States.”).

[16] Joseph Kramek, Bilateral Maritime Counter-Drug and Immigrant Interdiction Agreements: Is This the World of the Future?, 31:1 U. of Miami Inter-American L. Rev. 121, 146  (2000).

[17] Id. at 124.

[18] See e.g. United States v. Perlaza, 439 F.3d 1149, 1161 (9th Cir. 2006) (“There is one exception, however, to this ‘constitutional jurisdiction’ requirement: ‘if a vessel is deemed stateless, there is no requirement that the government demonstrate a nexus between those on board and the United States before exercising jurisdiction over them.’”); United States v. Van Der End, 943 F.3d 98, 105 (2d. Cir. 2019) (“MDLEA prosecutions involving stateless vessels do not present the same concerns that are present in the extraterritorial application of typical criminal statutes [because] stateless ‘vessels are international pariahs’ that ‘subject themselves to the jurisdiction of all nations.”).

[19] See United States v. Aybar-Ulloa, 987 F.3d 1, 1 (1st Cir. 2021) (“International law accepts the criminal prosecution by the United States of persons like Aybar, who was seized by the United States while trafficking cocaine on a stateless vessel on the high seas, just as if they were trafficking on a United States-flagged ship”.”); United States v. Cabezas-Montano, 949 F.3d 567, 587 (11th Cir. 2020) (“The Fifth Amendment’s Due Process Clause does not prohibit the trial and conviction of aliens captured on the high seas while drug trafficking because the MDLEA provides clear notice that all nations prohibit and condemn drug trafficking aboard stateless vessels on the high seas.”).

[20] Perlaza, 439 F.3d at 1169.

[21] Id. (quoting United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998)).

[22] United States v. Trapp, Crim. No. 16-159, 2017 WL 2821904 at *1 (D.P.R. 2017).

[23] Id. at *2 (quoting 46 U.S.C. § 70502(c)(1)(C)).

[24] See United States v. Castillo, 899 F.3d 1208, 1212 (11th Cir. 2018) (upholding the MDLEA conviction and sentence of a foreign national detained aboard a Guatemalan-flagged vessel).

[25] 46 U.S.C. § 70502(c)(1)(C) (2008) (“A ‘vessel subject to the jurisdiction of the United States’ includes a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States.”).

[26] United States v. Garcia, 182 F.Appx. 873, 876 (11th Cir. 2006) (quoting United States v. Gonzalez, 776 F.2d 931, 938 (11th Cir. 1985)).

[27] United States v. Davila-Mendoza, 972 F.3d 1264 (11th Cir. 2020).

[28] Id. at 1267.

[29] United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1258 (11th Cir. 2012).

[30] Id. at 1249-53.

[31] Josh Blackman, Eleventh Circuit Panel finds that Maritime Drug Law Enforcement Act exceeds Congress’s Powers under the Foreign Commerce Clause and the Necessary and Proper Clause Powers, Reason Magazine (September 12, 2020), https://reason.com/volokh/2020/09/12/eleventh-circuit-panel-finds-that-maritime-drug-law-enforcement-act-exceeds-congresss-powers-under-the-foreign-commerce-clause-and-the-necessary-and-proper-clause-powers/.

Featured Image: Coast Guard Cutter Bertholf boarding teams interdict a low-profile go-fast vessel in November 2019 while patrolling international waters of the Eastern Pacific Ocean. (Image credit:Petty Officer 2nd Class Paul Krug)

The Implications of Simultaneous Conflicts in South Korea and Taiwan

By Ki Suh Jung

On June 25, 1950, North Korean forces invaded South Korea, sparking the Korean War. The following day, President Harry Truman ordered U.S. air and naval forces to support South Korea’s defense, which the United States would soon thereafter bolster with ground forces. On the same day, President Truman directed the U.S. Seventh Fleet to the Taiwan Strait to prevent any conflict between the Republic of China (henceforth Taiwan) and People’s Republic of China (henceforth China), each of which had been vying to unify with the other under its leadership. Had China taken advantage of the U.S. focus on the Korean peninsula by launching a large-scale invasion of Taiwan (for which it had been preparing), U.S. leadership would have faced the difficult decision between leaving Taiwan to fend for itself or diverting resources from the Korean War to support Taiwan. Although the United States was able to deter China from invading Taiwan in 1950 despite its concurrent commitment of forces to defend South Korea against North Korean aggression, it may not be so successful today or in the near future given the current trend in the balance of military power. Therefore, South Korea and Taiwan must develop credible self-defense capabilities with an eye toward future North Korean and Chinese threats to better support the joint response effort with the United States, which may find itself engaging in a two-front conflict.

Today, both the Korean peninsula and Taiwan Strait remain as flashpoints. South Korea and North Korea are still in a state of war with each other, and the risk of a forcible unification with Taiwan by China has been increasing in conjunction with China’s growing assertiveness in both rhetoric and action. If South Korea is attacked again, the United States has already committed to “mutually meet the common danger,” as stated in the two countries’ mutual defense treaty. While the United States does not make a similar commitment to Taiwan – the U.S.-unilateral Taiwan Relations Act only states that the United States will “maintain the capacity…to resist any resort to force…on Taiwan” – President Joe Biden has thus far for Taiwan. Also, a recent survey showed that the majority of Americans would favor defending Taiwan with U.S. forces if China were to invade the island. Certainly, neither Biden’s statements nor the survey results equate to a shift in the U.S. policy of “strategic ambiguity,” but they do indicate that in a Taiwan Strait contingency, U.S. leadership will seriously consider the level of support for Taiwan, as it did during the mid-20th century.

If the challenges facing the United States in those flashpoint areas have largely remained unchanged, so have the opportunities for China. A future Korean peninsula conflict would consume much of the focus and resources of the U.S. military in the region, which China can exploit to attempt to solve the Taiwan question. However, a scenario in the reverse sequence is also plausible. If China’s leaders determine that a peaceful unification with Taiwan will not be possible by 2049 – the date by which the “rejuvenation of the Chinese nation” is to be achieved – they may decide to resort to force. If the United States commits forces in defense of Taiwan, North Korea may sense a weakness in the U.S.-South Korea alliance and also launch an attack on its southern neighbor. As China and North Korea are treaty allies, they may discuss, plan, and execute such a two-pronged attack specifically designed to split US forces. After all, in 1950, North Korean leader Kim Il-sung sought and received approval from China’s (and the Soviet Union’s) leaders prior to North Korea’s invasion of South Korea.

While there are presently no indications that a major conflict in the Korean peninsula is imminent or even brewing, the two Koreas have come close to war before, perhaps most recently in 2010 following the sinking of South Korean navy ship Cheonan and bombardment of Yeonpyeong Island. Even as South Korea’s president Moon Jae-in pushes for a breakthrough in inter-Korean relations in his final months in office, however, the two countries are seemingly engaged in an arms race, with North Korea recently having tested a hypersonic missile and South Korea a submarine-launched ballistic missile.

On the other hand, cross-strait relations have deteriorated in recent years and Taiwan has come to dominate the discussion surrounding the U.S.-China strategic competition. Amid revelations of U.S. forces training the Taiwanese military, Taiwan’s president Tsai Ing-wen has expressed “faith” that the United States would support the defense of the island. China has reinforced its vows for unification with Taiwan with its military aircraft’s incursions into Taiwan’s air-defense identification zone at an unprecedented frequency and numbers as well as military exercises in the vicinity of the island. And unlike in 1950, when the U.S. military was undeniably superior to China’s, China has embarked on an impressive modernization streak and has “achieved parity with – or even exceeded – the United States in several military modernization areas.” If China is determined to unify with Taiwan by force, it will most likely be undeterred by a U.S. show of force.

How can the United States best prepare for two simultaneous major conflicts in East Asia? The answers are numerous and range from posturing additional forces in the region to securing commitments from other allies and partners to deter aggression from North Korea and China. Another key mechanism that must not be overlooked is incentivizing South Korea and Taiwan to acquire the appropriate capabilities required to specifically defeat North Korean and Chinese invasion forces, respectively. For South Korea, that might include anti-missile systems, platforms to counter maritime special operations forces insertion, and advanced weaponry and equipment for its ground forces. For Taiwan, acquisition of anti-ship and -air missiles and hardening of critical infrastructure may be the wisest investments. Taiwan has previously been criticized for both lackluster defense spending and purchasing tanks and howitzers with questionable operational value in the face of the growing Chinese threat, but relevant defense investments become dire when accounting for the potential division in U.S. attention and resources towards multiple contingencies.

The purpose of this article is not to specify which equipment South Korea and Taiwan must acquire; rather, it is to emphasize that the military equipment they do acquire must be based on North Korea and China’s current and future military capabilities that are expected to be employed for an attack on South Korea and Taiwan. By acquiring appropriate capabilities, the two countries will significantly raise the risk of attack by their adversaries, perhaps to the degree that they reassess the likelihood of a successful invasion. At a minimum, by developing the ability for a self-sufficient defense, South Korea and Taiwan will be helping themselves by enabling the United States to employ its limited resources efficiently to support the defense of the two countries, especially if anticipating simultaneous conflicts.

The acquisition of “flashy” capabilities may be tempting in general and more so if they are perceived to signify an advanced military; however, all military equipment has a limited scope, and acquiring a specific capability creates an opportunity cost that prevents a country from acquiring another, more-justified capability. This is an especially important point to consider for South Korea and Taiwan, which have an aggressive neighbor whose stated policy is to unify with each country.

In both the U.S.-South Korea mutual defense treaty and Taiwan Relations Act, the United States effectively declared that peace and security in the Western Pacific is of national interest and it will strive to maintain them; but the United States cannot go alone, and it needs allies and partners. South Korea and Taiwan can support this common endeavor by investing in the appropriate capabilities vis-à-vis their adversaries’. Such deliberate choices are not for the primary benefit of the United States, but for South Korea and Taiwan themselves. History hints that in the future, the fate of the two countries might be more-closely-linked than currently realized. For the United States to support the continued security and stability of the two countries and the greater region, South Korea and Taiwan must themselves make wise decisions to bolster their security.

Ki Suh Jung is a U.S. Navy foreign area officer with experience in the Asia-Pacific. The views expressed are those of the author and do not necessarily reflect the official policy or position of the U.S. Navy, Department of Defense, or the U.S. Government.

Featured image: U.S.-made CM-11 tanks are fired in front of two 8-inch self-propelled artillery guns during military drills in southern Taiwan on May 30, 2019. (Photo via Sam Yeh/AFP/Getty Images)

A New Maritime Strategy, Part 3 — Process As Product

Read Part One, Part Two.

By Robert C. Rubel

The more deeply one thinks about strategy the harder it is to pin down exactly what it is. This problem is more than an academic musing when it comes to the Navy. The Navy routinely publishes documents that it calls strategy, but these vary widely in form and focus, and in any case are the result of different processes, so much so that it is hard to recognize some as actual strategy. In her recent CIMSEC article Congresswoman Elain Luria contends that the 1986 Goldwater-Nichols Act “effectively ended U.S. naval strategy.” What she means is that if one regards strategy as a plan for defeating an enemy, then the Navy no longer has a role in developing such plans, a marked difference from the early 1980s when the Navy developed its Maritime Strategy, a global plan for confronting the Soviet Union in a conventional war. Without such a plan, she contends, the Navy’s budgets are built on a foundation of sand.  If so, the Navy’s current strategic document Advantage at Sea is an insufficient guide to force development. In parts one and two of this series of articles I discussed the factors that would influence the content of a new maritime strategy of the sort Congresswoman Luria calls for. In this article I will discuss the process of strategy, focused on the Navy’s case.

In 1981 Chief of Naval Operations Admiral Thomas Hayward established the Strategic Studies Group (SSG) and the Center for Naval Warfare Studies (CNWS) at the Naval War College to advance the quality of strategic thinking in the Navy. From its founding up until World War II the College had a major influence on Navy strategy and force development. In the case of the Maritime Strategy, reports from the SSG and the results of the Global Wargame series held at Newport provided significant inputs and support. The Maritime Strategy originated with Admiral Hayward’s Sea Strike strategy when he commanded Seventh Fleet. That nugget of an idea was then expanded, briefed, argued over, coordinated, modified and ultimately formalized over the course of six years. Importantly, it gained the support of both the Secretary of the Navy and President Reagan, leading to the creation of the “600 Ship Navy.”

In early July 2006 Vice Admiral John Morgan, then the Navy’s Deputy CNO for Operations and Strategy, visited the Naval War College to receive a brief on its proposed process for developing a new maritime strategy document as called for two weeks previously by then-CNO Admiral Mike Mullen. As the newly-designated Dean of the Center for Naval Warfare Studies I was tasked to design and lead that project. I briefed the Admiral as we slowly motored around Newport Harbor in the College’s “barge.” Morgan stressed to me before the brief that he wanted a broadly collaborative process, various stakeholders such as industry and fleet units being involved. The underlying purpose of the new strategy was to somehow elicit greater international cooperation on maritime security.

After I finished my brief, Morgan said “Okay, do it.” I then asked him if I could invite international officers to participate in the development process. He thought for a moment and then said yes. At that point I responded “Okay, Admiral, do you understand that you have just selected the strategy and everything from here on out is execution?” He smiled and said yes, he understood. From that point forward, process and product merged in the development of the 2007 A Cooperative Strategy for 21st Century Seapower (CS21). Achieving increased international naval cooperation required developing greater levels of trust, and giving other nations a voice in the Navy’s new strategy was a key part of the mechanism. A nine month program of workshops, games and international consultations followed. The formal document, announced at the 2007 International Seapower Symposium, although entitled a strategy, was actually a tool to advance the underlying strategy of courting international cooperation. In the years afterward international maritime security cooperation mushroomed. However, a new template for fleet architecture to execute the strategy, which originated with a strategy option submitted by Prof. Wayne Hughes of the Naval Postgraduate School, was ignored by the Navy’s resource directorate. It would have created a “bi-modal” fleet that contained a large number of smaller, single purpose ships in addition to the traditional large combatants.

Concurrently with the CS21 development process Vice Admiral Morgan worked on creating a formalized strategy development process for the Navy Staff. It reflected a desire to make strategy development a collaborative process both within and external to the Navy Staff. The result was codified into a draft instruction but opposition from the Resources Directorate (N8) killed it and it resides, unsigned and forgotten, in some file drawer in the Pentagon. I later asked the chief analyst in N8 how they incorporated Navy strategy documents into their budget preparations. He responded that they didn’t; they developed their own strategies. Thus from an organizational perspective, budget and strategy development were isolated from each other.

Fast forward to 2011 when Admiral Jonathan Greenert became Chief of Naval Operations. He, like many naval officers, were not satisfied with CS21 because they felt it had insufficient emphasis on warfighting. He wanted a “refresh” of the 2007 document; that is, a rewording to insert more traditional Navy emphasis on high end combat. The revised document was supposed to be issued within a month or so of him taking office. N51, the strategy shop, came to NWC and asked us to do a rewrite. I initially refused, saying that we were a research organization not a staff. However they reminded me that we were a Navy organization and bound to respond to OPNAV requests, so I set my faculty to work. We produced what I thought was a decent draft, the watchword being first do no harm to the international political capital CS21 had generated. This draft disappeared into the bowels of N3N5 never to be seen again.

The admiral in charge of N5 decided that his folks, i.e. the occasional available captain, would do the rewrite. The process of wordsmithing dragged on within the cubicles of the Navy Staff until March 2015. At one point I received a phone call from a commander on the Navy Staff who wanted the working papers from the 2006 project. It seemed that when they briefed version 12 (!) to the VCNO, Admiral Michelle Howard, she asked why the document said what it did and they did not have a good answer. Eventually, at a Naval Institute-sponsored conference in Washington, DC, Senator Ayotte of Maryland, responding to a question about who the audience for a new strategy should be, answered Congress. This broke the logjam and eventually the Navy issued the “refresh” to CS21 (CS21R), which turned out to be a pleading document to Congress for a larger fleet. Despite being a well-written justification for increasing the Navy’s size, it had no influence.

These case studies reveal several things that are key to a successful strategy development process. The first is that a document is not a strategy; rightly understood a strategy is an idea for solving a problem. The idea behind the Maritime Strategy was to intimidate the Soviets by aggressive forward presence operations. The idea behind CS21 was to court foreign cooperation by bringing them into the strategy development process. Both were solutions to global strategy problems that involved the unified world ocean. Congresswoman Luria defines it as the way military means are used to achieve political ends. The respective documents, the Maritime Strategy’s various classified briefs and ultimately the unclassified Proceedings Article, and the CS21 document itself, were tools to aid in the execution of the strategy or to garner support for it. In contrast, the CS21R document was meant to be the strategy; a document meant to gain Congressional support for a larger fleet, with no strategic problem solution underpinning it.  Wordsmithing does not constitute strategy development. The upshot is that for practical purposes, strategy for the Navy should be an idea for solving a strategic problem that involves the world ocean. By strategic I mean what Congresswoman Luria means; using the Navy’s forces to achieve desired international political effects.

The second thing is how the Navy arrives at the central idea. A small group of officers brainstorming in a cypher-locked Pentagon office might produce a viable idea, and sometimes this approach is necessary, but it appears that wide collaboration has had more success. Moreover, strategic problems are generally multi-faceted and hard to grasp, so extensive research and gaming should be used to explore, refine, and finally articulate the problem. The Navy could certainly benefit from having a cadre of officers specially educated and experienced in strategy development, but that does not mean that the development process should take place exclusively within the Navy Staff. The connecting link between the two successful strategy cases just described is the Naval War College. The institutional context within which the research, gaming and thought that supports strategy development is important, and the College’s academic culture and ability to collaborate makes it the appropriate place for such activity to take place, even if the Navy Staff has ultimate responsibility for selecting the strategy and crafting any briefings and documents. Other venues such as think tanks or the Navy Staff itself lack complete objectivity for various reasons, and despite Congresswoman Luria’s advocating for the 2017 CSBA study, a blank slate is needed for the new maritime strategy project.

All of this begs the question of whether strategy development ought to somehow be formalized and institutionalized per Admiral Morgan’s ill-fated effort or whether it should be ad hoc, responding to the particular circumstances of the time. This writer favors the latter approach, although the history of War Plan Orange, the strategy for defeating Japan in the Pacific, suggests the former. As it stands, the Navy would be well-advised to initiate an ad hoc project at this point, even though it has, with the stand-up of the new N7 directorate, created an organizational home for strategy development whose authorities reach into the analysis and resource arenas. The smart move for N7 would be to act as a strategy development sponsor, absorbing and integrating the War College’s research and gaming efforts as well as think tanks such as the Center for Naval Analyses and perhaps those outside Navy lifelines like CSBA. As described by writers like Trent Hone and John Kuehn, the other empowering element of Navy strategy development during the years from the turn of the Twentieth Century up to World War II was the continuing relationship between the Naval War College, the Fleet, and the Navy Staff. As War Plan Orange demonstrated, iteration is a path toward better strategy, and N7 is well positioned to promote a coherent flow of thinking and rethinking of strategy among the relevant institutions and thereby informing Navy budgets, doctrine and shipbuilding plans.

I must agree with Congresswoman Luria’s complaints about the structure of the Unified Command Plan and its strategy development process. American military power, and especially its seapower, has become a scarce resource relative to the demands of the U.S. grand strategy of supporting and defending a rules-based, global liberal trading order. When resources become scarce, centralized planning is needed to ensure their efficient distribution. It is dangerous to simply mete out scarcity equally among the COCOMs, which is apparently all the current system is capable of. Moreover, as the current debacle in Afghanistan again demonstrates, throwing policy problems over the transom to the military that should rightly be handled by State, Commerce, and the other Cabinet departments, produces mindless overreach and ultimate tragedy. The Navy has, from time to time, had to step in and solve strategic problems that in theory should have been handled by either the Joint Staff or the Office of the Secretary of Defense, but neither was either capable or interested. The current problem that spawned Congresswoman Luria’s article – the looming loss of American command of the sea – is global, strategic and maritime, and apparently the Navy is the only organization capable of coming up with an idea – a strategy – for how to solve it. But to do so, the Navy must learn from both its past successes and failures and put into motion a rational process for developing a new maritime strategy.

Robert C. Rubel is a retired Navy captain and professor emeritus of the Naval War College. He served on active duty in the Navy as a light attack/strike fighter aviator. At the Naval War College he served in various positions, including planning and decision-making instructor, joint education adviser, chairman of the Wargaming Department, and dean of the Center for Naval Warfare Studies. He retired in 2014, but on occasion continues to serve as a special adviser to the Chief of Naval Operations. He has published over thirty journal articles and several book chapters.

Featured Image: STRAIT OF HORMUZ (Aug. 4, 2021) The Wasp-class amphibious assault ship USS Iwo Jima (LHD 7) transits the Strait of Hormuz, Aug. 4, 2021.  (U.S. Navy photo by Seaman Logan Kaczmarek)

Beyond Defense: America’s Past and Future Interests at Sea

By Jimmy Drennan

The ongoing supply chain crisis is a sobering reminder that American maritime interests have always been about more than national defense. The U.S. Coast Guard traces its lineage to an 18th century Treasury Department service charged with tariff enforcement. Over time, its mission evolved and expanded, while the U.S. built the world’s foremost Navy and formed myriad other agencies to secure its broad maritime interests. In the 21st century, China’s ambitious bid to reinvent the way a nation can exploit the high seas and define multifaceted maritime interests has emerged as a tangible threat to America’s future. This threat demands a new approach to maritime security and prosperity.

In the next decade, the balance between the U.S. and People’s Liberation Army (PLA) Navies will be pivotal in defending the concept of freedom of the seas, likely without even firing a shot. Throughout its history, the U.S. Navy has ranged from six to 6,768 ships. By most estimates, the current fleet of 299 battle force ships is about 100-200 short of what America needs to secure its national interests, and navalists are dusting off old theories to convince Congress of the value of seapower.

From Barbary Pirates to the Great White Fleet, or to strategic confrontation with the Soviet Union, the U.S. Navy has been integral not only in ensuring America’s security in wartime, but also its prosperity in peacetime. The 2020 U.S. Tri-Service Maritime Strategy1 echoes 19th century strategist Alfred Thayer Mahan when it states that the naval service’s peacetime missions include “safeguarding global commerce” and “extending American influence.”2 In fact, Mahan’s philosophy even suggests that navies serve a primarily economic purpose. If the U.S. Navy’s mission goes beyond national defense, it is unlikely to be adequately resourced in a parent department that seeks to equitably distribute funds across all other military branches. Meanwhile, China’s recent naval buildup – tripling to around 360 battle force ships in the last 20 years – is possibly not meant to defeat America in a war at sea, but to serve as a credible deterrent force to underwrite the various economic and coercive aspects of its maritime strategy.

America should reconceive how it leverages and secures its territorial waters, trade routes, and the high seas. The history of America’s tangled maritime bureaucracy offers insight to how it can answer China’s challenge.

From Cutters to Committees: America’s Maritime Heritage

As the Navy steadily cemented its role as the primary guarantor of America’s maritime interests, other federal maritime entities grew and evolved, primarily through two institutions: the Coast Guard and the Merchant Marine.

The U.S. Coast Guard

Long before the United States commanded the world’s largest Navy, America’s leaders recognized the sea as the lifeblood of its economic prosperity. Following the Revolutionary War, the national debt topped $75 million ($2.16 billion in today’s dollars), and import duties on seaborne trade represented the bulk of federal revenue. On August 4th, 1790, Secretary of the Treasury Alexander Hamilton convinced Congress to commission ten cutters and establish the Revenue-Marine to enforce its tariffs. Hamilton understood the danger of lost revenue from smuggling and piracy, writing to the service’s commanding officers: “It is well known that one of the most extensive cases of illicit trade is that which is here intended to be guarded against – that of unlading goods before the arrival of a vessel into port, in coasters and other small vessels, which convey them clandestinely to land.” For example, in 1756 and 1757, only 16 of 400 chests of tea were imported legally into Philadelphia. In 1763 the British government estimated £700,000 in goods were smuggled into the colonies annually, which equates to about $150 million today. Even a fraction of that loss of revenue would have been devastating to the newly independent nation.

Congress merged the Revenue-Marine (then termed the U.S. Revenue Cutter Service) and U.S. Lifesaving Service in 1915 to establish the Coast Guard as a branch of the armed forces. The Coast Guard would integrate operations with the Navy as economic and military threats overlapped, formally shifting to the Navy Department when Congress declared war in 1917 and 1941. As the Coast Guard assumed other military and navigation support missions, its relationship with Treasury gradually faded. The U.S. Customs Service was originally tasked to oversee the cutter fleet in 1789. The two services jointly collected and enforced the nation’s tariffs, but by the early 20th century, the Customs Service’s border patrol primarily performed these roles. The Coast Guard no longer protected federal revenue when it transferred to the new Department of Transportation (DoT) in 1967. In response to the 9/11 terrorist attacks, the 2002 Homeland Security Act moved the Coast Guard under the new Department of Homeland Security (DHS), for which maritime border security would be a core mission. The Act also rejoined the Coast Guard with customs but kept their functions separate, creating Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) under DHS. In fact, under the reorganization, ICE, and later CBP, maintained an Air and Marine Operations division tasked with securing the nation’s maritime borders, which perpetuated bureaucratic fragmentation.

To this day, DHS frames its maritime security mission from a post-9/11 “Global War on Terrorism” perspective. The National Strategy for Maritime Security (NSMS), jointly developed by DHS and the Department of Defense (DoD) in 2004 to better coordinate all federal maritime security efforts, states: “Preeminent among our national security priorities is to take all necessary steps to prevent [weapons of mass destruction] from entering the country and to avert an attack on the homeland.”3 The strategy, which has not been updated, does not fathom the rise of China. It anchors all threats, including theoretical conflict between unspecified major powers, to the potential for terrorist attacks on the homeland.

The U.S. Merchant Marine

Just as in Hamilton’s time, the U.S. still depends on the sea for its economic health, with over 70 percent of foreign trade, worth more than $1.5 trillion, flowing through the nation’s seaports.4 Modern federal oversight of maritime trade is rooted in the 1916 U.S. Shipping Board, which Congress tasked with boosting American shipping capacity and addressing overreliance on foreign carriers. At the time, about 10 percent of U.S. trade was carried in U.S.-flagged ships.5 Today, that number is less than two percent. In 1933, after successfully supporting the American war effort, the Shipping Board was moved under the Department of Commerce and eventually replaced by the independent U.S. Maritime Commission by the Merchant Marine Act of 1936, in part to “promote the commerce of the United States, [and] to aid in the national defense.” In 1950, the commission disbanded and its duties were split between the new Maritime Administration (MARAD) and Federal Maritime Board, both under the Department of Commerce. The Federal Maritime Board became the independent Federal Maritime Commission in 1961, and MARAD transferred to DoT in 1981.

Figure 1. DoT Timeline for Developing a National Maritime Strategy. Click to expand. (Source: GAO Analysis of agency information, GAO-20-78)

In 2004, the Secretary of Transportation chaired the new Committee on the Marine Transportation System (CMTS) to secure and improve America’s infrastructure network of over 8,000 facilities and 25,000 navigable waterways.6 The CMTS maintains a five-year National Strategy for the MTS, last published in 2017. That same year, DoT submitted a separate draft national maritime strategy, which Congress directed in 2014 to make the U.S. maritime industry more competitive. DoT finally released the strategy in 2020 after years of bureaucratic delay (Figure 1).7 The red tape did not stop there. Two additional interagency committees developed national strategies for mapping the 2.25 million square mile U.S. economic exclusion zone (EEZ) and establishing maritime domain awareness.8 Furthermore, the Coast Guard shares responsibility for enforcing fisheries laws in the EEZ with the National Marine Fisheries Service, an element of the National Oceanographic and Atmospheric Administration (NOAA) within the Department of Commerce.9

The Merchant Marine Act of 1936 also spawned the U.S. Maritime Service (USMS) to train citizens to serve in the U.S. Merchant Marine, the collective fleet of federally and civilian owned merchant vessels. Over time, authority over the USMS shifted between the U.S. Maritime Commission, the Coast Guard, and DoT. Despite its vital role in Allied victory, the service’s various activities were absorbed by other federal agencies following World War II, while the Secretary of Transportation retained a symbolic cadre of USMS officers.

Today, the U.S. Merchant Marine fleet is administered by a combination of the Navy, MARAD, and private industry. That fleet is obsolete and dwindling. As of 2018, the U.S. owned one percent of the world’s container ship fleet, with an average ship age of 20 years, compared to China and Hong Kong which owned 18 percent with an average age of 10 years.10 U.S.-flagged merchants currently represent 0.4 percent of the world fleet, compared to over 40 percent in 1947. The National Defense Reserve Fleet, a subset of the Merchant Marine, has shrunk to 88 federally-owned merchant vessels maintained to support shipping during national emergencies, down from its peak of 2,277 in 1950.

If current trends persist, the U.S. will increasingly rely on Chinese infrastructure for its seaborne trade and transport, reminiscent of the conditions that led to establishment of the U.S. Shipping Board in the first place.

The Chinese Maritime Challenge

As American maritime bureaucracy meandered, Chinese challenges to the post-World War II international order coalesced. Rather than use the PLA Navy and land-based power projection alone to exercise traditional sea control, the People’s Republic of China (PRC) has used the world’s oceans innovatively as part of an economic gray zone strategy11 to intimidate its neighbors and encroach on their sovereignty, undermine customary law of the sea, and avoid open confrontation with the U.S. and allied navies along the way.

From its inception in 1949, the PRC established two key elements of its maritime strategy: the Nine-Dash Line, which mapped Beijing’s claim of sovereignty over the vast majority of the South China Sea (Figure 2); and the Maritime Militia, a loosely controlled fleet of freighters, tankers, and fishing vessels to assist the small PLA Navy in its struggle to prevent Nationalist incursions into mainland China’s territorial waters. China generally followed international maritime norms in the 20th century, ratifying the UN Convention on the Law of the Sea (UNCLOS) in 1996, but now flouts the prescribed definitions of territorial waters and EEZs in favor of the Nine-Dash Line. Meanwhile, as China’s maritime ambitions grew, the Maritime Militia gained prominence in Chinese doctrine for asserting its sovereignty, sometimes amassing hundreds of militia vessels inside the EEZs of neighboring nations.

Figure 2. Map of the South China Sea, Secretariat of Government of Guangdong Province. January, 1947. Click to expand. (Source: PRC Territory Department of Ministry of the Interior)

A strategic cousin of the Maritime Militia is China’s Distant-Water Fishing (DWF) fleet. In 1985, China had 13 DWF vessels. Today, as many as 17,000 Chinese vessels, far more than any other nation’s fleet, harvest the world’s fisheries, sometimes illegally, to sell their catch at home and abroad.12 China’s growing appetite for fish – forecasted to create a 6-18 million ton domestic shortage by 2030 – will increasingly pressure its DWF fleet to fish inside other nations’ EEZs, with or without their consent.13 Globally, illegal, unreported, and unregulated fishing accounts for up to $50 billion in lost revenue, and China’s DWF fleet is a growing flashpoint for conflict, particularly as other Asian nations assert their sovereignty in the South China Sea.14 Yet, this is not a problem that the world’s navies alone can address. Although it pushes the envelope on fishing regulations, China seems to set policies for its DWF fleet that comply with internationally accepted standards, such as lining up hundreds of vessels one mile outside a nation’s EEZ (Figure 3). Most nations, including the U.S., are simply unwilling to use military force against fishermen not violating their sovereignty or international law.

Figure 3. Foreign fleet of trawlers lined up outside Argentina’s EEZ. Click to expand. (Source: Daniel M. Coluccio Twitter @DaniMColu)

The Belt and Road Initiative (BRI), China’s multi-trillion-dollar global infrastructure strategy, seeks to tilt the global economy in Beijing’s favor. Chinese state-owned firms already operate, or hold majority stakes in, the ports of Piraeus, Greece; Haifa, Israel; Gwadar, Pakistan; and Hambantota, Sri Lanka.15 China may or may not try to convert these ports to overseas naval bases, like the one it maintains in Djibouti near the mouth of the Red Sea. Still, one can easily see how leverage over trading partners and logistics hubs could threaten American prosperity in a global economy so heavily dependent on seaborne trade. The 2021 supply chain crisis offers a clear example of what can happen when key links in the chain are unavailable. In addition to owning the world’s largest nationally-flagged merchant fleet by a wide margin, China builds half of the world’s new container ships, and its state-owned shipping firm COSCO is the world’s largest terminal operator, accounting for 14 percent of the world’s container throughput.16 Certain elements of BRI also have maritime implications, such as the Polar Silk Road, which would cut China’s transit distance to Europe by 24 percent using Russia’s Northern Sea Route, and the Digital Silk Road, into which China has invested $79 billion in countries like India, Mexico, and the Philippines to build undersea internet cables and a navigation satellite network.17,18

The U.S. Maritime Department

If China stays in the gray zone and avoids military confrontation, the U.S. will struggle to secure its maritime interests with any number of warships under its current federal structure. In 2007, the U.S. Naval Studies Board formed a committee on the “1,000-Ship Navy” to study the Chief of Naval Operations’ vision of global maritime partnerships. The Committee observed that there is “no single agency or department that can effectively speak for the President and the nation’s maritime concerns. Responsibilities are fragmented. Authority is often exercised but decisions are not coordinated, so the result is less than optimal.” The Committee concluded that a “novel and extraordinary approach is needed to break through the international barriers abroad and interagency barriers at home,” recommending three potential alternatives: improve interagency coordination under existing federal government structure, assign a lead agency, or establish a new agency either under an existing department or standalone (like the Federal Aviation Administration).19 The Committee’s findings have proven prescient, but the recommendations fell short of addressing the economic and diplomatic challenge that China would pose.

Perhaps with the benefit of foresight, the Committee would have made a fourth recommendation: establish a cabinet-level Maritime Department with a mission of integrating applications of national power to ensure maritime security and prosperity.

Figure 4. Proposed composition of U.S. Maritime Department. Click to expand. (Author graphic)

Without bold federal realignment, it is difficult to see how a nation with no less than four independent national maritime strategies can achieve maritime security and prosperity. Before it can even address strategy, the U.S. must learn from history and restructure itself to meet contemporary challenges. In addition to the Bush Administration’s creation of DHS in the wake of 9/11, President Carter created the Department of Energy following the 1973 oil crisis, and President Truman created DoD in 1947 due to military dysfunction after World War II. A Maritime Department would integrate national power in the maritime domain by consolidating the various federal entities responsible for maritime security and prosperity, to include the Coast Guard, MARAD, NOAA, and others (Figure 4). To solve the dilemma of having to adequately resource the Navy’s peacetime missions while maintaining readiness to win the nation’s wars at sea, the Navy may also need to be transferred from DoD, except during a state of war or when supporting Combatant Commanders in overseas contingency operations.

This arrangement is analogous to the current relationship between the Coast Guard and DoD. The notional Maritime Secretary would advocate for the value of American seapower from the perspective of all of its maritime interests, not just national defense. Granted, creating a Maritime Department would not automatically boost much needed funding for the sea services and other maritime entities, but it would enable greater budget flexibility between the Navy, Coast Guard, and Merchant Marine, essentially pooling their resources to more effectively integrate national security, law enforcement, and commercial activities.

The Two Sides of the Pacific

The contrast between American and Chinese strategic momentum at sea is stark. China’s activities at sea are well integrated facets of a national strategy in full execution, while America’s federal maritime entities progress haphazardly. Prevailing in modern maritime competition requires more than warships and, in any case, America’s heritage of seapower has never been about national defense alone. The Navy is the most capable maritime arm of the U.S. government, but its capacity is being overwhelmed by competing demands to support current military campaigns, prepare for future conflict, and counter China in the gray zone.

Even after properly funding the Navy, the prospect for American maritime interests under the current federal structure is bleak. A focus on military readiness for a conflict that may never come may cause America to sit out of the strategic competition entirely, never clearly seeing China’s national strategy nor developing one of its own. The authors of the “1,000 Ship Navy” report predicted the need for a novel and extraordinary approach to overcome the “quagmire of bureaucratic and political hurdles” they saw, even before seeing the threat China would pose to America’s security and prosperity.20 After 14 years of strategic stagnation on one side of the Pacific and stunning acceleration on the other, the hurdles are even higher. In another 14 years, they may be insurmountable.

Jimmy Drennan is the President of the Center for International Maritime Security. His views are presented in a personal capacity and do not necessarily reflect the views of any U.S. government department or agency.

References

1. The governing strategic document for the U.S. Navy, Marine Corps, and Coast Guard (collectively, the “naval service”).

2. Braithwaite, Kenneth J., Advantage at Sea: Prevailing with Integrated All-Domain Naval Power, 16 December 2020 (Washington, DC: Department of the Navy, 2020)

3. United States White House Office, The National Strategy for Maritime Security, September 2005, retrieved from https://www.hsdl.org/?abstract&did=456414, 30 May 2021. The NSMS is separate from the Tri-Service Maritime Strategy.

4. U.S. Committee on the MTS, National Strategy for the MTS: Channeling the Maritime Advantage, 2017-2022. (Washington, DC, 2017), p. 4.

5. Hurley, Edward N., The Bridge to France. (Philadelphia & London: J. B. Lippincott Company, 1927).

6. U.S. Committee on the MTS, National Strategy for the MTS: Channeling the Maritime Advantage, 2017-2022. (Washington, DC, 2017), p. 15.

7. United States Government Accountability Office, Report to Congressional Committees on National Maritime Strategy: DOT Is Taking Steps to Obtain Interagency Input and Finalize Strategy. (Washington, DC: GAO, 2020).

8. In 2020, the Ocean Science and Technology Subcommittee of the Ocean Policy Committee, led by NOAA, published a national strategy for mapping, exploring, and characterizing the U.S. EEZ. Separately, the U.S. National MDA Plan is maintained by an executive steering committee consisting of representatives from the National Maritime Intelligence-Integration Office (NMIO) and the Departments of Defense, Homeland Security, and Transportation – but excludes NOAA and the Department of Commerce.

9. Garofolo, John, “Protecting America’s Fisheries,” Coast Guard. (Washington, DC: USCG, 1998).

10. United Nations Conference on Trade and Development, Review of Maritime Transport 2018 (New York: United Nations Publications, 2018).

11. International political competition below the threshold of armed conflict.

12. Gutierrez, Miren, Daniels, Alfonso, Jobbins, Guy, Gutierrez Almazor, Guillermo, Montenegro, Cesar, China’s Distant-water fishing fleet: Scale, impact and governance, ODI Report, June 2020.

13. Crona, B., Wassénius, E., Troell, M., Barclay, K., Mallory, T. et.al., China at a Crossroads: An Analysis of China’s Changing Seafood Production and Consumption, One Earth, Perspective, Vol. 3, Issue 1, pp. 32-44, 24 July 2020.

14. Sumaila, U. R., Zeller, D., Hood, L., Palomares, M. L. D., Li, Y., Pauly, D., Illicit trade in marine fish catch and its effects on ecosystems and people worldwide, Science Advances, Vol. 6, No. 9, 26 February 2020.

15. Hillman, Jennifer, Sacks, David, China’s Belt and Road: Implications for the United States, Council on Foreign Relations, Independent Task Force Report No. 79, March 2021.

16. United Nations Conference on Trade and Development, Review of Maritime Transport 2019 (New York: United Nations Publications, 2019).

17. Albert Buixadé Farré, Scott R. Stephenson, Linling Chen, Michael Czub, Ying Dai, Denis Demchev, Yaroslav Efimov, Piotr Graczyk, Henrik Grythe, Kathrin Keil, Niku Kivekäs, Naresh Kumar, Nengye Liu, Igor Matelenok, Mari Myksvoll, Derek O’Leary, Julia Olsen, Sachin Pavithran.A.P., Edward Petersen, Andreas Raspotnik, Ivan Ryzhov, Jan Solski, Lingling Suo, Caroline Troein, Vilena Valeeva, Jaap van Rijckevorsel & Jonathan Wighting, Commercial Arctic shipping through the Northeast Passage: routes, resources, governance, technology, and infrastructure, Polar Geography, 37:4, 298-324, 2014.

18. Deloitte, BRI Update 2019 – recalibration and new opportunities (Shanghai: Deloitte, 2019).

19. National Research Council, Maritime Security Partnerships (Washington, DC: The National Academies Press, 2008).

20. National Research Council, Maritime Security Partnerships (Washington, DC: The National Academies Press, 2008).

Featured Image: Arlington (LPD-24) on the builders ways at Northrop Grumman Ship Systems, Ingalls Operation, Pascagoula, MS. (Photo via NavSource)