Would a U.S. Space Force Be Legal? Get the Facts.

As the Trump Administration calls for a new military branch, get the plan's pros and cons and learn the rules governing off-world soldiers.

In a speech at the Pentagon on Thursday, U.S. Vice President Mike Pence announced more details for a Space Force: a proposed sixth branch of the U.S. military that would focus on all matters off-world, from procuring military satellites to defending U.S. spacecraft in orbit from attacks.

“Just as in the past, when we created the Air Force, establishing the Space Force is an idea whose time has come,” Pence said. “The space environment has fundamentally changed in the last generation; what was once peaceful and uncontested is now crowded and adversarial.”

Pence's speech rekindles a news cycle that, at first glance, resembles the prologue of a sci-fi film. In June, U.S. President Donald Trump made international headlines by voicing support for a Space Force in remarks to the National Space Council.

“I’m hereby directing the Department of Defense and Pentagon to immediately begin the process necessary to establish a space force as the sixth branch of the armed forces. That’s a big statement,” Trump said. “We are going to have the Air Force and we are going to have the Space Force—separate but equal."

In the wake of Pence's speech and Trump's directive, you may have some questions. Does the U.S. now have starship troopers? What are the pros and cons to a Space Force? And is such a military branch even legal under international treaties? We've got you covered.

Does the U.S. now have a Space Force?

Not yet. Only an act of Congress can create a new military branch, but the Trump Administration is sketching out how one would work. If Congress assents, the branch would be the first added to the U.S. military since 1947, when the Air Force was founded.

President Trump has entertained the notion of space warriors before, first in a March 2018 speech and later in a May 2018 Rose Garden ceremony. But just last year, his Cabinet opposed the idea.

“The Pentagon is complicated enough,” Air Force Secretary Heather Wilson told reporters in June 2017. “This will make it more complex, add more boxes to the organization chart, and cost more money. If I had more money, I would put it into lethality, not bureaucracy.”

In July 2017, Secretary of Defense Jim Mattis even wrote to Congress to speak out against a Space Corps proposal, one that lawmakers eventually scrapped. The idea still has its supporters inside and outside Congress, who argue that space is now too important to lack a dedicated military branch.

“Space is a place where there is now tens of billions of dollars” in infrastructure, says Mark Albrecht, the executive secretary of the National Space Council from 1989 to 1992. “Everything from financial transactions to the GPS that guides your car is controlled from space, or at least facilitated by space.”

Military activity in space, he argues, is therefore “not materially different from the U.S. Navy, which goes around the Pacific and the Atlantic and the Mediterranean not to create trouble or to cause wars, but to make sure that all the things we enjoy are protected.”

The U.S. military depends heavily on space for communications, reconnaissance, and detecting incoming missiles. Russia and China have been building surface-to-air missiles powerful enough to take out a satellite, Albrecht notes, a move that has U.S. officials increasingly concerned. In 2007, China even shot down one of its own aging weather satellites in a test of the technology that the U.S. protested.

In the 2018 National Defense Authorization Act, Congress directed the Pentagon to at least study if and how it should reorganize its existing space programs. An interim version of the study published in March, and it is noncommittal to the idea of what was then called a unified “Space Corps.” Defense One reports that the full study calls for consolidating the U.S. military's space operations. The plan is to establish a U.S. Space Command akin to the cross-cutting U.S. Indo-Pacific Command, and to craft a single agency that would buy the military's satellites.

“Before Congress does anything, I think they're going to want to see that report and see what the Department of Defense says about that,” says Michael Dodge, a space law expert at the University of North Dakota's Department of Space Studies.

Is a Space Force a totally new proposal?

No. The idea of a Space Force has been kicked around for decades. In a 1999 policy paper, Senator Bob Smith entertained the idea, and the following year, a commission chaired by Donald Rumsfeld suggested making a Space Corps within the Air Force, an analogue to the Marine Corps within the U.S. Navy.

From Eisenhower to Obama, the U.S. has seen space as a zone for self-defense and non-aggressive military activities. But by advocating for a Space Force, observers say that Trump is taking an unusually brazen tack.

“It sends a message to other countries around the world that the U.S. is looking aggressively at our future in space with respect to national defense,” says Dodge. “What I mean by 'aggressively' is the signalling that the U.S. is looking at space as a potential war-fighting domain—which is nothing new, but probably isn't helpful to discourse.”

What would a Space Force actually look like?

In all likelihood, a Space Force would be stitched together from existing U.S. programs. At its centre would be the Air Force Space Command, which has led the U.S.'s military space operations since 1982.

If you're picturing a rehash of Starship Troopers or The Expanse, brace yourself for disappointment. Day to day, the Space Force would probably monitor Earth's satellites and take the lead on launching and maintaining military satellites, the command's current beat.

Even now, the command employs more than 36,000 people and maintains military tech in space, such as the Global Positioning System (GPS) satellite network and the mysterious X-37B space plane. The consulting firm Avascent says that the Air Force spends more than $7 billion per year on unclassified space systems alone.

At its most elaborate, a Space Force would be on equal footing with the Army and Navy, replete with Pentagon offices and a service academy like West Point. However, its exact structure would depend on the enacting laws, which aren't passing any time soon.

Albrecht estimates that at the absolute fastest, it'd take at least a year to make the Space Force a legal entity. In his August 9 speech, Vice President Pence said that officials are optimistic a Space Force could blast off as soon as 2020.

Costs for the branch would vary, depending on how it was organized. In an interview with the Washington Post, National Space Council executive secretary Scott Pace said that the Trump Administration's proposed reorganization “should be budget neutral.” The Post also noted that the White House has asked Congress for an extra $8 billion over the next five years to bolster funding for national security systems in space.

Would military action in space be legal?

In a word, yes. But if a U.S. Space Force ever came online, legal experts say that international law would limit what it could do.

All major space powers, including the U.S., Russia, and China, have signed the Outer Space Treaty of 1967. The pact says that nothing in space can be claimed as a single country's territory, and it bars countries from stationing nuclear weapons or weapons of mass destruction anywhere in outer space, including in orbit around Earth.

The treaty gets stricter when it comes to “celestial bodies” such as the moon and Mars. Parties can't build military bases, conduct military manoeuvres, or test weapons of any kind—even conventional weapons—on another world.

But the Outer Space Treaty does give countries some wiggle room. Dodge says that the Cold War-era treaty doesn't explicitly forbid intercontinental ballistic missiles, which enter and exit space on their way toward their targets. The treaty also doesn't specify whether conventional weapons can be used in open space or on space stations. And they have, at least once: In January 1975, the Soviet Union secretly test-fired a modified cannon on its Almaz space station.

“I don't think that necessarily would have violated the treaty, even if it's contrary to the spirit of the document itself,” says Dodge.

That said, the Outer Space Treaty and other space treaties aren't the only rules in the void.

“Space is like the high seas, it's like Antarctica—it's a global commons. And that means it's governed by international law,” says Joanne Gabrynowicz, a space law expert and professor emerita at the University of Mississippi. “In addition to the Outer Space Treaty, the whole body of international law applies to space, and that includes humanitarian law [such as the Geneva Conventions] and the law of armed conflict.

Gabrynowicz adds that even the proposed branch's name could raise legal questions.

“There's a term of art in law called the 'use of force,'” she says, “[and] that phrase has a huge body of law just on what that means.”

Lead Image: On June 18, 2018, President Donald Trump signed a policy directive on traffic management in space. During the same meeting of the National Space Council, Trump advocated for a "Space Force" as an independent and co-equal military branch.

PHOTOGRAPH BY BRENDAN SMIALOWSKI, AFP, GETTY IMAGES

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