Making hard choices with no good options.

March 14, 2022

[Audio edition here]

          As Russia’s efforts to take major cities in Ukraine have bogged down, Russia has opted to expand the zone of destruction. On Sunday, Russia bombarded a military base that sits 15 miles from the Polish border, killing thirty-five people and injuring scores of others. The military base is used by “foreign instructors” to train Ukrainian soldiers. In the past, those instructors have included NATO troops, including Americans. According to a Pentagon spokesperson John Kirby, US troops left the facility two weeks ago. Russia also attacked two airbases near Ukraine’s western border, saying that it considered shipments and convoys of aid to Ukraine “legitimate targets.” As a result, Putin’s war on Ukrainians is inching toward the border separating Ukraine from NATO allies.

          The scenes of destruction from Ukraine provoked a new round of demands for a “no-fly zone” over Ukraine and delivery of MiG-29 jets from Poland. Republicans who refused to convict Trump for extorting Ukraine by withholding $450 million in military aid are now demanding that Biden engage in actions that would necessitate an act of war against Russia to defend Ukraine. Biden is wisely resisting the calls for direct military intervention in Ukraine, saying, “We will not fight the Third World War in Ukraine.”

          Over the weekend, I received a call from a reader who is a retired Air Force Colonel who flew fighter jets in two “no-fly zones.” He wanted to share his experience and knowledge about the complexity and scale of imposing a no-fly zone over Ukraine.

•  First, for comparison, the no-fly zone over Washington, D.C. after 9/11 required twelve fighter jets in the air continuously. Washington D.C. is 68 square miles, and Ukraine is 233,031 square miles. The reader didn’t say how many jets would be needed to enforce a no-fly zone over Ukraine, but that country is 3,400 times larger than D.C. in landmass. Whatever the answer is, it would require a massive commitment of fighter jets to enforce a no-fly zone.

• Second, jets on combat patrol must refuel about every two hours, requiring F-135 tankers to refuel hundreds (?) of jets in mid-air over Ukraine. The F-135 tankers would be targets that would need to be protected. The F-135 tankers can only stay aloft for six hours, requiring a constant rotation of multiple refueling tankers to keep the combat jets in the air.

• Third, controlling the hundreds of aircraft over Ukraine would require AWACS aircraft to manage the hundreds of jets in the air and detect oncoming threats from Russian jet fighters. The multiple AWACS would also be targeted.

• Fourth, Russia and Belarus have S-300 air defense systems in their respective territories, reaching deep into Ukraine. To maintain a no-fly zone in Ukraine, the first action necessary to protect U.S. jets would be to attack S-300 missile systems on Russian and Belarusian territory—an act of war against two nations.

• Finally, the U.S. has provided Ukrainian soldiers with 2,000  shoulder-fired Stinger anti-aircraft missiles. Those soldiers will not be in communication with U.S. jets and would have only a few seconds to decide whether a low-flying jet is friend or foe before firing the missile. The likelihood that U.S. jets would be shot down with friendly fire from U.S. stinger missiles is high. (There are many complications and qualifications here that I don’t have time to address.)

          The most important point is that a “no-fly zone” would require attacks on Russian and Belarusian territory to disable the S-300 air defense systems. That is why former Ambassador to Russia Michael McFaul said over the weekend that we should not use the term “no-fly zone” but should instead simply call it “a declaration of war against Russia.” I would add, “and Belarus.”

          Over the weekend, other readers continued to send emails arguing that the cruelty of Russian attacks on civilians justifies a no-fly zone or direct engagement of the U.S. military against Russia in Ukraine. A few suggested that I “didn’t care about” or was “ignoring” the suffering of Ukrainians or was “afraid to stand up to Putin.” I understand the feelings of outrage that motivate such statements, but they are unfair arguments. Of course, I care—as does Joe Biden—about the suffering of the Ukrainian people. But the answer to the bombing of a maternity hospital is not to take actions that will risk the death of 40 million Ukrainians. We must weigh horrific alternatives, and the alternative that involves avoiding the nuclear obliteration of Ukraine and the radiation poisoning of hundreds of millions of Europeans takes precedence.

          An uncomfortable fact that we should acknowledge is that Russia has 2,000 “battlefield nuclear weapons”—or tactical nuclear weapons. (For comparison, the U.S. has 100 such weapons in Europe.) Such devices are low-yield, short-range weapons designed to change the course of a conventional war. See David French in The Atlantic, This Is a Uniquely Perilous Moment. As I noted last week, Putin declared two years ago that Russia reserved the right to use nuclear weapons in response to conventional attacks. If the U.S. were to insert troops into Ukraine, the likelihood that Putin would use strategic nuclear weapons is high—because he has told us he would do so. What then? How would the U.S. respond to a nuclear attack on its troops in Ukraine? We cannot play a game of “nuclear chicken” with Putin, and Joe Biden is right to do everything possible to reduce the possibility of nuclear confrontation.

          The attacks on civilians in Ukraine constitute a crime against humanity and must stop. We should recognize that the sanctions imposed by Joe Biden are debilitating Russia. For example, Bermuda banned Russian commercial aircraft from Bermudan airspace because Russia cannot service its commercial airline industry without western support. Other nations will soon follow suit. And after only three weeks of war in Ukraine, Russia has been forced to beg China for weapons to re-fill Russia’s depleted stocks. Putin is seizing assets of western companies exiting Russia and threatening to arrest the corporate leaders of Coca-Cola, McDonald’s, Procter & Gamble, IBM, and KFC. Putin’s actions will chase away investors for decades to come. No one would do that except as an act of economic desperation to survive an existential crisis.

          The pain of sanctions is beginning to weigh on Putin and the Russian people. It is weakening Putin’s resolve at the bargaining table with Ukraine. The chief Ukrainian negotiator said over the weekend that “Russia is already beginning to talk constructively. I think that we will achieve some results literally in a matter of days.” That positive tone is a welcome note of optimism, but we should not engage in false hope. We may instead witness a horrifying race between the pain of sanctions and Putin’s willingness to engage in genocide. As we do, we must force ourselves to see beyond the immediate horror unfolding on our television screens and weigh the risk of a global catastrophe. Joe Biden has exercised the discipline and foresight engage in that risk calculus. We should support him as he continues to do so.  

Kremlin urges Russian state media to promote Tucker Carlson.

          Tucker Carlson represents the perverse depravity of the Putin-wing of the Republican Party. The magazine Mother Jones reports that the Kremlin has released a memo stating that it is “essential” for Russian media to feature Tucker Carlson’s commentaries in broadcasts to the Russian public. See Mother Jones, Leaked Kremlin Memo to Russian Media: It Is “Essential” to Feature Tucker Carlson. The same Kremlin memo that praises Tucker Carlson’s coverage of the war reminds Russian broadcasters that fifteen-year prison sentences await anyone who reports “news about Ukrainian military victories or Russian attacks on civilian targets.”

Texas judge temporarily blocks Governor Abbott’s efforts to criminalize gender-affirming therapy for transgender youth.

          The ACLU and Lambda Legal obtained a temporary state-wide injunction against Abbott’s order to prosecute parents of transgender teens for child abuse if they provide gender-affirming therapy. See Talking Points Memo, Judge Temporarily Halts Texas From Probing Gender-Affirming Care For Minors As ‘Child Abuse’. In so ruling, the judge wrote that the Governor’s order is “beyond the scope of his authority and unconstitutional [because there is] no new legislation, regulation or even stated agency policy” to justify the criminalization of a decision between a parent, their child, and their doctors. It is possible that the injunction may be dissolved by an appellate court, so stay tuned for developments.

Podcast Interview with VoteRiders.

          Over the weekend, I interviewed the CEO (Kathleen Unger) and Executive Director (Lauren Kunis) VoteRiders. The interview is here: VoteRiders | Today’s Edition Podcast. VoteRiders fills a critically important function in the electoral process—ensuring that voters can obtain voter identification that conforms to state and local requirements for registration and voting. There are many ways you can support the work of VoteRiders, including donations, spreading the word about its work on social media, introduction to partner organizations that can extend the work of VoteRiders. Check out its website for ways to help.

          If you are a lawyer, please consider asking your firm to direct its pro bono efforts to supporting VoteRiders. Firms such as Latham, Orrick, DLA Piper, Mayer Brown, Goodwin Procter, and White & Case are supporting VoteRiders. Add your firm’s name to that distinguished list! Many of your associates would be thrilled to support a just cause that will hone their legal skills.

          The recent suppression of thousands of votes in Texas caused by confusion over voter identification on mail ballots is an example of a situation where VoteRiders can assist. VoteRiders provided the following excerpt to help those in Texas who have encountered difficulties in voting by mail:

• If you live in Texas, the important thing to remember when you apply to vote by mail is to include BOTH your driver’s license/ID number and the last four digits of your Social Security number on the application. And if you don’t see anywhere to include those numbers, make sure you have the newest version of the application form!

• When you return your ballot, also make sure you include BOTH your driver’s license/ID number and the last four digits of your Social Security number on the ballot envelope.

• Texas law does not require both numbers—but if you’re not sure which number you used when you registered to vote, don’t guess. It’s better to be safe than sorry and include both numbers!

• For more information, see the FAQ section at VoteRiders Texas. 

Concluding Thoughts.

          Biden is taking the responsible and moral path in de-escalating the threat of a broader war beyond Ukraine. He will likely endure criticism from all sides because of his decisions. Oil prices will go up, food shortages will increase globally, financial markets will be disrupted, and every Biden critic will fancy themselves a military expert. As we watch scenes of unimaginable horror run on a loop on cable news, frustrated and angry Americans will wrongly blame Joe Biden for not “doing more” to stop Putin’s war on Ukrainians. But Biden has no choice. He must do the right thing to prevent a global catastrophe, even if those decisions inflict political damage from which he cannot recover. We are fortunate to have Joe Biden leading our nation—and the free world—during these perilous times. It could have been otherwise. Stay strong, and support Biden in any way you can.

Talk to you tomorrow!