Bring on the Space Marines! - American Bar Association
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Bring on the Space Marines!
By Brian D. Green
Non-Air Force Servicemembers Should Be Eligible Space Force over time, and for good reason.10 Army,
for the Space Force Navy, and Marine Corps personnel already perform
In the National Defense Authorization Act (NDAA) for key missions in and through the space domain; now
fiscal year 2020, Congress created the U.S. Space Force that there is a military service focused on that domain,
within the Department of the Air Force.1 With broad many of them should be eligible to join it.
bipartisan agreement,2 this legislation rebranded the Air
Force Space Command as the Space Force, the nucleus Joint Contributions to Space
of the country’s newest military branch, and directed The Army and Navy have a rich history of involvement in
that the Space Force be staffed only with Air Force per- the U.S. space program. Although the Air Force eventually
sonnel from existing billets.3 The exclusion of non-Air gained primacy in the DOD’s space efforts, the earliest
Force members was designed to convince legislators U.S. space launch vehicles were developed through an
that the Space Force would stand up gradually, without interservice competition between the Army, with its Juno
“trying to do too much at one time,” according to Rep. booster that launched the first U.S. satellite, Explorer-1,
Mike Rogers (R-AL).4 The Space Force was officially and the Navy, with its Project Vanguard program.11
born on December 20, 2019, when President Donald J. Today, the Army operates the payloads aboard the
Trump signed the 2020 NDAA into law.5 As the Space Wideband Global SATCOM (WGS) satellites,12 even as Air
Force has matured, it is time to revisit its original limita- Force and now Space Force personnel have controlled the
tion to Air Force members and permit soldiers, sailors, WGS satellite buses.13 The Army has large organizations,
and Marines to transfer into the Space Force as well. thousands of space cadre professionals, and an entire
Fortunately, indications are good that this will hap- officer career field dedicated to space.14 While the Navy
pen soon. Both the House and Senate versions of the does not have a formal space career path, it has a cross-
2021 NDAA contain language that recognizes the pos- functional space cadre with numerous billets designated
sibility of interservice transfers to the Space Force. for members with the Space Cadre Additional Qualifi-
The Senate version, S. 4049, provides that “[a]ny cation Designation.15 The Navy operates satellites in the
member of the Armed Forces or civilian employee Ultra High Frequency Follow-On (UFO) and Mobile User
of the Department of Defense who is transferred to Objective System (MUOS) constellations for worldwide
the Space Force shall, after transfer, have the status ultrahigh-frequency (UHF) communications that serve
of member or civilian employee, as the case may be, the entire joint force.16 In 2008, the Navy successfully
of the Space Force,”6 although such transfers must be intercepted a dangerously deorbiting U.S. satellite with a
voluntary.7 The House version, H.R. 6395, proposes to warship-launched missile, preventing it from endangering
let the Secretary of the Air Force grant a one-time uni- life on Earth with its nearly full tank of toxic hydrazine
form allowance, not to exceed $400, to members of propellant.17 While the U.S. Marine Corps (USMC) may
other services who transfer into the Space Force.8 The not operate its own satellite systems, Marines have served
Department of Defense (DOD) also has a standing with distinction in joint warfighting organizations, sup-
policy governing interservice transfers between the porting space missions.18 The Marines are also familiar
other branches of the military,9 although its full appli- with working alongside a larger service within a military
cability to the Space Force is likely limited by the 2020 department, and their expertise in amphibious warfare
NDAA’s aforementioned provisions. Senior DOD offi- may provide useful analogies for cross-domain aerospace
cials have made no secret of their desire to gain more operations. All services, and especially the Army, have a
flexibility to move other service members into the major role in the missile defense mission, which since the
days of the Strategic Defense Initiative has been inextrica-
Brian D. Green (brian.green.2@spaceforce.mil) currently serves
as the Chief of Space and Operations Law for the Space Operations bly linked with space.19
Command Office of the Staff Judge Advocate (USSF/JA), Peterson By bringing expert space operators and platforms
Air Force Base (AFB), Colorado. All opinions expressed in this from across DOD into the Space Force, the ser-
article are his own and do not necessarily reflect the views of the
Department of Defense or its components. DISTRIBUTION A: vice will be better able to organize, train, and equip
Approved for public release; distribution unlimited. its members to conduct the full spectrum of space
Published in The Air & Space Lawyer, Volume 33, Number 4, 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.operations. It will be able to realize efficiencies of members and organizations from outside the Depart-
scale by reorganizing and consolidating programs ment of the Air Force will help it to progress further
where appropriate and by providing more consis- in developing a unique identity and culture that are
tent training and administrative policies across the not unnecessarily tied to those of the Air Force.
whole military space enterprise. By concentrating the What might be some practical ways the Space Force
right people and resources together and eliminating could stand out from the Air Force? One possibility is a
seams and duplicated efforts that can result from hav- change in rank structure. The title “Chief of Space Oper-
ing similar jobs performed by different organizations, ations” already mimics the title of the Navy’s top officer,
the Space Force will streamline the military’s ability “Chief of Naval Operations,” rather than following the
to apply some of the core principles of joint opera- Army and Air Force example of calling their highest-
tions: mass, maneuver, economy of force, and unity of ranking officer the “Chief of Staff.” This could establish a
command.20 pattern for the rest of the service. Before the Space Force
The U.S. Space Command (USSPACECOM) daily Act was passed, in which the Senate’s preferred moni-
demonstrates the value of the Air Force’s sister services ker prevailed over the House’s “Space Corps” proposal,27
in space missions. On August 20, Army General James Dr. Brent Ziarnick, assistant professor of National Secu-
H. Dickinson assumed command of USSPACECOM, rity Studies at the Air Command and Staff College at
the first time a non-Air Force member has commanded Maxwell Air Force Base, Alabama, argued that the new
the organization.21 The following day, Dickinson pre- service should adopt naval ranks.28 William Shatner, who
sided over a ceremony designating the U.S. Army famously portrayed Captain James T. Kirk in the original
Space and Missile Defense Command (USASMDC) as Star Trek television series and movies, recently echoed
the Army Service Component Command for USSPACE- this call.29 Dr. Ziarnick pointed to the new service’s need
COM.22 USSPACECOM’s senior enlisted leader is U.S. to distinguish itself from the Air Force and proposed
Marine Corps Master Gunnery Sergeant Scott H. that the adoption of naval ranks would advance that dis-
Stalker.23 Clearly, people and organizations from the tinction in valuable ways. Importantly, he argued, it will
other services have much to offer; they should have the match the Space Force with what may be its most similar
opportunity to join the Space Force as soon as DOD sister service. Like the high seas, outer space is a domain
leaders determine the time is right. free for all States to explore and use,30 but not to claim
Regardless of how soon non-Air Force service mem- territorial sovereignty over.31 Just as the Navy patrols the
bers enter the Space Force, many in Congress want to high seas to promote national security and secure free-
ensure that Space Force leaders have their own sub- dom of navigation for all nations, so should the Space
stantial experience working with the other services. Force operate in the “new ocean” of outer space toward
The Senate version of the 2021 NDAA stipulates that the same ends.32
the next Chief of Space Operations (CSO) must have Of course, the Space Force does not need to borrow its
significant joint experience, including at least a year- rank structure wholesale from the Navy any more than it
long joint duty assignment as a Space Force general must automatically inherit its rank structure from the Air
officer or equivalent.24 If this language is retained in Force. While naval officer ranks are just as straightforward
the final 2021 NDAA, it will drive home the importance as the other services’ ranks, with one title per grade, naval
of, at minimum, having significant exposure to opera- enlisted ranks vary much more because of the way they
tional and strategic decision-making in concert with incorporate a sailor’s particular career field. Although they
the other services. Expanding Space Force membership follow the same underlying grade structure of E-1 through
to soldiers, sailors, and Marines will bring that kind of E-9, naval enlisted ranks and abbreviations are legion.
exposure all the way down to the tactical level and dis- Moreover, the masculine form of all of these enlisted duty
tribute it throughout the organization. titles (“legalman,” “fire controlman,” “yeoman,” etc.) fits
with naval tradition but may not be the best fit for the
Building a New Service Identity first military service that actively seeks to recruit women
Bringing other service members into the Space Force for all duty positions from its inception.33 Here is a mod-
will also help it to forge a unique new identity and est proposal that will borrow the best aspects of naval
culture. In addition to the direct operational benefits rank structure while allowing the Space Force to define
of bringing space-power practitioners together, build- itself uniquely: Mirror most of the current U.S. naval offi-
ing this new culture will enhance morale and esprit cer ranks, but call Space Force flag officers in the grades
de corps. So far, the Space Force has been maintain- of O-7 and O-8 “Space Commodore” and “Rear Admiral,”
ing continuity in some areas—keeping the camouflage respectively. This would depart from the Navy’s current
utility uniform the same but swapping the colors of bifurcated construct of O-7s as “Rear Admiral (Lower
its embroidered patches25—while taking bolder moves Half)” and O-8s as “Rear Admiral (Upper Half),” while
in other areas, such as flattening the service’s hier- giving a nod to history and our allies in the United
archical structure from what it had been in the Air Kingdom and Australia.34 On the enlisted side, only
Force.26 Allowing the Space Force to incorporate new use one rank per grade.
Published in The Air & Space Lawyer, Volume 33, Number 4, 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Incorporating members from other services will do advisers. The Commandant of the Marine Corps has a
more to change the Space Force culture than merely Staff Judge Advocate (SJA) who oversees the USMC Judge
making former Air Force colonels start to call themselves Advocate Division,43 while the Chief of Naval Operations
“Captain.” Inducting people who already have different has a separate set of dedicated legal advisers.44 Likewise,
perspectives from airmen and fusing these different per- although the U.S. Space Force and USSPACECOM legal
spectives together will speed the process of developing a offices temporarily shared some personnel and offices,
unique cultural and doctrinal identity for the Space Force they were designed to be separate organizations for the
that is not so closely tied to air operations.35 long term, and they were split up under two separate SJAs
shortly before General Raymond, the CSO, relinquished
A Space Force JAG Corps? his “second hat” as Commander of USSPACECOM.45 These
In addition to letting the Space Force draw more divisions of legal authority support the principle of unity
members and space missions from other military ser- of command and the idea that each client organization
vices, it also merits consideration to incorporate more should have its own lawyers.
space-adjacent military career fields than have been By contrast, The Judge Advocate General (TJAG) of the
tapped so far.36 For example, there is a cadre within Air Force advises both the Chief of Staff of the Air Force
the Air Force Judge Advocate General’s ( JAG) Corps of and the CSO. There is a division of operational law attor-
officer attorneys who have special training and expe- neys on the Air Force Staff, but no lawyers organic to the
rience, holding LLM degrees in space law and serving nascent Space Force Staff. This situation is tenable at pres-
or having served as legal advisers to organizations ent, with the Space Force still young and the current TJAG
with space missions.37 These judge advocates could be himself holding an air and space law LLM and remaining
good candidates for inclusion in a JAG Corps of the active in international space law affairs.46 But will it always
Space Force’s own. What might such a Space Force be so? The canons of professional responsibility discour-
JAG Corps look like, and what would be the argu- age lawyers from undertaking dual representation of
ments for and against it? clients with potentially adverse interests, such as spouses
First, a potential Space Force JAG Corps could be undergoing a notionally amicable divorce or codefendants
small, lean, and operationally focused. The Air Force in a criminal case. In such situations, because it is foresee-
presently categorizes its judge advocates as providers able that the clients’ interests could diverge and conflict,
of mission support functions who will remain members lawyers are to advise the prospective clients about the
of the Air Force, along with civil engineers, security potential for conflict and decline representation if conflict
forces, medical personnel, and other career fields not appears inevitable.47 The Space Force’s separation process
involved directly in space operational missions.38 Air is going well now, with the Secretary of the Air Force hav-
Force judge advocates are trained to be generalists, ing announced the proper formation of the Space Force
developing broad experience as they circulate through to be a top priority.48 But the Space Force was created in
the overarching legal domains of military justice, civil the first place because Congress had concluded that the
law, and operational law. Some of our allies and coali- Air Force was not adequately prioritizing space and that
tion partners, by contrast, employ their military legal military space needed its own, independent Service-level
advisers almost exclusively in the field of operational proponent at the Pentagon.49 In the event that senior lead-
and international law. Civil and criminal law responsi- ers of the Air Force and Space Force develop priorities,
bilities fall largely to civilian authorities to handle. The initiatives, or budget requests that compete with each
Space Force could adopt a similar model for its JAG other, how well will it work to have a single top lawyer, or
Corps, leaving military justice and some aspects of civil legal department, advising them?
law to Air Force attorneys while having its own dedi- Political and military leaders have also acknowledged
cated legal advisers for operational and international the career development hurdles that space-focused
legal matters, as well as perhaps for the procurement, airmen have faced relative to their peers. From Con-
civil, and environmental law issues directly relevant to gressman Rogers’s Space Symposium remarks50 to last
space operations.39 Just as Marine Corps judge advo- year’s revamping of the Air Force officer promotion sys-
cates must first be trained and qualified as infantry tem,51 it has been publicly recognized that space-focused
officers40 and also acquire a new Necessary Military airmen have historically not been considered as competi-
Occupational Specialty code when they earn an LLM tive for promotion as airmen in other career fields. There
degree,41 Air Force judge advocates could transition into are structural reasons why Air Force judge advocates
the Space Force via relevant LLM programs, or perhaps with LLMs face some of the same challenges. With pro-
via specialized training in the new Space Training and motion potential based on demonstrated ability to lead,
Readiness Delta Provisional (STAR DEL).42 and leadership defined to include a heavy component of
The Marine Corps model offers another instructive supervisory experience, midcareer JAGs with LLMs are
parallel. Even though the Department of the Navy encom- often at a disadvantage. Their first post-LLM role consists
passes both the Navy and the Marine Corps, both of of providing subject-matter expertise rather than over-
these component services have their own separate legal seeing an office of paralegals or other attorneys, and the
Published in The Air & Space Lawyer, Volume 33, Number 4, 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.LLM year of their career is summarized by an Education position filled by someone from the opposite service.
and Training Report rather than the usual accomplish- For the near term, language in the Senate version
ment-heavy Officer Performance Report. These factors of the pending 2021 NDAA appears likely to ratify the
can damage the prospects of a judge advocate approach- status quo by recognizing the Air Force TJAG’s respon-
ing his or her O-5 or O-6 promotion board. Therefore, a sibilities to the Space Force as well as the Air Force.55
more distinctive career path within the Space Force itself, Neither the House nor the Senate version contains any
perhaps under a new senior legal adviser to the CSO, language establishing a separate JAG Corps or designat-
could enable greater recognition of how space lawyers ing a new senior JAG position within the Space Force.
contribute to the mission. Beyond that, the excitement For these reasons, an independent Space Force JAG
and prestige of joining a brand-new service, with its cut- Corps is not on the horizon at this time. However, for the
ting-edge missions and world-changing technologies, reasons outlined above, it is both feasible and attractive
could attract many space-law-interested Air Force judge as a future option.
advocates to join their thousands of fellow airmen who
have already applied to join the Space Force.52 Concluding Thoughts
At the same time, the Air Force and its JAG Corps have Although the space and air domains share some sim-
well-established personnel and assignments processes, ilarities, such as surrounding the land and maritime
as well as a larger pool of duty assignments and loca- domains and thus offering vast global reach, space has
tions from which to choose. The administrative overhead numerous characteristics that distinguish it from the air
of setting up a separate Space Force JAG Corps could domain. Among these are the persistence of satellites
be substantial and might unduly limit career options for and debris in orbit, the orbital mechanics that affect
judge advocates who want to practice in the space arena maneuverability of spacecraft, the lack of sovereign ter-
for a time but then move on to other things. These issues ritorial boundaries, and the international law unique to
could be ameliorated by normalizing more flexible career outer space.56 Drawing Space Force personnel and mis-
paths that would permit judge advocates to transfer back sions from the Air Force alone is not sufficient to meet
and forth more easily between services.53 In addition, the our long-term national security needs in outer space. It
Air Force JAG Corps could continue to provide the initial would behoove the Space Force to bring in people with
accession and training pipeline for the Space Force, elim- an intimate knowledge of how each of our military
inating the need to create a separate one and ensuring space capabilities supports the warfighters in the other
that Space Force judge advocates are well-seasoned and domains; how the other services can support what goes
trained in depth from their first day on the job.54 on in space; and, ultimately, how space power itself can
It might also be argued that a small and operation- best be defined, developed, and employed.
ally focused Space Force JAG Corps would present its Building on the 2020 NDAA, the change does not
own challenges with limited assignment availability have to happen all at once, but it should happen.
and promotion potential. However, if it were structured The Senate bill’s stipulation that the first tranche of
properly, and with the possibility of release back to interservice transfers be entirely voluntary57 is con-
the Air Force if the options appeared too limited, there sistent with the military’s post-Vietnam ethos as
could be enough positions to support career develop- an all-volunteer force. It also aligns with the Space
ment for Space Force judge advocates. These could be Force’s own initial call for volunteers from within the
established at the Pentagon, with a top Space Force Air Force’s space-focused career fields—a call that has
JAG and legal staff in the Office of the CSO, at the field been widely and enthusiastically accepted.58 Once
commands, at USSPACECOM, and at education and larger analyses and decisions about force-structure
training institutions such as the Air Force JAG School. integration take place, it may be beneficial to bring
Legal offices for the space garrisons and deltas could across whole organizations and career fields from
be staffed by a mix of Space Force and Air Force judge the sister services,59 even as the Space Force plans to
advocates, just as many Navy legal offices also feature a absorb certain entire Air Force specialty codes.60
contingent of Marine Corps judge advocates. Perhaps, eventually, the Space Force will even broaden
Another concern with an operationally focused its recruitment to include judge advocates—especially
Space Force JAG Corps could be that Space Force com- those with dedicated training in space law. While we
manders might prefer to retain their legal advisers on await such a day, let’s bring on the Space Marines!
military justice, civil, and operational law matters in a
“one-stop shop”—even if those legal advisers contin- Endnotes
ued to wear Air Force name tapes. As described above, 1. National Defense Authorization Act for Fiscal Year 2020,
this could be resolved by establishing joint legal offices Pub. L. No. 116-92 (2019) [hereinafter FY2020 NDAA]. Title IX,
in which Air Force and Space Force members work subtitle D (§§ 951–61), which established the Space Force, is
together, including a split leadership model where the also known as the United States Space Force Act. Id. § 951.
SJA and Deputy SJA billets would be filled by either an 2. The FY2020 NDAA passed the House by a vote of 377-
Air Force or Space Force judge advocate, with the other 48 and the Senate by 86-8. National Defense Authorization
Published in The Air & Space Lawyer, Volume 33, Number 4, 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Act for Fiscal Year 2020, S. 1790, 116th Cong. (2019–20) want-to-transfer-into-the-space-force-application-period-
(enacted), https://www.congress.gov/bill/116th-congress/ opens-may-1.
senate-bill/1790/all-actions?overview=closed&q=%7B%22r 10. See, e.g., Department of Defense Posture Statement
oll-call-vote%22%3A%22all%22%7D. Before the S. Armed Servs. Comm., 116th Cong. 5 (Mar. 4, 2020)
3. FY2020 NDAA, supra note 1, § 952(a) (“The Air Force (statement of Mark T. Esper, Sec’y of Defense), https://www.
Space Command is hereby redesignated as the United States armed-services.senate.gov/imo/media/doc/Esper_03-04-20.pdf
Space Force (USSF).”). Section 952(d) made very clear that (“To manage DOD space forces efficiently and holistically, the
Congress intended the Space Force to consist only of Air Department’s vision remains to consolidate the preponderance
Force members from existing billets: of space missions, units, resources, and personnel from the
existing Military Services into the new USSF.”).
(1) . . . [T]here shall be assigned to the Space Force 11. William E. Burrows, This New Ocean: The Story of the
such members of the Air Force as the Secretary of the First Space Age 170–73, 202–11 (Modern Library Paperback
Air Force shall specify. ed. 1999).
12. U.S. Army, Wideband Global Satellite Communica-
(2) NO AUTHORIZATION OF ADDITIONAL MILI- tions, Stand-To! (Dec. 22, 2015), https://www.army.mil/
TARY BILLETS.—The Secretary shall carry out this standto/archive/2015/12/22; Jason B. Cutshaw, 53rd Signal
subsection within military personnel of the Air Force Battalion Leads the Army’s Space Operations, U.S. Army (Nov.
otherwise authorized by this Act. Nothing in this sub- 30, 2017), https://www.army.mil/article/197230/53rd_signal_
section shall be construed to authorize additional battalion_leads_the_armys_space_operations.
military billets for the purposes of, or in connection 13. Wideband Global SATCOM Satellite, U.S. Air Force
with, the establishment of the Space Force. (Nov. 23, 2015), https://www.af.mil/About-Us/Fact-Sheets/
Display/Article/104512/wideband-global-satcom-satellite; 4th
4. Rachel S. Cohen, USAF Posed Biggest Hur- Space Operations Squadron, Schriever Air Force Base ( July
dle to Space Force, Lawmaker Says, Air Force Mag. 2020), https://www.schriever.af.mil/About-Us/Fact-Sheets/
(Dec. 11, 2019), https://www.airforcemag.com/ Display/Article/275820/4th-space-operations-squadron.
usaf-posed-biggest-hurdle-to-space-force-lawmaker-says. 14. See, e.g., 1st Space Brigade, U.S. Army Space &
5. Jim Garamone, Trump Signs Law Establishing U.S. Missile Def. Command, https://www.smdc.army.mil/
Space Force, DOD News (Dec. 20, 2019), https://www. ORGANIZATION/1st-Space-Brigade (last visited Oct. 3, 2020);
defense.gov/Explore/News/Article/Article/2046035/ Army Space Personnel Development Office (ASPDO), U.S. Army
trump-signs-law-establishing-us-space-force. Space & Missile Def. Command, https://www.smdc.army.mil/
6. National Defense Authorization Act for Fiscal Year Portals/38/Documents/Publications/Fact_Sheets/ASPDO.pdf
2021, S. 4049, 116th Cong., 2d Sess., § 942(b) (passed Senate (last visited Oct. 3, 2020); Mike Rogers, Remarks of Congress-
July 23, 2020). man Mike Rogers, Chairman, House Armed Services Strategic
7. Id. § 942(a). While this legislation makes personnel Forces Subcommittee, Presented to the 2017 Space Sympo-
transfers easier, it limits the transfer of real property infra- sium, 11:2 Strategic Stud. Q. 8 (Summer 2017), https://www.
structure, requiring the secretary of the Air Force to conduct airuniversity.af.edu/Portals/10/SSQ/documents/Volume-11_
a business case analysis and brief Congress before transfer- Issue-2/Rogers.pdf. Rogers’s remarks at the April 2017 Space
ring any military installation to the Space Force. Id. § 943. Symposium did much to spur the national conversation and
8. William M. (Mac) Thornberry National Defense Autho- legislative proposals that eventually culminated in the cre-
rization Act for Fiscal Year 2021, H.R. 6395, § 926, 116th ation of the Space Force. Wilson Brissett, The Space Corps
Cong., 2d Sess. (placed on Senate calendar Aug. 5, 2020). Question, Air Force Mag. (Aug. 29, 2017), https://www.air-
9. U.S. Dep’t of Def., Instruction 1300.04: Inter-Service forcemag.com/article/the-space-corps-question.
and Inter-Component Transfers of Service Members ( July 25, 15. Space Cadre, U.S. Navy Pers. Command (Feb. 28, 2020),
2017) [hereinafter DODI 1300.04]. Written two years before https://www.public.navy.mil/bupers-npc/officer/Detailing/
the Space Force came to be, DODI 1300.04 defines the spacecadre/Pages/default.aspx.
term Military Services to mean only the Army, the Navy, 16. Mobile User Objective System (MUOS) Fact Sheet,
the Air Force, and the Marine Corps. However, it is con- U.S. Navy Space & Naval Warfare Sys. Command (Dec. 2011),
ceivable that a space-savvy soldier could transfer into the https://www.secnav.navy.mil/rda/Documents/muos_over-
Air Force en route to entering the Space Force. A Space view_for_asn_rda_12-27-11-s.pdf; Authorities, US Naval
Force press release states that the legal authority for trans- Satellite Operations Center Takes Control of Fifth MUOS Sat-
fers already exists but anticipates that a limited interservice ellite, NavalToday (Nov. 17, 2017), https://www.navaltoday.
transfer program will be announced for sister services for com/2017/11/17/us-naval-satellite-operations-center-takes-
fiscal year 2021, with “Army and Navy space requirements control-of-fifth-muos-satellite (also noting the involvement of
to move to the Space Force . . . in fiscal years 2022–23.” the Army Forces Strategic Command (ARSTRAT) in configur-
Christopher Merian, Want to Transfer into the Space Force? ing the satellite’s legacy UHF communications payload).
Application Period Opens May 1, U.S. Space Force (Apr. 22, 17. Jamie McIntyre, Suzanne Malveaux & Miles O’Brien,
2020), https://www.spaceforce.mil/News/Article/2160560/ Navy Missile Hits Dying Satellite, Says Pentagon, CNN (Feb.
Published in The Air & Space Lawyer, Volume 33, Number 4, 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.21, 2008), http://www.cnn.com/2008/TECH/space/02/20/sat- higher-headquarters functions; garrisons take on the tradi-
ellite.shootdown/index.html. tional support role of an installation-level or wing command;
18. See, e.g., Year in Review: January–February 2014, and deltas are operationally focused organizations, now
Naval Postgraduate Sch., https://nps.edu/annualreport2014_ reporting directly to the FLDCOMs rather than to a wing or
combatant (last visited Sept. 14, 2020) (describing a Marine NAF commander, which have replaced several operations
officer’s research into how low-cost CubeSats could support groups and the 614th Air Operations Center. Squadrons
tactical communications for small military units). remain similar to what they are in the Air Force. Space Force
19. Jon Harper, The Legacy of the Strategic Defense Ini- Pub. Affs., Space Force Begins Transition into Field Organi-
tiative, Nat’l Def. Mag. (Apr. 23, 2019), https://www. zational Structure, U.S. Space Force ( July 24, 2020), https://
nationaldefensemagazine.org/articles/2019/4/23/special- www.spaceforce.mil/News/Article/2287005/space-force-
report-the-legacy-of-the-strategic-defense-initiative; History begins-transition-into-field-organizational-structure.
of U.S. Missile Defense Efforts 1945-Present, Missile Def. 27. Compare National Defense Authorization Act for Fis-
Agency, https://www.mda.mil/news/history_resources.html cal Year 2020, S. 1790, 116th Cong. § 1604 (engrossed in
(last visited Sept. 14, 2020). Senate June 27, 2019), with National Defense Authoriza-
20. See U.S. Chairman of the Joint Chiefs of Staff, Joint Pub- tion Act for Fiscal Year 2020, H.R. 2500, 116th Cong. § 921
lication 3-0, at fig.I-1 ( Jan. 17, 2017; incorporating Change 1, (passed House July 12, 2019).
Oct. 22, 2018); see also Rogers, supra note 14. 28. Brent Ziarnick, Opinion: The Space Corps Needs Naval
21. Gen James H. Dickinson, Commander, U.S. Space Com- Rank, Politico ( July 26, 2019), https://www.politico.com/
mand (Aug. 2020), https://www.spacecom.mil/Leadership/ story/2019/07/26/space-corps-naval-rank-1433541.
Bio-Display/Article/2329436/gen-james-h-dickinson. 29. Bill Shatner, William Shatner Wants to Know: What
22. Carrie Campbell & Lira Frye, Army’s Senior the Heck Is Wrong with You, Space Force?, Mil. Times (Aug.
Space Officer Highlights Warfighting Culture, Pre- 26, 2020), https://www.militarytimes.com/opinion/commen-
paring Space Force for Army Forces, U.S. Army (Aug. tary/2020/08/26/what-the-heck-is-wrong-with-you-space-force.
29, 2020), https://www.army.mil/article/238622/ In his zeal to list pop-culture justifications for using naval ranks
armys_senior_space_officer_highlights_warfighting_culture_ in the Space Force, Shatner mistakenly ascribes naval captain-
preparing_space_force_for_army_forces. In this ceremony, cies to Captain America (U.S. Army) and Captain Marvel (U.S.
Lieutenant General Daniel L. Karbler, commanding general Air Force, in the most recent cinematic adaptation).
of USASMDC, advocated for the transfer of Army forces to 30. Treaty on Principles Governing the Activities of
the Space Force once conditions are thoroughly analyzed States in the Exploration and Use of Outer Space, Includ-
and found to be right. Id. ing the Moon and Other Celestial Bodies art. I, cl. 2, Jan.
23. MGySgt Scott H. Stalker, Command Senior Enlisted 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer
Leader, U.S. Space Command (Aug. 2020), https://www. Space Treaty] (providing that “[o]uter space, including the
spacecom.mil/Leadership/Bio-Display/Article/1918317/ Moon and other celestial bodies, shall be free for explo-
mgysgt-scott-h-stalker. ration and use by all States without discrimination of any
24. National Defense Authorization Act for Fiscal Year kind, on a basis of equality and in accordance with inter-
2021, S. 4049, 116th Cong., 2d Sess., § 931(c)(1)(B) (passed national law, and there shall be free access to all areas of
Senate July 23, 2020): celestial bodies”); cf. United Nations Convention on the Law
of the Sea, art. 87, Dec. 10, 1982, 1833 U.N.T.S. 397 [here-
The President may appoint an officer as Chief of inafter UNCLOS] (protecting full freedom of navigation
Space Operations only if—(A) the officer has had sig- on the high seas); id. art. 17 (protecting innocent pas-
nificant experience in joint duty assignments; and (B) sage through even the territorial seas of a coastal state).
such experience includes at least one full tour of duty Although the United States has not ratified UNCLOS, it rec-
in a joint duty assignment . . . as a general, flag, or ognizes the freedom of navigation provisions as reflecting
equivalent officer of the Space Force. customary international law. See, e.g., U.S. Dep’t of Def.,
Annual Freedom of Navigation Report: Fiscal Year 2019, at
(internal line breaks and quotation marks omitted). 1 (Feb. 28, 2020), https://policy.defense.gov/Portals/11/
25. Aimee Ortiz, A Small Step for Space Force Is Not a Documents/FY19%20DoD%20FON%20Report%20FINAL.
Giant Leap for Uniform Design, N.Y. Times ( Jan. 19, 2020), pdf?ver=2020-07-14-140514-643×tamp=1594749943344.
https://www.nytimes.com/2020/01/19/us/space-force-uni- 31. Outer Space Treaty, supra note 30, art. II (stating in
form-camo.html. its entirety that “[o]uter space, including the Moon and other
26. The traditional core of the Air Force hierarchy celestial bodies, is not subject to national appropriation by
involves, in descending order, major commands (MAJCOMs), claim of sovereignty, by means of use or occupation, or by
numbered air forces (NAFs), wings, groups, and squadrons. any other means”); cf. UNCLOS, supra note 30, art. 89 (“No
Air Force, Instruction (AFI) 38-101: Manpower and Organiza- State may validly purport to subject any part of the high
tion § 25.2 (Aug. 29, 2019). The new Space Force hierarchy seas to its sovereignty.”).
consists of field commands (FLDCOMs), garrisons, deltas, 32. John E. Shaw, Guarding the High Ocean: Towards a
and squadrons. Field commands merge MAJCOM and NAF New National-Security Space Strategy Through an Analysis of
Published in The Air & Space Lawyer, Volume 33, Number 4, 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.US Maritime Strategy, 23:1 Air & Space Power J. 55, 58 (Spring [hereinafter AFI 51-101] (describing the advanced legal edu-
2009) (describing ontological, conceptual, and geopolitical cation master of law (LLM) program as a “mission critical
similarities between the outer space and maritime domains). program” that “develops specialized legal skills to increase
Shaw is now in charge of the Space Operations Command AFJAGC capabilities and to support Department of Defense
West and the Combined Force Space Component Command or Air Force current and evolving mission requirements”).
at Vandenberg Air Force Base, California. Major General John 38. See, e.g., Sec’y of the Air Force Memorandum, United
E. Shaw, U.S. Air Force (Sept. 2020), https://www.af.mil/ States Space Force Military Justice, Administrative Matters,
About-Us/Biographies/Display/Article/602294/major-gen- and Legal Support Matters, Oct. 20, 2020 (stating that the Air
eral-john-e-shaw, cf. Lynn Kirby, Space Force Activates First Force and Space Force “shall be considered as one armed
Field Command, U.S. Space Force (Oct. 21, 2020), https:// force for purposes of . . . all military justice, administrative
www.spaceforce.mil/News/Article/2390148/space-force-acti- matters, and legal support matters”).
vates-first-field-command; see also Sam J. Tangredi, Space Is 39. For some examples of how the Air Force JAG Corps
an Ocean: A Naval Perspective, Space Tracks (Mar./Apr. 1999), has supported space operational and acquisitions missions,
https://apps.dtic.mil/dtic/tr/fulltext/u2/a361415.pdf. see The Air Force Judge Advocate Gen.’s Corps, Report to the
33. In 2016, almost four years before the Space Force American Bar Association 23–24 (2018), https://www.afjag.
was born, the DOD opened all military occupations and af.mil/Portals/77/documents/2018_ABA_Report.pdf.
positions to women, although previously certain combat- 40. Marine Corps Law Program, U.S. Marine Corps,
focused positions (and, in the more distant past, virtually https://www.marines.com/becoming-a-marine/officer/
all positions) had been limited to men only. Cheryl Pel- marine-corps-law-program.html (last visited Sept. 24,
lerin, Carter Opens All Military Occupations, Positions to 2020); cf. The Basic School, U.S. Marine Corps, https://www.
Women, DoD News (Dec. 3, 2015), https://www.defense. trngcmd.marines.mil/Northeast/The-Basic-School (last vis-
gov/Explore/News/Article/Article/632536/carter-opens-all- ited Sept. 24, 2020).
military-occupations-positions-to-women; cf., e.g., Howard 41. The Basic School: Marine Officer MOS Assignment
C. Christy, Gee!! I Wish I Were a Man (1917), N.Y. Museum of Handbook 93 (Mar. 13, 2019), https://www.trngcmd.marines.
Modern Art, https://www.moma.org/collection/works/8945 mil/Portals/207/Docs/TBS/new%20material/Marine%20
(last visited Sept. 22, 2020). Today, female space profession- Officer%20MOS%20Assignment%20Handbook%202019%20
als feature prominently in Space Force recruiting videos (HIGH%20RES).pdf.
and news releases. See, e.g., Make History, U.S. Space Force, 42. Space Force Begins Transition into Field Organiza-
https://www.spaceforce.mil/Connect-With-Us/Videos (last tional Structure, supra note 26, explains that STAR Delta
visited Sept. 22, 2020); Jonathan Whitely, Space Force Makes Provisional was established this summer to bring together “a
History with All-Female 2 SOPS Crew, Schriever Air Force number of education, training, and operational test and eval-
Base, https://www.schriever.af.mil/News/Article-Display/ uation units” and eventually be replaced by a field command
Article/2289761/space-force-makes-history-with-all-female- called Space Training and Readiness Command (STARCOM).
2-sops-crew (last visited Sept. 22, 2020). 43. 10 U.S.C. § 8046 (2018); cf. Judge Advocate Division, U.S.
34. The U.S. Navy used to use the rank of “commodore” Marine Corps, https://www.hqmc.marines.mil/sja/Unit-Home/
for a one-star flag officer, and Royal Air Force and Royal Staff-Judge-Advocate-to-the-CMC (last visited Sept. 24, 2020).
Australian Air Force one-star equivalents are called “air com- 44. Leadership, U.S. Navy Judge Advocate Gen.’s Corps,
modore.” Blake Stilwell, Here’s What Happened to the Navy’s https://www.jag.navy.mil/leadership.htm (last visited Sept.
‘Commodore’ Rank, Military.com (2020), https://www.military. 24, 2020).
com/military-life/heres-what-happened-navys-commodore- 45. See General John W. “Jay” Raymond, U.S. Air Force
rank.html; Commissioned Ranks, Royal Air Force, https:// (Sept. 2020), https://www.af.mil/About-Us/Biographies/Dis-
www.raf.mod.uk/our-organisation/raf-ranks (last visited Sept. play/Article/108479/general-john-w-jay-raymond. For two
29, 2020); Ranks and Special Insignia of the Royal Australian months after the USSPACECOM change of command, Gen-
Air Force, Royal Austl. Air Force, https://www.airforce.gov.au/ eral Raymond continued to serve in two different roles—as
about-us/your-air-force/ranks (last visited Sept. 29, 2020). CSO and as the commander of the Headquarters, U.S. Space
35. U.S. Space Force, Space Capstone Publ’n, Space- Force organization at Peterson AFB, Colorado, which contin-
power: Doctrine for Space Forces, June 2020, https://www. ued to perform the functions of a MAJCOM. On October 21,
spaceforce.mil/Portals/1/Space%20Capstone%20Publica- 2020, the Space Force activated Space Operations Command,
tion_10%20Aug%202020.pdf. under the command of Lieutenant General Stephen Whiting,
36. See Merian, supra note 9, for a list of Air Force spe- to take over the former MAJCOM role. Kirby, supra note 32.
cialty codes (AFSCs) of people who were initially permitted 46. Lieutenant General Jeffrey A. Rockwell, U.S. Air Force
to apply to join the Space Force. ( Jan. 2019), https://www.af.mil/About-Us/Biographies/
37. See Air Force, Instruction 51-101: The Air Force Display/Article/485079/lieutenant-general-jeffrey-a-rockwell.
Judge Advocate General’s Corps (AFJAGC) Operations, Acces- 47. Rule 1.7 of the Air Force Rules of Professional
sions, and Professional Development ¶ 9.4.1.4 (Nov. 29, 2018) Conduct, which are modeled after the American Bar
Published in The Air & Space Lawyer, Volume 33, Number 4, 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Association’s Model Rules of Professional Conduct, states: 52. Oriana Pawlyk, More than 8,500 Airmen Have Volun-
teered to Join the Space Force, Military.com ( June 9, 2020),
Rule 1.7 CONFLICT OF INTEREST: https://www.military.com/daily-news/2020/06/09/more-
CURRENT CLIENTS 8500-airmen-have-volunteered-join-space-force.html.
(a) Except as provided in paragraph (b), a lawyer shall 53. For example, the Air Force already offers programs for
not represent a client if the representation involves a other officers in other fields to pause their careers for three
concurrent conflict of interest. A concurrent conflict of years of law school en route to reclassification as judge advo-
interest exists if: cates. AFI 51-101, supra note 37, §§ 5.6, 5.9. Congress and
the DOD also recently made permanent the Career Inter-
(1) the representation of one client will be directly mission Program that makes it easier for service members
adverse to another client; or to depart active duty for up to three years and then return.
Diana S. Correll, Pentagon Exploring How to Make a Career
(2) there is a significant risk that the representation of ‘Pause’ More Flexible, Mil. Times (Apr. 29, 2020), https://www.
one or more clients will be materially limited by the militarytimes.com/news/pentagon-congress/2020/04/29/
lawyer’s responsibilities to another client, a former cli- could-service-members-take-a-pause-from-military-careers-
ent or a third person or by a personal interest of the pentagon-exploring-ways-to-make-it-possible. It would be
lawyer. beneficial to have similar flexibility for interservice transfers
of judge advocates seeking to alternate between opportunities
(b) Notwithstanding the existence of a concurrent con- in the Air Force and the Space Force.
flict of interest under paragraph (a), a lawyer may 54. Again, the Marine Corps provides a model to emulate.
represent a client if: Just as Marine Corps judge advocates receive their military
legal training at the Naval Justice School, Space Force judge
(1) the lawyer reasonably believes that the lawyer will advocates should first be trained in the Air Force JAG School
be able to provide competent and diligent representa- or one of its sister-service equivalents. Marine Corps Law
tion to each affected client; Program, supra note 40.
55. National Defense Authorization Act for Fiscal Year
(2) the representation is not prohibited by law; 2021, S. 4049, 116th Cong., 2d Sess., § 932(b)(7) (passed
Senate July 23, 2020) (amending the description of the Air
(3) the representation does not involve the assertion Force TJAG’s duties in 10 U.S.C. § 9037).
of a claim by one client against another client repre- 56. Spacepower, supra note 35. The international legal envi-
sented by the lawyer in the same litigation or other ronment for outer space is founded in four major space law
proceeding before a tribunal; and treaties: Outer Space Treaty, supra note 30; Agreement on the
Rescue of Astronauts, the Return of Astronauts and the Return
(4) each affected client gives informed consent, con- of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T.
firmed in writing. 7570, 672 U.N.T.S. 9574; Convention on International Liability
for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T.
Air Force Rules of Prof’l Conduct r. 1.7, in Air Force, 2389, 961 U.N.T.S. 187; and Convention on Registration of
Instruction 51-110: Professional Responsibility Program, at Objects Launched into Outer Space, opened for signature Nov.
attach. 2 (Dec. 11, 2018). Although framed as a prohibition, 12, 1974, 28 U.S.T. 695, 1023 U.N.T.S. 15. Outer Space Treaty
Rule 1.7 contains a fair amount of room for discretion in the art. III acknowledges that international law generally, includ-
terms “significant risk” and “materially limited” and in the ing the United Nations Charter, applies in outer space. Other
exception based on clients’ informed consent. important treaties include the Constitution and Convention of
48. Department of the Air Force Priorities, U.S. Air Force, the International Telecommunication Union (ITU), along with
https://www.af.mil/About-Us/Focus-on-Priorities (last visited the ITU Radio Regulations, which contain provisions against
Sept. 23, 2020). harmful interference and allocate frequencies and orbital slots
49. See, e.g., Rogers, supra note 14. in geosynchronous Earth orbit (GEO) for satellites to use. See,
50. Id. e.g., Constitution and Convention of the International Tele-
51. Sec’y of the Air Force Pub. Affs., Air Force Formalizes Offi- communication Union art. 45 (2019); Radio Regulations of the
cer Developmental Categories, Effective March 0-5 Board, U.S. Air International Telecommunication Union arts. 21–22 (2020).
Force (Oct. 21, 2019), https://www.af.mil/News/Article-Display/ 57. S. 4049 § 942(a).
Article/1993911/air-force-formalizes-officer-developmental-cat- 58. Merian, supra note 9; Pawlyk, supra note 52.
egories-effective-march-o-5-board. The new promotion system 59. See, e.g., Campbell & Frye, supra note 22 (Karbler’s
creates a separate line of the Air Force officer developmental cat- comments).
egories for space and other sets of career fields. 60. Merian, supra note 9.
Published in The Air & Space Lawyer, Volume 33, Number 4, 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.You can also read
