Tanker Contract Will Test Alabama Legal Infrastructure

Team Infidel

Forum Spin Doctor
Seattle Post-Intelligencer
June 11, 2008 By Ken Allard
When Robert Gates fired the two top leaders of the Air Force last week, he not only reasserted civilian control over the armed forces but, inevitably, re-ignited that simmering debate about the new Air Force tanker. And maybe that is a good thing because sometimes an unblinking second look at the beginning can save a lot of pain later on.
As a career officer, I served in the Army, not the Air Force, and have never had any connections with Boeing or EADS, the parent of Airbus.
But while on active duty, I helped write the landmark procurement reforms ("reinventing government") that were a legitimate achievement of the early Clinton years. That landmark legislation leveled the playing field for multi-national firms like EADS to compete on what had been an exclusive "Buy American" defense preserve.
So when it was announced that EADS had been awarded the contract to build the new Air Force tanker, the resulting hullabaloo often seemed hypocritical. However, no one has subsequently raised a more legitimate but often overlooked question.
If Boeing Co. had won the tanker contract, most of the manufacturing work would have been done in the Seattle area. EADS proposes building the aircraft at a new plant in Mobile, Ala.
But are the supporting legal infrastructures in Seattle and Mobile roughly equal? Such concerns are vital, given the usual propensities for fraud and malfeasance in any 50-billion-dollar contract.
Having been enmeshed until recently in a desperate legal struggle of my own (one involving credit card fraud and identity theft) in lower Alabama, I was in no position to publicize the shortcomings of its justice system. But with that case concluded, I can now blow the whistle. Whether criminal or civil, local state or even federal, Alabama jurisprudence and law enforcement are ineffectual instruments, producing justice only as accidental outcomes.
The novels of Faulkner and Grisham, as well as movies like "My Cousin Vinny," have captured the essence of the southern courthouse culture. "Vinny" is actually something of an understatement, an unhappy fact I learned only after living in Alabama from 2004-2006. The underpinnings of that culture are reinforced by a highly decentralized structure. Small, under-paid and under-educated, law enforcement and judicial agencies are a latter-day confederacy of independent fiefdoms. 'Bama cops and judges simply see no reason to cooperate much with each other or anyone else, nor have they apparently done so since Reconstruction.
Don't get me wrong. Baldwin County, Ala., is pleasant enough, with crepe myrtles lining the streets and beauty contestants flaunting themselves in Scarlett O'Hara dresses. But I naively assumed that reporting the initial evidence of credit card fraud and identity theft would be enough to trigger a competent investigation. It was not. Despite several potential violations of federal law, the U.S. attorney in Mobile ceded jurisdiction to the local police, who promptly concluded that nothing criminal had taken place.
Clearing my name meant spending the next year pursuing a civil case, an expensive and deeply frustrating experience. Along the way: subpoenas went undelivered and process servers got lost, one even asking directions from the person who was being served. Worse yet, the judge didn't care whether witnesses showed up or if subpoenas, once delivered, had actually been complied with. Two of the banks involved in my case never appeared for trial yet were never fined a single dollar for contempt.
Despite warnings that this judge enjoyed a reputation for having "all the consistency of a two-iron shot in a shower stall," the civil case was eventually decided in my favor.
Proverbs says that "A good name is rather to be chosen than great riches." True enough but especially so when the judge never even bothered to enforce her own civil decrees. Four months later, and despite the damning new evidence presented during the trial, no criminal charges have been filed by any of the half-dozen local, state or federal agencies that exercise jurisdiction.
But please recall the main reason why I am telling you this: credit card fraud, a growing problem even before the recession, is an easy touchdown compared with the subtleties of defense procurement law. On a large contract, it is not unusual to run into multiple allegations of product substitution, defective parts, over-charging and even old-fashioned kickbacks. Proving or disproving such charges requires not only competent investigators but also the tightest possible teamwork from a well-integrated law enforcement team, both federal and local.
Sadly, those capabilities are nowhere in evidence in lower Alabama. Even more sadly, no one with oversight for the tanker decision seems to have noticed, much less asked what additional costs would be required to shore up an inefficient and badly antiquated legal infrastructure. Because if government contracting interests are potentially at risk, just think of all those unsuspecting aircraft workers eager to move to Alabama in search of new jobs.
So maybe Robert Gates did all of us a favor last week when he took such strong actions to reassert the need for more diligent performance by Air Force leaders. And maybe he recalled a lesson familiar to weekend carpenters: measure twice, cut once.
A former NBC News military analyst, Col. Ken Allard (U.S. Army Ret.) served as staff director for the DOD Procurement Reform Panel in the 1990s. He writes a weekly column for the San Antonio Express-News.