F-35 Flights in a City Violate Military’s Own Rules

Complaint to the Governor of Vermont[1]

Executive Summary

657 people signed on to this complaint

There are wrong ways to use a weapon. And wrong places. Hundreds of F-35 practice flights in a city each month is not just a wrong way and a wrong place. The takeoffs and landings in a city with F-35 jets violate the military’s own directives, instructions, policies, doctrine, and laws, including the law of war and the Uniform Code of Military Justice (UCMJ). They also violate rights in the US and Vermont constitutions, US and Vermont laws, and US-ratified treaties, and international law.[2] The F-35 training flights in a city should be immediately halted.

The Air Force admits that extreme F-35 noise extends at least in a 5.2-mile by 1.2-mile oval-shaped area centered on the Burlington airport (BTV) runway. The Air Force also admits that repeated exposure to noise in that oval-shaped area can cause permanent hearing loss and impaired cognitive development with lifelong adverse effects. When flown from a runway in a city, the F-35 noise inherently exposes the civilian population who live, work, or go to school in that oval-shaped area to serious injury. The Air Force states that 6,663 people live in 2,963 homes in the BTV oval-shaped area. Many thousands more daily enter the oval-shaped area as airport passengers, as students and teachers at 7 schools, as customers, and as workers.

The US Air Force EIS admits that the F-35 flights would result in unequal treatment of Vermonters based on race, color, nationality, immigration status, and income. The Air Force EIS admits that the F-35 training flight noise has “disproportionate impact” on “low income and minority populations” (BR4-83). The EIS reports that 11.3% of Vermonters are low income while 16% of those living in the F-35 noise zone are low income. It says that just 4.7% of Vermonters are minority while 11% of those living in the F-35 noise zone are minority (p. BR4-81 and BR4-83).

The Burlington airport runway aims directly at the center of the City of Winooski, only 1 mile away. Winooski is an ethnically diverse working-class city where more than 20 languages are spoken and where 98.1% of the 885 children in K-12 are low income and on free or reduced price lunch. The Air Force oval-shaped extreme noise contours extends over more than half of this city. The F-35 training flights target Winooski while affecting none of the tony neighborhoods with their large expensive houses: A repugnant daily display of environmental racism.[3] “This is conduct that shocks the conscience.”[4]

The noise of the F-35 on takeoff and landing is automatically generated. Commanders and pilots have no ability to “activate and deactivate” the noise. As the Air Force admits that the F-35 can injure civilians in that oval-shaped area, the F-35 becomes a rogue and uncontrollable non-lethal,[5] autonomous,[6] wide-area weapon of mass injury and destruction when used in and over densely populated cities for hundreds of routine takeoffs, landings, and low altitude flights each month.[7]

Department of Defense (DoD) directive 2311.01 requires military forces to “act consistent with the law of war’s fundamental principles and rules” in all military operations.[8] It cites the DoD’s 1,236 page Law of War Manual as the authoritative source, which states that the laws of war apply even more during peacetime than during war: “‘elementary considerations of humanity’ have been understood to be ‘even more exacting in peace than in war.’ Thus, these legal standards, at a minimum, must be adhered to in all circumstances[9] (p. 72).

Citing the law of war principle of humanity, US Air Force targeting doctrine prohibits using an otherwise lawful weapon in a manner that causes unnecessary suffering.” It emphasizes, “the bottom line is to use the weapon/munitions as they are designed.”

Was the F-35 designed for hundreds of takeoffs and landings each month in a city? The Air Force F-35 Final Environmental Impact Statement (EIS) describes the F-35 design parameters (p. 1-4 to 1-6). Not a word of it has anything to do with design for taking off and landing in a neighborhood full of children. The Air Force EIS instead states that the F-35 was designed for supersonic speed, stealth, and attack. The “engine is capable of supplying approximately 40,000 pounds of thrust and speed up to 1.5 Mach.” (p. 1-5). The ultra-high thrust and ultra-high decibel F-35A was not designed for city life. It was designed for takeoff and landing remote from any civilian-populated area.

Illustrating its extreme noise, the Air Force EIS includes data showing that the F-35 is almost as loud on takeoff without using its afterburner[10] as the F-16 was with its afterburner blasting (p. BR4-23 and BR4-31). The Air Force EIS states that the F-35 will undertake 5,486 airfield operations each year (mostly takeoffs and landings). The Vermont National Guard says 4 to 8 F-35 jets will take off morning and afternoon 4 days a week plus on one weekend a month, which adds up to 1,760 to 3,520 takeoffs a year. Plus, an equal number of landings. A total of between 300 and 600 takeoffs and landings in a city each month.

The Vermont Guard says that it will use the F-35 afterburner for 5% of takeoffs, or between 88 and 176 times each year. That is between 7 and 14 times a month. Those afterburner takeoffs are likely to produce noise on airport grounds and in residential neighborhoods at a level the Air Force expects to cause “immediate and permanent hearing damage.”

Based on noise modeling, the Air Force EIS anticipated that the F-35 training flights amidst Vermont’s most densely populated cities would be so loud as to make 2,963 affordable homes in Winooski, South Burlington, Burlington, Williston and Colchester “unsuitable for residential use.” (p. 2-30). The Air Force EIS explained that repeated exposure to noise at the level of the F-35 without afterburner can permanently damage hearing (p. C-25) and can impair the learning and cognitive development of children (p. C-28 to C-30). The injuries to learning anticipated by the Air Force EIS were consistent with results of scientific studies independently reported by the CDC, the EPA, and the World Health Organization (WHO).

Notwithstanding the anticipated injuries, under a concerted campaign of pressure led by the most senior of all US Senators, Vermont Senator Patrick Leahy,[11] the Air Force chose Burlington. The pressure involved improper use of his position and his authority over the Air Force budget. Noteworthy was Senator Leahy’s admission of applying the pressure.[12] Also noteworthy was the Air Force admission in the EIS that 5 other military bases, all remote from populated areas, were available.[13]

Consistent with the predictions in the Air Force EIS, hundreds of people exposed to its noise have written about their experiences on a publicly available online “F-35 Summer Report and Complaint Form.” Reports range from annoyance to injury, to severe distress, and to suffering since the F-35 jets started arriving in September 2019. As of October 2020, 19 F-35 jets are stationed at BTV airport.

Not just the noise. The high F-35 crash rate anticipated in the Air Force EIS adds another dimension to the violation of law produced by hundreds of F-35 takeoffs and landings for training in a city.[14]

Regardless of the cause of the accident in which an F-35-B exploded in a fireball upon high speed impact with the ground, the video illustrates the genuine competence of the Marine commander and pilots and provides evidence of their willingness to obey the law--as distinguished from the training practices of the Vermont National Guard. The nine-second video of the F-35-B descent, impact, fireball, and emission of an enormous black cloud on September 30, 2020 shows that the aerial refueling training operation was conducted over a California desert, remote from populated areas.

To their credit, the Marines observed DoD Directive 2311.01 by not conducting the operation over a city, where emission of thousands of pounds of toxic and carcinogenic combustion products and particulates would have produced a catastrophe. The F-35 body and stealth coating are made of combustible military grade carbon-composite.

Particularly when decision-making about a military operation is determined through formal planning, including the production of a thousand-page EIS, when the decision is deliberate, rather than dynamic, when the training flights are conducted thousands of miles away from any conflict zone, and when choices are available that can avoid injury to civilians, the choice to use the F-35 jets in a manner for which they were not designed –taking off and landing for routine training flights in a city full of children hundreds of times a month--and which undeniably causes annoyance, injury, distress and suffering to civilians on a daily basis, is forbidden by the law of war.

Under the US Constitution, the authority of training the militia (now called the National Guard) is “reserved to the states.” With one condition: the training must be done “according to the discipline prescribed by congress.” That discipline is part of what makes the F-35 training flights in a city illegal.

Vermont law adds an additional requirement: the Vermont Guard must also adhere to the same drill, discipline, administration, and instruction as required of the US armed forces. Law of war principles[15] are firmly and clearly established in US military discipline. Therefore, the Vermont National Guard must adhere to the law of war in conducting its F-35 training operations. However, hundreds of F-35 takeoffs and landings a month in a city violate each of the law of war principles.

The practice F-35 takeoffs and landings in a city also violate fundamental rights of Vermonters under the US and Vermont Constitutions and under US and Vermont laws, including the Universal Code of Military Justice (UCMJ), the US War Crimes Act, under Senate-ratified international treaties,[16] and Vermont reckless conduct laws.

The discipline prescribed by Congress or prescribed for the US armed forces that is violated by the F-35 takeoffs and landings in a city include:

· Department of Defense Directive 2311.01 that requires DoD Components to “act consistent with the law of war’s fundamental principles and rules” in all military operations, which include “the principles of military necessity, humanity, distinction, proportionality, and honor;”

· US Air Force instruction 51-401 that prohibits using conventional weapons indiscriminately;

· Air Force doctrine that prohibits using an otherwise lawful weapon in a manner for which it was not designed that causes unnecessary suffering;

· Department of Defense Directives 3000.03E and 3000.09 that specify requirements for non-lethal and for autonomous weapons respectively that the F-35 fails to meet when used for routine training takeoffs, landings, and low elevation flight in a city;

· Rights under the 14th amendment;

· Rights under Senate-ratified international treaties, including the 1907 Hague Convention, the 4th Geneva Convention, and the International Covenant on Civil and Political Rights, and under customary international law;

· Rights under the 4th and 5th amendments;

· Articles of the Uniform Code of Military Justice (UCMJ); and

· The US War Crimes Act.

The F-35 practice takeoffs and landings in a city also violate articles of the Vermont constitution and Vermont laws that the Vermont National Guard is also required to obey and enforce:

· Rights under Articles 2 and 9 to compensation for takings;

· Rights to a remedy, equal protection, and security from seizure under Articles 4, 7, and 11; and

· Vermont laws, including reckless disorderly conduct, reckless endangerment, and reckless assault.

657 people signed on to this complaint.

To see the full 62-page complaint to the Governor: https://tinyurl.com/y3egdl5x

[1] Under an express provision of the US Constitution, reserved to the states is the authority of training the militia (now called the National Guard). Under the Vermont Constitution, the governor is the commander-in-chief of the Vermont National Guard. The governor thus has full authority to put a stop to the training flights in a populated area.

[2] Because the allegations described in this complaint, if valid, subject the state of Vermont and its political and military leaders, including the governor himself, to liability, this complaint calls for appointment of an independent and impartial investigator.

[3] Training flights accelerate the global climate emergency, which most impacts black, brown, and indigenous populations: The F-35 gets only 0.5 mile per gallon of jet fuel and consumes over 1,400 gallons an hour while training for wars for oil against people of color.

[4]Rochin v. California 342 U.S. 165 (1952)

[5]Department of Defense Directive 3000.3E describes the Non-Lethal Weapons (NLW) that DoD Components are authorized to deploy: they “precisely engage targets,” have “relatively reversible effects on personnel,” and “minimize the probability of producing . . . significant or permanent injuries.” As the F-35 noise is non-lethal, but wide-area, uncontrollable, and capable of inflicting permanent injuries, F-35 noise fails to meet these requirements.

[6]Department of Defense Directive 3000.09 states, “It is DoD policy that: a. Autonomous and semi-autonomous weapon systems shall be designed to allow commanders and operators to exercise appropriate levels of human judgment over the use of force.” Operating F-35 jets in a city does not meet that criterion. The use of force is automatic upon takeoff, landing, and low-level flight with zero level of human judgment or control. Thus, the Vermont National Guard operates an illegal non-lethal autonomous weapon when they take off, land or fly low with F-35 jets in a city.

[7] Noise, no matter how loud, is not a violation on its own. The violations are because the extreme noise is produced in and over populated areas hundreds of times a month.

[8] See the 5-minute ICRC video explaining the Rules of War (in a nutshell).

[9] See the Corfu Channel Case, (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22, cited in the DoD Law of War Manual, p. 72 footnote 11.

[10] Afterburner greatly increases the thrust and the noise. The Air Force EIS data shows that the F-16 afterburner more than quadrupled the F-16’s non-afterburner takeoff noise level.

[11] Though other civilians, including elected and appointed officials and prominent business leaders, actively participated in the concerted campaign led by Senator Leahy, the focus of this complaint is on the orders and actions of the Adjutant General, Wing Commander, and pilots of the Vermont National Guard for their roles in foisting the F-35 on a city and for their current role in carrying out the wrongful training flights in a city.

[12]Leahy and staff had central role in F-35 basing decision, by Jasper Craven, VTDigger.org, March 5, 2018, and “As jets seem bound for Vt., questions of political influence arise,” by Bryan Bender, Boston Globe, April 14, 2013.

[13] The EIS compared 6 locations for basing the F-35 jets. The Air Force EIS concluded that McEntire Air Guard Station was the “environmentally preferred alternative” (p. 2-30) as its location, away from densely populated areas, produced “the greatest decrease in the amount of acres, population, households, and receptors exposed to” high F-35 average noise levels.

[14] While this complaint mostly focuses on noise, the violations are also because the current high anticipated crash rate of the F-35—and the actual record of F-35 “Class A Mishaps” (crashes)—disqualifies it from operation for training in a city.

[15]As described in the DoD Law of War Manual (p. 8), the law of war principles are based on US ratified international treaties and applicable customary international law.

[16] Under the Supremacy Clause, Article VI of the Constitution, “. . . all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Thus, civilian rights and protections provided under US-ratified human rights treaties are generally considered self-enforcing and are “the supreme law of the land” in the states. See “Treaties as Law of the Land.”