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Document created: 3 June 02
Aerospace Power Journal - Summer 2002
Lt Col Anthony J. Lazarski, USAF
You’ve got to put a surrogate brain in that airplane. And that’s not going to come cheaply or easily.
- Gen Ronald R. Fogleman
|Editorial Abstract: Rumors that Mullah Mohammed Omar had been “in-the-sights” of an armed, uninhabited (or unmanned) combat aerial vehicle (UCAV) early in the Afghan campaign and was not attacked due to legal wrangling at command headquarters sparked questions about who really makes decisions on the battlefield. These questions will become more important as UCAVs proliferate in both US and foreign militaries. Colonel Lazarski explains the legal implications of these powerful weapons and urges the United States to aggressively lay the legal groundwork for operating UCAVs in the international airspace environment.|
Clarence “Kelly” Johnson, the legendary founder of Lockheed’s Skunk Works and creator of the SR-71 and U-2, predicted in 1944 that the future of military aviation would belong to unmanned aerial vehicles (UAV).1 That time is almost upon us ( fig. 1). Currently, the United States Air Force, Army, Coast Guard, Marine Corps, and Navy possess and operate some type of UAV.
Figure 1. UAV Evolution
The United States has used UAVs during Operations Desert Storm, Deny Flight, Deliberate Force, and Allied Force, and continues to use them over the skies of Iraq, Bosnia, Kosovo, Korea, and, most recently, over Afghanistan in support of Operation Enduring Freedom. Today, UAVs primarily perform the traditional missions of reconnaissance and surveillance. The next generation of UAVs- uninhabited combat aerial vehicles (UCAV)- will perform an array of offensive and defensive operations, including suppression of enemy air defenses (SEAD), close air support (CAS), defensive counterair (DCA), offensive counterair (OCA), and air interdiction (AI).
During World War II, Gen Henry H. “Hap” Arnold, in coordination with Gen Carl A. Spaatz, developed a plan to use stripped-down B-17s (BQ-7)(fig. 2), loaded with 22,000 pounds of high explosives and equipped with radio-controlled autopilots to destroy new, heavily defended German V-weapon launching sites.2 Labeled Project Aphrodite, this plan used BQ-7s as primitive forms of UCAVs. A crew of two (pilot and autopilot technician) would execute the UCAV’s takeoff, arm the explosives, turn control over to the mother ship (cruising at 20,000 feet) by engaging the radio-controlled autopilot, and then bail out over the United Kingdom. Four B-17s were launched on 4 August 1944- one aircraft exploded over the United Kingdom, killing its crew, and the final three failed to reach their targets. General Arnold’s vision of a UCAV would be placed back on the drawing board for another 45 years until another general officer in command of combat air forces envisioned the development of an armed UAV.
Figure 2. B-17 UCAV (BQ-7)
When Gen John P. Jumper, the current Air Force chief of staff, was the commander of Air Combat Command, he asked the Air Force to develop and demonstrate a weaponized UAV with the ability to find a target and eliminate it.3 The platform chosen was the Predator (fig. 3)- a surveillance-and-reconnaissance UAV with over 600 missions in support of NATO operations in Bosnia.4 On 16 February 2001 the Predator made history by successfully launching the first missile from a UAV. The Hellfire-C laser-guided missile struck a stationary tank, marking the Predator’s evolution from a nonlethal reconnaissance asset to an armed, highly accurate tank killer.5 Today’s Air Force envisions the UCAV as an affordable weapon system that can execute lethal strike missions by exploiting the design and operational freedoms of relocating the pilot outside of the vehicle.6 UCAVs, by design, can be smaller, stealthier, and have a higher maneuver-and-endurance capability than current combat aircraft. This paradigm shift could decrease the cost of air combat, increase airpower capabilities, and reduce risk to the human operator on UCAV missions.
Figure 3. Predator UAV with Hellfire-C
According to the Defense Advanced Research Projects Agency (DARPA), one doesn’t need technical miracles to make a UCAV work. The Boeing Company’s Phantom Works Division is drawing on its extensive experience and resources in the areas of manned strike aircraft; weapon systems; surveillance-and-reconnaissance systems; and command, control, communications, and computer technologies.7 The challenge is integration- command and control (C2) and human-machine interface.8 However, integration is not the last hurdle. Before the United States develops, deploys, and employs UCAVs, it must address the legal issues involved. Specifically, the United States must consider the rules that govern flight operations in national and international airspace, the Laws of Armed Conflict (LOAC), and rules of engagement (ROE). If these issues are not addressed, the law may shoot down the UCAV before it ever sees combat.
Before the legal issues can be addressed, it is necessary to understand the nature of a UCAV and the operational plans for this revolution in military affairs (RMA). The Department of Defense (DOD) has on the drawing board, or is testing, UCAVs that can laser-designate targets; conduct SEAD; and attack heavily fortified, high-value targets with enough speed and stealth to survive.9 UCAVs are an extension of the UAV, both of whose development is driven by mission requirements- the ability to conduct effective air operations in any environment with minimum risk to friendly forces. These operations must also be cost efficient. UCAVs currently in prototype or on the drawing board are projected to cost up to 65 percent less to produce and 75 percent less to operate and maintain than future manned combat aircraft (fig. 4).10 UCAVs will range in wingspan from a few feet to 150 feet and will possess maneuver and endurance capabilities that far exceed the limits of the human pilot. UCAVs will have sleek, radar-absorbing bodies; sophisticated onboard computer systems; and the capability to conduct offensive and defensive combat operations.11 UCAVs can and will be containerized for easy storage and deployment. Container interfaces will allow for periodic maintenance monitoring and software updating of the vehicle inside.12 By taking the aircrew out of the cockpit, the United States can avoid what is being called a Gulf War syndrome- a total intolerance by the population of the United States for any casualties. Uninhabited aircraft are a continuation of the great American tradition of substituting technology for human beings.13 UAVs have taken on reconnaissance and surveillance roles, with UCAVs soon to follow in combat-attack operations.
Figure 4. Future Design
The first legal area the United States must address before it commits to building a wing of UCAVs involves the rules that govern flight operations in national and international airspace. The major areas of concern for UCAV flight operations deal with airspace procedures and C2. Detailed coordination with the Federal Aviation Administration (FAA) and the International Civil Aviation Organization (ICAO) is required before any UCAV flight operations can take place in the United States or in international airspace. These organizations will have to develop new procedures prior to the commencement of routine UCAV operations.
In the United States, the national airspace system is broken down into several classes of airspace specifically designed for the safe operations of all aircraft (fig. 5).14 The FAA restricts most UAV flight operations to special-use airspace and prohibits UAVs from flying over populated areas. UAV flight operations into uncontrolled airspace are restricted to flights in perfect weather conditions, and local air-traffic administrators must be given a 30-day notice.15 These restrictions severely limit the UAV units’ participation in training deployments and exercises. During the calendar year 2000, the FAA issued 20 authorizations to fly UAVs in civil airspace (outside special-use airspace).16 Following the events of 11 September 2001, the United States redefined “homeland defense” and ways in which the government/military will participate in that defense. Manned fighter and reconnaissance aircraft are engaged in day-to-day operations, but officials have been reluctant to discuss UAV or UCAV operations over major US cities and their sharing of airspace with civilian air traffic. This reluctance may be due to their unfamiliarity with UAV/ UCAV capabilities, their inability to find written UAV/UCAV procedures for operations in the United States, and/or their fear of what happens if UAV/UCAV control is lost. One of the lessons these officials learned during Operations Deliberate Force and Allied Force was that manned aircraft and UAVs must be deconflicted by time, altitude, and/or location to avoid a potential midair collision.17 While advances in the civilian and commercial UAV market have helped in negotiations with the FAA for the integration of operational UAVs in national airspace, UCAV operations have been completely ignored.18 The US military’s increasing reliance on UAVs, coupled with the rapid pace of UCAV development, requires the US aviation community to rewrite the rules regarding UAVs and to draft and publish rules and regulations governing the use of UCAVs in national airspace. The future of homeland defense and the ability of the United States to project power will depend on published procedures, both at home and internationally.
Figure 5. United States National Airspace Classification
Internationally, the ICAO and other nations are operating under many of the same lack of procedures as the FAA and the United States when it comes to UAVs and UCAVs. In 1998 the ICAO and civilian UAV community made history when a miniature autonomous aircraft, the Aerosonde Laima, made the first transoceanic flight from Canada to Scotland in less than 27 hours.19 In 2000, Global Hawk, a US UAV, won the Collier Trophy for the year’s greatest aerial achievement in astronautics- the first transpacific flight of a UAV (fig. 6).20 UAVs such as Global Hawk operate at altitudes above 65,000 feet where commercial traffic does not fly, simplifying the international coordination process.21 However, little progress is being made with regard to other types of military UAVs, and no progress is being made in regard to UCAVs. The latter, which are military aircraft, should be treated as state aircraft in accordance with the Chicago Convention. Although the convention does not define state aircraft, it does suggest that the term is determined functionally by use of aircraft such as those in military, customs, and police services.22 As the development of UCAVs progresses, these aircraft will be able to fly directly from the United States to the contingency operation. The ICAO needs to codify its due regard procedures for uninhabited aircraft flying in international airspace. This step is important for both civil safety and military operations.
Figure 6. Global Hawk UAV
The Chicago Convention codified the principle that each nation maintain full sovereignty in its airspace.23 Therefore, flight operations into a nation’s sovereign airspace require that nation’s approval. The United States must proactively engage potential coalition partners and develop agreements for the use of UCAVs in their national airspace. These agreements need to include provisions for airfield, training, and combat operations. If procedures are not negotiated and in place prior to the start of a contingency, delays in the deployment and employment of UCAVs will occur and may have grave consequences on the outcome of future contingency operations.
C2 procedures for UCAVs are the final area of concern for both national- and international-flight operations. Those procedures are defined by the dependence of the machine on ground control- not by the technological aspects of how the ground controller communicates with and controls the machine. C2 procedures are broken down into three types: autonomous, semiautonomous, and full ground control. Autonomous C2 procedures require only a ground-control interface during takeoffs and landings. The UCAV’s navigation and other mission tasks are preprogrammed so that onboard computers can autonomously take care of all combat operations. Semiautonomous C2 requires ground control during critical portions of flight such as takeoff, landing, weapons employment, and some evasive maneuvers. Full ground control requires a continuous ground C2 input during all phases of the UCAV’s flight. In the United States, the FAA requires that all UAVs operating outside of special restricted areas have certified pilots at the controls and that the UAVs be under either semiautonomous or full ground control (fig. 7).24 The ICAO and coalition partners may impose similar restrictions. These conflicts need to be resolved prior to deployment and should be considered in the development of the UCAV.
Figure 7. X-45 Mission Control Console
Another critical aspect of C2 for UCAVs is the concept of a safe mode. Because a UCAV will be carrying some type of weapon during at least half of its flight profile, procedures need to be developed and legal arrangements negotiated to cover emergency operations. Just like aircraft, UCAVs can experience engine problems, loss of communication, and weapon malfunctions. Unlike manned aircraft, UCAVs must be programmed with precise instructions and procedures to follow. These instructions and procedures may include a preplanned orbit point to regain communications and control, a preplanned self-destruct point, or an autonomous recovery-and-landing option. The potential for loss of life increases significantly in the case of armed, pilotless aircraft. These issues are being addressed at the UAV Battlelab at Eglin Air Force Base, Florida.25
Once the legal issues concerning national- and international-flight operations have been resolved, the United States needs to examine potential conflicts with the LOAC, also known as Law of War, which are derived from two main sources: customary international law and treaty law.26 UCAV operations have potential conflicts with the two LOAC principles of discrimination and humanity.
The principle of discrimination (Protocol 1 of 1977 to the Geneva Conventions of 1949, Article 48) requires the parties of the conflict to distinguish between civilians and combatants; distinguish between civilian objects and military objectives; and direct operations against military objectives only.27 Therefore, an attacker must not employ weapons that would cause excessive collateral damage. Technology has legitimized precision warfare and criminalized collateral death and destruction resulting from the use of lethal force.28 This has in turn placed limits on using any system that could deliver lethal force. During Operation Allied Force, NATO bombs were believed to have killed approximately 500 civilians.29 In a June 2000 report, Amnesty International concluded that NATO had violated the LOAC principle of discrimination by failing to provide effective warning to civilians who were in or near a targeted facility; failing to refrain from attacking a target if civilians were known to be in or near the target; and failing to suspend an attack once it became known that civilians had been hit.30 Amnesty International also concluded that requiring NATO aircraft to fly above 15,000 feet made it difficult for pilots to see whether civilians were near a target.31 A lethal and, as of yet, unproven UCAV with autonomous or fully adaptive controls poses significant accountability problems and is sure to be challenged by groups such as Amnesty International. Prior to the UCAV’s first employment, extensive testing must be conducted and documented to the world, proving the accuracy and reliability of the aircraft’s systems. All UCAV weapon systems must undergo this type of scrutiny until they gain worldwide acceptability as discriminating weapons.
The principle of humanity or unnecessary suffering prohibits the employment of any kind or degree of force that is not necessary for the purposes of war.32 Listed under the principle of humanity are examples of lawful and unlawful weapons. The legal status of UCAVs as lawful weapons comes under scrutiny due to the 1988 Intermediate-range Nuclear Forces (INF) Treaty that was signed by the United States and the Soviet Union. The INF Treaty prohibits the United States and former Soviet republics from deploying ground-launched cruise missiles with ranges between 500 kilometers (km) and 5,500 km.33 Some critics feel that UCAVs could be considered cruise missiles or nuclear-capable launch vehicles specifically prohibited under the INF Treaty. If the United States developed a ground-launched UCAV that was not expected to return to base, it could be considered a cruise missile and therefore prohibited by the INF Treaty. By example, in 1999 DOD considered acquiring and deploying Harpy, an Israeli UCAV, for use during Operation Allied Force. However, since the Harpy was essentially a cruise missile with a 32-kilogram warhead and range of up to 600 km, the United States abandoned the project due to its potential violation of that treaty’s restrictions.34 In contrast, current and projected UAVs and UCAVs have flight profiles that preclude them being characterized as cruise missiles. DOD is currently investigating the legal status of UCAVs with respect to the INF Treaty and the Reduction and Limitation of Strategic Offensive Arms Treaty (usually referred to as the Strategic Arms Reduction Treaty [START]).
The Missile Technology Control Regime, an international treaty that regulates the exportation of UAVs, poses another potential problem for the United States and its coalition partners. Under this treaty, the signatory nations agree to limit the risks of proliferation of weapons of mass destruction (WMD) by controlling transfers that could make a contribution to the development of WMD delivery systems.35 These guidelines specifically exclude manned aircraft but include the export of uninhabited aerial aircraft and related technology.36 This would require the United States to be the sole operator of UCAVs if the other coalition partners did not independently possess the technology. Despite the regulations of the Missile Technology Control Regime, many nations continue to independently develop UAV technology and subsequently employ UAVs. By 2002 Italy will acquire six Predator UAVs from a team comprised of General Atomics, a US UAV manufacturer, and Meteor, an Italian company.37
ROEs are the final legal issue that must be addressed before deployment and employment of UCAVs. Their effective use requires the establishment and understanding of common ROEs to provide guidance for their application. Standing ROEs (SROE) are approved by the president and secretary of defense (SECDEF) and maintained by the Joint Chiefs of Staff (JCS).38 Each commander in chief (CINC) augments SROEs as necessary to authorize certain actions or place limits on the use of force. Specific ROEs need to be written regarding the use of UCAVs. The most critical area that must be addressed is the authorization to release or fire weapons.
During combat, pilots must satisfy the current ROEs and meet a specific list of criteria before employing weapons on a target. Some of these criteria would typically include positively identifying the target and minimizing collateral damage; furthermore, there must not be any known malfunctions with the aircraft or the weapons that could preclude the weapons from functioning normally. The pilot makes the final choice in a rapidly changing environment and is ultimately responsible for the result. The American public and the international community hold individuals and organizations accountable for their decision to use force.39 The same will be true for UCAVs.
As discussed earlier, there are three types of C2 for UCAVs- autonomous, semiauton-omous, and full ground control. The fully autonomous mode presents the most problems legally due to a lack of a human-in-the-loop. The UCAV must be sophisticated enough and reliable enough to assess the situation, apply the current ROEs, and deliver the weapon. The last two types of C2 pose little problem by maintaining a human-in-the-loop for authorization to release. The human controller makes the decision to release the weapon, based on the current ROEs and situational awareness gained from onboard systems as well as an integrated air-and-ground picture. The UCAV and weapon are controlled through impact. Full accountability rests on the ground controller and, potentially, the ground-control team. Legal and moral issues arise when the UCAV malfunctions and collateral damage occurs. A chain of accountability must be in place for these instances. This chain may lead all the way back to the initial operational test and evaluation. The public will question the reliability of the system and, in the end, the use of all UCAVs in the future. It is imperative that we be cautious in making the leap to UCAVs. The United States should begin with total ground control and progress to a fully autonomous mode (fig. 8). The selection of types of missions and targets is critical in the beginning stages of UCAV development. The United States needs to build confidence that a robot airplane would use the same caution that a human being would use when deciding to employ ordnance.40 As the system matures, technology should allay fears and cultural opposition.41 ROEs can be modified as world opinion and cultural bias begin to accept the concept of automated warfare.
Figure 8. UCAV Concept of Operations
The United States must be ready and able to employ all its assets, including UCAVs, in homeland defense and international operations. To that end, the United States must begin the necessary efforts to proactively prepare itself and its coalition partners, legally and operationally, for the future employment of UCAVs. Those efforts must address UCAV flight operations in national and international airspace and ensure that UCAV operations meet all the principles of LOAC and the treaties to which the United States or our coalition partners are signatory. Finally, very conservative ROEs must be specifically developed for the initial use of UCAVs to ensure their international acceptance until the system matures and its employment become routine. In spite of the potential reduction in friendly casualties and a significant savings in national treasure, UCAVs may never see combat if these critical issues are not specifically and satisfactorily addressed.
1. Phil Patton, “Robots with the Right Stuff,” Wired, March 1996, n.p., on-line, Internet, 20 January 2001, available from http://www.wirednews.com/wired/archive/4.03/robots_pr.html.
2. “This Week in Air History,” Flight Journal Magazine, n.p., on-line, Internet, 2 December 2001, available from http://www. flightjournal.com/history.asp; and John L. Frisbee, “Project Aphrodite,” Air Force Magazine 80, no. 8 (August 1997), on-line, Internet, 3 January 2002, available from http://www.afa.org/ magazine/valor/0897valor.html.
3. “Predator Hellfire Missile Tests ‘Totally Successful,’” CheckPoint, 12 May 2001, on-line, Internet, 1 December 2001, available from http://www.checkpoint-online.ch/CheckPoint/J4/J4-0003-PredatorHellfireMissileTests.html.
4. “Predator—Unmanned Aerial Vehicle, USA,” Air Force Technology, on-line, Internet, 2 December 2001, available from http://www.airforce-technology.com/projects/predator/.
5. “Predator Hellfire Missile Tests ‘Totally Successful.’ ”
6. John Pike, “Military’s Unmanned Combat Air Vehicle (UCAV) Program,” Sightings, 16 November 1998, on-line, Internet, 20 January 2001, available from http://www.rense.com/ ufo/unmanned.htm.
7. “Boeing Previews UCAV System,” Boeing, 27 September 2000, on-line, Internet, 3 December 2001, available from http:// www.boeing.com/news/releases/2000/news_release_000927n.htm.
8. John A. Tirpak, “UCAVs Move toward Feasibility,” Air Force Magazine 82, no. 3 (March 1999), n.p., on-line, Internet, 21 January 2001, available from http://www.afa.org/magazine/0399 ucavs.html.
9. John A. Tirpak, “The Robotic Air Force,” Air Force Magazine 80, no. 9 (September 1997), n.p., on-line, Internet, 21 January 2001, available from http://www.afa.org/magazine/0997 robot.html.
10. “Unmanned and Dangerous,” Beyond 2000, 11 September 2001, on-line, Internet, 1 December 2001, available from http://www.beyond2000.com/news/Nov_00/story_881.html.
12. “Boeing Previews UCAV System.”
14. Ray F. Jones, “Airspace Classifications,” on-line, Internet, 2 December 2001, available from http://188.8.131.52/library/ fbo/docs/AirspaceClass.pdf.
15. “UCAV Issues,” Undergraduate Engineering Review, College of Engineering, University of Texas, on-line, Internet, 20 January 2001, available from http://asme.me.utexas.edu/uer/ucav/ frame_issues.html.
16. George C. Wilson, “Senate Chairman Pushes Unmanned Warfare,” UAV Forum-News 2000, 31 October 2000, on-line, Internet, 21 January 2001, available from http://www.uavforum.net/
17. Senior Defense Officials, “Background Briefing on Unmanned Aerial Vehicles,” DOD news briefing, Pentagon, Washington, D.C., 31 October 2001, n.p., on-line, Internet, 8 January 2002, available from http://www.fas.org/irp/program/collect/ uav_103101.html.
18. “A Wing and a Prey-er,” Beyond 2000, 11 September 2001, on-line, Internet, 20 January 2001, available from http://www.
20. DOD news briefing.
22. Capt Robert A. Ramey, “Overflight under the Chicago Convention,” JAG Warrior 2 (June 1999): 6.
23. Ibid., 5.
24. “UCAV Issues.”
25. Tirpak, “UCAVs Move toward Feasibility.”
26. Col David G. Ehrhart et al., The Military Commander and the Law (Maxwell AFB, Ala.: AF Judge Advocate General School Press, 2000), 596.
27. “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 1125 U.N.T.S. 3, entered into force Dec. 7, 1978,” University of Minnesota Human Rights Library, n.d., on-line, Internet, 8 January 2002, available from http://www1.umn.edu/humanrts/instree/y5pagc.htm.
28. “UCAV Issues.”
29. Amnesty International Report “NATO Committed War Crime in Kosovo,” on-line, Internet, 1 December 2001, available from http://www.amnesty-usa.org/nato_report/.
32. Ehrhart et al., 598–99.
33. Col Daniel Smith, “The 2001 Quadrennial Defense Review: Here We Go Again—Or Do We?” Weekly Defense Monitor 4, no. 45 (9 November 2000), n.p., on-line, Internet, 21 January 2001, available from http://www.cdi.org/weekly/2000/issue 45.html.
34. Bryan Bender, “Pilotless Combat Vehicle Awaits Legal Green Light,” Jane’s Defence Weekly, 20 September 2000, n.p., on-line, Internet, 20 January 2001, available from http://homepage. mac.com/ebird1/e20000920/e20000920pilotless.htm.
35. “Missile Technology Control Regime, 7 January 1993,” Stockholm International Peace Research Institute, on-line, Internet, 8 January 2002, available from http://projects.sipri.se/expcon/mtcrguidelines.htm.
36. Jenifer V. Buckman, “Minding Your Business: Flying High,” Virginia Business Online, November 2000, on-line, Internet, 20 January 2001, available from http://www.virginiabusiness. com/magazine/yr2000/nov00/mybsky.html.
37. “Predator- Unmanned Aerial Vehicle, USA.”
38. Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121.01A, Standing Rules of Engagement for US Forces, 15 January 2000, A-1–2, available from http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/TJAGSAWeb.nsf/8f7edfd448e0ec6c8525694b0064ba51/003549f888bd835e85256ad30059a1bd/$FILE/Chapter%2021%20Attachment.pdf.
39. “UCAV Issues.”
40. Tirpak, “UCAVs Move toward Feasibility.”
Lt Col Anthony J. Lazarski (USAFA; MA, Naval War College; MA, Air War College) is director of the commander’s action group at headquarters Air Combat Command. A command pilot with 2,202 hours in the F-111E/F, F-117, F-15E and the T-38A aircraft, Colonel Lazarski previously served with the 20th Fighter Wing at RAF Upper Heyford, United Kingdom; Headquarters United States Air Forces in Europe, Ramstein AB, Germany; 4450th Tactical Group, Tonopah Test Range, Nevada; 49th Fighter Wing, Holloman AFB, New Mexico; Headquarters Allied Air Forces Southern Europe, Naples, Italy; and 4th Fighter Wing, Seymour Johnson AFB, North Carolina. He also served as deputy commander of the 71st Operations Group at Vance AFB, Oklahoma. He is a graduate of the Air Force Squadron Officer School, Naval Command and Staff College, and Air War College.
The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.
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