Colonel Buckley,

Thank you for writing and identifying yourself in connection with the Future Combat Systems. The Secretary of Defense had the opportunity through the public affairs office and Government Accountability Office to provide inputs. Your letter warrants special attention. Those who have a problem managing contractors and scarce financial resources cannot credibly argue war crimes issues have been effectively managed, investigated, or started, as required under the Geneva Conventions. The possible penalty of reckless management of war crimes evidence, cases, and legal requirements can include, under order of a lawful war crimes tribunal, the death penalty.

As you well know, the Department of Defense has various acquisition program managers. Once technical performance measure used is the performance baseline. There have been serious allegations of war crimes against the President, civilian policy makers, and military personnel. Your letter suggests there is a problem with simple contract management. It defies reason to believe that more serious Geneva issues have been given serious attention. We remain concerned your letter has not adequately addressed the Geneva implications and issues attached with detaining powers’ responsibilities under the Conventions. Your letter suggest serious problems with complying with rather benign DoD legal requirements. It’s a leap to believe DoD directives related to war crimes investigations have been given any different attention.

In your letter you acknowledged the program costs have increased because soldiers have requested additional performance capabilities. By contrast, when the Secretary of Defense ordered various military officers to fully comply with combat-support, the military officers have been unresponsive. When you and your peers, who are not flag officers, decide to pay attention to lawful orders from superior officers, the public might take your feedback seriously.

With respect to the specific program you mentioned, the soldiers do not manage the program. Flag officers do. Contractors work for those flag officers in the Program Executive Office. They do not work for you.

Performance Measurement Baselines

Performance is measured by a stable software baseline. When the baseline changes because the PEO has incorporated new requests, this is the same as adjusting a baseline after the original requirements have been agreed. This is known as an increase in contract scope, at the direction of the government.

You have incorrectly characterized what a performance problem is. Performance is measured by how well the PEO does or does not stick with the original, signed program baseline. You have incorrectly suggested that increasing the program baseline, to accommodate new requests, is something that is mandatory. It is not.

You also incorrectly would have the public believe that the program baseline must perpetually change to accommodate new soldier requests. This is not true. One option is for the PEO to write contract language that would expedite high priority items; or he could expedite a stripped down version of the particular weapon system. It is his choice.

You failed to discuss why the PEO has not stabilized the program baseline. A stable baseline, as you well know from your acquisition training, is key to establishing a stable cost and schedule. Once the PEO gives permission to expand that existing baseline to accommodate new requests, they are doing several things. First, they are adjusting the baseline to accommodate new requests; and they are increasing the time and cost required to re-accomplish essential software coding, documentation, and other previously accomplished work.

You have failed to discuss why the PEO has not stabilized the baseline, issued a specific contract with firm requirements, and established a parallel program or contract to incorporate subsequent changes into future modernizations.

If the weapon system were indeed mission critical, then we should see some leadership not excuses. It remains to be understood how many mission critical requirements under the Geneva Conventions have been similarly explained away by other officers. The way forward is to explain to the public why this mission-critical equipment has not been firmly baselined to quickly deploy the minimal requirements; and why the PEO and others have not developed a software update program that would permit future field-level request to be seamlessly incorporated. Had the original baseline had the foresight to develop the weapons system along this option, we would not have a discussion why there are schedule delays or cost overruns. The original baseline would have outlined for the original work the specific requirements; a subsequent baseline, in parallel, would have then established a program to modernize the weapon system.

It appears your office and those you are working with do not have a clear understanding of what a performance baseline is. This is a simple concept. It is a stretch you and others should be expected to adequately grasp more difficult concepts like the Conventions. Regardless your ability to understand simple issues, your oath of office binds you to the Conventions. Your letter suggests you are wanting on simple issues. We can only speculate what might be going on with more complicated legal requirements and your consultations with the JAGs.

Program Office, Contractor Data Submittals

Also, you have incorrectly left the impression that the GAO and DoD use different metrics to evaluate program progress. This is a misreading of how the GAO reviews DOD data. As you well know, the GAO has experts like DOD who conduct reviews of program using the Earned Value Management System (EVMS) which is a method of tracking program progress. You failed to cite the specific system, other than the EVMS, that the GAO might have been using. Your failure to be specific weakens your argument and casts your letter in a less favorable light.

The lesson of this misdirection is useful to Geneva. In the case of your weapon system, you’ve changed the subject from whether you are or are not managing the program; to whether others are or are not adequately measuring that program. The same sleight of hand appears to be well linked with DOJ OLC, suggesting your letter is not a simple letter from a field grade officer, but something the White House counsel and DOJ OLC hope to establish as a public record. However, the standards on baselines, like Geneva, are not unclear but well established.

You are a Colonel in the United States Army. It's not your job to mislead the public. The public through the Congress establishes the rules which apply to how programs are run, managed, or audited. Congress established the GAO to audit programs which you and others in the Department of Defense help manage. These rules are used to evaluate how well program managers, contractors, and military officers do or do not effectively manage programs. Where simple rules are ignored, it’s reasonable for the public to presume that more complicated legal requirements under the Conventions have been simply cast to the wind, despite the “outrage” in the wake of Abu Ghraib, Guantanamo, CIA POW abuse, and the Italian War Crimes prosecutions.

Upward Adjustments

Sadly, despite the threat of legal consequences under the laws of war, this does not appear to inspire you or others to fully focus on all legal requirements under Geneva or the FAR; nor adequately make the case that you are serious about fully taking responsibility. This suggests a lack of remorse, contrition, and acceptable of where you find yourself and could warrant an upward adjustment before a competent war crimes tribunal, should you or others be subjected to indictment.

Your job in the military is to support combat operations and engage and defeat the enemy. Our job as support personnel is to solve the contracting problems, and fully support reasonable requests for mission-ready equipment. You do your job, and we’ll do ours. However, once you enter the audit arena, and attempt to suggest civilians in Congress do not know what they are doing, you will need to be reminded to stay in your lane. Simple rules seem lost on you. Simple rules of argument and discourse appear to be irrelevant. It appears you believe you expect the NYT readers to accept your statements on assertion alone. You are wrong. This is not Iraq. It is the United States. This is not a combat zone where you can mislead the enemy. You are dealing with the laws of peace inside the United States. However, you are in the UCMJ, subject to Article 134. It remains unclear whether your letter is linked with a DoJ OLC-DoD General Counsel effort to mislead the public, sanction inappropriate officer conduct, and turn a blind eye to questionable public statements you’ve made in writing attached to your military rank.

Questionable Compliance With Civilian Control, Requirements

The job of military officers is to establish a firm program baseline. Your approach would have DoD leaders continue adjusting a program baseline to continue accommodating new requests. This might have worked in the day where there were no software requirements. Once you and others demand software capabilities, you will have to work within the constraints of the weapon system you request. Software development, like invasions, takes time. In fact, there are so coding situations where even if you were to add more people, the job would not get done any faster. Rather, spending more money would not meet a new, earlier deadline.

Going forward, the best approach in this situation is to recognize that your public letter to the New York times is a written statement. It may be reviewed by Congress and war crimes tribunals to determine whether you are or are not being responsive to the Federal Acquisition Requirements and the Geneva Conventions. Based on your letter, it appears you have openly admitted the following: There is not stable program baseline for the weapon system you are associated with; new software requirements are expanding because the PEO and program management have not firmly established a coherent plan of specific requirements for the first generation of this weapon system; and user-requirements are creating a rubber baseline. In so many words, your letter makes the point of the GAO: That the mismanagement of a software development program, by way of a rubber performance baseline, is the same as mismanagement. It defies reason to believe that the alleged mismanagement of a simple, single program is isolated to that one program, especially with the reports of the President’s reckless disregard for the Conventions.

Government Auditing Standards

Perhaps you and others in the Department of Defense have no other idea or approach to address these issues. Rather, your letter leaves the distinct (false) impression that the GAO is doing something wrong. That is not a relevant argument and cannot inspire any competent war crimes prosecutor to shirk from their duties. Rather, the opposite appears more likely: That the GAO using Generally Accepted Government Accounting Standards has reviewed the same data which DoD management has reviewed, and arrived at different material conclusions related to allegations of fraud, mismanagement, incompetence. These findings can be attached to the larger nexus of Geneva compliance within the United States Government.

It's the job of your management to explain to Congress why, using the same EVMS system, your office and others in DoD would ask the public to believe that you are effectively managing a program; while the dame data suggests the opposite. Then, explain why, despite this disconnect on program management, we should believe that Geneva compliance programs are fully enforced. That defies reason.

Discovery: Reasonable Response to Subpoena

In your response I expect a coherent response that would touch on the following issues:

1. Discuss the reasons for failing to mention in your letter the EVMS data which the OSD and GAO staff jointly have access.

2. Explain why the data the GAO accessed at the Defense Plant Representative Office is somehow different than the information the DoD program managers are using.

3. Discuss why the PEO has not established a firm software baseline; and why there has been no provision for future software upgrades in subsequent program efforts.

4, Explain why the material GAO findings of alleged reckless management should or should not be applied to adverse conclusions of law by war crimes tribunals in re Geneva Convention compliance and the Laws of War program

Reasonable Adverse Inferences

Until you provide a written, signed response to Congress and the GAO, the public has a reasonable basis to conclude the following:

A. You've misrepresented the status of the program to DoD leadership;

B. The data the GAO has reviewed is essentially the same as OSD-reviewed data;

C. You've misrepresented the auditing standards which GAO uses to review common data provided on contract to the US Government;

D. You've left the false impression that these data deliveries, which the GAO and OSD have reviewed, are not consistent; yet provided no explanation why the same program has two different sets of data;

E. You've pretended that a rubber, flexible, unstable performance measurement baseline is something that is acceptable, when it is not;

F. You've incorrectly left the impression that good program management means accommodating all user-requirements, without regard to cost or schedule, when it has not;

G. You have incorrectly left the impression that people who make suggestions for combat requirements should always have their requests immediately incorporated into an existing program, without regard to whether any software or previous effort will have to be re-accomplished, re-worked, or substantially changed.

H. All management findings related to systems acquisition raise substantial, similar doubts about the DOD Laws of War management program, in contravention with the Geneva Convention requirements.

Unacceptable Risks To American Civilians

Geneva like the FAR is a requirement, not something that can be cast to the wind in the name of “supporting the troops”. If proven true, your alleged reckless statements create a bigger problem for the American public: Under the laws of war, other nations may legally detain, without charge, similarly situated people. Other nations may choose to detain American civilians, claim they are illegal combatants, and abuse them as has been done at Geneva. Your letter would ask that we ignore the larger issues of independent fact finders, and accept implausible explanations. The public has a reasonable basis to critically review and examine your letter. Until these management issues are addressed, the American citizenry should reasonably conclude the DoD Laws of War program is not adequately managed; and that the DOD leadership is willing to expose American civilians to war crimes. This is an alleged breach of your oath of office, and could be a subsequent offense under the laws of war. This is very serious.

Witness Credibility

You have failed to make your case, as a colonel in the Untied States Army, that you
should be believed. The GAO findings are based on standard auditing rules and procedures using sampling. These are statistical methods you and others in the acquisition community have been trained to apply, use when conducting oversight.

You have not made your case that the GAO findings are incorrect. Rather, you would have us believe that, using the same data, the auditors and OSD are in two different universes. That defies reason. To prevail against an enemy, we need coherent leadership, not excuses. You appear to be part of the problem, not the solution.

Your letter provides no basis to believe your assertion that there is a methodological difference. You failed to explain why your office has one set of EVMS data; but you claim the GAO reviewed a second set of EVMS data. This is more of the distractions the public was asked to endure from DOJ OLC on issues of Geneva. DOJ OLC failed, as have you in making your case. This is not impressive, especially from someone like you who should know the serious legal consequences attached to Geneva and the FAR. It is sad news for American civilians to learn that even the prospect of a possible death penalty for a Geneva violation does not inspire military personnel to fully manage the laws of war program. Perhaps you could explain what might inspire you to pay attention to the FAR, Geneva Conventions, and your oath of office.

Progress, Not Cash Outlays

Program costs are a function of a program baseline, the work performed, and the work accomplished. Just because someone is spending money, it doesn't mean that anything is getting done. Higher costs does not mean there is progress. This is the core issue with EVMS.

Rather, your office needs to explain why you would celebrate, within one program baseline, why we should keep adding requirements, but not expect cost and schedule growth. That defies reason. You would have us believe that the GAO should conclude the opposite: That despite adding additional requirements, on top of the original requirements, that there should be no cost growth or delay to re-work baseline software and other earlier work.

When you learn to make a coherent argument, perhaps the public might have confidence that you've learned something at the War College, and your undergraduate program. Until then, the public should not be surprised why we have a problem in Iraq or in the Department of Defense: We have senior military officers who are fixed to the idea that they are doing the right thing, but cannot point to established data, metrics, or program
management data that supports their assertion. Where the assertions are not supported by evidence, that material misstatement can be entered into evidence before a war crimes tribunal.

The Federal Acquisition Regulation well stipulates the contract requirements to establish, baseline, and manage a program. It's well established that when a program has an unstable baseline, and new requirements are added, that the program manage must manage that risk. There is no evidence in your letter that there is a serious effort to manage this risk. We can only conclude, based on what you’ve said, that the Geneva Conventions are similarly not adequately well managed, as they must be. American civilians as a whole do not work for you; you work for civilians.

In your example, you've not rejected the GAO conclusion that there has been cost or schedule growth. Rather, you've admitted that the program baseline has changed, because there were additional user-requirements added to that original program.

The right thing for the user isn't to adjust, and delay a weapon system; but to devise a weapon system that will accommodate the user: One that will, despite requests for changes, seamlessly accommodate those subsequent user requests. This isn't just within the weapon system, but also in how the original program is managed. You’ve implicitly argued that the weapon system as deployed, and the program as managed can do neither; yet, you contradict yourself and ask that we blame the GAO.

Your misdirection failed.

Pattern of DoD Deception

Let's take a another look at the problem. The public has been fed a pile of non-sense from former military officers, now retired, on combat progress in Iraq. Auditors have subsequently found those military officers were provided substantially massaged briefings, courtesy trips, and a very rosy picture of Iraq. In exchange, those military officers are alleged to have gained favorable DoD contract positions. If the auditors are getting blocked or misdirected on this many programs, its likely that DoD is doing the same on other auditor investigations related to Geneva.

Your office needs to explain the relationship your weapon system has with these retired military officers; and discus to what extent these former military officers are using your good name to make their case. Your letter is not a casual statement, but could be entered into evidence before the Italian War Crimes prosecutor currently investigating rendition and other alleged breaches of Geneva. You’ve not adequately explained why these management issues have been attached to your name and rank; but you would ask that we only narrowly construe the management issues to acquisition, but not Geneva. That defies reason. It was foreseeable your letter would be read by someone who knows about The Hague, Geneva, and management responsibilities under the laws of war.

Contracting Conflicts of Interest

It would be troubling to learn on top of the alleged fraud these former military officers have committed -- in providing false statements to Congress, and rewarded with more contracts -- to learn that the US military is hoping to shift attention from reckless contract management to whether or not the messengers of that alleged reckless management can be trusted. It remains unclear to what extent retired military officers, working for contractors, have assisted in implementing unlawful war crimes programs. Your letter makes the President’s claim of privilege moot: You’ve disclosed the very evidence of management recklessness needed to broadly expand a war crimes investigation on the management or mismanagement of the Laws of War Program.

As you read this, combat forces in Iraq continue to put their lives on the line, and the contractors are attempting to provide them battle field support. Thank you. However, the issue isn't whether or not the user has all the requirements they ask for, but whether any thing they ask for will be quickly deployed, and effectively used within a coherent strategy. Thanks to the retired military officers, Congress has been deceived into thinking the Untied States is making progress, where it is not; it would be a shame if those retired military officers have lost so much credibility with Congress that they hope to corrupt others to shift attention from contract mismanagement to whether or not the programs elastically hope to incorporate any and all user-requirements.

Your goal is to work within the established FAR, and use the budget you've been given to meet your program goals. If you can't do that, the public can find other people, who will do that job, not make excuses or use incoherent arguments. The best America’s military can provide to the NYT is a convoluted argument devoid of reason. It’s reasonable for the public to presume no better on issues of war crimes before international tribunals. There is no statute of limitations.

On the table is the issue of your promotion to a flag officer. You are not yet a flag officer. You need to decide whether you are going to serve the Constitution or whether you're going to attempt to confuse your client: The American public. You may think that you can defend a program, or put the Army before the GAO or Congress, but you are not going to make much progress. This says nothing of the alleged war crimes implications.

Your job will be to explain to the Congress why the DPRO data that OSD is reviewing is or is not the same that the PEO provided to the GAO. If the data is not consistent, you have a problem: There would appear to be two sets of books. This is a serious audit indicator. Once you convince Congress you can follow simple rules on a single contract, Congress and the GAO might be convinced you have a credible Laws of War program. You’re not there yet, despite an ongoing Geneva requirement. You have a problem as does the President and his legal defense team.

Contractor Audits

Your letter is also connected with a program that has NYSE-listed firms attached to that program development. Under the auditing standards, when there are allegations of fraud, mismanagement, or other concerns, the civilian auditors -- outside the GAO -- are required to in their working papers document their information, review the Accounting Standard 99, and report to the audit working group whether or not those auditing standards do or do not justify an increase in audit scope. Audit scope can broadly intrude into any contract, especially when there are allegations of war crimes. The Precedent of Nixon reminds us that even a President cannot shield evidence of illegal activity behind executive privilege. Your letter helps to substantially pierce the President’s last legal defenses.

The problem with your letter is that it gives the outside, non-GAO auditors the needed leverage they require to fully apply SAS99 to the NYSE-listed firms attached to this program; and broadly increase audit scope. This will then increases program cost. Audits are a foreseeable, known, and specific cost of doing business. It appears your office has not awoken to this reality under the FAR or Generally Accepted Government Auditing Standards. You need to discuss these issues with your Contract Officer, the JAGs and DOJ OLC.

Had you written a letter that was more respectful of the GAO, and did not attempt to mislead the public and Congress, the delays and cost overruns -- attached to this foreseeable audit increase -- would not put the lives of those you are supposedly supporting on the front lines at risk. This is a problem solely linked with a letter you freely drafted, wrote to the NYT, and put your name to. It is now admitted to the public record and admissible before any war crimes tribunal.

If you would like to lecture the NYT about how they should or should not report on GAO reports, you have not established yourself as someone who can be trusted to be believed. Perhaps you have some other information, a second set of financial records, or different data that the PEO refused to provided to the GAO. If that information exists, I suggest you explain to the JAG why there might be a basis to prosecute a civilian contractor
for alleged contract fraud, deceptive billing, and other FAR violations. You alone, based on your letter, have some special information, insight, and evidence supposedly establishing the GAO did something wrong, incorrect, or misleading. Whether you do or do not blame the NYT for correctly reporting the GAO findings hardly seems worth mentioning.

Failures

But since you brought it up:

You failed to justify any confidence that the DoD weapon systems are adequately managed; or that they are able to meet cost or schedule objectives within their existing program baselines.

You failed to explain why you are celebrating adding program requirements to an existing program, but not explaining to the public in your letter that the natural consequences of adding new requirements to an existing program is a cost overrun and schedule delay.

Poor performance isn't something that is a vague standard that applies to a "program", but to people, contractors, managers, and military officers. These issues implicate the laws of war. A close examination of your letter would highlight for government and civilian lawyers and auditors a reasonable basis to be concerned about your allegations. You have not met your burden. Your error was to link your name, military rank, and a public release. This would leave a reasonable reader with the conclusion that your statement was one of an official statement, not made as a private citizen.

Fitness for Duty Review

- Do you not understand what a program baseline is?

- When was the last time you read the Geneva Conventions?

- How many programs are being delayed because the program managers are developing software systems that do not easily accommodate changes?

- How many program briefings has your office given to OSD suggesting a program baseline is firm, when the new requirements – by your own admission -- would indicate there is no stable baseline?

- To what extent is your letter evidence that a required over target baseline has not been requested, as it should be; or is there another explanation why the OTB was not adequately and timely resolved before adding these new requirements?

- To what extent is your letter a sign of mismanagement in the Laws of War program under the Geneva Conventions?

You can't, within a single letter, contradict yourself, but then ask the public to believe the problem is with the NYT or GAO. That distraction from the FAR and Geneva fails. No, it appears, as the GAO correctly reported, that there is a problem with management, contractors, and cost-overruns. Those are symptoms of a fundamental issue: Leadership failure, linked with the President in the Oval Office; and his problem of Geneva and alleged war crimes.

Your assertion that there are "philosophical and methodological differences" if true, would warrant a broad review of all the data your program office has provided to Congress, Congressional Staffers in the program documentation, the information in the descriptive summaries, and the level of assistance your office did or did not provide to OSD and GAO auditors. In short order, even if you are lying in your letter, until we read other evidence, we can take your assertions as true because they are fatal to your interest. That is admissible to a Federal Court under rule 803 of the Federal Rules of Evidence. Once entered into court, these management indicators would give war crimes investigators a reasonable basis to broadly review your letter and all attached management-level data on the Laws of War management programs.

Pretextual

Future Combat Systems is the only program you specifically mentioned. You have not explained why the "demands" of non-program managers should be considered. The issue isn't the field or user, but management. Your misdirection fails. Geneva and the FAR remain on the table with your oath of office and the admissible evidence in your letter, a voluntary statement.

Funds Execution Rates

If you are not happy with the "Congressional budget cuts" you need to explain to the public why your program does not have enough program support before OSD to protect those funds. Indeed, once there is poor performance, and contract rebasdlining without a method to incorporate those requirements, we have an issue of whether the original program estimates were or were not reasonable; or whether, as suspected, the original cost and schedule estimates were as worthless as the original estimates for the invasion of Iraq, an alleged other war crime.

Cost Estimates

The program office must work with the Independent cost estimators. That establishes the service cost position. However, despite outside inputs to those costs, somehow you're acknowledging to the NYT that the program is still exceeding independent estimates. That's the definition of a program that needs help, not excuses. Indeed, once we find that the original cost estimates are in error, this would explain why the program funds execution is not meeting OSD goals. You have only the OSD to blame for having goals that your program cannot meet. If you would like to blame Congress for budget cuts, you need to provide public information on how the original program budget funds execution rates -- as the program office, not Congress, forecast -- are or are not consistent with the original program baseline; and the actual work being done. Your letter suggests that you know the original cost estimates were defective, and the program baseline is out of control, yet you still want people to keep giving you money. That defies reason.

We're at war. Other programs have the same problem. Your program isn't high enough on the priority list to get protected, even though its for front-line combat units. That's what a mess your commander in Chief has created: There isn't enough money to support front-line ground troops. If you want more money, then you need to explain to which families in American should have their food assistance bills cut.

Finite resources means decisions have to be made. You appear to be part of the crew that doesn't know how to manage this mess you and your President have created for America. This is your mess. Don't whine to the NYT that they've finally reported on mismanagement, cost overruns, and schedule delays. This didn't happen out of the blue.
The question is where you were when they were discussing performance measurement baselines and program restructuring. IT remains to be understood how many other Geneva-related requirements and programs have been similarly cast to the wind as was done in Eastern Europe, Abu Ghraib, Afghanistan, and Guantanamo. If you can’t follow the simple rules in the FAR, there’s no reason anyone should anyone believe you’re going to follow the Geneva Conventions.

Admissible

Congratulations, you've identified your name, the weapon system, and your branch of service and linked your name and rank to a voluntarily disclosure. This means the public can comment on your letter as a news item, and you’ve established yourself as a public figure on an issue, until your disclosure, was supposed to have been classified. Yesterday it was secret, now it is on the internet for all the world to read: Congress, lawyers, and the NYSE-connected auditors. The problem you have is there is an ongoing war crimes investigation looking for an excuse to talk to the Pentagon and the White House.

Going to the GAO reports we can quickly see which civilian auditors need to be notified so that the NYSE-listed firms might enjoy the benefits of your public disclosures. Until you cooperate with this inquiry, which is allegedly linked with an alleged war crimes indictment (alleged illegal warfare, material false statements, refusal to disobey illegal orders), we take as true your assertions which are contrary to your interests, as an exception to the hearsay rule. Once entered into one court, that evidence can be provided to any war crimes tribunal as material evidence.

Redrafting The Letter

With the above in mind, let's redraft the letter as it should have been written:

To the Editor:

Thank you for finally discussing in public a problem we in DoD have been wrestling with since its inception: The finite resources we are charged to manage. We have rules to follow. When we cannot show we’ll follow rules to manage contractors, it’s reasonable to have substantial doubts the American government is following other rules in the Geneva Conventions.

One program that I am aware has cost and schedule overruns because we do not have a firm performance measurement baseline. The management of this effort has been as abysmal as the mismanagement of the Laws of War program.

Rather than quickly focus on finite resources attached to that original budget estimate, our leaders continue changing the baseline to accommodate more requests. Fortunately, because the President is recklessly managing this war, the war continues and might
last longer than this program. With enough bungling we might convince the Congress to keep paying for a war, and keep throwing money into the contractors. We don't want to mention how much money the contractors paid to have key military retirees pimp
for various programs. That's an issue which the OSI, CID, and NCIS will have to look at, if the weather is favorable. However, until the criminal investigators review our program, it’s unlikely to believe the CID will take seriously allegations of war crimes and mismanagement under Geneva. We hope nobody connects the dots: Failed program management tends to suggest the war crimes investigations are not making progress, warranting non-US war crimes tribunals.

One of our excuses is to blame the auditors. Rather than admit we have a common set of data under the Earned Value management System, our ruse in DoD is to explain away the same data as a "philosophical difference". Never mind that a dollar wasted
on rebaselining a program might be better spent at the beginning to establish a program which could accommodate foreseeable, mid-term contract changes. We didn't do that. We though we could have a permanent war, and hide all evidence of bad things. Ooops, I wrote a letter to the NYT, signed my name and rank, the letter was published, and disclosed that material evidence related to management issues having bearing on Geneva issues war crimes prosecutors in Italy have issued arrest warrants.

Part of the problem with various DoD programs has been the budget execution and expenditure rates relative to OSD goals. Because we're not making progress along a new baseline and spinning our wheels reaccomplishing work, we're not getting contracts on contract fast enough. Rather, because original contracts are taking longer to accomplish, the follow-on contracts, waiting for those earlier efforts, are not starting. This means
we're not meeting our funds execution rates during wartime. It also means there are reasonable doubts about other things we are not doing, as required, under the Geneva Conventions.

Normally, we' might establish a phony impact statement, and pretend that the world will fall apparent if our requirements are not met. But in wartime, things are different: Everything is short. Rather than accept that our original program baseline was defective, and we continue to add new requirements, and delay contract awards, we'll blame the NYT.

What we didn't anticipate was that someone might call us on our baloney. Or that the war crimes prosecutors would review these statements as a basis to expand the war crimes prosecutions against senior military officers and civilian leaders. Ooops, I must have been sleeping during those legal briefings from the JAG on Geneva, the laws of war, and required commander actions related to war crimes evidence.

The GAO is correct in staying that most programs do overrun; and this is known in the early portions of the contract. How these mismanagement problems on contract management do or do not shed light on how DoD did or did not effectively manage contractors who allegedly assisted with war crimes against American civilians remains to be understood.

It is a red herring whether or not there are philosophical differences. The GAO and OSD are using the same data. OSD does not like to take responsibility when an uninformed Congress, Congressional staff, and voting public can be induced to believe that this is a partisan difference. Little does the public realize that once DoD ignores the laws of war, American civilians might be subject to like retaliation. DoD’s alleged reckless mismanagement of acquisition programs and Geneva compliance puts American citizens’ safety and security at risk, as permitted under Geneva as a lawful act of retaliation.

Gone are the days when we can point to the "user requirements" as the catch-all to explain away Congressional oversight or GAO audit findings. User requirements do not bind the PEO or President to perpetually add new cookies to the broken cookie jar. The cookie jar used to contain the Constitution and Geneva Conventions.

This was a war of choice. In 2008, we're learning that we're still not ready. This was known in 2001. Rather than resigning, some thought they could play the game, not get caught, and nobody would notice in the fog of war. The Constitution and Geneva still exist and are unrelated to whether there is or is not fog.

We didn't realize the auditors and war crimes prosecutors would read the NYT, review the alleged material inconsistent statements by a senior officer attached to a specific weapons system, and this could subject the DOD war time acquisition process and Geneva compliance programs to some needed oversight.

Our costs have increased because our program is out of control. We have a rubber baseline. We openly admit this. We like to pretend this for the solider. We didn't anticipate that that excuse would not make much headway in a letter to the NYT. We didn't realize the American voters were not as stupid as we thought. Our questionable acquisition management raises doubts about our Geneva compliance programs. We hoped nobody would connect the dots, but we foolishly penned a paper to the NYT, and dotted all the eyes, much to the delight of war crimes prosecutors.

Problems for John

If you want anyone to believe you're a credible candidate to become a Flag Officer, John, you need to learn more about your job, how to write, and make a coherent argument. You failed to do that.

Things take time. One of them is training officers how to lead. Sadly, America's lessons from Vietnam have been lost on many; and the fog of war continues to be the inappropriate smokescreen some would use to hide mismanagement, reckless leadership, and failed excuses.

In your next letter you need to do the following:

- Discuss the EVMS data relative to the original program baseline;
- Discuss the cost growth attached with each new requirement
- Provide confidence that you can do more with less (impossible)
- Discuss the data you are using to brief OSD, and explain
which data does not match the data provided to the GAO
- How your funds execution rates have fared relative to OSD goals
- Discuss similar programs facing similar cuts in the President's budget
- Provide documentation your program advocates in Congress on the Congressional
staff have been fully briefed on which DoD contractors are NYSE listed firms
- The plans your office has to stay out of the auditors’ way as they
increase audit scope per SAS99
- Discuss which CID investigations your office is aware of this
particular weapon system; or whether you believe that efforts to
dissuade any criminal investigations have or have not been coordinated
with any retired military officers working with any NYSE-listed firms.
- Discuss why your letter should not be entered into evidence before a war crimes tribunal in re management of Treaty obligations, and the basis for the court to authorize broad discovery into the Geneva compliance programs
- Explain why DoJ OLC did not reject this letter before you signed your name to it and sent it to the NYT for publication
- Explain why the adverse inferences from your letter as applied to alleged reckless mismanagement of acquisition programs should or should be broadly applied to adverse inferences about DoD’s management or mismanagement of the Laws of War program under the Geneva Conventions.

You're not making excuses fast enough. You’re not helping your troops. You're helping the public see that the leadership in OSD and the Army isn't what is needed. The public doesn't need excuses. We need management that will provide leadership, manage acquisition programs, and enforce the Geneva Conventions. Your letter asks us to believe that these standards do not apply, that management is doing things fine, but you contradict yourself defying confidence in your original premise.

Based on the above, you have not provided a reasonable basis to believe that the GAO findings are incorrect; or that there is anything other than waste, fraud, abuse, mismanagement, and incompetence.

The Army isn’t' doing anything. The contractors are the ones doing the work. The best the army can hope for is that the war will continue long beyond anyone dares cancel a program that appears to be out of control, require an OTB, and a new PEO. The best thing war fighters can get are some people in OSD who are willing to solve problems, not make excuses or blame the GAO or NYT. Despite that, you’ve not adequately explained how the management issues GAO raised should not be broadly applied to the Laws of War Program. Your letter raises more questions for war crimes prosecutors than it might answer for the American public. It is premature for anyone to take your letter on face value. Fortunately, with there being no statute of limitations on war crimes, you have the burden to make your case. The public can reasonably make adverse inferences: Your letter is making your legal position worse, not better.

Trumping Presidential Claims

Now that you've documented in writing your assertions to the NYT, you can hardly claim that this is a matter of privilege, a state secret, or something that is shielded. Your letter
appears to be fatal to your program's financial stability, and could subject you to a Congressional subpoena and possible war crimes indictment. Congratulations. You've openly disclosed your information, attached your name to a specific program, and made inconsistent statements that could subject you to impeachment as a witness before a Grand Jury and War Crimes indictment. You should be proud you served in Iraq to defend your right to free speech, and make fatal statement contrary to your interest, fully admissible. Maybe the JAGS will give you better legal counsel than the White House counsel has provided to the President. You have a very serious problem. The troops and American public see the leadership problem runs from the Oval office down to the combat units in Iraq and into the systems acquisition offices. You’re foolish to believe that expediting training or a smokescreen of an attack on Iran will help your cause.

Admissible Evidence: Original Letter To New York Times

[This has been published for educational purposes only, and is intended to provide a reference for war crimes prosecutors.]

To the Editor:

Re "Wasting and Wanting at the Pentagon" (editorial, April 2):

You uncritically accept the findings of a Government Accountability Office study that alleges that most weapon system programs within the Defense Department are over budget, behind schedule and not delivering promised capabilities to service members.

A closer examination would show that often the alleged poor performance of key weapon system programs actually is nothing of the sort. The criticism reflects, instead,
philosophical and methodological differences between the United States military and the G.A.O.

The Army's Future Combat Systems program is case in point.

The program's costs have increased because soldiers are demanding more modern capabilities sooner, and because of unceasing Congressional budget cuts to the program. This has nothing to do with what you dub Pentagon "waste," "mismanagement and "incompetence."

The Army is developing Future Combat Systems technologies faster, so that our soldiers can benefit from these new capabilities sooner, not later.

John Buckley

Washington, April 18, 2008

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The writer, a colonel, is a combat veteran and Pentagon strategic planner for the Army.