The Senator vs. the Army: A bureaucratic battle

By George C. Wilson

August 13, 2001

It is not unusual in Washington to see a lone lawmaker get on his high horse and charge after a piece of the vast government bureaucracy. Sometimes, these are heroic struggles to hold accountable some foot-dragging part of officialdom. Other times, they are selfish quests to secure a pet project for the home district or for powerful friends--or simply power plays to show the bureaucrats who is in charge. This is the story of one of those Washington wars. It has all the essential elements: a crusading lawmaker, a futuristic Pentagon defense contract worth hundreds of millions of dollars, a grand jury investigation into possible misuse of government funds, inside informants, and, yes, even an accusation of sexual harassment. On one side is Sen. Bob Smith, a New Hampshire Republican, who in 1999 left the GOP for 111 days to run unsuccessfully as an independent for President. On the other side is the U.S. Army. The subject of their battle is an obscure weapon called the KE-ASAT--short for kinetic energy anti-satellite weapon--whose development began in 1990. The KE-ASAT is designed to be an orbiting battering ram that would slam into enemy satellites during wartime, destroying them or at least knocking them out of any useful orbit. In some ways, this is a war over military strategy and resources. Smith, a strong backer of missile defense and "Star Wars," sees the struggle to keep money flowing to the KE-ASAT as his Holy Grail to help save the United States during a future war. Like it or not, warfare is coming to space, Smith reasons, and because this nation is more satellite-dependent than any other nation, we have to be ready to fight in space. But this is a cultural war, too. Smith is clashing with the Pentagon because he believes an elected official has a perfect right--indeed an obligation--to pull every power lever he can reach to achieve his objective, and to make sure that funds appropriated for a program are spent on that program. The Army, however, sees this fight much differently. On the strategic level, the Army has never been very fond of the KE-ASAT, and--backed up by the Air Force--says there are better ways to disable satellites than by launching this iffy flyswatter in the sky. Having already spent about $350 million on the KE-ASAT in the past decade or so, the Army would rather take the millions more that would have to be spent to make it work, and use the money for something else. On a cultural level, the Army also thinks that Smith has simply gone too far--way too far. Officers say he has insulted generals, put unfair holds on the nominations and promotions of distinguished officers, interfered with the retirement of a three-star general, and unfairly tried to involve the Attorney General and the Defense Secretary. Worst of all, they contend, Smith has interfered in ongoing criminal and civil investigations of people who may have cheated the taxpayers out of hundreds of thousands of dollars. All of this, they say, he did to protect a not-very-promising weapon and a defense contractor who gave Smith's failed presidential campaign $5,000. Military officers say privately, and one has said publicly, that Smith has pushed this to the point of abusing the powers of his office. A Technology Battle Smith's war with the Army over KE-ASAT is in part an argument over technology. On this front, Smith has had to fight an uphill battle. Not only the Army and its generals, but also a President, Defense Secretaries, and a Pentagon weapons advisory board have declared KE-ASAT a turkey. All of them have maintained that Smith's pet project is not worth building, because better ways can be found to foil hostile satellites that are peering down on U.S. troops or trying to zap allied communications. KE-ASAT has already gone through several design iterations. In one, it was a stubby battering ram designed to fly through space, find the enemy satellite, and ram into it. Under another paper concept, KE-ASAT could knock an enemy satellite out of orbit by swatting it with a giant flyswatter attachment. Still another calls for it to burn enemy satellites with a blast of electrons. Three prototypes have been built. None has flown. All are in storage at a Boeing Co. plant in Anaheim, Calif. Ramming an enemy satellite with KE-ASAT is a bad idea, critics say, because it would send flying wreckage onto what is an increasingly crowded space highway, destroying U.S. and friendly satellites that might fly into the debris. The better tactic, KE-ASAT critics maintain, would be to use more-earthly and benign methods to combat enemy satellites--bombing satellite ground-control stations or jamming the electronic communications between ground and space. President Clinton agreed, and used his briefly held line-item veto authority to block the KE-ASAT in October 1997. The Air Force, which is now in charge of most space-war projects, doesn't like KE-ASAT either. Air Force Gen. Ralph E. Eberhart, head of the U. S. Space Command, told the Senate Armed Services Committee in 2000: "When we look at negation" of a space satellite, "we look at that all the way from disabling or destroying ground sites, to jamming uplinks or downlinks. We look at it in terms of reversible effects on satellites. And then finally, sort of the last-ditch maneuver, is destruction.... We prefer not to do that, for a variety of reasons.... So at this point, I think we should focus on the other aspects of space control," not on a KE-ASAT weapon. All wrong, Smith counters. KE-ASAT does not have to be used in a way that would put debris in space, Smith said in a lengthy interview with National Journal. Besides, he added, KE-ASAT is the only bird the Pentagon has in hand today for knocking out enemy satellites, so the United States should get it ready to fly. "There are all kinds of satellites up there in space, some potentially hostile. What we have to decide for our policy is whether or not we're going to allow those to roam freely, uninhibited, to do whatever they may want to do to harm our national security. President Bush should move forward on this KE-ASAT technology as the first step. There will be follow-on technology. But this is the only thing now that works for the near term." The Battle Begins Mainly, however, the fight over KE-ASAT has been a political and power battle, one that began eight years ago when Smith, an Armed Services Committee member, decided that the Army was not following congressional orders to spend the money he had added to Pentagon budgets for KE-ASAT. He fired a few early shots at the Army, and as the years went by, brought heavier and heavier guns to bear on the generals as he became increasingly convinced that they were defying him and the rest of Congress. As Smith increased his pressure, the Army's resentment grew. Explaining his crusade, Smith said the Army "kept coming to me saying, `Don't worry about it, Senator, KE-ASAT will be part' [of the broad effort to control the new high ground of space]. Well, I didn't buy it, and I was right not to buy it, because they diffused those dollars and basically dried up KE-ASAT." Smith continued: "The essence of this case is that the Congress of the United States appropriated dollars to build this system at a cost of about $450 million over 10 to 15 years. President Clinton and [his Deputy Defense Secretary] John Hamre did not support the program. Fine. That's OK. We had the votes; we put the money back." When Smith won back the money for KE-ASAT after Clinton's line-item veto, the Pentagon and Army leaders were obliged, Smith said, to spend the money on KE-ASAT rather than spread it around to other programs. And Smith was going to make darn sure they did. As the 1990s ended, the Smith versus U.S. Army war got hotter and hotter, finally breaking into a full-scale conflagration in 1999. The past two years have resembled all-out combat between two parties fighting for every advantage. The key events of 1999 were these: First, Smith broke with his party and ran for President as an independent. And the Army Space and Missile Defense Command, the folks in charge of KE-ASAT, got a stiff, new broom as commander, Lt. Gen. John Costello. As Smith rounded up money for his presidential run, he discovered he had made a lot of friends in Alabama because of his staunch backing of KE-ASAT, which had provided a lot of jobs. KE-ASAT is run out of the Army Space and Missile Defense Command's Technical Center in Huntsville, Ala. In April 1999, grateful Alabama supporters gathered in Huntsville to fete Smith at a fundraising dinner. Among them was Wallace Kirkpatrick, chief executive officer and president of DESE Research Inc. of Huntsville, one of the major subcontractors on KE-ASAT. Kirkpatrick and four fellow executives of the company contributed $1,000 each--a total of $5,000--to Smith's presidential campaign, the biggest slug of money for that race given by any single source in Alabama, according to the Center for Responsive Politics. Costello, meanwhile, looked over the myriad of space programs he had inherited and concluded that KE-ASAT would never gain the support of Army leaders unless it fit in better with their plans for safeguarding military assets in space. Skeptical of the ramming technology, and alarmed at the fact that KE-ASAT was still unfocused after years of development, Costello challenged KE-ASAT program chiefs at a meeting in Huntsville in 1999, according to participants. "Let's take this out of the laboratory and make it a real program that the Army can use," Costello reportedly said. His challenge prompted Army KE-ASAT officials to discuss with Boeing, the lead contractor, and DESE Research how to reorient the anti-satellite project. But some of the old KE-ASAT hands, at the Technical Center and around the Huntsville space community, saw these discussions as a prelude to cancellation of the project. They passed their fears along to Smith and his top legislative assistant in Washington, Margaret "Ducky" Hemenway. Army space leaders came to regard these tipsters as troublemakers, while Smith and Hemenway considered them patriotic whistleblowers who were trying to keep KE-ASAT from being gutted by Costello and the Army. Next came the sex. A married woman who is a deputy to Steve Tiwari, the civilian project chief for KE-ASAT, filed a sexual harassment complaint against Tiwari in 1999, accusing him of misconduct during a business trip. Costello directed a colonel to investigate the complaint but otherwise stood back from the controversy, according to Army officials in Huntsville. While investigating the sexual harassment complaint, however, the colonel discovered what looked to him like questionable spending of government money by Tiwari, Army officials said. The command notified the Defense Contract Audit Agency, which looked over the evidence and, in turn, called in the Army Criminal Investigation Command. Two investigators from the criminal command's field office in Atlanta sifted through vouchers and documents at the KE-ASAT project office in Huntsville, and at DESE, in an effort to determine whether Tiwari and others had misspent government money. Their evidence was forwarded to the U.S. Attorney in Birmingham, who presented the findings to a grand jury there in 1999. No indictments have been returned. Because Tiwari's security clearances were suspended after the criminal investigation began, he has not been able to work on KE-ASAT or any other classified project. By early 2000, Costello realized he was in for trouble from Smith and Hemenway. He knew that the Senator and his aide were increasingly concerned over reports that he was out to kill KE-ASAT, not just to reorient it to something more relevant to the Army's space needs. The general sought a meeting with Smith in hopes of allaying those fears and coming up with a plan that both sides could support. The two met in the Senator's Washington office in February 2000. Costello, according to a participant, opened the meeting with this message: Senator, there is no one besides you and me who is supporting this weapon. In response, Smith roared back at Costello, accusing the general of lying to him when he denied he wanted to gut KE-ASAT, according to Army officials recounting the meeting. Costello then met with Hemenway immediately afterward in the Senator's outer office and heard what amounted to a demand to restore Tiwari and the rest of the old team to their jobs on KE-ASAT. "It wasn't the program they were concerned about," said one Army leader in reconstructing Costello's meetings. "It was getting Tiwari back on the job. It was a personal thing with them." Soon after, Smith got what he viewed as further confirmation of his suspicion that Costello was out to kill the KE-ASAT program. On February 28, 2000, Linda N. Bentley, an Army contracting officer at Huntsville, wrote to Boeing, which was in the process of building three "kill vehicles" for KE-ASAT. In the letter, Bentley told the company: "It is the intention of the government to restructure and redirect the efforts on the KE-ASAT program. Request you submit for government approval a proposed plan to halt the fabrication, assembly, and test of the kill vehicles at a logical stopping point." Two weeks later, Army Space Command backtracked in writing. In a second letter to Boeing, Bentley wrote: "The government hereby rescinds" the February 28 letter. "To date, there has been no decision by the government to restructure or redirect the KE-ASAT program." Later that year, still unhappy with progress on KE-ASAT, Smith wrote then-Chairman John W. Warner, R-Va., of the Senate Armed Services Committee that Costello, in his February meeting with Smith, "lied to me" in denying he was gutting KE-ASAT. Smith implied to Warner that the investigations into sexual harassment and financial irregularities were mainly designed to intimidate supporters of KE-ASAT. "Army leadership has gutted the KE-ASAT program office and launched a number of frivolous legal actions against former members and contractors to intimidate them in an attempt to pre-empt my ability to conduct constitutional oversight of this program," Smith wrote. Smith then asked the General Accounting Office, Congress's watchdog, to determine whether the Army was indeed gutting KE-ASAT. Although Smith would later portray the resulting December 5, 2000, report as confirmation of his accusation, the GAO did not go that far. In fact, GAO provided ammunition for both sides in the battle. In the Army's favor, the GAO "determined that the vast majority of KE-ASAT funding has been allocated for purposes related to development of the KE-ASAT weapon system." However, the report continued, "close to $1.5 million of the $37.5 million that was provided specifically for KE-ASAT for fiscal year 1998 was used to support activities that had no direct benefit to the program. Instead, the $1.5 million was used for a variety of activities, including salaries and travel for staff in other programs, space control plans and requirements, and development of a ballistic missile command-and-control system." In short, most of the money was being used properly, but the Army was diverting about 4 percent of it to other programs. The GAO spotlighted that practice, and the Army promptly assured the GAO that it would replace the diverted money. But the GAO's report also bolstered the Army's investigation into financial irregularities in the KE-ASAT program office. The GAO said: "We identified several questionable spending practices by KE-ASAT program staff, including the inappropriate use of a government-issue [purchase] card and failure to comply with government procedures in purchasing office furniture and computers." Howell Roger Riggs, the attorney for Tiwari and DESE Research, in a statement to National Journal, denied allegations that Tiwari's office misused government credit cards in buying computers and furniture. Riggs said that the former project chief "followed the procedure in place at the Space and Missile Defense Command." The Battle Continues The war between Smith and the Army continued to escalate throughout 2000, prompting a parade of high Army and Pentagon officials to march into Smith's Senate office in hopes of making peace. But none of those officials felt they could comply with Smith's demands that Tiwari be restored to his position as civilian chief of KE-ASAT and that the flow of money to DESE be resumed. The Army insisted that the investigations and follow-up actions had to first run their course. So an angry Smith continued to fire away. He persuaded then-Defense Secretary William S. Cohen to delay Costello's planned retirement. In fact, Smith wanted Costello to be retired at a rank below lieutenant general, to punish him for his actions on KE-ASAT. And in another burst of hardball politics, Smith placed a hold on the nomination of Costello's successor, Lt. Gen. Joseph Cosumano. "I couldn't get any attention," Smith said in justifying those actions against the generals and other flag officers connected with space programs. "They were just making a mockery of it down there" in Huntsville, Smith said, by not spending the money allocated to KE-ASAT and by letting Tiwari and others under investigation "twist in the wind." People are innocent until proven guilty, Smith noted, and he saw no reason why Tiwari and others who were pulled off KE-ASAT could not have kept working on the program "until they were cleared or found guilty." Hemenway, Smith's point person in his many battles against the Army, defended the Senator's holds in an October 10, 2000, e-mail message, obtained by National Journal, sent to T. Eric Womble, military assistant to then-Senate Majority Leader Trent Lott, R-Miss.: "Retiring Costello in grade only sends the signal to his designated successor that you can slime Senators, persecute and retaliate against dedicated employees, manipulate the [Army criminal investigation division], misappropriate funds, and get away with it." Another Hemenway e-mail to Womble, this one dated September 28, 2000, seems to confirm Army suspicions that Smith's prime objective was not to force Army leaders to spend money on KE-ASAT but to put the old team back on the project, despite ongoing investigations: "Just to reiterate, Sen. Smith says the hold [on Cosumano's nomination] stays until (1) the program management, including Steve Tiwari and the industry team, to include DESE, are reconstituted; (2) the 'legal' proceedings are brought to a close as expeditiously as possible; (3) those responsible for retaliation and reprisals [and] for wasting taxpayer dollars are held accountable." Hemenway's e-mail message to Lott's assistant continued: "If the Army and [Department of Defense] are not going to take any action in response to what we believe constitutes unjust reprisal/retaliation against competent and decorated [Space and Missile Defense Command] employees, then we will move forward with a congressional hearing and an [Inspector General] investigation to examine those charges." The Army Responds By this time, Smith's pressure tactics were infuriating the Army. Several Army leaders said in interviews that all they were trying to do was make the best use of the space dollars they received, including those earmarked for KE-ASAT. They assailed Smith for calling a decorated general a liar and putting holds on the careers of flag officers to advance his personal agenda. "I find it personally offensive," said retired Lt. Gen. Jay Garner, a former commander of the Army Space and Missile Defense Command, who reflects the views of many active-duty officers on the KE-ASAT affair. "It's been an abusive use of power. You trust the legislative branch of America to do what's good for the nation, not to do this type of thing. There has to be a certain amount of trust and confidence between senior military officials and the United States Congress." Although Smith insisted there was nothing personal in his actions against Costello, Cosumano, and other officers, Garner sees it otherwise. The Senator "has exerted undue influence on the lives of general officers who tried to do what they thought best for the Army and for the nation when they headed the Space and Missile Defense Command. He's had a tremendously disruptive influence on that command." Garner said he found it especially "incredible" that a U.S. Senator would try to get involved in an ongoing criminal investigation. "I find that unthinkable. He should let the investigations continue and accept whatever their findings are. He should allow the Army to determine what direction the program goes." Smith and his staff don't see it that way, however. They see the investigations as part of a pattern of Army retaliation against defenders of KE-ASAT. Army leaders, Smith said, "began to pull people off the program who knew what they were doing and punished these people by coming up with trumped-up charges like sexual harassment. They began to discriminate against good people whose only sin was to be strong for the program." Not Over Yet This year, with a new Republican administration in office, Smith has raised the stakes against the Army again. He has appealed to his former Senate colleague, Attorney General John D. Ashcroft, to look into the status of the grand jury investigation, and asked Defense Secretary Donald Rumsfeld to take a second investigation away from the Army and give it to the Pentagon general counsel. The second investigation is looking into whether Tiwari and DESE improperly used KE-ASAT money to lobby Congress. The Army, for its part, has begun proceedings that could lead to "debarment" of Tiwari and DESE--debarment is an administrative action taken by the government to ban individuals or contractors from doing any more work on a given contract or any other government project for a specified period of time--a penalty that could bankrupt an aerospace firm such as DESE. Riggs, attorney for Tiwari and DESE, dismissed the improper lobbying charges. "The Army is and always has been aware that Mr. Tiwari was acting in his official capacity as a public official in his contacts with Congress. There is a statutory exception for such activity." Riggs termed the Army's allegations "just another retaliation in a long line of retaliations against Mr. Tiwari for Mr. Tiwari's preventing Lt. Gen. Costello's misappropriation of KE-ASAT funds." If the debarment action is taken, the Justice Department could follow it with a civil court action aimed at recovering government money lost and imposing damages, officials added. In his March 7 letter to Ashcroft, Smith asked to be brought up to date on the grand jury's criminal investigation in Birmingham, Ala. If that investigation has concluded without an indictment, Smith wrote, "then I hope your department will inform the Army ... so that KE-ASAT staff can be returned to their jobs and the program can resume with competent institutional expertise." Smith appended a hand-written note, saying, "John--this is a very important matter, and any help you could give would be deeply appreciated." In a June 20 letter to Rumsfeld, Smith wrote: "I am deeply concerned about the lack of fairness and impartiality in the Department of the Army because of actions related to the former KE-ASAT program manager [Tiwari] and its support contractor [DESE]." Smith defended the letters as a proper response to continued Army recalcitrance. "I was fulfilling my senatorial responsibility" to alert Cabinet members to the Army's "persecution" of people "whose only sin" was strong support of the Army anti-satellite weapon, Smith said. "It was very appropriate." Smith, who is likely to face a tough re-election contest next year, shows no sign of giving up his quest. Convinced that the Army is just not interested in KE-ASAT, Smith has been threatening for some time to transfer the program to another service. In the interview with National Journal, Smith said the Pentagon is now in the process of doing just that. If all of the administrative obstacles can be worked out, Smith said, the Navy will take possession of the program, and Smith will release to the Navy the extra $10.5 million for KE-ASAT that he had been withholding from the Army. Does this mean, Smith was asked, that, at long last, peace is at hand between him and the Army? "I don't know," the Senator replied with a smile. "I heard Henry Kissinger say that, and it didn't work too well for him."

By George C. Wilson

August 13, 2001

http://www.govexec.com/defense/2001/08/the-senator-vs-the-army-a-bureaucratic-battle/9739/