Official responses to the Mayor of Winooski from the Vermont Air National Guard revealed commanders at war with the military’s own regulations, federal laws, and Vermont laws that protect civilians. The responses tore all legitimacy from the commanders and their F-35 training flights in Vermont’s most densely populated area.
The 8-page report, entitled, “Official Responses from Vermont Air National Guard,” was posted by the City of Winooski on October 25. The questions to which they responded were posed by residents at the September 7, 2021 Winooski City Council meeting. Three Air National Guard commanders attended that meeting at the invitation of Mayor Kristine Lott. The remarks by residents were described and links to video and audio provided in, “‘Excruciating.’ At a Winooski City Council meeting attended by 3 Vermont Guard commanders, 30 people shared their pain and suffering from the F-35.”
Unanswered questions: The mayor identified ten questions, labeled “Unanswered by the Vermont Air National Guard” on the last page of the city’s 8-page report. An email to a reporter stated that these questions remained unanswered even after a second ask for a response from the mayor.
Among the unanswered questions that revealed areas of special sensitivity were:
· Are you aware that civilians report physical pain or injury from the F-35 training in this densely populated area?
· Is there a military regulation that authorizes you to conduct training in a location where the F-35 is routinely hurting or injuring civilians?
· Is there a military regulation that requires separation of military operations from populated areas (the military term for this regulation is “distinction”)?
· Does the F-35 mission require that the takeoffs and landings take place in a densely populated area?
· Is there a military necessity for F-35 takeoffs and landings to take place in a densely populated area?
The official responses from the commanders are deeply misleading: The commanders’ official responses could lead a reader to wrongly infer (a) that a “federal mission” requires the F-35 practice takeoffs and landings low over Vermont cities, including Winooski; (b) that no military regulations or federal and state laws protect civilians from the conduct of the Vermont Air National Guard under that supposed federal mission; (c) that the only limits on F-35 training flights are found in the US Air Force Final Environmental Impact Statement (FEIS); (d) that continued federal funding of Air Guard salaries, equipment, training, and service to communities depends on continuing to conduct the F-35 training in the most densely populated cities in the state; (e) that state authority over Guard training is too limited for the state to put a stop to it; and (f) that the responsibility for any hurt or injury to civilians from that training falls on the federal government, and not on Vermont Air National Guard commanders or Vermont political leaders.
This article provides information left out of the commanders’ official responses that shows that each of those six conclusions is wrong.
Diverting from the rules: Exercising a bit of sleight of hand, commanders diverted attention from Department of Defense and US Air Force regulations that require military forces to guard and protect civilians from their operations. The only limits on operations mentioned by commanders in their official response are in the US Air Force Final Environmental Impact Statement. A city councilor or a member of the public could never have learned from the commanders that US military regulations actually provide far greater protection to civilians than is available under such civilian laws as the National Environmental Policy Act. Nor could they have learned that US and Vermont laws add further protections for civilians from military operations. Diversion to the limits in the Final Environmental Impact Statement alone, as suggested by commanders, could imply that no legal protection was available to Winooski civilians from the F-35 training.
However, well-established regulations for the US armed forces that protect civilians are applicable to the Vermont National Guard under Vermont law (20 V.S.A. § 361). Though it may add further requirements, the Final Environmental Impact Statement is not a substitute for the “drill, discipline, administration, and instruction” the Vermont Air National Guard is required to conform to.
US military regulations protect civilians: Among the Department of Defense and Air Force instructions that protect civilians that the Vermont Air National Guard must conform to is United States Department of Defense (DoD) Directive 2311.01, which sets the legal standards that protect civilians both during armed conflict and in peacetime. DoD Directive 2311.01 states:
It is DoD policy that: Members of the DoD Components comply with the law of war during all armed conflicts, however characterized. In all other military operations, members of the DoD Components will continue to act consistent with the law of war’s fundamental principles and rules, which include those in Common Article 3 of the 1949 Geneva Conventions and the principles of military necessity, humanity, distinction, proportionality, and honor.
“Laws of war” and “International Humanitarian Law” are among the terms used to describe the long-established rules under which members of the armed forces are required to protect civilians from military operations.
DoD Directive 2311.01 cites the 1,236-page United States Department of Defense Law of War Manual as “the authoritative statement on the law of war within the DoD.” It describes each of the five law of war fundamental principles in detail. Regarding their applicability for training operations outside of theaters of combat it states, “These ‘elementary considerations of humanity’ have been understood to be ‘even more exacting in peace than in war.’ Thus, these legal standards, at a minimum, must be adhered to in all circumstances” (p. 72). “All circumstances” includes during F-35 training flights in Vermont.
DoD Directive 2311.01 requires military forces, including the Vermont Air National Guard, to implement “effective programs to prevent violations of the law of war.” DoD Directive 2311.01 includes a long list of measures to prevent violations that extend from “periodic training” to “instituting criminal proceedings.”
Additional Department of Defense and Air Force directives, instructions, policies, and doctrine that protect civilians are described in the “Complaint to the Inspector General of the Vermont National Guard” submitted by 657 Vermonters on October 22, 2020.
The US Constitution and US laws add further protection for civilians from state national guard training operations. An express provision in the US constitution requires the training of all state national guard units to be “according to the discipline prescribed by Congress.” That “discipline” includes federal criminal laws in the Uniform Code of Military Justice (UCMJ) and the US War Crimes Act [18 U.S. Code § 2441].
Unlike the statements in the Final Environmental Impact Statement, which are not enforceable, these federal laws provide criminal penalties for such reckless assaults on civilians as conducting training with F-35 jets in a densely populated area where citizens are hurt and injured. Consistent with their oaths to defend the constitution, including its mandate that training be according to the discipline prescribed by Congress, commanders, inspectors general, judge advocate generals, and federal prosecutors should all be enforcing those federal laws to protect Vermont civilians from the illegal Guard training with F-35 jets in cities.
Vermont criminal laws protect civilians: The commanders’ official responses also omitted mention of Vermont’s criminal laws, including reckless assault, reckless endangerment, and reckless disorderly conduct. All three are violated when the Vermont Air National Guard blasts densely populated city neighborhoods with 115-decibel F-35 jets. The Chittenden County States Attorney and the Vermont Attorney General, who are pledged to enforce Vermont criminal laws and to do equal right and justice to all persons, have not acted to protect Vermont civilians from the state-sponsored abuse. Instead, they appear to be in depraved indifference to the suffering, collaborating with the military industrial complex, and providing impunity to state political and military leaders.
By diverting attention to the toothless Final Environmental Impact Statement from the actual military regulations and the US and Vermont laws that actually govern their conduct, the official responses of commanders could have misled the mayor and the city council of Winooski and the public.
No “federal mission” requires the Guard to train in a location where civilians are hurt and injured: In their verbal statements and in their official written response, commanders asserted that a “federal mission” requires the F-35 training. A careful review of their statements at the meeting and their written “official responses” shows that commanders actually did not say that this federal mission requires a city location for that training. Nor did the description of the “federal mission” in the Final Environmental Impact Statement say anything about requiring the F-35 training to be located in cities. Nor does any DoD or Air Force regulation require any Air National Guard unit to conduct training in a densely populated city location.
Not only did commanders nowhere state that the “federal mission” requires a city location for the F-35 training, none of the references they cited even suggested the desirability of a city location. However, from the context of their remarks about a federal mission, a city councilor or member of the public could easily assume that the federal mission required the Vermont Air National Guard to conduct the routine F-35 training where it is currently taking place, from a runway that targets the civilians in the state’s most densely populated cities. Such an assumption is not supported by anything at all, as further described in the article, “Commanders offer deeply flawed defense of F-35 training over cities: We are just following orders.” Any conclusion that the “federal mission” requires the training to be conducted in a city location actually finds no support in the responses from the Vermont Air National Guard commanders.
But let’s assume, just for the moment, that the federal mission did require training amidst cities where thousands of people are daily assaulted and injured, even though commanders do not actually assert that the federal mission requires a city location: Such a federal mission is clearly illegal, as it violates the military’s own regulations, federal and state laws, constitutional rights, ratified treaties, and international law, all of which protect civilians from military operations.
Noteworthy, is that during combat operations on a battlefield, military regulations do permit harm to civilians but then only if the harm to civilians is not “disproportionate” to the military advantage from the operation toward bringing the war to a close. This exception is obviously inapplicable to mere routine training operations. Choosing to conduct routine training that assaults, hurts, injures and distresses civilians, especially children, in densely populated cities can never be justified.
The state, not the federal government has “command and control” of Vermont National Guard training: Although the official response from commanders backhandedly admits that “command and control” is with the state (top of p. 2). commanders argue that this authority is “narrowly limited.” They assert that actual responsibility for training with F-35 jets in a city location is with the federal government.
However, the US constitution reserves authority of training the militia (now called the national guard) to the states. Consistent with this constitutional mandate, under the congressionally enacted funding mechanism used for the F-35 training (called Title 32), command and control of state national guard training operations remains under the authority of the state–even though the federal government pays the costs for federal programs. The state is still constitutionally mandated to use its command and control to ensure that the training is conducted “according to the discipline prescribed by Congress” and that the military regulations that protect civilians are enforced.
State command and control authority means that state military and political leaders have both the power and the obligation to immediately halt F-35 training at any location where Vermonters are being hurt or injured. By failing to use that power, state officials fail to meet the constitutional obligation to conduct the training according to the discipline prescribed by Congress.
In view of command and control of training being under the control of the state, the responsibility for the pain, injury, and suffering from the F-35 training flights in the densely populated city location cannot be shifted to the federal government. Responsibility falls squarely on Vermont Air National Guard commanders, the governor, who is the commander-in-chief, and other top Vermont political leaders, who made themselves complicit by their active collaboration or by their silence, in the unconstitutional F-35 training operation in cities.
Commanders cite no authoritative reference for the statement that state authority is “narrowly limited.” Rather than provide an authoritative explanation from an attorney or judge advocate general to dispute the US constitution’s express reservation of authority of training the Guard to the states according to the discipline prescribed by Congress, in their official response (p. 2), the commanders resort to the newspaper report of the opinion of the spokesman for the governor as their only support for their opinion that the state’s authority is “narrowly limited.” This paucity of support is despite 7 weeks of delay, from the September 7 meeting to the October 25 publication of their official response.
Nor do commanders provide support for the suggestion that continued federal funding for the Vermont Air National Guard requires the state to continue the F-35 training flights in cities that hurt and injure civilians. The US Supreme Court ruled otherwise, regarding such pressure as unconstitutional “commandeering” unless four conditions were met (Murphy v. NCAA, 138 S. Ct. 1461, 200 L. Ed. 2d 854 (2018)). The article, “Vermont’s top General Seeks to Shift the Blame for the F-35 Training Flights over Winooski,” explains why Vermont would lose no funding if it halted the F-35 training in cities.
Military regulations violated: As described in detail in the 62-page “Complaint to the Inspector General of the Vermont National Guard” submitted by 657 Vermonters just over a year ago, the F-35 training in a city location violates each one of the law of war principles: military necessity, humanity, distinction, proportionality, and honor identified in DoD Directive 2311.01 that must be strictly enforced by the Vermont Air National Guard “in all circumstances.”
Regarding military necessity, the authoritative US Department of Defense Law of War Manual states, “military necessity must not be conflated with mere convenience.” (p.55). Vermont political and military leaders have not even provided reasons related to convenience, let alone military necessity, to justify training with 115-decibel F-35 jets in a densely populated city.
No honor in hurting civilians: Commanders know that there is no glory in hurting civilians. They know that abusing children, adults, and elderly with 115-decibel F-35 noise does not earn admiration. Commanders know that few things enhance the honor of a military commander or a military unit less than a record of targeting and assaulting civilians. Commanders know that even if there is some pride in operating fighter jets, there is no honor in training with them or using them in operations where they hurt and injure children.
Especially at a time of intense scrutiny of state-sponsored police violence disproportionately impacting people based on race and class, when no less an authority than the United States Air Force itself admitted that the F-35 training from BTV has “disproportionate impact on low income and minority populations,” there can be no pride in blasting Winooski. That Winooski is a working-class city with an unusually high proportion of people in poverty, and has, by far, the highest proportion of black and brown people in the state, means no honor can be accorded to commanders who target and assault that city with 115-decibel F-35 noise. All by itself, targeting the City of Winooski delegitimizes the entire F-35 project.
Conclusion: But commanders don’t stop there. By wrongfully suggesting that the federal mission requires training with F-35 jets in Vermont’s most densely populated cities; by diverting attention from the military regulations, laws, and constitutional provisions that protect civilians; by suggesting that the only limits on F-35 training flights are found in the US Air Force Final Environmental Impact Statement; by wrongfully stating that continued federal funding of Air Guard operations depends on continuing to conduct the F-35 training in densely populated cities; by wrongfully asserting that state authority over Guard training is too limited for the state to put a stop to it; by suggesting that the responsibility for any hurt or injury to civilians from that training falls on the federal government, and not on Vermont Air National Guard commanders or Vermont political leaders; and by omitting answers to basic questions about the F-35 training, commanders misled Winooski city councilors and the public. They tore apart the last shred of legitimacy from the F-35 training flights. They declared war on the rule of law.