Who Should Have Tried Captain Ashby?

By John H. Cushman

General Clark's authority stems from the 1986 Goldwater-Nichols Department of Defense Reorganization Act, which gave each U.S. combatant commander ". . . authoritative direction over all aspects of [his command's] military operations, joint training, and logistics . . . coordinating and approving those aspects of administration and support [including control of resources and equipment, organization, and training] and discipline necessary to carry out missions assigned to the command; and . . . suspending subordinates and convening courts-martial...."

These and other strong provisions were written into the law because Senator Barry Goldwater and Congressman Bill Nichols, having reflected on the weak authority of the theater commander as revealed in the 1983 Beirut Marine disaster, sought to leave no doubt about the full responsibility of the combatant commander or about his commensurate authority.

Coalition operations such as those in the Balkans and those of the Gulf War routinely are directed through an allied chain of command, in which U.S. commanders hold the key positions at most—if not all—senior levels, and other nations' contingents contribute to task forces at lower echelons. These U.S. commanders usually are double-hatted, with additional duties in a U.S.-only chain of command. Goldwater-Nichols applies only to a U.S. chain of command, but the muscular command chain it fosters adds tangible strength to the chain of coalition command where the "consent of the commanded" ultimately is required.

In the Ashby case, General Clark as SACEur had assigned responsibility for NATO air operations in the Balkans to his NATO subordinate, then Admiral T. Joseph Lopez, U.S. Navy, who was Commander, Allied Forces South (ComAFSouth), headquartered in Naples. Admiral Lopez was also Commander in Chief, U.S. Naval Forces Europe (CinCUSNavEur), which was the U.S. European Command's Navy component—but not its naval component, inasmuch as U.S. Marine Forces Europe (MarForEur) was located near Stuttgart, Germany, alongside Headquarters, U.S. European Command. (The Marine Corps designates General Pace also as Commander, U.S. Marine Forces Europe. General Pace, who visits Europe from time to time, keeps a Marine colonel on station near Stuttgart.) Admiral Lopez's U.S. headquarters, which had no jurisdiction over Marines ashore, was in London; his normal duty location was in Naples.

As NATO's ComAFSouth, Admiral Lopez assigned direct responsibility for NATO air operations over the Balkans to U.S. Air Force Lieutenant General Richard C. Bethurem (since replaced), whose NATO title was Commander, Allied Air Forces Southern Europe, headquartered in Naples. His Fifth Allied Tactical Air Force (5 ATAF) headquarters, under an Italian lieutenant general, was located at Dalmolin Air Base near Vicenza. There General Bethurem, who was the designated Combined Force Air Component Commander (CFACC) with tasking authority for joint and multinational air operations in Bosnia-Herzegovina, exercised his component commander responsibilities through a Combined Air Operations Center.

General Bethurem was also Commander, U.S. 16th Air Force, at the Italians' Aviano Air Base 50 miles from 5 ATAF' s headquarters. His coalition air domain, mostly at Aviano, consisted of the permanently based U.S. Air Force's 31st Fighter Wing with its two F-16 squadrons, augmented by a host of temporary duty units of the U.S. Air Force and Marine Corps, plus British, Spanish, Canadian, and French air squadrons housed in a sizeable tent city. Of all of these, he truly commanded only units of the U.S. Air Force; for the others his authority was limited to tactical control, and this only for operational missions over the Balkans as tasked by 5 ATAF's air-tasking order. Captain Ashby's was one of five aircraft in Marine Electronic Warfare Squadron Two at Aviano. Because it had, as was authorized, filed a flight plan for that training mission outside the purview of the air-tasking order, it was not under General Bethurem's tactical control when it struck the gondola cable some 370 feet above the valley floor.

With one U.S. Air Force general as Deputy Commander 5th ATAF, another as Director of the Combined Air Operations Center, and a third commanding the 31st Fighter Wing, General Bethurem was assured of sufficient U.S. Air Force senior expertise on station to execute his mission of coalition air operations over the Balkans. He had in place the necessary U.S. and NATO command and control systems, including the NATO version of the AWACS, to ensure his coalition air's effective operation.

Given this air command-and-control structure, General Clark could have displaced the Marines and taken immediate charge of the accident investigation and of the subsequent Article 32 investigation, should one follow. This would have allowed his appointed investigating officer not only to address the role of the air crew but also to probe in detail the adequacy of the system in place for supervising U.S. air operations in his theater. One important question would have been, "Who was responsible for the operational proficiency of the air units of General Bethurem's air domain—and specifically for that of the U.S. Marine Corps EA-6B squadron, including the proficiency and discipline of its pilots?"

The U.S. Marine Corps deploys units—to joint and allied task forces overseas—that are expected to be operationally qualified. But who is expected to instruct those Marine units in the task force's standard operating procedures and regulations, to inspect them to be sure that they are in compliance, and to be satisfied that the chain of their direction is reliable? The commission headed by retired Navy Admiral Robert J. L. Long to investigate the 1983 Beirut Marine disaster concluded that it was the responsibility of the chain of operational command, beginning with USCinCEur, to do just that—and General Bernard W. Rogers, then in that position, agreed. But General Rogers lacked the authority later granted to USCinCEur by Goldwater-Nichols.

When that EA-6B was flying a training mission in Italy, as distinguished from an operational mission over Bosnia, should it have been responsible to the Marine Corps component commander in the United States who trained it? Or should it have responded to Air Force General Bethurem, the U.S. task force commander in Italy under whom it flew in operations—and thus to the 31st Fighter Wing, which General Bethurem had charged with the operational tasking of the squadron?

Marine culture would doubtless bridle at doing all the squadron's flying from Aviano under the tasking of an Air Force fighter wing. (That same culture led the Marines at Beirut in 1983 to reject a Deputy USCinCEur offer for assistance in surveying the security of the Marine barracks, later bombed.)

But for one kind of flight the crew was responsible to one chain of command, and for another to a different chain. Did that fact contribute to the "serious problems in Marine Corps training, equipment, management and procedure, as well as certain aspects of Air Force operations . . ." cited by defense lawyers according to The New York Times , which also reported that "Communications between the Air Force squadron [sic] permanently stationed at Aviano . . . and the Marine squadrons that rotated through were shown to be poor"? For example, there was confusion in the Marine squadron about altitude limits. How did this happen, and why? Would a tighter chain of operational command have obviated such confusion?

An air or other disaster typically occurs when several things go wrong. A systems approach that looked into all the circumstances surrounding the disaster would seem to have called for CinCEur to appoint the investigating officer from the outset.

Notwithstanding these advantages, there were good reasons why General Clark would not wish to assume jurisdiction over the case. One was that the event created serious problems in relations with Italy and other allies—and General Clark is far better known in Europe as SACEur, his allied role, than as CinCEur. To claim, in the latter capacity, court-martial jurisdiction would place him in the difficult and potentially suspicious position of participating in the judicial chain of U.S. servicemen involved in the deaths of Italians and other nationals from allied nations—and could compromise his ability to lead the coalition.

A second consideration is that claiming jurisdiction was not necessary to General Clark's crucial ability to ensure a unified, single investigation. Indeed, to exercise jurisdiction could make him vulnerable to a charge of improper command influence if the accident investigation should lead to a trial. Strategic direction of the investigation—including its public affairs aspects—while standing aside from its actual conduct allowed General Clark to track the investigation's progress and to inform the U.S. ambassador to Italy and key authorities in Washington, D.C., without such jeopardy.

As it went along, the Marine Corps-led investigation would no doubt uncover faultlines in the system for operational direction of U.S. air as well as conditions in the command-andcontrol links that warranted attention.

Learning of these, General Clark could focus on them without interfering in the investigation itself or in the Article 32 investigation that followed it, and be free from the charge of command influence in the case. In the process, General Clark may well have tightened the chain of air command and control.

That appears to have been called for, and one can trust that he is doing so.

Lieutenant General Cushman, U.S. Army (Retired), commanded U.S./ROK forces defending the western half of the Korean Demilitarized zone during the mid1970s. General Cushman was the Proceedings Author of the year for 1994.


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