Screen Shot 2015-10-10 at 8.00.40 PM

Flanked by nine fellow Senators, Kelly Ayotte (R-NH) sent a strongly-worded letter to Secretary of the Air Force Deborah Lee James on Friday. In the letter, the group excoriates the service for taking “steps inconsistent with Congressional intent” with respect to the A-10 fleet, and orders James to provide a written explanation by the end of this month.

At issue: the Air Force’s brazen flouting of both the letter and spirit of public law as it resists a legislative mandate to continue operating the A-10 for the foreseeable future, in this case by taking three specific actions contrary to restrictions in last year’s defense authorization.

First, the Air Force has decreased depot maintenance funding by 40%, significantly slowing the rate at which A-10 airframes are periodically refurbished, inspected, and modernized. According to the Senators, this jeopardizes the availability of sufficient A-10 airframes to meet current and forecast combatant commander requirements — something to which the service has stipulated in a previous written response to Ayotte’s office. 

The Air Force has previously cited its plan to retire the A-10 as its rationale for the decision to slash depot funding. This most recent letter wholeheartedly rejects that rationale, scolding James that:

“[B]ased on Congress’ explicit, bipartisan, and repeated rejection of the Air Force’s efforts to prematurely divest the A-10, this reduction in A-10 maintenance funding is clearly inappropriate and short-sighted.”

The Senators are also concerned at the service’s deliberate failure to maintain sufficient airframes in serviceable status, which has caused the A-10 weapons school to borrow jets from the collocated test squadron at Nellis Air Force Base. Robbing Peter to pay Paul in this way hampers the test community’s ability to “conduct testing necessary to maintain the health, modernization, and readiness of the A-10 fleet.” Based on the Air Force’s underhandedness in the squabble over the A-10, legislators understandably see this move as a cynical attempt to make the A-10 less relevant to combatant commanders, thereby dulling demand for its services. 

Screen Shot 2015-10-10 at 8.03.26 PM

But the most egregious of the Air Force’s questionable actions is its violation of restrictions embodied in Section 134 of the 2015 National Defense Authorization Act (NDAA), which permitted the service to move 18 A-10s from primary to backup inventory status, or “BAI.” The provision permitted the Air Force to fly select airframes less frequently, and to reduce its overall maintenance and operational resource commitment to the A-10 fleet accordingly. 

But it seems the Air Force exceeded that authority, and the Senate has taken notice.

According to the Ayotte letter, a memo signed in May of this year by Lt. Gen. John Cooper placed the 18 BAI A-10s into a different status known as “XJ.” This status removes the designated A-10s completely from the active inventory and prevents them from being flown at all. This is clearly at odds with Congressional intent that the airframes be periodically operated, and it guarantees their condition will progressively degrade, at some point making it impractical to re-activate them into the inventory. In other words, it’s a death sentence for 18 A-10s Congress forbade from being retired and directed be kept available in the event they might be needed. As the Senators point out in their letter, this isn’t a semantic difference. It’s a clear violation of the intent of Congress.

I would go a step further and argue that unless the Air Force can explain how it ended up clearly outside of constraints imposed in the NDAA, this is a violation of public law and should be regarded as such for purposes of discipline and accountability. This type of lawlessness is one of the lurking dangers of an overgrown federal government and cannot be countenanced. When executive agencies believe they can hide behind the complexity of the modern administrative state to thwart the power-checking legal authority of a coordinate branch of government, we have reason to be anxious that the separation of powers doctrine holding our government in balance is in danger of rupturing, making legal authority essentially meaningless. This can’t be tolerated, for the stakes attached far exceed the narrow objectives of the current cohort of generals and executives perched atop the air service at a difficult and politically important moment in the history of national defense.

As an interesting side note, the letter is addressed only to Secretary James, omitting Chief of Staff General Mark Welsh and making no reference to service’s uniformed leader. For observers of the A-10 debate, it wouldn’t be difficult to imagine that the drafters saw no point in inviting Welsh into this particular discussion. His past statements and decisions have greatly injured his credibility on Capitol Hill when it comes to the A-10. His omission does, however, add a little more relevance to rising questions about Welsh’s ability to effectively represent the interests of the Air Force in Congress.

The most salient point made clear by this letter is that despite a steady tide of embarrassments, repudiations, and political setbacks, the Air Force is not getting the message when it comes to the A-10. Even with the incredibly strong (some might say stern) language in this year’s NDAA prohibiting divestment of the A-10 and requiring actions to field a replacement before retirement can be contemplated, the service continues to thumb its nose at Congress, self-inflicting reputational damage in the process. 

No matter how James answers this latest volley, the damage is done. Congress is likely to go even further in its next iteration to more tightly constrain the Air Force on this issue, which will further fracture service credibility while disrupting the legislative-executive cooperation and comity needed to lubricate the wheels of national defense.

The full letter …

[scribd id=284356562 key=key-BhFKMbRZLypIxfPYcNy7 mode=scroll]

… and a vivid reminder of why we still need the A-10:

Hawg: The Story of the A-10 and Close Air Support in Afghanistan.

If you have any problems viewing this article, please report it here.