Patrick Leahy to end his Senate career with an abuse of power and a gross violation of human rights right here in Vermont
This is the second part of a two-part article. Read the first part here
In his speech announcing his retirement in Montpelier on November 15, Senator Patrick Leahy brilliantly diverted attention from his illicit role in the decision to base F-35 jets in Vermont’s most densely populated cities by touting his antiwar, environmental, civil liberties, and human rights credentials.
Leahy proudly recalled his vote against the war in Vietnam in the Senate Armed Services Committee during the final North Vietnamese offensive, just 13 days before the total collapse of the Saigon regime in 1975. Asserting that he had “always opposed” the war, Leahy stood up to the president, the pro-war establishment, and the military-industrial complex with that vote.
Leahy singled out his legislation to ban the export of landmines and to provide a US Agency for International Development (USAID) fund to “help innocent victims of the indiscriminate weapons.” Leahy went on to mention his travels to Vietnam and his assistance with landmine removal and agent orange mitigation there.
He especially touted the Leahy Law, which says:
Of the amounts [of money] made available to the Department of Defense, none may be used for any training, equipment, or other assistance for a unit of a foreign security force if the Secretary of Defense has credible information that the unit has committed a gross violation of human rights.
Remarkably, the Leahy Law would have been triggered to end Department of Defense funding of the Vermont Air National Guard Vermont because of the “credible information” that has accumulated “that the unit has committed a gross violation of human rights” right here in Vermont—if only it was a foreign military unit instead of an American one.
Training with the F-35 in cities violates human rights
Training with the 115-decibel F-35 hundreds of times a month in a city location inherently turns the jet into an indiscriminate non-lethal weapon hurting and injuring the ears, brains, and internal organs of thousands of Vermont families, as shown in Part 1 of this article—including admissions by such authorities as the Vermont Air National Guard Wing Commander, and Senator Patrick Leahy himself.
The extreme noise of the F-35 is inherently an indiscriminate non-lethal weapon that can cause permanent injury to civilians when the jet is used in a city. The F-35 also inherently targets civilians when used in a city. Use of an indiscriminate weapon and targeting civilians are both gross violations of human rights and DoD and Air Force regulations. US and Vermont laws, ratified treaties, and constitutional rights are also violated, as described in the Complaint to the Inspector General of the Vermont National Guard submitted by 657 Vermonters one year ago.
The rules governing military forces are well known to all US military officers, who, under Department of Defense (DoD) Directive 2311.01, are periodically trained in the law of war. The rules are just as well known to Senator Leahy, a former prosecutor, a senior member of the Senate Subcommittee on Defense, and Chair of the Senate National Guard Caucus, who touts his human rights credentials.
But they were little known to the public. No legacy news media ever questioned a Vermont Air National Guard commander, an Air Force official, Senator Leahy, or any other statewide politician about whether any military regulation protects civilians from military training operations.
However, in multiple different ways, military regulations do indeed provide much stronger protections than civilian environmental law. If enforced. The principles presented in DoD Directive 2311.01 and described in the DoD Law of War Manual provide that:
· Targeting civilians is never allowed.
· A military necessity (not mere convenience) must be shown before any military operation can be undertaken in a location where civilians may be hurt or civilian property damaged.
· Military forces and military equipment must be separated from populated areas to avoid inherently hurting civilians and civilian property during routine training and during combat.
· Cities full of civilians should never serve as human shields for high value military objects.
· Commanders must take feasible precautions to protect civilians before launching any kind of military operation, including training.
· An operation must be aborted if the military advantage toward defeating the enemy is outweighed by the harm to civilians or civilian property.
Citing DoD Directive 2311.01, the DoD Law of War Manual notes that adherence to these fundamental principles is required “in all circumstances,”– including “during military operations outside the context of armed conflict.” The Law of War Manual further notes that compliance with these principles applies 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.” (p. 72).
Thus, the standard for protecting civilians and civilian property from military operations cannot be neglected when the military operations are outside of combat zones and for training, such as with F-35 jets in Vermont cities. The standard is actually higher. This means the military regulations that protect civilians must be adhered to at a level “even more exacting” during Vermont Air National Guard F-35 training operations in Burlington, Winooski, and South Burlington than for the Vermont Guard when called up to conduct military operations in a theater of war. Yet each and every one of them is flagrantly violated by the F-35 training flights in Vermont’s densely populated cities, as described in the Complaint to the Inspector General submitted by 657 Vermonters.
Abuse of power
Senators have a legitimate way to require an executive branch agency to take a desired action: by introducing a bill, or an amendment to a bill, and winning a majority of the Senate and House to support its adoption. Senator Patrick Leahy could have properly sponsored legislation to base the F-35 at Burlington International Airport (BTV). He could have participated in debate on the Senate floor. He could have legitimately used his persuasive skills, his seniority and his leadership positions in the Senate and on its committees to advance such legislation to a successful vote.
But instead of following the democratic process for which he had been elected, Senator Leahy chose an illicit non-legislative method that subverted the integrity and authority of Congress. As shown with overwhelming evidence in part 1 of this article, Leahy used his extraordinary position of power in the Senate outside of any legislative process to pressure the Air Force to base the F-35 in Vermont cities. He and his staff made dozens of secret contacts with Air Force officials, as revealed in the articles in the Boston Globe, VTDigger, and internal Air Force emails cited in part 1 of this article.
These contacts were not part of any legislative debate or legislative investigation. The contacts were not on behalf of any senate committee. The contacts revealed in the Globe, VTDigger, and by the emails showed Leahy stepping outside the legislative role to which he had been elected. They showed Leahy abusing the power derived from his position as the most senior of all US senators and a senior member of the Senate Appropriations Committee and its Subcommittee on Defense. That illegitimate abuse of power was the very opposite of democratic legislative decision making.
Immunity for Leahy does not extend to illegal acts outside his legislative role
While members of the US Senate have immunity for acts and statements regarding legislation, the immunity does not extend to illegal acts outside their legislative role. Using his seniority and committee power to force the Air Force into selecting Burlington for F-35 basing was such an extra-legislative act.
The facts are particularly egregious because the F-35 basing in Vermont’s most densely populated cities is hurting and injuring Vermonters on a mass scale. It repeatedly exposes more than 6,600 civilians living in the Air Force designated F-35 noise target zone to 115 decibel noise while Volume II of the US Air Force Environmental Impact Statement (EIS) said that repeated exposure to military aircraft noise of 114 decibels can damage hearing. This volume of the EIS also describes studies showing impaired learning and impaired cognitive development of children even at the much softer noise level of commercial aircraft at busy civilian airports.
From the Air Force EIS Leahy knew or should have known that infants, children, adults, and elderly would suffer and that low income and minorities would be disproportionately impacted. Overwhelming data has accumulated showing pain, injury, distress, and suffering, as reported in part 1 of this article.
Leahy’s abuse of power to foist the F-35 in cities demonstrated depraved indifference to pain, injury, distress, and suffering of Vermont families and gross indifference to violations of law and human rights.
The revelation of abuse of power by the most senior member of the Senate and the chair of its Judiciary Committee in 2013 by the Boston Globe did not result in any senate investigation or punishment. Nor did the Senate take action in response to the further revelation of abuse of power in 2018 by VTDigger, even though that article included an admission by Senator Leahy.
Power shifted to the governor once training started with the F-35
Under the “arming” provision of the militia clause of the US constitution, the federal government certainly had authority to make the F-35 basing decision.
But once the F-35 jets arrived and the militia (now called the Vermont Air National Guard) began training with them here in September 2019, that power shifted to the state government. Specifically, the militia clause goes on to say, “reserving to the states respectively, the appointment of officers, and the authority of training the militia according to the discipline prescribed by Congress.”
This constitutional reservation of training authority to the states means that Vermont political and military leaders have “unbridled power” to halt the use of the F-35 in a city location (Air Force Law Review, John F. Romano, v. 56, p. 245 (2005).
Furthermore, the constitution’s requirement that the training be “according to the discipline prescribed by Congress” means that the Vermont Guard must scrupulously follow the federal laws and ratified treaties that protect civilians from military operations, including the Universal Code of Military Justice (UCMJ), the US War Crimes Act, the 1907 Hague Convention IV, the 1949 4th Geneva Convention, and the 1966 International Covenant on Civil and Political Rights (ICCPR), and the military regulations that protect civilians. Because the F-35 training in a city location inherently targets thousands of civilian families with 115 decibel noise hundreds of times a month and subjects them to unnecessary suffering, that discipline requires the state to use its authority to halt the F-35 training in a city.
By ignoring this constitutional mandate, Governor Phil Scott has taken on the mantle of the perpetrator-in-chief. The governor has full authority; no federal law prevents the governor from now ordering a halt to the F-35 training in a city location to protect Vermonters. The legislature has authority to investigate, hold hearings, and adopt resolutions and bills to require the governor to order an immediate halt to the F-35 training in a city. County, state, and federal prosecutors and the military inspector general and judge advocate general have authority to open criminal investigations under Vermont reckless conduct laws, the UCMJ, the US War Crimes Act, and military regulations.
But two years since the arrival of the F-35 and top Vermont authorities have so far failed to do anything to protect the health and safety of Vermonters from the F-35 training. The state-sponsored military violence targeting thousands of black, brown, immigrant, and white working-class families initiated by Leahy continues with impunity, notwithstanding state authority to stop it. Children and adults are being hurt. The constitutional mandate for the training of the Vermont Guard to be conducted according to the discipline prescribed by congress is being ignored and debased. Human rights are being trampled.
Action is needed
The omission of the F-35 from Leahy’s speech suggested his desire to slip away without any debate about the horror he initiated. But the departure of Leahy will not automatically make his legacy of abuse of power and violation of the human rights of thousands of Vermonters go away by itself.
Increasing awareness that the power over the F-35 training resides right here in Vermont and that public action at the local and state level can be effective is key to building a campaign to abolish the illegal, immoral, and unjust F-35 training in a populated area.
Action is needed to build that campaign to force Vermont political and military leaders to respect the rule of law, the constitution, town meeting democracy, and human rights. To respect black, brown, immigrant, and white working-class Vermonters. To halt the F-35 training at BTV and in any populated area.
Write or call your public servants:
Governor Phil Scott 802-828-3333 Chief of Staff <Jason.Gibbs@vermont.gov>
Vermont National Guard's Complaint Line: 802-660-5379 (Note: the Vermont Guard told a reporter that it received over 1400 noise complaints. But the Guard won’t release what people said).
Add your own report & complaint to the new online F-35 Fall 2021-Winter 2022 Report & Complaint Form: https://tinyurl.com/5d89ckj9
See all the graphs and in-your-own words statements on the recently-completed F-35 Spring-Summer 2021 Report & Complaint Form (513 responses): https://tinyurl.com/3svacfvx.
See links to the graphs and in-your-own words statements on all four versions of the F-35 Report & Complaint Form since Spring 2020, with a total of 1670 responses from 658 different people.
Senator Patrick Leahy 800-642-3193 Chief of Staff <firstname.lastname@example.org>
Senator Bernie Sanders 800-339-9834 <Senator@sanders.senate.gov>
Congressman Peter Welch 888-605-7270 Chief of Staff <email@example.com>
Burlington City Council <firstname.lastname@example.org>
Burlington Mayor Miro Weinberger <email@example.com>
Winooski Mayor Kristine Lott <firstname.lastname@example.org>
S. Burlington City Council Chair Helen Riehle <email@example.com>
Williston Selectboard Chair Terry Macaig <firstname.lastname@example.org>
VT Senate President Becca Balint <email@example.com>
VT House Speaker Jill Krowinski <firstname.lastname@example.org>
Attorney General TJ Donavan <DonovanTJ@gmail.com>
States Attorney Sarah George <Sarah.email@example.com>
Vermont’s Federal Prosecutor <firstname.lastname@example.org>
Adjutant General Brig Gen Gregory C Knight <email@example.com>
Major J Scott Detweiler <firstname.lastname@example.org>
Wing Commander Col David Shevchik email@example.com
Vermont National Guard Inspector General Lt. Col. Edward J Soychak <firstname.lastname@example.org>
US Air Force Inspector General Lt. Col. Pamela D. Koppelmann <email@example.com>
Air Force Secretary Frank Kendall <Frank.Kendall@us.af.mil>