News analysis and commentary from Phillip Carter -- now located at http://www.intel-dump.com

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Time to start the tribunals... or something

The Washington Post's editorial board makes a pretty good argument today for why we need to give some kind of legal process to the men we currently hold as enemy combatants in the war on terrorism -- both in the U.S. and at Guantanamo Bay. Defense Secretary Donald Rumsfeld rightly points out that the goal of detaining these men is not to prosecute them -- but to glean intelligence in order to avoid future attacks. "Your first priority is not to prosecute them and punish them like they stole cars or something. . . . Rather, it was to get intelligence from them about the terrorist networks that they were a part of [and] prevent future attacks." Nonetheless, prosecuting them has some utility, and The Post's editorial states a good case for why that's so.

. . . The government has an obligation to glean as much intelligence as possible from the detainees at Guantanamo Bay, Cuba, and elsewhere, and the criminal justice model for dealing with such people is not sufficient. The war on terrorism is a real war, and not every fighter for the other side belongs in federal court.

But the war on terrorism is a different kind of war, with no end in sight, whose fighting blends elements of law enforcement, military power, diplomacy and intelligence. That difference puts on government an obligation to adapt without squashing important American values. The administration cites this war's difference as justification to free its hands to do things the government can't do either in a more classical conflict or in law enforcement. But the administration won't accept the corollary responsibility -- to develop rules that harmonize American conduct with the values this country attempts to promote worldwide. The military has never articulated coherent standards regarding which detainees will be tried or what will happen to those who are not tried over the long term. It has never specified the standards under which it reviews detentions nor declared who it is holding. It is not enough to observe, however truthfully, that under the laws of war, these people may be detained until hostilities are over. The laws of war are no more complete a framework for thinking about the detainees than is the criminal justice system. This week, for example, three teenagers were released from Guantanamo after lengthy detentions there.

There must be manageable, clear standards for considering these detentions. And the tribunals, for all the criticism they have taken, could be an important part of that. The more people who can be charged and tried in an orderly and fair fashion -- and the faster this process can get underway -- the better.

posted by Phillip Carter at 10:15

 
Great Americans

Saturday's Los Angeles Times reports on a naturalization ceremony conducted at Camp Pendleton yesterday for 207 military personnel -- nearly all veterans of Operation Iraqi Freedom or slated for deployment there in 2004. California Gov. Arnold Schwarzenegger spoke to the group of new citizens after their swearing-in, saying that "By choice you came to this land, and by choice you are fighting for this country, and that is extraordinary." I agree. Here's what a few of our newest citizens had to say on this occasion:

"There are so many things I want to do for this country," said Sgt. Delwin Ellington, 23, an immigrant from Jamaica. Ellington served in a combat unit in Iraq and will soon return as part of the nation-building effort.

* * *
Sgt. Andrew Crespo, 27, from Ecuador, said he decided to apply for citizenship after a Marine in his squad was killed in fighting near Nasiriyah and was given citizenship posthumously.

"I realized it was the right thing," Crespo said.

* * *
"It's my honor to be in this place," said sailor Kihyuk Hong, 24, from South Korea.

* * *
"This is a huge day for me," said Sgt. Javier Garcia, 23, born in Mexico. "Now I'm part of the Constitution."

posted by Phillip Carter at 08:06

 
Pentagon schedules meeting between enemy combatant and attorney

As if one big story today isn't enough, Jess Bravin of the Wall Street Journal (subscription required) reports this afternoon that the Pentagon has scheduled a meeting between Yaser Hamdi and Frank Dunham. Mr. Dunham is the federal public defender who took Mr. Hamdi's case and fought it in the U.S. District Court, 4th Circuit Court of Appeals, and who has now successfully petitioned for review of the case by the Supreme Court -- although he's never met his client. Hamdi has been held by the U.S. for nearly two years as an "unlawful enemy combatant", first at Guantanamo, and now at the military brig in Charleston, South Carolina. The move comes as the Supreme Court prepares to take up Hamdi's appeal, in a decision that court watchers think might redefine the legal framework of the America's war on terrorism.

Frank Dunham, the federal public defender in Alexandria, Va., said he would meet Yaser Hamdi at the military brig in Charleston, S.C., on 8 a.m. Tuesday. But the meeting will take place under conditions Mr. Dunham called onerous. A military officer will be present, the meeting will be recorded and Mr. Hamdi will be barred from discussing the conditions of his confinement, Mr. Dunham said.

"For all those reasons, the meeting will be very short and lacking much substance," Mr. Dunham said. But despite those restrictions, "it would be inhumane not to go down there and tell him what's going on." The public defender said that since the government considers anything Mr. Hamdi or others held as enemy combatants [says] to be classified, he would not be able to discuss anything Mr. Hamdi might tell him.

"If they burp, it's classified, so you can only discuss it with people who have a national security clearance," he said.

* * *
The Bush administration has opposed allowing prisoners it deems enemy combatants to meet with attorneys, contending that doing so would interfere with interrogations. But Justice Department lawyers have said they could permit such meetings after interrogators were finished with the prisoners.

Analysis: This is a major development. The administration has probably decided, as alluded to by this WSJ article, that it's all-or-nothing legal strategy was "unsustainable" in light of legal challenges that have reached the Supreme Court. In addition, I think the DoD and DoJ lawyers have advised their principals that the present course of action just doesn't make any sense. I find it plausible that Mr. Hamdi had some intelligence value immediately after his capture, and that there may have been a need for seclusion and interrogation then. But as a practical matter, I think those arguments have evaporated, and now the time has come to give this U.S. citizen some due process.

If Hamdi's truly an enemy combatant, fine. Lock him up in accordance with the 3rd Geneva Convention, let him send letters home and talk to the Red Cross, and hold up until the end of hostilities. If he's a criminal, then charge him with a crime. If he's something in between, then get Congress to make a law clarifying what that status is and what that status means in the way of legal consequences. But the ambiguity of Mr. Hamdi's situation has been the frustrating thing for many in the legal community, and it has gotten to be so problematic as to threaten the administration's legitimacy in the war on terrorism. You know this issue has gone too far when it can be used as a punchline on CBS's show "NCIS", or even by Whoopi Goldberg in her new television show. Legal clarity is important because it helps establish legitimacy, and the rule of law over the rule of men. The Pentagon's decision to set up a meeting between Mr. Hamdi and his attorney is a step in the right direction, and I applaud them for it.

Update: Jerry Markon's article on the Hamdi-Dunham meeting has one of the most colorful quotes I've seen from a defense attorney in the news lately. And what makes it even better is that it's not in one of the many celebrity criminal trials we have today. Here's what the FPD had to say:

Federal Public Defender Frank W. Dunham Jr. said he is unhappy that his meeting with "enemy combatant" Yaser Esam Hamdi will be scrutinized at the Charleston (S.C.) Consolidated Naval Brig. Dunham said he considered canceling the session because it violates the tradition of attorney-client privilege. But he decided to go forward because he has been pursuing the meeting for more than two years.

He said the military has banned any discussion of the conditions of Hamdi's confinement at military brigs in Virginia and South Carolina. "I'm not going to be able to talk to him about anything that's substantive to the case," Dunham said. "But I said if I had to go see this client buck naked with my hands on my ankles, I wasn't going to stand on the ceremony that I'm not going to go until the situation is perfect."

Let's hope the Defense Department doesn't make Mr. Dunham (or Mr. Hamdi) attend this meeting "buck naked with [his] hands on [his] ankles. But it's nice to see that the public defender would do so in that event.
posted by Phillip Carter at 12:52

 
ICC taps American lawyer for first prosecution

Jess Bravin reports in the Wall Street Journal (subscription required) that the International Criminal Court -- a body which the U.S. has disdained by backing out of the Rome Treaty -- has appointed an American attorney as its first prosecutor in a case against Ugandan warlords who used kids as sex slaves and soldiers.

The appointment of Christine Chung, a Harvard-trained lawyer who prosecuted street gangs, mob bosses and boxing promoter Don King during a 12-year career at the U.S. attorney's office in New York, underscores the controversy over Washington's stance even within American legal circles.

"I'm voting with my feet," Ms. Chung said. "The idea that the court is going to be prosecuting American soldiers trivializes the whole process."

Ms. Chung, 39 years old, has no prior experience with war crimes or international tribunals. But ICC Prosecutor Luis Moreno-Ocampo said he chose Ms. Chung as the best-qualified applicant to pursue the ICC's first case, a high-stakes effort that will shape the court's reputation.

Her former boss, U.S. Deputy Attorney General James Comey, described her as "a brilliant lawyer and a great prosecutor ... who will serve any tribunal well." But Mr. Comey declined to comment on the ICC or the U.S. government position toward it.

* * *
In choosing Ms. Chung, "Moreno-Ocampo is cleverly reaching out to the Americans to try to show them that the court is a valuable tool in foreign policy," said Harold Hongju Koh, a Yale law professor who was an assistant secretary of state in the Clinton administration. "They want to show that it's really a criminal court, not a place for political posturing."

Analysis: I think that's right. There is clearly a political imperative behind this appointment to bolster the ICC's legitimacy in the eyes of the American public. It's conceivable that the United States could rejoin the ICC if a change occurred in the White House, but that will only happen if the American public buys into the idea of these prosecutions. Given the limited jurisdiction of the court, and our ability to secure bilateral agreements for the protection of our soldiers overseas, I support the ICC. It makes a lot of sense to have a standing world body with the staff and resources to prosecute crimes like these, which really are crimes against humanity and the world.

It's also been true that American prosecutors have played a key role in many international prosecutions. Justice Robert Jackson's tenure as a prosecutor at Nuremburg was the most famous example of this. More recently, Pierre Richard-Prosper served as the lead prosecutor for the International Criminal Tribunal-Rwanda; he now serves as the Bush Administration's ambassador at large for war crimes. The American prosecutorial style is much different from that in inquisitorial systems around the world, and it is something these bodies often try to copy by bringing in American attorneys to lead and teach them. Amb. Prosper started as an assistant district attorney in Los Angeles; Ms. Chung has served for 12 years as an Assistant U.S. Attorney. In addition to their nationality, they bring a wealth of practical experience on how to fairly try a criminal -- and win. That's a very important thing. Ms. Chung's performance will set the tone and professional standards for future ICC prosecutions.
posted by Phillip Carter at 09:29

 
Going on the offensive in Afghanistan
A decisive -- and risky -- action to snare the leaders of Al Qaeda

Wednesday's Chigago Tribune (subscription required) broke a big story about a new offensive planned for the mountains of Afghanistan and Pakistan, wherein the U.S. will introduce large numbers of ground forces to hunt down and apprehend/kill the top leadership of Al Qaeda. The story was subsequently picked up by a number of other media, and its authenticity has been confirmed by Pentagon officials who say that they have a pretty good idea of where Osama is hiding. The basic idea is that we have been playing a cat & mouse game with Al Qaeda's top leaders for some time -- and the way we plan to win this game is to introduce a big tiger into the game, in the form of large American infantry formations.

U.S. Central Command is assembling a team of military intelligence officers that would be posted in Pakistan ahead of the operation, according to sources familiar with details of the plan and internal military communications. The sources spoke on the condition they not be identified.

As now envisioned, the offensive would involve Special Operations forces, Army Rangers and Army ground troops, sources said. A Navy aircraft carrier would be deployed in the Arabian Sea.

Referred to in internal Pentagon messages as the "spring offensive," the operation would be driven by certain undisclosed events in Pakistan and across the region, sources said. A source familiar with details of the plan said this is "not like a contingency plan for North Korea, something that sits on a shelf. This planning is like planning for Iraq. They want this plan to be executable, now."

* * *
The U.S. military plan is characterized within the Pentagon as "a big effort" in the next year. Military analysts had previously judged that a bold move against Islamic extremists and Osama bin Laden, in particular, was more likely to happen in spring 2005.

A series of planning orders-referred to in military jargon as warning orders-for the offensive were issued in recent weeks. The deadline for key planning factors to be detailed by the U.S. military was Jan. 21.

* * *
Thousands of U.S. forces would be involved, as well as Pakistani troops, planners said. Some of the 10,600 U.S. troops now in Afghanistan would be shifted to the border region as part of regular troop movements; some would be deployed within Pakistan.

"Before we were constrained by the border. Musharraf did not want that. Now we are told we're going into Pakistan with Musharraf's help," said a well-placed military source.

Analysis: A Pentagon spokesman essentially confirmed this story after the Tribune broke it, saying "We have a variety of intelligence and we're sure we're going to catch Osama Bin Laden and Mullah Omar this year." That's a big promise to make. I hope we have the goods to back this up, because I'd sure like to catch these guys too.

A couple of notes on this planned offensive. First, it incurs substantial amounts of operational risk, which will transform into political risk for the Bush Administration. Any offensive operation carries risk -- you are taking the fight to the enemy, and they will have an advantage on the defensive. Furthermore, we are planning this operation in extremely rough terrain where that defensive advantage will be enhanced, and we are planning to throw large amounts of ground forces into the mix. Anytime you send large numbers of troops into combat, you run the risk of large numbers of casualties. This too is compounded by the mountainous terrain and conditions, because it will make it tougher to evacuate wounded soldiers, as we found out in Operation Anaconda. Those operational risks will transform themselves into political risks for the President, because of the American public's traditional reaction to casualties. Of course, the public will likely accept these more readily than casualties in Iraq, because of the nature of our prey. If you asked the average American whether it's worth it to go after Osama, they will likely say yes. Nonetheless, a steady stream of casualties from Afghanistan in the absence of hard results (i.e. the capture/killing of Al Qaeda's top leaders) will not be good politically for the Bush Administration.

Second, one has to consider where the forces will come from for this operation. Every single infantry battalion in the active-duty Army has been deployed to Iraq or is on its way to Iraq, save those committed to Korea. Presumably, the forces for this Afghanistan offensive will come from the ranks of those already inside Afghanistan, as well as those soldiers who came back in 2003 and early 2004 from Iraq. That's going to have an effect on these soldiers, and depending on the amount of time they have for rest/retraining, it may have an effect on the mission too. On the other side of the ledger, these soldiers are combat-experienced veterans who probably won't need much retraining to fight in Afghanistan. But the administration is taking a risk by stretching these units so far, to the point where they may not be ready for the next threat -- whatever that may be.

My sense is that this mission is worth that risk -- the destruction of Al Qaeda is our raison d'etre in the war on terrorism. But in an election year, I think the American public will judge this mission its results. We'll see.
posted by Phillip Carter at 09:13

 
Compare:

Army Chief 'Adamantly Opposes' Added End Strength

WASHINGTON, Jan. 28, 2004 – The Army chief of staff "adamantly opposes" an end- strength increase to the size of his service.

Gen. Peter Schoomaker told the House Armed Services Committee today that an unfunded end-strength increase "puts readiness at risk, it puts training at risk, it puts modernization at risk, it puts transformation at risk – and that's why I'm resisting it."

Many in Congress believe the Army is stressed with worldwide operations. One proposal calls for adding two more combat divisions. Another calls for a 40,000-man increase in the Army, while other, more general proposals just call for end-strength increases.

Schoomaker agrees the Army is stressed, but believes it is a temporary spike and that any plus-up can be done with current resources. He said transforming the Army will result in manpower savings that can be plowed into the combat force. "What we are doing is to transform the Army simultaneous with meeting the security commitment of the nation," he noted.

with

Army to Restructure, Will Grow by 30,000

WASHINGTON, Jan. 29, 2004 – The Army will grow to 510,000 soldiers over the next four years as a temporary measure, a senior Army official said today.

The official briefed the press on background after Army Chief of Staff Gen. Peter Schoomaker told Congress Jan. 28 that Defense Secretary Donald H. Rumsfeld has authorized the Army to exceed end strength limits by 30,000. The increase is allowed under emergency authorities Congress granted the Defense Department.

Analysis: And once you're done scratching your head, then read Vernon Loeb's report on the subject in the Washington Post. It's not clear which end is up in this force structure debate, and who's for what position anymore. Everyone is "for transformation" -- that's like being "for children" or "for public safety" -- it's a meaningless cliche these days. Everyone's also for "efficiency" and "common sense" in managing the force -- which has been stretched by deployments to Iraq, Afghanistan and elsewhere in the war on terrorism. I have to admit that even I'm confused, and I follow this stuff pretty closely.

My guess is, based on Gen. Schoomaker's comments in his confirmation hearings last year, that he was the guy pushing the SecDef hard for these troop increases. He probably presented this increase as a fait accompli, because of the number of troops the Army had already kept on active duty due to stop-loss policies and the 160,000+ Army reservists now on active duty. Given those numbers, what's a little permanent authority to make it all legal and kosher?

Notwithstanding this executive decision by Secretary Rumsfeld, I see this as one of the major fights of the FY2005 defense budget process. In addition to the expected debates about current ops v. transformation funding, military construction, base closures, and missile defense, the House and Senate are going to grill the Pentagon hard over this issue. I predict that we'll see some net increase in end strength for the Army and Marines as a result, though it's not clear what conditions that increase will contain. It's possible that Congress could mandate an increase in nation building capabilities like Military Police, Civil Affairs and Special Forces, and that Congress could also mandate a review of the "total force concept" which splits certain functions between the active and reserve forces. More to follow...
posted by Phillip Carter at 09:02

 
Dealing with Korea

Soyoung Ho, an editorial assistant at The Washington Monthly, has an interesting article up on Slate about the U.S. problem with North Korea -- written from the perspective of South Korea. The article is so poignant because it highlights the way that we have frustrated one of our staunchest allies via our foreign policy, and that we have made it harder to deal with North Korea because of the way we've dealt with South Korea lately.

Can the Bush administration solve the nuclear crisis alone? It can, but only if the White House wants to strike a half-baked deal to make the issue go away until after the November elections. Any viable long-term solution that includes a peace treaty and verified nuclear disarmament requires Seoul's full cooperation. Although China may be the biggest provider of fuel oil to Pyongyang, South Korea has the most economic cooperation with the North, including economic assistance, trade, direct investment in economic zones, tourism, rail and road links, sports and cultural exchanges, and visits to reunite separated families. Seoul can withhold badly needed economic aid to the North, a policy shift that could bring North Korea into line. Such a shift would be more in tune with the Bush administration.

China is, of course, an important ally in reaching an agreement with North Korea, but any final settlement will require a huge financial commitment, because North Korea will never give up its nuclear program unless it receives both a security guarantee and massive economic aid. China won't be responsible for all this economic aid, and it would be fiscally and politically infeasible for the United States to foot the bill in such a deal.

This is where South Korea comes in, picking up a big chunk of the tab. Michael O'Hanlon, an international security expert at the Brookings Institution and author of a book on dealing with a nuclear North Korea, said, "There can be no solution without South Korea since it is the most interested party, a close ally, and the country that would have to provide much of the aid and trade and investment and so forth in any deal."

Analysis: I'm dramatically understating the point when I say that it would be really good for the 6-party talks to resume and result in a workable agreement for the Korean peninsula. North Korea's possession of nuclear weapons (and chem/bio) is just one problem. The North Korean humanitarian crisis is deepening by the year, and it has very real consequences for the security and stability of East Asia. The same is true of North Korea's crumbling (crumbled?) infrastructure, economy, health care system, etc. Setting aside any political or ideological issues for the moment, North Korea physically sits on the edge of collapse. It has sat there for years, but there is no reason to think that it can do so indefinitely. Despite proclamations of juche (roughly translated as "self reliance") from Kim Jong Il, North Korea will eventually fall if it remains on this trajectory. It is in America's interest to ensure this doesn't happen -- but if that fails, we must be ready (with our allies) to manage the consequences.
posted by Phillip Carter at 15:01

 
SecDef allows Army to grow by 30,000

In testimony yesterday, Gen. Peter Schoomaker revealed that Defense Secretary Donald Rumsfeld had used some of his emergency authority to let the Army exceed its legally authorized "end strength" by 30,000 soldiers, in order to make ends meet for the Global War on Terrorism and the war in Iraq. The Washington Post reports on this surprising revelation, and what it might mean for the debate over force structure in the 2005 Pentagon budget process.

The increase, disclosed yesterday in congressional testimony by Gen. Peter Schoomaker, the Army's chief of staff, surprised members of the House Armed Services Committee, many of whom have been pressing for a larger Army.

Rumsfeld has resisted a permanent increase for months, arguing that a number of efficiency measures and restructuring moves could alleviate some of the stress on U.S. forces. But his approval of a temporary rise -- which does not require congressional action and which Schoomaker said would probably be needed for four years -- appeared to acknowledge that some relief is needed.

Schoomaker said the increase would make possible his plans to restructure the Army by expanding the number of brigades and creating more agile, deployable forces. The money, he said, would come from the $87 billion emergency spending bill for Iraq and Afghanistan that passed in November.

An aide to Schoomaker said after the hearing that the troop increase probably would be achieved through incentives to keep soldiers from leaving once their contracts expire and through "stop-loss" orders barring their exit.

Schoomaker also disclosed that he has ordered his staff to plan for how the Army, which is now replacing its forces in Iraq with an entire set of fresh units, would rotate another force of similar size into Iraq in 2005 -- and again in 2006. But other Pentagon officials said any decisions on the size of future rotations are months away.

Larry DiRita, the Pentagon's top spokesman, said Rumsfeld approved the troop increase within the past few days. DiRita said Rumsfeld acted under emergency authority approved by Congress and invoked by President Bush after the Sept. 11, 2001, terrorist attacks, allowing the lifting of personnel caps on the military services.

Analysis: This is a big turnaround for the Defense Department, which has adamantly refused to say it needed more soldiers for about the last year. Gen. Schoomaker came in as the SecDef's new Chief of Staff-designate with the idea that maybe we did, and he even said so during his confirmation hearings. Now, it appears that he persuaded someone inside the Office of the Secretary of Defense that the need for more soldiers was real, and the SecDef's office has bought off on that.

Of course, I think these numbers are somewhat arbitrary and meaningless. 30,000 will help, but it's a drop in the bucket compared to the steady stream of reservists we've had on active duty since Sept. 11, 2001. According to the Pentagon, the Army Reserve and National Guard had 164,416 reservists on active duty this week. These 30,000 will undoubtedly aid the Army, especially in maintaining certain key specialties like MI, MP, Aviation, SF, etc. But I still think the Army is stretched thin by the Iraq mission, and the need to mobilize this many reservists is a sign of that. If the Army is going to stay in Iraq until 2006, as Gen. Schoomaker says, the stretch is going to get much worse.
posted by Phillip Carter at 06:59

 
Kerry wins big in New Hampshire
What does the Kerry-Clark dynamic mean for veterans in America?

Sen. John Kerry (D-Mass) decisively defeated his Democratic rivals yesterday in the New Hampshire primary to move further ahead in the horserace that is this year's Democratic nomination fight. Politics is far out of my lane of expertise, so here's what the New York Times had to say in the way of political analysis this morning:

MANCHESTER, N.H., Jan. 27 — John Kerry has now done what none of his rivals for the Democratic nomination have yet come close to doing: He has won twice. Decisively. He has momentum, media, money and the ability to raise more, as well as a staff of experienced, disciplined operatives and a list of endorsements that are each growing by the day.

Howard Dean has now failed twice, decisively, in the states where he has worked hardest, with the voters who know him best, even among those who share his signature issue: opposition to the war in Iraq.

As the campaign shifts from an expectations game to a fight for real delegates, Dr. Dean needs to win somewhere. There were signs that he might leapfrog to states like Michigan and Wisconsin that vote later next month, then regroup for the big contests on both coasts on March 2.

As he was last week in Iowa, Senator John Edwards was the man in motion at the end of the race. Almost half the voters who chose him here did so in the past three days, an indication that he was gaining but ran out of time.

Mr. Edwards now heads to next week's contest in his native South Carolina a presumptive favorite son.

Gen. Wesley K. Clark skipped Iowa to campaign in New Hampshire almost exclusively for more than a month, hoping for a springboard against Dr. Dean, only to find himself competing against Mr. Kerry.

Senator Joseph I. Lieberman, who moved from his home in Connecticut to a condominium here, fell even flatter, in what he portrayed as a "three-way split decision," at the bottom of the pack. Both Mr. Lieberman and General Clark vowed to press on, though it is difficult to see just where they might catch fire.

Analysis: This isn't my area of expertise; I know about as much as any other educated American who reads the newspaper when it comes to domestic politics. So I want to focus on the dynamic between John Kerry and Wes Clark. I believe that Wes Clark essentially went down in flames when he belittled Kerry on CNN's Larry King Live. In his conversation with Sen. Bob Dole on that program, Clark denigrated Kerry's service as a junior officer, saying that he was a general and that this ought to count for more. Fair enough, there is a distinction between lieutenants and generals. But that's not a favorable distinction for most veterans, who looked upwards with disdain at their generals, while they often got to know their lieutenants and captains on much more favorable terms. Clark painted himself as an elitist with this comment to the veteran community whose support he needed so badly. It doesn't surprise me that large chunks of that group went over to the Kerry campaign.

For the larger American public, I'm starting to believe that military service is a fungible qualification. That is to say, for non-veterans (most Americans), military service is like a block that once checked, it doesn't matter that much. Both Wes Clark and John Kerry can say they were decorated Vietnam veterans -- war heroes if you like. The fact that one went onto serve 30 years in uniform is an impressive credential, but it may not matter to most Americans. Once you've checked the military service block, and you've checked the combat service block, other degrees of service aren't that important.

While I think military service (or service in the Foreign Service, Public Health Service, Peace Corps, etc.) is a necessary qualification for high public office, I don't think it's sufficient. Political experience, particularly in the trenches of Washington, counts more. And while most voters are willing to reward a man (or woman) for fulfilling his/her citizen's moral obligation to serve their country, they want to see more in the way of political/policy credentials than just that. After all, these guys are running for President, not Secretary of Defense. So in the bigger picture, I see the Kerry candidacy as a referendum of sorts on the Clark candidacy, and the idea that a general can swoop in, capitalize on public respect for the military, and win the presidency. Voters want more than just military credentials.
posted by Phillip Carter at 07:24

 
Law and terrorism: David B. Rivkin Jr. and Lee A. Casey, two senior lawyers who served in the Reagan and Bush I administrations, have a series of op-eds in this week's Washington Times that deserve a read. The first article deals with the power to detain enemy combatants, and the second with the President's power to wage war on terrorism. Though these authors don't speak directly for the administration, they do articulate the basic rationale of the administration on many of these subjects. So their op-eds are useful for understanding the reasoning behind what have been very controversial legal positions.
posted by Phillip Carter at 08:35

 
White House changes tack on Iraq casus belli

James Risen, who covers the intelligence beat and other shadowy things, reports in the New York Times today that senior administration officials were distancing themselves from the argument that Iraq definitely had weapons of mass destruction before the war. No such weapons have been found yet, which has made many uneasy about their support for the war which was based on this alleged possession WMD and the imminent threat of Iraqi nuclear weapons production.

The evolving position followed criticism of the intelligence reports about Iraq from the C.I.A.'s former chief weapons inspector, David A. Kay, comments that increased pressure on the C.I.A. and intensified the political debate in Washington over who was responsible for shaping the prewar intelligence that President Bush used to justify toppling Saddam Hussein.

While Republican leaders have focused on the C.I.A. and how it gathered intelligence, Democrats have called for a close look at how the White House used that information.

On Monday White House officials were no longer asserting that stockpiles of banned weapons would eventually be found.

Scott McClellan, the White House spokesman, told reporters en route to an appearance by President Bush in Little Rock, Ark., that the administration would wait for the weapons search team, the Iraq Survey Group, to complete its work before drawing any conclusions about the quality of the intelligence available.

But he said that whatever the group's conclusions, Mr. Bush had done the correct thing in deposing Mr. Hussein because Iraq was clearly working on chemical, biological and nuclear weapons.

"We know he had the intention, we know he had the capability," Mr. McClellan said. "And, given his history and given the events of Sept. 11, we could not afford to rely on the good intentions of Saddam Hussein."

Analysis: The administration never relied on WMD as its only reason for war. Indeed, it wasn't even the best legal argument that it offered. Pentagon and State Department lawyers agreed that the best legal argument for the war was Iraq's material breach of the 1991 cease-fire, along with various other resolutions since then. The WMD issue was mostly a political one, meant to persuade people for whom law wasn't good enough, and to answer the question of "why now?"

I was one of those people who thought we would find WMD when we had the 101st Airborne combing the Iraqi countryside, and when we had total reign over the country so the Iraqis couldn't play their shell game. Now I'm not so sure. It's theoretically possible that Iraq has hidden its WMD so well that we can't find them. But that's unlikely, given the enormity of the resources we've devoted to this task -- human teams, technical means, hyperspectral imagery, etc. It is hard to find the proverbial needle in a haystack. But WMD give off a bigger signature than a needle -- and we know what that signature is, and how to detect it. In any event, I feel like I was misled about the arguments for the war, which I then parroted to my friends and readers. And though I still support the war for other reasons, this news is upsetting.
posted by Phillip Carter at 08:12

 
Federal judge overrules parts of a major anti-terrorism law

The AP reports tonight on an order issued late last Friday by U.S. District Judge Audrey B. Collins, who sits here in Los Angeles, that effectively voids key parts of the federal law prohibiting material support to terrorists or designated foreign terrorist organizations. Those two laws, 18 U.S.C. 2339a and 2339b respectively, were first adopted in 1996 as part of the Anti-Terrorism and Effective Death Penalty Act, and more recently amended by the USA PATRIOT Act in 2001. Judge Collins devotes a good chunk of her decision to jurisdictional issues such as standing and justiciability. But the real meat of her order starts on page 24, with her consideration of the plaintiffs' motion on Constitutional grounds for summary judgment. On page 28 of her order, Judge Collins states the following:

Having considered the parties' arguments and the relevant law, including the rulings in [Humanitarian Law Project] I, the Court concludes that the term "expert advice or assistance," like the terms "training" and "personnel," is not "sufficiently clear so as to allow persons of 'ordinary intelligence a reasonable opportunity to know what is prohibited.'" [Citations omitted] Defendants [the Justice Department] have failed to adequately distinguish the provision of "expert advice or assistance" from the provision of "training" or "personnel" in a way that allows the Court to reconcile its prior finding that the terms "training" and "personnel" are impermissably vague, with a finding that the term "expert advice or assistance" is not.

* * *
The "expert advice or assistance" Plaintiffs seek to offer includes advocacy and associational activities protected by the First Amendment, which Defendants concde are not prohibited under the USA PATRIOT Act. Despitethis, the USA PATRIOT Act places no limitation on the type of expert advice and assistance which is prohibited, and instead bans the provision of all expert advice and assistance regardless of its nature. Thus, like the terms "personnel" and "training," "expert advice or assistance" "could be construed to include unequivocally pure speech and advocacy protected by the First Amendment" or to "encompass First Amendment protected activities." Humanitarian Law Project v. Ashcroft, ___ F.3d ____ (9th Cir. 2003) (finding the words "training" and "personnel" in 18 U.S.C. 2339b to be unconstitutionally vague under the First Amendment).

Analysis: Interestingly, Judge Collins only enjoined the Justice Department from applying these two sections of federal law to the plaintiffs at bar -- not to the entire Justice Department and any such prosecutions it may engage in across the country. That's not surprising, and it's probably the right legal outcome. But it does limit the scope of this ruling.

Second, it's important to understand the context of the laws being overruled here. 18 U.S.C. 2339a and 2339b were originally passed as part of the AEDPA in 1996. (Here's a summary of what AEDPA does -- it's a huge piece of legislation which changed a lot of stuff in federal criminal law.) Since their passage, they have become an important tool in the DOJ's arsenal for fighting global terrorism, because of the way that global terror networks depend on help to move men, materiel and money around the world. Obviously, the term "material support" is vague on its face, which is why the statute includes a list of those things which can count as "material support" for purposes of criminal prosecution. Sec. 805 of the USA PATRIOT Act (Public Law 107-56) added one more category to further illuminate the definition of material support: "expert advice and assistance". That is the part of the USA PATRIOT Act being held unconstitutional here by Judge Collins -- one line in a piece of legislation that stretches for 132 pages (in the PDF version that I have). Without a doubt, most headlines will misstate this part, and many more politicians will obscure this part as well in the service of their political agendas. But the legal fact is that Judge Collins invalidated one small part of the Patriot Act, and a part that marginally modified another law which had in place since 1996.

Third, it's important to understand the nature of this decision from a Constitutional perspective. Laws may be stricken down under the First Amendment when they unconstitutionally infringe on free speech. One way that laws may do that is by being too vague. In such a case, the terms of the law in question are so vague that Americans can't figure out what the law is actually trying to criminalize. The result is that speech is chilled, because rational people will err on the side of caution by not doing something that may subject them to prosecution. The idea here, expressed in Judge Collins' order, is that 18 U.S.C. 2339a and 2339b are so vague that these laws actually include behavior that's expressly constitutional. Any law which is that vague on its face is subject to being stricken on Constitutional grounds, and that's precisely what Judge Collins did in this case.

What will happen next? The Justice Department will likely appeal this to the Ninth Circuit. But given that court's recent ruling in the same matter, it's unlikely that such an appeal will be successful. Some have suggested that the Justice Department might cure this matter through the exercise of prosecutorial discretion. But the Supreme Court has said that an agency cannot cure an unconstitutional law in this matter, because that's beyond the scope of an executive agency's power. (See Whitman v. American Trucking Association) Only an act of Congress to amend this Act with Constitutionally survivable language will work. The President has made his case for the Patriot Act to Congress, and Congress will likely take up this issue sometime in the next year. The most viable course of action for the Justice Department is to influence the next version of 18 U.S.C. 2339a and 2339b that comes out of Congress.

Update: Jess Bravin adds a good report on this decision in Tuesday's edition of the Wall Street Journal (subscription required). He points me to something which I should've noticed -- the existence of a circuit split between the 4th Circuit district court which upheld 18 U.S.C. 2339b in the Lindh case (before his plea bargain), and courts in the 2nd and 9th Circuit who have held this law to be unconstitutional. Such a split may increase the likelihood that the Supreme Court will take the case, and decide precisely what "material support" means under the Constitution.

Judge Collins's opinion follows several others striking down federal laws aimed at cutting off foreign terrorist groups from their backers in the U.S. In July, a federal judge in New York threw out some charges against attorney Lynne Stewart, who is accused of transmitting instructions from her imprisoned client, Sheikh Omar Abdel Rahman, to his followers on the outside. In that case, District Judge John Koeltl ruled that sections outlawing the provision of "personnel" to terrorist groups were unconstitutionally vague, but he let other charges stand.

In November, federal prosecutors filed a new indictment against Ms. Stewart. Her client, Sheikh Rahman, is serving a life sentence for conspiring to blow up New York City landmarks and is under strict regulations prohibiting his communication with the public.

The case before Judge Collins originated well before Sept. 11, 2001, and was brought by five organizations and two U.S. citizens who were challenging the 1996 antiterrorism law and seeking to maintain contacts with Kurdish and Tamil groups that the U.S. government had designated as terrorist organizations. They later added a challenge to the USA Patriot Act as well.

Judge Collins previously struck down a "personnel" provision under the 1996 law that is similar to the one she struck down Monday. Last month, a federal appeals panel in San Francisco affirmed her rulings doing so.

The government has appealed that ruling to the full Ninth U.S. Circuit Court of Appeals, noting that a federal judge in Alexandria, Va., adopted its view of the material-support statute in the case of John Walker Lindh. In 2002, District Judge T.S. Ellis III ruled that the ban on providing "personnel" could be applied to Mr. Lindh, an American who fought alongside the Taliban in Afghanistan.

posted by Phillip Carter at 21:16

 
No child left behind... except for those in DOD schools

Law From The Center, another weblog run by a UCLA law student and Army officer, has a troubling report today from the Magic City Morning Star (Maine) about a loophole in the No Child Left Behind Act which exempts schools run by the Department of Defense from its requirements. The loophole exempts these schools because they fall outside the purview of the Department of Education, and it affects thousands of students in DoD schools around the world.

Doug Kelsey, the deputy director of the DoD's school system, said that the schools are trying to live up to the spirit of the legislation despite the fact that the DoE has no jurisdiction over DoD schools. "We actively comply with the intent of the law," he said.

Kelsey said that DoD schools set high standards for its students and teachers, citing high performance on standardized tests and graduation rates higher than 95%.
. . . .
DoD 8th-graders ranked second compared to the 50 states on the 2002 National Assessment of Educational Progress reading tests. The military’s 4th-graders ranked fourth among the states on the 2002 NAEP reading exam. African-American and Hispanic students perform better overall in the military’s schools than anywhere else in the nation.

Maybe... but my friend Pete makes a good point that DOD students' scores on the all-important Scholastic Aptitude Test have been slipping. More than any NCLBA-mandated testing, the SAT has a real effect on the ability of these students to pursue post-secondary education and economic opportunity. But above and beyond any policy considerations, there is a normative reason why we should be concerned about this lack of accountability in DOD schools, which Pete sums up well:

Considering that DOD schools serve the children of those who are risking their lives to defend our country, and given that our leadership has determined the NCLBA as the best way to ensure our children and schools meet high standards of excellence, don't we owe it to our children to make the standards of the NCLBA mandatory on the DoD schools, instead of relying on their assurances that they will "comply with the intent of the law?"

posted by Phillip Carter at 20:42

 
A legal clinic with a mission

Eugene Volokh passes on some good news from George Mason University, where Prof. Joseph Zengerle has set up a clinic to provide legal assistance to servicemembers on a variety of issues from family law to deployment matters. (Thanks to Stop the Bleating for the heads up) Prof. Zengerle, a West Point alumnus and Vietnam veteran, has this to say about the new clinic:

George Mason law school has an unusually large number of students who have served in the military or have a strong patriotic interest in supporting the armed forces, and who are eager for a clinical experience. The school, whose faculty share their interest, has preliminarily confirmed with defenseofficials the existence of unmet legal needs among active duty members of the services and their families (including those who have been mobilized from the reserve forces). Seeking to match those interests with the need, the Clinic for Legal Assistance to Servicemembers (CLAS) began formative activities in January, 2004. Initial law student participants, who include a retired Navy captain, a retired Army lieutenant colonel with enlisted experience, a woman who spent seven enlisted years in the Air Force including the first Gulf war, and a former Senate staffer who hails from a devoted Marine family, will work with the clinic's executive director, Professor Joseph Zengerle, a Vietnam veteran who instituted the seminar on Homeland Security and the War on Terror at the law school. The clinic is now conducting a needs assessment to determine the gaps students might help fill, which commenced with a meeting at Walter Reed Army Medical Center. Studying substantive laws like the Servicemembers Civil Relief Act, collaborating with bar and nonprofit service organizations, establishing compliance with applicable requirements under federal law and other authorities, and structuring the organizational and academic elements of a new clinic, are simultaneously ongoing. CLAS just received its initial donation, a private grant to match the first $25,000 in contributions.

Analysis: Suffice to say, I don't think we're going to see anything like this at UCLA in the near future, despite the existence of an active veterans association at the law school. Our veterans group does work with an organization called New Directions at the West L.A. VA hospital, but we don't have anything like this in the way of institutional support. Notwithstanding that fact, I think this is an outstanding idea, and I hope to support it any way that I can. According to a note on Eugene Volokh's page, Prof. Zengerle can be reached at: Joe Zengerle; George Mason University School of Law; 3301 North Fairfax Drive, #404; Arlington, VA 22201 -- or by email at jzengerl [at] gmu.edu. This is a worthy cause -- if you can donate, please do.
posted by Phillip Carter at 21:02

 
Happy birthday to Jack Balkin's weblog: "Balkinization", the weblog of Yale Law Professor Jack Balkin, celebrated its 1-year anniversary over the weekend. As you might expect from the Knight Professor of Constitutional Law and the First Amendment at Yale University, Prof. Balkin has a thoughtful essay about free speech, blogging and the essence of democracy that deserves a read. Here's a brief excerpt from his conclusion:

The second reason why the fears of the fracturing of the public sphere seem overstated is the nature of network topologies. The Internet, and in particular, the blogosphere, has a scale free topology. As the Internet expands, and more links are added, a larger proportion of links are made to a relatively small number of sites. The result is that, over time, a relatively small number of sites receive the lion's share of links. They are hubs in the network that forms the Internet's public sphere. Go to The Truth Laid Bear and look at the blogosphere ecosystem and traffic rankings and you will see what I mean. A handful of blogs have an enormous number of links to them and a considerable amount of traffic, and as you go down the list, the number of links and amount of traffic rapidly diminishes after the first dozen or so sites, until you get to a fairly flat curve.

As long as the Internet, and in particular, that portion of the Internet where people get their news, has a scale free topology, Sunstein's fear of an unacceptably fractured public sphere is overstated. Indeed, the problem may be precisely the opposite of the one he imagines: A relative handful of news sites, or a relative handful of bloggers may have a very large amount of power over public opinion because they are the key hubs or nodes in the network of Internet public opinion. That, in some ways, is similar to (although not identical with) the condition we had with the traditional mass media. While the dominance of the traditional mass media in the public sphere was created by government's control over the air waves (in the case of radio and television) and economies of scale and the effects of local advertising (in the case of newspapers), the dominance of a small number of hubs or nodes in the public sphere on the Internet is caused by power laws that apply to certain types of communications networks, of which the Internet is a particularly salient example. To be sure, the concentration of influence over public opinion on the Internet is much less than we had in the traditional mass media. But is not at all clear to me that this is necessarily a bad thing.

Analysis: I agree with much of what Prof. Balkin says. The free speech metaphor of a "marketplace of ideas", which traces back to Justice Holmes' stirring dissent in Abrams v. United States, applies to weblogs as well as any other phenomenon on the Internet. Just as in the real marketplace, bad products sometimes get their day in the sun. (Snake oil or spray-on hair anyone?) But over time, the good ideas and good bloggers have tended to rise to the top, just as they would if they were goods or services in a real marketplace. If there is a downside to the weblog world, it is that there is no mechanism for the cleaning of bad ideas, as there is in the real marketplace where bad ideas result in bankruptcy and business failure. In the blogosphere, bad ideas tend to have more staying power and resilience, especially because it costs nothing to run a weblog. But that only raises the stakes for those of us who are trying to put "good speech" out there. As Justice Holmes wrote nearly 90 years ago:

"... when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution."

And this is true of the Internet as well. We ought not be afraid of bad ideas, whether they come from the right or left. But we ought not be afraid speaking out against bad ideas either.
posted by Phillip Carter at 20:46

 
The difference between AWOL and Desertion: Centrist, fellow UCLA law student and Army officer, has a good analysis of the precise legal difference between AWOL and desertion. This distinction has become relevant since filmmaker Michael Moore called President Bush a "deserter", and retired-Gen. Wesley Clark quasi-endorsed that label by reference.

Also see Donald Sensing's discussion of the same subject at One Hand Clapping, complete with some interesting anecdotal evidence on the matter from then-CPT Sensing's time as company commander. (Don's post got 43 comments, so apparently he must've said something right.)

Full disclosure: I made a small contribution to the Clark campaign a couple of weeks ago, so I will stay out of this one. But I can't find a flaw in either analysis linked above, and a general officer ought to know better than to use imprecision when it comes to sections of the Uniform Code of Military Justice.
posted by Phillip Carter at 20:31

 
A steak and lobster military on a McDonalds budget, part II
New Pentagon budget is bigger than ever (in constant dollars)

It may have been the case after the Cold War that we underfunded parts of our military -- to have a "steak and lobster military on a McDonald's budget", in the words of one Army colonel (and U.Texas alumnus) that I worked for on active duty. But that's clearly not the case today -- we're now paying for our military with a corporate charge card more worth of Spago or Patina. The Pentagon is requesting an FY2005 budget of $401.7 billion to cover everything from current operations to new equipment to futuristic research by DARPA -- a 7% increase from FY2004. (Also see this report by Esther Schrader in Saturday's LA Times, and this article in the Washington Post on the same subject.)

In order to meet U.S. national security priorities, the fiscal 2005 budget request reflects the president’s continued commitment to prosecute the War on Terror and balances support for long-term transformation of technology and defense capabilities with resources for current global operations and requirements.

Secretary of Defense Donald Rumsfeld said the budget highlights the president's priority to provide the pay, benefits and other quality-of-life measures needed to recruit and retain the highest quality volunteers for service in the active and reserve forces.

"The president three years ago directed that we consider how best to transform this department to ensure our nation has the capabilities and people needed for the national security circumstances of the 21st century. We have made significant progress," Rumsfeld said. "This budget builds upon past work to provide for a ready force made up of the talents and skills needed in our new national security environment. The men and women in uniform are demonstrating the joint and combined warfighting capabilities our nation will need to prevail in the Global War on Terror."

The fiscal 2005 defense budget provides for investment in improved and better-integrated intelligence capabilities and emphasizes readiness and training. This budget also supports continued transformation of the joint force and provides for homeland defense needs. The budget reflects the tools previously provided by Congress for better managing the force, including the first steps toward implementation of the National Security Personnel System reforms signed into law by the president in 2003.

More to follow...
posted by Phillip Carter at 08:20

 
Trouble with America's military reserves

A pair of articles today lets us in on the problems surfacing in America's reserves. The first is a report from Joe Galloway, the same reporter who accompanied Hal Moore's 1-7 Cav into the hellhole of the Ia Drang Valley during the Vietnam War. Moore and Galloway later co-wrote the book "We Were Soldiers Once... and Young." Galloway is now one of the elder statesmen in the military press corps, and he writes this week about a new report by Prof. Charlie Moskos, the preeminent military sociologist in America.

[Moskos] found morale was good among regular soldiers and was markedly lower among reserve component soldiers.

In a preliminary report written for the acting secretary of the Army, Les Brownlee, Moskos, a respected author and professor emeritus at Northwestern University, says he found a "higher level of morale than was anticipated" among regular Army soldiers.

Moskos noted "exceptional levels of performance under very demanding conditions" and said he had no recommendation for major changes in command policies affecting the troops. He did have suggested changes in personnel policies.

In contrast to the high morale of regular soldiers, Moskos says, he found lower morale among reserve components - Army Reserves and Army National Guard. The sociologist said that "the complaint that reservists were second-class citizens in Operation Iraqi Freedom was frequently heard."

* * *

Moskos wrote that the lower morale among reserves was specific to Iraq, and that he had found morale among reservists doing peacekeeping duty in Bosnia and Kosovo generally higher and on a par with regular soldiers.

Clearly, with the Army relying so heavily on Reserve and National Guard soldiers to do its job, someone at the top needs to be listening to Charlie Moskos and taking corrective action. This is not the time to let reserve component morale sink when the percentage of reservists in the force occupying Iraq are rising to new highs - and when many will have the opportunity to vote with their feet and abandon the Reserves and Guard at re-enlistment time if they continue to feel badly used and poorly treated.

According to this report in USA Today, reservists have already started to vote with their feet. A story earlier this week reported that the Army Reserve has having serious trouble with managing its personnel in the wake of numerous post-9/11 mobilizations. It has been widely thought that the problem affected the National Guard as well, though National Guard Bureau officials have generally denied such claims in the absence of data. Here's what Dave Moniz had to say in today's USA Today:

A recent survey of 5,000 soldiers from 15 states showed that the rate at which Army Guard members choose to leave the military could jump — to 20-22% a year among those who have served long overseas tours, typically 12 months.

Last year, about 16% of all Army Guard troops left the military as a result of retirement, injuries or a decision not to re-enlist, a figure slightly below the annual historical average of 18%. Among Guard soldiers returning from deployments in the USA and overseas from 2001 to 2003, only 12.5% left, statistics show.

The survey results are raising concerns, given the strains on Guard and Reserve troops and widespread worries that part-time soldiers are being relied on too much in the war on terrorism. Some 97,000 soldiers — about 28% of the 350,000-member Army Guard — are now on active duty in the USA or overseas.

The Pentagon will continue to rely heavily on the Army Guard and Army Reserve in Iraq, where by May, nearly 40% of the more than 100,000 U.S. troops will be Guard or Reserve.

Some military personnel analysts believe the survey hints at the leading edge of an exodus because part-timers are losing patience and don't want to be treated like full-time troops.

Analysis: Yeah, I agree with that. Much of this problem traces to the overreliance of America's military on the reserve components. A generation ago, Gen. Creighton Abrams removed a great deal of support capability from the active force and put it into the reserves, as a mechanism to prevent any future wars like Vietnam where the President chose to fought without the mobilization of the reserves -- and without popular support. As I wrote in an op-ed last year, this concept has run into serious problems since Sept. 11, with so many reserve units being called up for long-term deployments.

Army Gen. Creighton W. Abrams played a key role in crafting this "total force" concept, wherein key support units were placed in the reserves that active-duty combat units would need for any major war. The idea was that no president could again wage an unpopular war, because a future war would require reserve mobilization, and that would require popular support.

The system worked fairly well during the Cold War, when everyone in the active and reserve force trained for the big war with the Soviet Union. After the Berlin Wall fell and the first Gulf War ended, things changed. America's military transitioned from a "forward-deployed" force focused on the Soviet Union to an expeditionary force that deployed to small trouble spots around the world.

The role of the reserves changed as well. Support units such as military police, civil affairs and logistics now mattered more for missions like Somalia and Haiti than the combat units in the active force. The operational tempo for reservists increased steadily during the 1990s.

After the Sept. 11 attacks, America mobilized its reserves in a way that hadn't been seen since Korea. At home and abroad, reservists performed missions that active soldiers couldn't (such as guarding airports) and supported the active force in Afghanistan and elsewhere. Since Sept. 11, no fewer than 40,000 reservists have been on active duty at any given time, both for homeland security missions and combat operations overseas. Today, the Defense Department has 168,915 reservists on active duty in support of the war on terrorism. [The number today is nearly 40,000 higher than this, according to the Pentagon.] Senior officials have made it clear that the military could not function without the support of the reserves.

Yet, America's reserves have never achieved full equality with their active-duty counterparts. The reservists marooned at Fort Stewart -- as well as their reserve brethren around the world -- have long suffered from a lack of resources. America gives less to its reserve forces at every step -- recruiting, training, deployment, equipment, manning, medical care, even veterans' benefits. In the Army Reserve and National Guard, the nation gets a bargain -- trained soldiers with civilian experience who can be called at a moment's notice, but paid for only one weekend a month and two weeks in the summer.

Even in Iraq, reservists had to make do with less than their active-duty counterparts. Reserve units typically stand last in line for new equipment, behind active-duty Army units and the Marines. National Guard and Army Reserve units deployed to Iraq with radios older than many of their soldiers -- radios that could not talk securely with the active-duty units they worked with.

Many reserve units drove into Iraq with cargo trucks that were more than 30 years old. Reservists were also last in line to receive the military's new "Interceptor" body armor, specially designed to stop bullets from an AK-47.

You can't have a steak & lobster military on a McDonald's budget. Over the last few decades, we have purchased readiness in the reserves at a very low cost. We have essentially maintained skeleton units in the reserves on the assumption that we could train these men and women for war when the time came, and that we could infuse resources/equipment/personnel into these units when the need came. Well, the need is here, and there's no time to do just that before we send these units into combat. The result is that reservists have gone to combat without the resources, training, personnel, leadership, and equipment necessary to get the job done. Body armor is just one example. If you look at the MTOE (Modified Table of Organization and Equipment) of any reserve unit, it's a full generation behind its active-duty counterpart.

Reservists are getting out in droves because they're tired of being abused this way; because they're tired of being used by the Pentagon as an end-run around end-strength limits; and because they signed up to fight "the big one" -- not be mobilized multiple times within a short period. At the end of the day, I have limits to my sympathy for reservists because they did all volunteer and raise their right hand to swear an oath as soldiers. But the nation has got to realize that these reservists are not an infinitely renewable resource. If the Army treats them badly, they will vote with their feet. And our military readiness will suffer when they do.
posted by Phillip Carter at 19:01

 
Transitions

Mark R. Lewis, who until today wrote the weblog "Acquire, Identify, Engage", has decided to hang up his keyboard in order to pursue a new position with the House Armed Services Committee. Mark is one of the most brilliant guys I know; in addition to his smarts, he has more than 11 years of experience as an Army infantryman to back up his brain. He is precisely the guy I want in the offices of HASC, adding his informed voice to the fray over defense budgets, force structure, military strategy, and other national security matters. Like me, Mark made a promise to the soldiers he left behind in the Army that he would use his graduate degree and civilian position to continue the fight at a higher level. Congratulations on getting into a position where you can do just that.
posted by Phillip Carter at 18:33

 
Waiting out the Patriot Act

In his State of the Union Address on Tuesday night, President Bush asked Congress to renew the USA PATRIOT Act, saying that some of its key provisions will expire this year. If those provisions expire, the President continued, American law enforcement agencies won't have the tools they need to prevent terrorism. Here's what the President said:

Inside the United States, where the war began, we must continue to give homeland security and law enforcement personnel every tool they need to defend us.

And one of those essential tools is the Patriot Act, which allows federal law enforcement to better share information, to track terrorists, to disrupt their cells and to seize their assets. For years, we have used similar provisions to catch embezzlers and drug traffickers. If these methods are good for hunting criminals, they are even more important for hunting terrorists.

(APPLAUSE)

Key provisions of the Patriot Act are set to expire next year.

(APPLAUSE)

The terrorist threat will not expire on that schedule.

(APPLAUSE)

Our law enforcement needs this vital legislation to protect our citizens. You need to renew the Patriot Act.

(APPLAUSE)

It appears that Congress is less than willing to ask "how high?" when the President says "jump". Eric Lichtblau reports in the New York Times that Congressional leaders on both sides of the aisle are hesitant to act on this legislation at this moment, before the 2004 election, and unclear as to why the President has made the USA PATRIOT Act an issue before the election.

Crucial provisions of the law do not expire until the end of 2005, and Mr. Bush's push for their renewal in his State of the Union speech, which he repeated on Wednesday, caught many lawmakers off guard.

"I'd say he's about a year early," said Senator Charles E. Grassley, Republican of Iowa and a leading member of the judiciary committee. "If I were running for president, I wouldn't have brought it up now."

Mr. Grassley, like other members of Congress interviewed on Wednesday, said that while the antiterrorism act included some important law enforcement tools worth keeping, it was so far-reaching that its continuation needed careful scrutiny.

"I would not take a position of outright renewal at this point," he said.

Analysis: The White House said that the President was putting down a "marker" as to what his position was on the bill. But I think in reality, he's inviting a fight over civil rights and civil liberties -- a fight which can only help the Democrats once they choose a candidate and coalesce on the issues they're going to campaign on in 2004. This will likely be one of their issues, and the President has served it up on a platter. The Democrats will likely argue, as Fred Kaplan notes in this Slate article, that real spending on homeland security has actually dropped since 9/11 during this presidency.

"We must continue to give our homeland security and law enforcement personnel every tool they need to defend us."

Yet this is precisely what President Bush has failed to do. His homeland security budget for fiscal year 2004 was smaller than the budget for FY 2003. He has yet to order a serious effort to develop or procure WMD-detecting sensors. Security of cargo on ships and commercial airliners is riddled with holes. The borders are sieves. Most local police and fire departments lack the money, gear, and training to prevent, or to deal with the aftermath of, terrorist attacks.

And the Democrats will connect the dots to the Patriot Act too, saying that this Act diminishes "[t]he right of the people to be secure in their persons, houses, papers, and effects" (to quote the 4th Amendment), and that the Bush Administration actually threatens the personal security of Americans through its aggressive style of law enforcement. I don't necessarily agree with this entire argument, but I think it's a plausible interpretation of the facts and one that can be used to great political effect.

Update: In direct response to Fred Kaplan's criticism above, President Bush said today that he would increase teh amount of federal money being spent on homeland security efforts. More to follow...
posted by Phillip Carter at 08:29

 
Memo: get J-Lo a GoCo lawyer

"GoCo" stands for "government contracts", and it looks like she and a few of her Hollywood colleagues could use a good one in the wake of this report by Esther Schrader in the Los Angeles Times. Apparently, these stars ran up quite a bill on the USO's tab while entertaining U.S. military personnel abroad -- without any consideration for the way federal law requires them to handle their accounting.

The Lopez show was among several cited in a General Accounting Office report released this month that found more than $430,000 in improper, questionable or unsupported USO tour expenses charged to the Pentagon over a two-year period.

The GAO study, which looked at 10 randomly selected tours during 2000 and 2001, found no evidence of malfeasance in the nonprofit organization's use of government money. Nor was there any finding that the entertainers did anything wrong.

But the investigation, requested by Rep. C.W. "Bill" Young (R-Fla.), found that taxpayers repeatedly paid for first-class plane tickets, liquor and limousine services for celebrities, in violation of Pentagon and federal regulations.

Any such luxury expenses are supposed to be paid out of the USO's private donations, not the money it gets from Congress. The GAO report blamed sloppy bookkeeping by ill-trained employees.

The investigation, however, prompted the Pentagon's Armed Forces Entertainment division, which disburses federal funds to the USO, to review all tours since 1998; so far, it has uncovered an additional $73,000 in improper payments and recovered more than $140,000 from the USO.

Analysis: C'mon guys, let's get this admin stuff right. These tours do a lot of good for our soldiers overseas, and I'm not all that upset at paying for a first-class ticket or some liquor if that's what it takes to put J-Lo in front of the 4th Infantry Division. (Especially if we're willing to use private military jets to shuttle around senior generals and defense officials.) But we need to tighten our shot group here and do it right. That means reading the FAR and the DFAR and figuring out exactly what can be done with government money, and asking private sources to pay for the rest.
posted by Phillip Carter at 08:15

 
New legal blogs of note

Legal Fiction: a weblog written by an anonymous law clerk to a federal judge somewhere in the South who claims he's not part of the Federalist Society, and whose links look center-left to me. It's always interesting to hear from someone who's working inside of a federal judge's chambers.

Law From The Center: a weblog written by a UCLA law student who's also a captain in the United States Army -- but who's quite a bit smarter than me. (He made law review; I didn't) He's got a post up now on the brief filed by the JAG lawyers assigned to the Gitmo detainees, among others, that deserves a read.
posted by Phillip Carter at 14:28

 
Army Reserve chief says change must be made to reserves -- and now

In the kind of blunt language that shows years of frustration from dealing with bureaucrats and regulations, Army LTG James Helmly said he's working on a way to overhaul the way the Army Reserve does business in the midst of the Global War on Terrorism which has stretched the reserves to "near the breaking point", to quote a recent Army War College study. Vernon Loeb reports in the Washington Post that these changes will include everything from simple fixes -- like fielding equipment to those who need it -- to wholescale restructuring and unit deactivations. (Eric Schmitt reports in the New York Times on the same luncheon briefing.)

Lt. Gen. James R. Helmly said his staff is working on an overhaul of the reserve aimed in part at treating soldiers better and being more honest with them about how long they're likely to be deployed. Helmly said the reserve force bureaucracy bungled the mobilization of soldiers for the war in Iraq, and gave them a "pipe dream" instead of honest information about how long they might have to remain there.

"This is the first extended-duration war our nation has fought with an all-volunteer force," said Helmly. "We must be sensitive to that. And we must apply proactive, preventive measures to prevent a recruiting-retention crisis."

Helmly said his staff is engaged in an overhaul of the reserve aimed at turning the Army's part-time soldiers into a top-flight fighting force that can handle the strains of the global war on terrorism. In a Pentagon briefing for defense reporters, Helmly outlined an array of planned changes and bluntly described the force he took over in May 2002 as being dominated by bureaucrats who often ignored soldiers' needs.

In a recent memo, Helmly said, he told his subordinates that he was "really tired of going to see our reserve soldiers [and finding] they're short such simple things as goggles. It's about damn time you listen to your lawyers less and your conscience more. That will probably get me in trouble. But I told them, I want this stuff fixed."

Analysis: There are a few important things to pull out of this story. The first is that the Army Reserve is having a retention crisis, and that this crisis is being masked by the current implementation of "stop loss" and "stop move" policies. The Pentagon and Army leadership has denied this fact, saying that the Army Reserve is not in fact having such a crisis, and that it has met its recruiting and retention targets for the most part since 9/11/01. I'm a bit closer to where the rubber meets the road in the reserves, and my gut told me that was wrong. Now, the Chief of the Army Reserve is saying he agrees with me -- and that such a crisis likely looms for every unit that redeploys from Iraq and comes out of the "stop loss" policy's scope.

The next big thing I see here is a realization in the reserves that a) the Iraq mission will go on for a long time, and that b) the reserves must fundamentally change their structure in order to be ready for it. America's all-volunteer reservists typically don't join to do back-to-back rotations in airports and Iraq, nor do they sign up to be "fillers" for the active-duty force. They sign up to fight the big one; a mass mobilization war where the nation gets behind them and they can justify being called away from their lives and jobs. It's very hard on the reserves to call up more than once in a short period, and it generally breaks the back of units to do it. LTG Helmly wants to restructure the reserves so that they're capable of managing their mission load without breaking their soldiers or their units. That's a good thing.

Third, there's a message about the end strength of the Army in this story too. The Army's end strength is capped as a matter of federal law, at somewhere below 500,000. However, Army leaders have said they have busted this number by as much as 20,000 in recent months due to "stop loss" and other policies in place. But that doesn't even scratch the surface of the problem. When you factor in reservists, the Army busts its end strength by 150,000. Since 9/11/01, the Army and other services have maintained at least 40,000 reservists on active duty at any given time, with peaks just after the 9/11 attacks for homeland security and in mid-2003 for Iraq. Right now, the reserves have mustered roughly 200,000 servicepersons for duty -- including about 160,000 Army reservists and National Guardsmen. In legal terms, these numbers don't count against the Army's end strength. But in policy and practical terms, it's clear that the Army doesn't have the "boot strength" it needs to do its job. (Also see this article by Tom Bowman in the Baltimore Sun, where another 3-star Army generals says he thinks the Army is too small.) More specifically, the Army doesn't have the strength in specific areas like Civil Affairs, Military Police, Transportation, and others because those have been concentrated in the reserves. LTG Helmly's ideas may fix that, but it'll take a while.

Update I: On a related subject, see MAJ Don Vandergriff's briefing on lessons learned from Operation Iraqi Freedom, available from the Defense and the National Interest website.

Update II: A reader writes in with a very good question. We hear a lot about how the Army Reserve and National Guard is broken. But what about the other services' reserves, especially the Air Force Reserse and Air National Guard? They've gotten a lot of use since 9/11, haven't they? And what about the Navy and Marine Corps Reserves? The answer is, I think, that the media and the public have focused on the Army's reserve components because they're the largest and they've taken the brunt of the mobilizations. But it's an interesting question, and one that I don't have the answers to because I'm not as familiar with these other organizations and their current status.

Update III: In characteristic style, Secretary of Defense Donald Rumsfeld "brushed aside" the statements made on Monday by another 3-star Army general that said the Army needed to increase its end strength. The issue is very much tied to this one, because the Army has patched its end strength shortfall by calling up reservists.

"We've increased end strength substantially," said Rumsfeld, using the service term for the total number of soldiers.

The overall increase is about 36,000 troops, accomplished through the Pentagon's emergency order that temporarily bars service members from completing their enlistments or retiring until they finish their duty in Iraq or Afghanistan.

Analysis: Now that's a bit disingenuous. The Pentagon has not permanently increased its end strength because that's outside its power, and it has not requested such an increase in its FY04 budget act. Such an increase may be part of the FY05 National Defense Authorization Act, but I don't think that's gone over to the Hill yet. The Pentagon has "increased end strength substantially" in two major ways: 1) by involutarily extending soldiers on active duty through emergency "stop loss" policies, and 2) mobilizing hundreds of thousands of reservists. It's like saying you're fiscally fit when you're borrowing money up to your eyeballs... eventually, that borrowing's going to catch up to you.
posted by Phillip Carter at 07:26

 
TSA does the right thing
Issues new policy to help military families say goodbye

This from the Philadelphia Inquirer:

The government said it would allow the families and friends of troops flying to and from Iraq to escort them all the way to the airport gates, rather than getting stopped at security checkpoints. The Transportation Security Administration sent a memo last week to airport security directors asking them to develop procedures so members of the U.S. armed forces could be accompanied to and from their boarding gates, agency spokeswoman Amy von Walter said yesterday.

posted by Phillip Carter at 07:15

 
National security notes on the State of the Union address

In about 40 minutes, President George W. Bush will deliver his State of the Union address to a joint session of Congress, the American public, and the world. I'm anxious to watch the event and to see what President Bush says in his speech. I'm really curious what he's going to say about Iraq, and about America's national security generally. More to follow...

Update: Here are some initial thoughts on the speech, which I'm listening to right now and reading online via the Washington Post's transcript of the prepared text. (The Post also has the actual transcript of the speech as it was delivered up on its site.)

1. Guests of the First Lady. As one would expect, the gallery contains more military personnel this year than I've ever seen. Three of the soldiers caught my eye because they were wearing Army greens -- they're the three U.S. Army soldiers featured on the cover of Time magazine's "Person of the Year" issue designating the "American Soldier" as this year's person of the year. Later in the speech, when the President spoke to a military issue, the ABC cameras panned to these three soldiers.

2. Terrorism and complacency. The President makes a big point when he says there have been no attacks since 2001 on U.S. soil -- but that there have been many attacks overseas against U.S. interests and allies.

Twenty-eight months have passed since September 11th, 2001 -- over two years without an attack on American soil -- and it is tempting to believe that the danger is behind us. That hope is understandable, comforting -- and false. The killing has continued in Bali, Jakarta, Casablanca, Riyadh, Mombassa, Jerusalem, Istanbul, and Baghdad. The terrorists continue to plot against America and the civilized world. And by our will and courage, this danger will be defeated.

The point of this is that America cannot afford to become complacent. Therefore, the President says, we should continue to give America's security community the tools it needs to fight terrorism, namely, the USA PATRIOT Act. Here's what he had to say:

Inside the United States, where the war began, we must continue to give homeland security and law enforcement personnel every tool they need to defend us. And one of those essential tools is the PATRIOT Act, which allows Federal law enforcement to better share information, to track terrorists, to disrupt their cells, and to seize their assets. For years, we have used similar provisions to catch embezzlers and drug traffickers. If these methods are good for hunting criminals, they are even more important for hunting terrorists. Key provisions of the PATRIOT Act are set to expire next year. [A smattering of applause fills the hall at this point.] The terrorist threat will not expire on that schedule. Our law enforcement needs this vital legislation to protect our citizens -- you need to renew the PATRIOT Act.

Analysis: This is very interesting. Many legal scholars and political observers see this piece of legislation as a political albatross for the administration -- a lightning rod for criticism that the Bush Administration doesn't respect American civil rights or civil liberties. It looks like the President is going to come out swinging on this point, and I'm not sure how that's going to go over. As a policy matter, I support most of the measures in the USA PATRIOT Act, because of my understanding of how they work and how law enforcement uses these tools today. But I also recognize that this Act has a tremendous political cost, and I'm not sure the President has the political capital he had in October 2001 when he got this Act passed the first time.

Later in the speech, President Bush offers another interesting thought on the nature of the global war on terrorism. In the legal community, there has been a great debate for the last two years (and much longer in some sections) about the nature of this conflict -- and whether terrorism is a problem of law or a problem of war. Here's what the President had to say:

I know that some people question if America is really in a war at all. They view terrorism more as a crime -- a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted, tried, convicted, and sent to prison. But the matter was not settled. The terrorists were still training and plotting in other nations, and drawing up more ambitious plans. After the chaos and carnage of September 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States -- and war is what they got.

That's pretty unequivocal, but it's not that surprising. I've been reading the legal briefs from the Justice Department in the Hamdi, Padilla and Al-Odah cases, and this is the kind of rhetoric in every single brief about the nature of the war on terrorism. By invoking the war paradigm, the President may be able to employ the powers typically reserved for a Commander-in-Chief in wartime. I'm not sure whether the Supreme Court will uphold the President's vision in the Al-Odah and Hamdi cases which it has agreed to review. But this President's vision is clear, and it has been one of the defining hallmarks of the way the legal war against terrorism has been conducted.

3. The Global War on Terrorism, and America's Strategy of Preemption. At various points in the speech, President Bush says that America will continue its aggressive foreign policy which has led to the war in Iraq and efforts to disarm Iran and North Korea with diplomacy. The President also cites Libya as an example of how the preemption strategy has worked, and how the example of Iraq has made other regimes think twice about holding onto WMD. Later in the speech, the President effectively draws a line in the sand over diplomacy, saying that America will do what it has to do, notwithstanding what other nations and institutions say. It's a pretty strong part of the speech, and one that will probably go over poorly with Europe and others in the international community.

As part of the offensive against terror, we are also confronting the regimes that harbor and support terrorists, and could supply them with nuclear, chemical, or biological weapons. The United States and our allies are determined: We refuse to live in the shadow of this ultimate danger.

* * *
Because of American leadership and resolve, the world is changing for the better. Last month, the leader of Libya voluntarily pledged to disclose and dismantle all of his regime's weapons of mass destruction programs, including a uranium enrichment project for nuclear weapons. Colonel Qadhafi correctly judged that his country would be better off, and far more secure, without weapons of mass murder. Nine months of intense negotiations involving the United States and Great Britain succeeded with Libya, while 12 years of diplomacy with Iraq did not. And one reason is clear: For diplomacy to be effective, words must be credible ? and no one can now doubt the word of America.

Different threats require different strategies. Along with nations in the region, we are insisting that North Korea eliminate its nuclear program. America and the international community are demanding that Iran meet its commitments and not develop nuclear weapons. America is committed to keeping the world's most dangerous weapons out of the hands of the world's most dangerous regimes.

* * *
Some in this chamber, and in our country, did not support the liberation of Iraq. Objections to war often come from principled motives. But let us be candid about the consequences of leaving Saddam Hussein in power. We are seeking all the facts -- already the Kay Report identified dozens of weapons of mass destruction-related program activities and significant amounts of equipment that Iraq concealed from the United Nations. Had we failed to act, the dictator's weapons of mass destruction programs would continue to this day. Had we failed to act, Security Council resolutions on Iraq would have been revealed as empty threats, weakening the United Nations and encouraging defiance by dictators around the world. Iraq's torture chambers would still be filled with victims -- terrified and innocent. The killing fields of Iraq -- where hundreds of thousands of men, women, and children vanished into the sands -- would still be known only to the killers. For all who love freedom and peace, the world without Saddam Hussein's regime is a better and safer place.

Some critics have said our duties in Iraq must be internationalized. This particular criticism is hard to explain to our partners in Britain, Australia, Japan, South Korea, the Philippines, Thailand, Italy, Spain, Poland, Denmark, Hungary, Bulgaria, Ukraine, Romania, the Netherlands, Norway, El Salvador, and the 17 other countries that have committed troops to Iraq. As we debate at home, we must never ignore the vital contributions of our international partners, or dismiss their sacrifices. From the beginning, America has sought international support for operations in Afghanistan and Iraq, and we have gained much support. There is a difference, however, between leading a coalition of many nations, and submitting to the objections of a few. America will never seek a permission slip to defend the security of our people.

Analysis: So, we're not going to see any change in the way that America does business. I agree that America ought to take a leadership role in the world, and that we ought to do the right thing even when the UN Security Council doesn't sign on. Kosovo was one such war, and there will doubtless be more in the future. But the aftermath of Iraq has shown us the value of international help, and we ought not spit in the face of the international community so brazenly. One line stands out in particular: "America will never seek a permission slip to defend the security of our people." That's a given -- Art. 51 of the UN Charter states clearly that every state has the inherent right to self defense. But I think it's wrong to put this kind of a marker down on the table; it undermines every international institution that stands for the rule of law over nations -- even the institutions we subscribe to like NATO.

4. Iraq and Afghanistan. The President obviously wanted to tell an optimistic -- but realistic -- story about the struggle to build a new Iraq. I think he did a pretty good job of doing so, though I think he downplayed the nature of the threat there. The President also talked about Afghanistan a great deal -- almost disproportionately for the amount of spirit, blood and treasure the U.S. has invested there right now.

The first to see our determination were the Taliban, who made Afghanistan the primary training base of al-Qaida killers. As of this month, that country has a new constitution, guaranteeing free elections and full participation by women. Businesses are opening, health care centers are being established, and the boys and girls of Afghanistan are back in school. With help from the new Afghan Army, our coalition is leading aggressive raids against surviving members of the Taliban and al-Qaida. The men and women of Afghanistan are building a nation that is free, and proud, and fighting terror -- and America is honored to be their friend.

Since we last met in this chamber, combat forces of the United States, Great Britain, Australia, Poland, and other countries enforced the demands of the United Nations, ended the rule of Saddam Hussein -- and the people of Iraq are free. Having broken the Baathist regime, we face a remnant of violent Saddam supporters. Men who ran away from our troops in battle are now dispersed and attack from the shadows.

These killers, joined by foreign terrorists, are a serious, continuing danger. Yet we are making progress against them. The once all-powerful ruler of Iraq was found in a hole, and now sits in a prison cell. Of the top 55 officials of the former regime, we have captured or killed 45. Our forces are on the offensive, leading over 1,600 patrols a day, and conducting an average of 180 raids every week. We are dealing with these thugs in Iraq, just as surely as we dealt with Saddam Hussein's evil regime.

The work of building a new Iraq is hard, and it is right. And America has always been willing to do what it takes for what is right. Last January, Iraq's only law was the whim of one brutal man. Today our coalition is working with the Iraqi Governing Council to draft a basic law, with a bill of rights. We are working with Iraqis and the United Nations to prepare for a transition to full Iraqi sovereignty by the end of June. As democracy takes hold in Iraq, the enemies of freedom will do all in their power to spread violence and fear. They are trying to shake the will of our country and our friends -- but the United States of America will never be intimidated by thugs and assassins. The killers will fail, and the Iraqi people will live in freedom.

* * *
And the men and women of the American military -- they have taken the hardest duty. We have seen their skill and courage in armored charges, and midnight raids, and lonely hours on faithful watch. We have seen the joy when they return, and felt the sorrow when one is lost. I have had the honor of meeting our servicemen and women at many posts, from the deck of a carrier in the Pacific, to a mess hall in Baghdad. Many of our troops are listening tonight. And I want you and your families to know: America is proud of you. And my Administration, and this Congress, will give you the resources you need to fight and win the war on terror.

Analysis: Obviously, the President wanted to tell a 'good news' story about the progress of the war on terrorism in its two combat theaters, Iraq and Afghanistan. But let's take a closer look at what was said and not said. The President never mentioned Osama Bin Laden -- not once. But he mentioned Saddam Hussein plenty of times. Osama's name is conspicuous by its absence, and indeed, the President did not really speak in much detail about Al Qaeda at all. However, he framed everything about Iraq in terms of the global war on terrorism, and the need to change this regime so that it could not support terrorism or acquire weapons of mass destruction. Given the lack of fidelity in our intelligence about those two matters, I was surprised to see this focus in the President's speech.

Second, while Afghanistan is certainly better off today than it was in 2001, it is not as well off as it should be. I don't think it's true that we have completely shifted our focus away from Afghanistan to fight in Iraq, and that we have completely neglected this nation that incubated Al Qaeda. But I do think that we have not met our burden for the reconstruction of Afghanistan, and that we have missed many opportunities over the past two years. That said, I don't think this issue (or this country) has much traction in the minds of the American public. Events in Iraq have reduced Afghanistan to an operational and political sideshow, and I think that President Bush is okay with that.

Third, the President made no mention of the casualty count in Iraq, or the heavy cost that America may yet have to pay in order to stabilize that country. It makes some political sense to downplay those statistics, and to focus on good news metrics like the number of schools constructed. But by ignoring the negative news, the President made himself seem less credible as well. He also missed the opportunity to gird the American public for future sacrifice, and to justify the sacrifices made thus far to the American public. Right or wrong, the most visible metric for the American people right now is the number of American KIA in Iraq. I don't think the Commander-in-Chief should have completely ignored that.

Finally, the President pledged to give soldiers the resources they need to fight the war on terrorism. I thought this part was well said, and that Congress and the President should give our soldiers what they need. That's a no-brainer. It's very hard to prioritize the defense budget when almost everything has some reasonable purpose -- and where many things are thought to be mission-essential. But the really hard part is to make the tough decisions about when and where to employ our military so that the military's capabilities aren't overtaxed by the missions we give them. With so much of our military now committed to Iraq and Afghanistan, we need to think really hard about any future endeavors abroad. It's not that we can't afford it -- we probably can if we mobilize large numbers of reservists and blow apart the federal budget. It's about asking whether this price is worth it.
posted by Phillip Carter at 17:22

 
"Velvet gloves" in Iraq -- a second opinion

LTC Gian Gentile, a graduate of the Army's School of Advanced Military Studies who recently served as XO of the 1st Brigade, 4th Infantry Division in Iraq, writes in the Washington Post that the much-touted strategy of "velvet gloves" might deserve a little bit more thought before being put into effect in Iraq. (Full disclosure: I worked for LTC Gentile on the 4ID plans staff as a young captain, and think he's one of the most brilliant officers I ever had the chance to work for/with in the Army.) This approach has been hyped by the Marine Corps generals on their way to Iraq in the next few months to replace Army units now there, and this hyping has been criticized by many Army officers who have said that such tactics may not work in the most hostile parts of the nation. LTC Gentile, whose former unit continues to operate in these hostile parts of Iraq, offers some thoughts on the "kindler, gentler" approach to counterinsurgency.

When the 1st Brigade assumed control of Tikrit and its surrounding area in the Sunni Triangle, our approach was in some ways very different. While we immediately began the important work of rebuilding infrastructure and institutions, we intentionally took a hard approach toward hunting down former regime members and stopping the looting of weapons and ammunition.

On the first night of operations in Tikrit, the brigade's infantry battalion sent out a combat patrol into the northern part of the city. It came across some 30 Iraqi terrorists looting military goods such as rocket-propelled grenades and mortar rounds. The Iraqis opened fire, and a sharp firefight ensued. Fifteen Iraqi terrorists were killed and the looting was stopped.

Was this approach "hard" compared with that of the Marines? Yes. In this case, did it stop the looting and even the potential of remote-controlled mines and rocket-propelled grenades getting into the hands of terrorists trying to kill Americans? Absolutely. Had these kinds of activities by Iraqi terrorists been going on in Tikrit while the Marines were applying their velvet glove? Undoubtedly.

The brigade also started raids in late April against former regime members and other incipient terrorist groups. These military operations, coupled with an aggressive campaign to build an intelligence picture of former regime members operating in the Sunni Triangle, contributed significantly to the capture of Saddam Hussein a few weeks ago.

But the 1st Brigade Combat Team as well as the rest of the Army units operating in the Sunni Triangle and Baghdad have done more than just conduct raids and capture the former Iraqi president. They have, among many other things, rebuilt schools, delivered fuel, increased electrical power capacity and, most important, developed strong relationships with Iraqi Sunnis in the region. This approach has not been perfect, but the progress is steady and significant.

Analysis: This provides a useful counterpoint to the strategies now being suggested for the pacification of Iraq by the U.S. Marine Corps and others, as reported here by the Wall Street Journal (subscription required), and here by Tom Ricks of the Washington Post. I've been somewhat guilty of praising the Marines for this approach, echoing the sentiment of one MP commander who said in Ricks' article that "I love our Army, and I will not criticize it, but war is not free of mistakes, and I believe that some of the insurgency is due to families acting out against American forces for deaths occurring as a result of collateral damage." But I think that LTC Gentile offers a good glimpse of the other side, namely:

(1) Counterinsurgency is a tough business; and
(2) Superior firepower can be the right solution in certain situations, and may be the right answer in the worst parts of Iraq; and
(3) Taking the softer approach in Iraq can expose American soldiers to great risk, and the attendant casualties may be more than the American public is willing to pay for the pacification of Iraq.

This last point is most important -- and it's the most underplayed in all the articles which cover the Marine Corps and its "new" approach for Iraq. When you tell your soldiers to take off their Kevlar helmets and body armor, you ask them to incur a substantial risk. When you task organize a foot patrol without vehicle support, or send HMMWVs in without armor, you incur substantial risk. I think this is a risk that should be very carefully considered, because our soldiers are our most precious resource and we can't afford to waste them on novel ideas that will simply get them killed.
posted by Phillip Carter at 09:06

 
Admin note: I'm working on an article on the limits of the Bush Administration's pre-emption strategy, and a couple of other projects. Consequently, I won't be writing anything new for Intel Dump until Tuesday. Hope to see you back then.
posted by Phillip Carter at 16:36

 
The Supreme Court v. The President

Anthony Lewis has a great essay today on the NYT op-ed page which provides some of the context behind the Supreme Court's decision to take the Hamdi v. Rumsfeld case, and its likely decision to take the Padilla v. Rumsfeld case. Mr. Lewis has followed the Court for some time, and is the author of Gideon's Trumpet, a widely acclaimed book about the Court's landmark decision in Gideon v. Wainwright which established the right to counsel for the indigent. As a side note, Mr. Lewis' work has become such a part of the Court's history that it's featured at the National Constitutional Center in Philadelphia. Here's what he had to say about these cases:

Why did the court step in? There can be no sure answer, and of course what the court will ultimately decide is unpredictable. But one possible reason is that in both situations the administration's actions are direct challenges to judicial responsibility and power.

The court's willingness to confront the executive branch is not unlimited. This week it refused to review a decision upholding Attorney General John Ashcroft's right to keep secret the names of aliens arrested in a sweep after 9/11. But that turned on an interpretation of the Freedom of Information Act, not on a question of constitutional power.

The two cases the court has agreed to review involve more momentous issues. The indefinite quality of the war on terrorism, as President Bush calls it, may make infringements on individual rights more worrying. No one can define how or when this "war" will end. An American detained as an "enemy combatant" could be imprisoned for the rest of his life.

Two Americans have been held in solitary confinement as "enemy combatants" now for more than 18 months. Yaser Esam Hamdi was captured on or near the battlefield in Afghanistan. Jose Padilla was arrested at O'Hare International Airport in Chicago, when he flew in from overseas. Attorney General Ashcroft, judging him without a trial, said Mr. Padilla was a "known terrorist" who had planned to explode a "dirty bomb" in this country.

Both men have been under interrogation. They were denied the right to see a lawyer, and the Justice Department argued at one stage that giving Mr. Padilla access to counsel might disturb the atmosphere of dependence required for successful questioning. More recently the department, perhaps hoping to quiet objections in the legal community, has said that both men may see lawyers.

The idea of jailing someone forever on the say-so of the president, without a lawyer — as the administration still says it has the power to do — would probably strike most Americans as a violation of their rights: the right to have a trial of any alleged offense, to call witnesses and so on. The Fifth Amendment to the Constitution says that no person shall be deprived of "life, liberty, or property, without due process of law." Is due process in a time of terrorism whatever the president says it is?

Analysis: His argument is one of the most concise statements of the issue that I've seen, and I will likely pass this essay on to my class on Law & Terrorism to help contextualize some of the issues we're studying. On one level, these cases are about the individual defendants -- Hamdi, Padilla, and the men at Guantanamo appealing in Al-Odah. On a slightly more general level, these cases are about specific legal rules such as 18 U.S.C. 4001 or the right to petition the court for a writ of habeas corpus. But at their core, these cases are about power. Jurisdiction is not just a legal doctrine -- it is the foundation of the courts' power. Taken quite literally, the word means "the power to judge/say". The central issue in Hamdi, Padilla and Al-Odah is whether the courts have the power to review executive action of this sort. And ultimately, I think the courts will claim that power in these cases, because if they don't, the institutional consequences could be quite severe.
posted by Phillip Carter at 07:10

 
Was Wes Clark relieved of his NATO command?

Glenn Reynolds says yes, and criticized retired Gen. Wesley Clark for his denial of this fact in an interview with Chris Matthews of Hardball. Mark Kleiman posed the question to me, and I answered that I didn't think he was formally relieved. In general, relieving a commander in the Army denotes a relief for cause -- not a discretionary rotation of officers like that used to replace Gen. Clark with Gen. Joe Ralston as SACEUR. But since I didn't have the facts handy, I opened my copy of Waging Modern War by Wes Clark which discussed the matter. Here's what Gen. Clark himself had to say about what happened:

From pages 408-412 of Waging Modern War (hardcover) by Wesley K. Clark:

. . . as we were dining with Lithuanian President Valdas Adamkus, a soldier from my communications team came to the table and interrupted the conversation. "Sir, General Shelton is on the phone and says he needs to speak to you on an urgent matter."

* * *

Shelton said it was all right, no secure phone was needed. He wanted to inform me that Secretary Cohen had made the decision that I would come out of my command in April 2000.

I stood there, stunned. Was I being relieved of duty? And why now? SACEURs (Supreme Allied Commander - Europe) were expected to serve at least three full years. They are usually asked to extend for a fourth. But now, having just completed my second year at NATO, I was being told that my term would end in nine months.

The timing of the phone call was a surprise as well. I had just been in the States for a conference with the other regional commanders in chief and had spent a full day with Hugh Shelton. He had said nothing.

* * *

I asked Shelton why Secretary Cohen had made this decision, and why now. To depart early, after public speculation during the war about my difficult relations with the Pentagon, would look bad for everyone. Were they just clumsy? Or was this the result of the buildup of bad feelings? Were they trying to get back at me? I was at a loss to understand.

Shelton explained that Joe Ralston, the Vice Chairman, was the only possible replacement for me as SACEUR, that his four years as Vice Chairman were to end in February, and so, by law, he would need to be in a new position within 60 days or he would be forced to revert temporarily to two-star rank. Therefore, I would have to come out early. Anyway, he went on, I had served longer than the average SACEUR.

It didn't wash. I was sure that legal arrangements could have been made to enable me to complete the three full years. And I knew that the excuses about the average SACEUR tenure weren't factual. So, was this just a way of easing me out early, without admitting it?

* * *

[Clark tries to call Shelton after the dinner to discuss the matter.]

But before I could reach Shelton, another call came in. "Sir, there's a, er, I think, Bill Graham, holding on the line for you. Would you like to talk to him first?" The communications officer sounded uncertain about the first name.

Graham? Senator Bob Graham? Don Graham, the publisher of the Washington Post? "OK," I said, "put him through."

"Hello, General. This is Bradley Graham of the Washington Post. I just heard that you were to be replaced next year by General Joe Ralston, and wondered if you could confirm it.

* * *

The [negative] publicity lasted for a few weeks, echoing through Europe. The White House denied responsibility, and there was reportedly a lot of internal heat about how the decision had been executed. [David Halberstam reports this too in his book War in a Time of Peace.] The President was asked about my removal in a press conference in Europe and expressed complete satisfaction with my performance. "I had nothing to do with it," he told me privately.

Analysis: Senior commanders, who used to be called regional "CinCs", serve at the pleasure of the President and Secretary of Defense. Title 10, Section 164, United States Code (10 U.S.C. 164) states the law on the assignment, powers and duties of combatant commanders like the SACEUR. These officers are much like senior political appointees -- they are appointed by the President. (Separately, such officers must be appointed by the President and confirmed by the Senate to their 4-star rank.) The President doesn't need cause to remove such an officer from his or her post, and the President can rotate them around like pieces on a chessboard at will. Granted, there was bad blood between Gen. Clark, Defense Secretary William Cohen, and Gen. Hugh Shelton. But these officers didn't have the goods to relieve Gen. Clark for cause -- and they didn't.

In a general sense, you can argue that pulling an officer out of command prematurely is a form of "relief", and semantically, you would be right. But the problem is that in the Army, "relief" is a term of art. AR 600-20, the Army Command Policy, defines "relief for cause" in paragraph 2-17. Bear in mind that this policy is written for junior commanders, and it technically doesn't apply to the SACEUR position. But I quote it because it defines "relief" as its used in the Army today. (Also see this Staff Judge Advocate memo on "relief for cause".)

2–17. Relief for cause

a. When a senior commander loses confidence in a subordinate commander’s ability to command due to misconduct, poor judgment, the subordinate’s inability to complete assigned duties, or for other similar reasons, the senior commander has the authority to relieve the subordinate commander. Relief is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate or practical under the circumstances. Although any commander may temporarily suspend a subordinate from command, final action to relieve an officer from any command position will not be taken until after written approval by the first general officer (to include one frocked to the grade of brigadier general) in the chain of command of the officer being relieved is obtained. Any action purporting to finally relieve an officer from any command position prior to the required written approval will be considered for all purposes as a temporary suspension from assigned duties rather than a final relief from command for cause. If a general officer (to include one frocked to the grade of brigadier general) is the relieving official, no further approval of the relief action is required, however, AR 623-105 and AR 623-205 concerning administrative review of relief reports remain applicable.

This is a formal process, often compared to an administrative suspension or termination proceeding in the civil service system. There's a formal box on an Officer Evaluation Report where the rater can indicate that the report is being written pursuant to a "relief for cause", and such an OER must be accompanied by specific documentation of the reasons for such relief. (An officer even has the right to appeal such a report.) It's very rare, and it's generally done in egregious circumstances (e.g. a negligent commander gets a soldier killed or loses a major piece of equipment). According to this definition, I don't think Wes Clark was "relieved". According to Wes Clark's book, neither Secretary Cohen, General Shelton, nor President Clinton thought he was relieved either. What do you think?
posted by Phillip Carter at 18:25

 
FBI Chief: Administration plans tribunals for 9/11 plotters

Thursday's Washington Post reports on a slip-up of sorts by FBI Director Robert S. Mueller III, in which he told reporters at a lunch meeting that "tribunals" were planned for individuals like Khalid Sheikh Mohammed who were thought to have a direct role in planning and executing the Sept. 11 attacks. Within the law enforcement and military communities, "tribunal" is a term of art that denotes something quite different than a civilian trial. Specifically, it connotes the kind of proceeding envisioned by President Bush in his 13 Nov 01 executive order authorizing military tribunals for members of Al Qaeda. The FBI immediately issued a statement saying that Director Mueller didn't intend the slip-up to mean what it meant, but the cat had already escaped the bag and run down the street.

Mueller's comments, made in response to a reporter's questions at a news media luncheon in Washington, provide a rare hint of the direction the Bush administration might pursue in its treatment of key suspects in the terrorist plot, who have been held secretly and interrogated since their captures.

Mueller's remarks also appeared to bolster previous indications that the government is reluctant to attempt more criminal prosecutions like the one against alleged al Qaeda operative Zacarias Moussaoui, who has bedeviled federal officials with his courtroom antics and has brought the case to a halt with demands to call the alleged conspirators as witnesses.

During the lunch, sponsored by the Christian Science Monitor, Mueller said the FBI has been gathering evidence for use in a possible legal case against Mohammed and other detainees.

"I would expect that there would be tribunals at some point," Mueller said.

A Pentagon spokesman said no decisions have been made about trying Mohammed or any other suspects in the attacks on the World Trade Center and the Pentagon. A White House spokesman declined to comment. To date, military authorities have designated only six detainees at the U.S. military prison in Guantanamo Bay, Cuba, as eligible for the tribunals. The facility holds alleged al Qaeda and Taliban fighters.

Mohammed, who was captured by U.S. forces in Pakistan in March 2003, was al Qaeda's operations chief and is believed to have served as the mastermind of the plan to hijack the airliners that crashed into the World Trade Center, the Pentagon and a field in Pennsylvania.

Also in U.S. custody are Ramzi Binalshibh, who is accused of helping to organize the attacks, and Mustafa Ahmed Hawsawi, the alleged paymaster of the hijackers.

Analysis: As the Post article notes, these comments come at a very sensitive time. The Supreme Court has granted review of the case involving 12 prisoners from Guantanamo seeking review of their detention in federal court. The high court has also accepted the case of Yaser Hamdi, an "enemy combatant" being held without charges access to counsel in a South Carolina military brig. Two of my friends who are prominent Supreme Court watchers think the Court will also take the case of Jose Padilla, the alleged "dirty bomber" who is also being held as an "enemy combatant". None of these cases directly touch on the President's plan to use military tribunals to try Al Qaeda members. Until the tribunals are used, such claims aren't ripe for judicial review. But it is pretty evident that the Court's rulings in these other cases will have a substantial impact on the Administration's plans with respect to military tribunals. In light of that, I find it striking that the Administration would still plan to go ahead with the tribunals, instead of exercising a "tactical patience" by waiting for the Supreme Court to decide these cases.

I have written before on what I think the likely Constitutional challenges will be to any use of the military tribunal rules now in place. The Supreme Court allowed the use of such tribunals during and after World War II (see Ex Parte Quirin and Application of Yamashita), but that was a different time and a different Court. (It was, essentially, the same court that upheld the detention of U.S. citizens in Korematsu -- a decision which would hopefully come out differently today.) So I think these cases are a crap shoot for the Administration. The Court is almost certainly going to say that it has the jurisdiction to hear these cases. As was said 200 years ago in Marbury v. Madison: "It is emphatically the province and duty of the judicial department to say what the law is." We are at war, and our President deserves the deference due a Commander-in-Chief in the conduct of war. But such deference does not equal carte blanche, nor does it mean an abdication of judicial responsibility. Even in wartime, the President is sworn to act with the constraints of the Constitution.

If military tribunals come before the Supreme Court, the Court will likely also claim jurisdiction over the appeals from these proceedings. In doing so, they may invalidate the entire process, or at least the part of the President's order which precludes civilian review. It's hard to predict these kinds of things, but I feel certain that the courts will impose some limitations on this exercise of executive power. But we'll see -- more to follow.

Post Script: I taught Marbury v. Madison and Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) to my undergraduate students my American Law & Terrorism class. There's nothing like teaching Constitutional Law to help someone shake off the cynicism of law school. If I seem optimistic about the role of the court in the war on terrorism, it's probably the teacher in me speaking.
posted by Phillip Carter at 20:49

 
160,000 sets of Interceptor Body Armor on the way to Iraq

Lisa Burgess reports in Stars & Stripes that 160,000 Interceptor Body Armor systems are now en route to soldiers serving in Iraq and Kuwait, thanks to a Herculean effort by nine separate defense contractors to produce the items in response to demands for life-saving body armor.

This month’s production run of the Interceptor tactical vests fulfills a promise to Congress by Army officials, who said that by January the service would have enough of the vests to outfit every soldier deployed to Iraq, according to Army spokesman Maj. Gary Tallman.

"Congress has been notified that the requirement has been met," Tallman said Friday.

Interceptor vests are the Army’s best body armor. The $1,585 items are composed of layered sheets of Kevlar, with pockets in front and back for ceramic plates that protect vital organs. The vests are highly effective against ammunition and shrapnel. Soldiers wearing the vests in Iraq have been shot at point-blank range with AK-47s and lived to tell about it.

As units assigned to Iraq’s first rotation make their way home through Kuwait, they will turn in their assigned vests to a central collection point at Kuwait’s Camp Victory, Tallman said.

Those vests will be checked out and reissued to Operation Iraqi Freedom 2 personnel who are staging in Kuwait.

Analysis: Outstanding -- it's great to see the system work. Of course, it took a lot longer than it should have, and it should've never taken this kind of political and media attention to get soldiers such a mission-critical item. But the soldiers now have the IBAs they need, and that's what counts. I wrote back in September 2003 that the Pentagon should have procured this item for every man and woman in uniform; maybe now they will.
posted by Phillip Carter at 18:02

 
From the "I really hope this isn't true" file:
Army offers quid pro quo to female soldier: drop rape complaint, get discharged early

The Denver Post reports today on the latest part of a saga involving a female military police soldier at Fort Hood who alleged that she was raped by one of her fellow soldiers. Apparently, the female soldier wants out of the Army because of the trauma this event has caused, but she has been told that she can't leave the Army while charges are pending against her attacker.

"'In order for you to get out of the Army early, you need to drop the charges,"' military police officer Natalie Longee, 21, said she was told Friday by a commander. Longee, who reported being raped at Fort Hood, Texas, more than a year ago, said that since that time, she was deployed to Iraq for eight months without counseling and then forced to return to the same base, where she has repeatedly encountered her alleged rapist.

* * *
If Longee were to be discharged but continue to pursue her complaint, military charges still could be filed against the man.

In the meantime, Longee says she has encountered her attacker on base several times.

* * *
Longee said that although she does not want to drop the charges, she cannot handle the pressures of the situation anymore and wants out of the Army. "I'm tired of all this."

Analysis: Something's missing here. I don't think any commander would make this kind of quid pro quo offer to a soldier. For one thing, an early discharge really isn't in a commander's power unless certain administrative criteria are met, and even then, it takes a senior commander to recommend such an action. Second, no JAG officer in his/her right mind would ever give this kind of advice to a commander, and senior Army officers (especially MPs) tend to take JAG advice pretty seriously. That said, the underlying facts of this case are disturbing if they were true. It has long been said that unfortunately, our female soldiers have more to fear from their fellow soldiers than from the enemy when it comes to sexual assault. If the victim's allegations are true, then this is another tragic instance of that trend.
posted by Phillip Carter at 17:54

 
"Liberal Hawks" on the War

Slate features an interesting discussion this week between a series of noted writers who describe themselves as "liberal hawks". I take the term to mean those who believe in Democratic political ideology, but also believe in a muscular American foreign policy. The group includes Paul Berman, Thomas Friedman, Christopher Hitchens, Fred Kaplan, George Packer, Kenneth M. Pollack, Jacob Weisberg, and Fareed Zakaria -- a very distinguished panel to say the least. The first installment of the discussion looks good so far; we'll see how this develops.
posted by Phillip Carter at 14:35

 
A bridge too far?
Army War College report castigates White House, Pentagon for Iraqi endeavor

Tom Ricks reports in the Washington Post on a new Army War College study that has some choice words for the White House and Pentagon over its conduct of the "global war on terrorism." In general, the study says that we have sacrificed many of our strategic objectives to pursue the war in Iraq, and that in doing so, we have also pushed the U.S. Army close to its breaking point. That latter part has made it impossible to pursue any further objectives in the GWOT, and now impedes our ability to conduct this war in places like Afghanistan, East Africa, and the Phillipines. (Also see this study by Dr. Conrad Crane from 2002 making a similar point.)

The report, by Jeffrey Record, a visiting professor at the Air War College at Maxwell Air Force Base in Alabama, warns that as a result of those mistakes, the Army is "near the breaking point."

It recommends, among other things, scaling back the scope of the "global war on terrorism" and instead focusing on the narrower threat posed by the al Qaeda terrorist network.

"[T]he global war on terrorism as currently defined and waged is dangerously indiscriminate and ambitious, and accordingly . . . its parameters should be readjusted," Record writes. Currently, he adds, the anti-terrorism campaign "is strategically unfocused, promises more than it can deliver, and threatens to dissipate U.S. military resources in an endless and hopeless search for absolute security."

* * *
His essay, published by the Army War College's Strategic Studies Institute, carries the standard disclaimer that its views are those of the author and do not necessarily represent those of the Army, the Pentagon or the U.S. government.

But retired Army Col. Douglas C. Lovelace Jr., director of the Strategic Studies Institute, whose Web site carries Record's 56-page monograph, hardly distanced himself from it. "I think that the substance that Jeff brings out in the article really, really needs to be considered," he said.

Analysis: I think Mark Lewis has the right analysis of this story. It's not news that we botched the Phase IV (post-war) planning for Iraq. But the issue here is one of "willful ignorance". Mark cites to a forthcoming article from James Fallows in the January 2004 Atlantic Monthly titled "Blind Into Baghdad", which includes the following passage:

"The U.S. occupation of Iraq is a debacle not because the government did no planning but because a vast amount of expert planning was willfully ignored by the people in charge."

And this isn't the first time either. Remember back in early 2003, when then-Army Chief of Staff Eric Shinseki testified to Congress about the force needed to secure Iraq after the war? In response to a direct question, Gen. Shinseki said it would take "several hundred thousand" troops to secure the Iraq after the war ended. Where did he get that number? Two places. His experience as a commander in Bosnia, and an Army War College study which extrapolated a prediction for Iraq from past U.S. occupations in places like Germany, Haiti, Bosnia, and Kosovo. He could've also looked to this RAND book by Amb. James Dobbins. Bottom line: Gen. Shinseki's numbers were sound. But that didn't save him from the wrath of the E-Ring. He was immediately criticized by the Office of the Secretary of Defense, with Deputy Defense Secretary Paul Wolfowitz calling such numbers "wildly off the mark".

And it gets worse. The Pentagon doesn't even want to read the study. This from Mr. Ricks' story:

Larry DiRita, the top Pentagon spokesman, said he had not read the Record study. He added: "If the conclusion is that we need to be scaling back in the global war on terrorism, it's not likely to be on my reading list anytime soon."

Now, this could simply be bad spokesmanship by the flaks in the ASD(PA) shop. But it could also reflect the prevailing sentiment in the E-Ring, and if so, that's a very dangerous thing. The current administration -- and the current leadership in the Pentagon -- has evidenced a penchant for doing things its way. Some career military officers have even resigned as a result of this. The issue here is that this Administration claims a monopoly on good ideas, and demonstrates an unwillingness to accept ideas from outside of their ideological and political framework. In a sense, this is the classic failure to "think outside of the box" that business executives lament all the time.

This failure is ironic, because this administration swept into the Pentagon buzzing about "transformation" and how it would revolutionize the military by sheer force of ideas. It would leap-frog a generation in weapons systems and doctrine, leaving both our enemies and allies in the dust. But the reality has been quite different. While this administration has been willing to embrace some revolutionary ideas (like fighting an airpower/Special Forces campaign in Afghanistan), it has failed to listen to its internal experts about how to best consummate those tactical victories. Whether it was failing to send in American infantry to seal off Tora Bora, failing to adequately plan for Phase IV in Iraq, or failing to resource the nation-building part of the mission in Iraq, the administration has proved this point again and again.

The tragedy here is that the Pentagon had the wisdom in its own house -- and ignored it. The Army War College is like an official think tank for the Army, along with the FFRDCs (e.g. RAND and IDA) that support the Defense Department. Its libraries, students and professors are the repository for centuries of military wisdom. They are precisely the ones who can provide the Pentagon with out-of-the-box analysis. And they did. Dr. Crane's study told the Pentagon precisely what it would take to win the peace in Iraq, and now Dr. Record has another study telling the Pentagon why it should have listened to the earlier studies. But the folks in OSD don't want to hear it, and they don't even want to read it.
posted by Phillip Carter at 09:44

 
A spring offensive in Iraq?
Could the rotation of units be more than just a rotation?

The New York Times reports today on the "logistical ballet" that will take place over the next several months in Iraq, as 125,000 soldiers rotate home and 110,000 soldiers rotate into Iraq to replace them. There will be overlap between the two sets of units. Primarily, such overlap is intended to let the new units learn from the old ones, such that the new units will not hit the ground blind and without a clue. The overlap is also intended to make the logistical effort easier. Ostensibly, we can use the same ships that take new units over there to bring the old units home. (Doing it in reverse would require 2 round trips, a very expensive proposition.) But there's something else -- something much more operational in nature -- and Eric Schmitt alludes to it in his article:

During this rotation, about 110,000 fresh troops will flow into Iraq to replace 125,000 who have been there for about a year. The first 200 returning soldiers from the 101st Airborne Division arrived home this week in Fort Campbell, Ky. Soldiers from the 82nd Airborne Division were also heading home, to Fort Bragg, N.C.

At the peak period of overlapping forces, commanders will be able to capitalize on having as many as 200,000 troops in Iraq. But the rotation also poses new risks as American officials say they fully expect guerrillas to try to exploit the transition to new, less experienced troops.

"The shifting focus of their attacks is relentless," said Maj. Gen. Stephen M. Speakes, the senior Army officer here overseeing the troop rotation. "But this will not be a period of vulnerability."

Analysis: I'm not the first to key in on this fact. Several of my colleagues at JOForum, including Mark Lewis and Michael Noonan, noticed it before I did. But I think it deserves mention again, because it's an issue that has not been reported by the major media in any depth. Could this spike in U.S. troop strength be intended to facilitate a spring offensive against the Iraqi insurgency?

The answer is probably yes, with a couple of reservations. To date, we still have not imposed the kind of police presence we had in either Bosnia or Kosovo in Iraq -- we just haven't had the troops on the ground to put that kind of per-capita manpower on the street. There are some areas of Iraq, such as Samarra and elsewhere in the Sunni Triangle, where even reporters dare not go these days. I conceptualize these areas like South Central L.A. -- bad areas in need of substantial patrolling in order to make them safe. Having an extra 100,000 troops on the ground will enable us to do the kind of security operations we've always wanted to do, and to focus large amounts of manpower on discrete areas in order to destroy any nascent insurgencies in those locations.

While I don't think we're going to see a full-scale, high-intensity offensive this spring, I do think we will see a redoubled "law enforcement"/"order maintenance" (hat tip to my undergraduate thesis adviser James Q. Wilson and his Broken Windows thesis) offensive in Iraq. The task/purpose will be to conduct security patrols of the country in order to pacify those areas which have remained unruly since the regime's demise in April 2003. The intended goal will be to facilitate the transfer of power to the infant Iraqi Governing Council in June/July, and to increasingly hand more of the security mission over to the Iraqis.

Now, here's the reservations. First, as MAJ John Nagl describes in today's Sunday NYT Magazine, the key challenge in counter-insurgency warfare is to calibrate your level of force to kill the enemy without losing the population. It will get tougher to do that when we have all these extra soldiers on the ground, particularly soldiers without combat experience or recent experience in Iraq. Second, there's a fine line between the kind of aggressive law enforcement tactics I describe and looking like an occupying force. (I know, that's what we are, but there are reasons why it's good not to look that way.) The Marines seem to be getting this right, insofar as they're adopting a number of TTPs which will help them interface with the population, gather intelligence, and work with the Iraqi population to secure them. In a sense, it's a blend of dismounted patrolling and community policing -- with a whole lot of firepower to back you up.

It's also the essence of 4th Generation Warfare. The challenge in Iraq is not to kill as many Iraqi soldiers as possible -- it's to win the hearts and minds of the Iraqi citizenry. The "key terrain" is in those hearts and minds, and our tactics must be calibrated to seize that key terrain and hold it. Matt Rustler recently passed me this piece by William Lind, and here are a couple of bullet point observation he makes about 4GW in Iraq:

- How U.S. forces conduct themselves after the battle may be as important in 4GW as how they fight the battle.

- What the Marine Corps calls "cultural intelligence" is of vital importance in 4GW, and it must go down to the lowest rank. In Iraq, the Marines seemed to grasp this much better than the U.S. Army.

* * *
- Unfortunately, the American doctrine of "force protection" works against integration and generally hurts us badly. Here's a quote from the minutes of the seminar:

There are two ways to deal with the issue of force protection. One way is the way we are currently doing it, which is to separate ourselves from the population and to intimidate them with our firepower. A more viable alternative might be to take the opposite approach and integrate with the community. That way you find out more of what is going on and the population protects you. The British approach of getting the helmets off as soon as possible may actually be saving lives.

- What "wins" at the tactical and physical levels may lose at the operational, strategic, mental and moral levels, where 4GW is decided. Martin van Creveld argues that one reason the British have not lost in Northern Ireland is that the British Army has taken more casualties than it has inflicted. This is something the Second Generation American military has great trouble grasping, because it defines success in terms of comparative attrition rates.

- We must recognize that in 4GW situations, we are the weaker, not the stronger party, despite all our firepower and technology.

- What can the U.S. military learn from cops? Our reserve and National Guard units include lots of cops; are we taking advantage of what they know?

Lind goes onto make a lot of other interesting points. But he says at one point that 4GW is not new, and he's right. It's an evolution in warfare, but it builds on a number of ideas that date back to Sun Tzu and then some. More importantly, this should not seem new to the United States either. We learned about the importance of law enforcement operations (then called "constabulary" operations in post-WWII Germany and Japan). We also learned about these issues during the 1990s, in places like Somalia, Haiti, Bosnia and Kosovo. (See this book by James Dobbins and this article for more on how America learned and forgot the lessons of nation building from the 20th Century.)

In Summary: Thousands of troops have already started moving to training bases to prepare for Iraq, or to Iraq itself. The largest unit movement since WWII is now underway (although that was a 1-way move so it was simpler in many respects.) At the peak of this move, American commanders will have nearly 250,000 pairs of boots on the ground in Iraq. American commanders continue to fight a bloody counter-insurgency campaign in Iraq, against a force they estimate in the low thousands. Even today, some areas in Iraq remain lawless, and in need of pacification. If you were one of those commanders, and you were about to get 100,000 more troops for a while, what would you do?
posted by Phillip Carter at 08:33

 
DOJ defends the Patriot Act online

I don't know if this is news or not, but I just noticed it and I haven't seen it reported elsewhere. The Justice Department's site now has a new addition titled "The USA PATRIOT Act: Preserving Life and Liberty". The site is linked off DOJ's main page, and contains a variety of pro-Patriot Act links from "Dispelling the Myths" to a compilation of news stories on the subject. I'm not sure if this will really turn the public opinion tide in favor of the Act... but it is a good resource for people like me studying terrorism and the law.
posted by Phillip Carter at 18:31

 
A general for war, peace and something in between

In Sunday's New York Times, John F. Burns profiles LTG Ricardo Sanchez in the way that only John F. Burns can. (That's meant as a compliment to this Pulitzer Prize-winning reporter, who is one of the best in the field today.) LTG Sanchez is the general who commands V Corps and all American forces in Iraq. His job is both the toughest and most coveted billet in the U.S. Army. The story details some of his challenges in Iraq, is worth a read.

Also see Professor Nagl's War, an article in Sunday's NYT Magazine about U.S. Army MAJ John Nagl. The title refers to MAJ Nagl's background as a Rhodes Scholar and West Point professor. But now MAJ Nagl is the S-3 (operations officer) for the 1st Battalion, 34th Armored Regiment, part of the force now securing Baghdad. Most of the story is about how he has applied his scholarly knowledge to the practice of counter-insurgency warfare in Iraq. (Thanks to Mark Lewis for the pointer.) Very interesting stuff.
posted by Phillip Carter at 15:57

 
Update on Saddam

Only the Los Angeles Times picked up the issue about repatriation and how it would actually facilitate Saddam's trial by the Iraqi government. Most newspapers focused on how the 3rd Geneva Convention would protect Saddam while he's in U.S. hands, and then concluded that it would impede his trial. Even though the NY Times talked to the right people (like Prof. Ruth Wedgwood), they missed this issue entirely. The AP misses the issue too, because they focus too closely on what will happen to Saddam while he's in U.S. custody, instead of how he can be tried after repatriation. The Washington Post obliquely hits the issue. (If only the Wall Street Journal printed on Saturdays... their reporters almost always pick these subtle issues up.)

So just to recap, here's a quick legal summary:

(1) The 3rd Geneva Convention Relative to the Treatment of Prisoners of War lays out the law in this area.

(2) Art. 4 of this document defines what a POW is, according to several sets of criteria. Once captured, prisoners are presumed to be "prisoners of war", according to a "rebuttable presumption" found in Art. 5. If any doubt exists as to the status of a prisoner -- whether he's a POW or not -- the detaining authority must convene a "competent tribunal" under Art. 5 to determine whether the POW meets the criteria in Art. 4 or not. Without such a determation, the prisoner is a POW. The Pentagon's lawyers determined that Hussein met the test of Art. 4, and that the presumption of POW status applied to him. But they really didn't have to say or do anything. In the absence of any competent tribunal's finding, Saddam was a POW all along, despite the semantic maneuvers of various U.S. spokesmen.

(3) Art. 84 allows for trial of a POW by a "military court" for crimes committed while in captivity, and Art. 85 mentions the possible trial of POWs for crimes committed prior to capture. Art. 99 specifies that a POW cannot be tried for a crime not in existence at the time the act was committed. (Note: this could impede any prosecution under the Iraqi Governing Council's tribunal, because it did not exist at the time of the crimes alleged by Hussein.) The subsequent articles outline procedural protections for POWs who are tried by the detaining power. But these sections are only relevant if we were try to Saddam while he's in captivity, in a U.S. military court.

(4) Art. 118 states that "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities." [emphasis added] This effectively forces the U.S. to hand Saddam over to the Iraqis at the cessation of hostilities, which presumably will occur when the new Iraqi government becomes official. Once he's repatriated, it's up to the Iraqis what to do with him. The 3rd Geneva Convention no longer applies to Saddam once he's repatriated. And if the Iraqi government has taken root, and the U.S. is no longer an occupying power, then it's not clear whether the 4th Geneva Convention Relative to the Protection of Civilian Persons in Time of War would apply either.

(5) The Iraqi Governing Council has said that it will try Saddam according to its laws, in a special tribunal constituted for this express purpose. At this point, the 3rd Geneva Convention won't apply to Saddam anymore, since he will be a repatriated POW. The Art. 99 problem I mentioned above will be moot. The Iraqis may try Saddam subject to their laws, and if they so decide, execute him. Nothing in international law obviates a state's ability to subject its own citizens to its own domestic courts. This is a fundamental precept of state sovereignty, a principle which has been the bedrock of international law for hundreds of years. (International human rights lawyers will quibble with this point, saying that international law does forbid inhumane practices like torture and the deprivation of due process. But I think you'd be hard pressed to say that a state doesn't have the right to try its own citizens, especially if the trial carries some indicia of fairness and due process.)

That's all folks. It's really quite simple when you frame the issues this way. By giving POW status to Saddam, we actually make it easier to give him back to the Iraqis so they can try him, because there's no discretion involved. Art. 118 mandates that we hand Saddam back to the Iraqis at the cessation of hostilities -- end of story. This is probably why the Pentagon chose this course of action. Here we have a situation where American interests coincide with the dictates of international law. How could the choice be any easier?

Update: The Pentagon issued a press release today (1/10) saying that Saddam is a POW, but that his status could still change. WTF?

. . . Coalition Provisional Authority spokesman Dan Senor told reporters that Hussein's POW status may change, depending on any evidence that may be uncovered pertaining to his alleged crimes against humanity.

Hussein "is now technically an enemy prisoner of war, but that status, his ultimate designation, is neither affected nor determined by that (POW) designation," Senor explained, noting "until further information comes forward, that is his status."

That doesn't seem right. It looks like the political and legal arms of the Pentagon aren't talking, or maybe they're not in agreement yet. Even if evidence comes out that Saddam committed "crimes against humanity" (and his prior bad acts surely qualify), that doesn't affect his status as a POW. Nor does it really make an iota of difference if what we really want to do is repatriate him so the Iraqis can try him. I'm not sure why the Pentagon is hiding the ball on this one; it seems relatively straightforward to me.

Indeed, more evidence of Saddam's 'crimes against humanity' could only frustrate the current U.S. plan to let Iraq try (and possibly execute) him. The Iranian, Turkish, and Kuwaiti governments all have significant interests in trying Saddam, as do the Kurdish people and other groups. U.S. military courts may also want to try him for his unlawful use of unconventional warfare (e.g. the Fedayeen Saddam disguised as civilians) during the second Gulf War. The more evidence we produce of these other crimes, the more pressure we create for an international trial. And that's the one thing that our government has said it doesn't want.
posted by Phillip Carter at 09:44

 
Pentagon decides that Saddam Hussein is a POW

CNN reports that the Pentagon has officially designated Saddam Hussein a prisoner of war, subject to the 3rd Geneva Convention Relative to Treatment of Prisoners of War. This is more than just legal hair-splitting -- this designation carries a litany of legal implications, from his ability to be interrogated to his rights at trial. But apparently, the issue remained in play until late today when the Pentagon's lawyers agreed on a course of action. (Note: the AP reports that not all senior administration officials are on the same sheet of music with respect to Saddam's status.)

The announcement follows a day of confusion over Saddam's status.

The conflict began when officials in the Pentagon general counsel's office told reporters that there had been no formal declaration of Saddam as a prisoner of war and that there is no requirement to make such a declaration.

But at the same time, the officials said, the deposed leader is a prisoner of war based on the fact that he is the former head of an enemy military force who was captured on the battlefield during a declared conflict.

The Pentagon continued to avoid publicly calling Saddam a prisoner of war until early Friday evening.

One reason of avoiding the POW label is the question of whether it can be proved that Saddam participated in the postwar insurgency. That factor could affect any charges brought against him.

Bush administration officials had avoided formally calling Saddam an enemy prisoner of war, pending a legal review.

Saddam has been held and treated under the POW conditions prescribed by the Geneva Conventions since his capture in December.

Analysis: This whole issue is a little odd for anyone who's followed the Geneva Convention for more than the last two years. First, there is a rebuttable presumption in international law that all prisoners are prisoners of war under the Geneva Convention. Normally, the capturing force would convene competent tribunals (typically a group of mid-level military officers) to decide prisoners' status as they are processed. Despite his crimes, Saddam probably qualified for POW status from day one, as the commander-in-chief of a national armed force that was vanquished in battle. (See Art. IV for the ways one can be defined as a POW) But we never said this, or held a tribunal to decide otherwise. Instead, we asserted from day one that there was some doubt as to his status, yet we did nothing to resolve that doubt. In essence, it seemed like we had our international law backwards, because we assumed from the outset that he was not a POW -- instead of the other way around.

Second, this whole thing seems odd because the issue of POW status really doesn't matter for our purposes. If he's a POW, then it's perfectly legal to repatriate him back to the Iraqi government this summer so that they can try him. (See my CNN.com piece "Trying Saddam" for the likely course of action.) Indeed, that's precisely the result compelled by the 3rd Geneva Convention, which commands repatriation at the end of hostilities. Alternately, if we wanted to set up an International Criminal Tribunal (Iraq) like the Int'l Criminal Tribunal (Yugoslavia) now trying Slobodan Milosevic, there is nothing about Saddam's POW status that would prevent that either. For what it's worth, most of the Nuremburg defendants were considered POWs as well, although their captivity pre-dated the existing Geneva Conventions and their formal definitions. You can try a POW for war crimes, committed either during hostilities or captivity.

So, at the end of the day, this is really much ado about nothing. Whether he's a POW or not, the U.S. and Iraqis get to try Saddam. Designating him as a POW probably makes it easier to do so, and it adds the legitimacy of the International Red Cross and international human rights law to the mix.
posted by Phillip Carter at 17:41

 
Update: Supreme Court grants cert to Yaser Hamdi

The Washington Post reports today that the Supreme Court granted review to the case of Yaser Hamdi, an "enemy combatant" being held in South Carolina by the Defense Department without access to counsel or the right to petition for habeas corpus. Hamdi v. Rumsfeld was originally decided by the 4th Circuit Court of Appeals, and is one of a few such cases currently percolating up through the courts. (Thanks to How Appealing for the case links)

Hamdi was captured in Afghanistan in late 2001 along with other suspected Taliban fighters. According to the Justice Department, he told military authorities he was there to "train with and, if necessary, fight for the Taliban."

Originally held with other detainees at Guantanamo Bay, Cuba, he was transferred to a Navy brig in Charleston, S.C., after the government learned that he was born in Louisiana.

His father appealed the detention in the federal courts, but was told by the U.S. Court of Appeals for the Fourth Circuit that it would not interfere with what it called the president's broad powers to protect the national security.

"The practice of capturing and detaining enemy combatants is as old as war itself," U.S. Solicitor General Theodore Olson wrote in unsuccessfully urging the Supreme Court to deny Hamdi's appeal. "There is no obligation under the laws and customs of war for the military to charge captured combatants with any offense."

The court has already agreed to decide whether U.S. courts can hear challenges by non-citizens seized abroad after the Sept. 11, 2001, terrorist attacks and held at the Guantanamo Bay Naval base.

Most legal observers also believe the justices will likely review a separate appeals court ruling from New York in the alleged "dirty bomb" case of Jose Padilla, who has also been held without a hearing or legal representation.

Analysis: First, a note to the NYT editors: your insta-story gets it wrong about the first case the court granted review of. Your story says:

The justices have already agreed to look at a another case involving detentions in the campaign against terrorism, decided on Dec. 18 by the United States Court of Appeals for the Ninth Circuit, based in San Francisco. That court declared that the administration's policy of imprisoning some 660 noncitizens captured in the Afghan war on a naval base in Guantanamo Bay, Cuba, without access to United States legal protections was unconstitutional as well as a violation of international law.

That's not right. The case before the Supreme Court is Al-Odah v. United States, from the D.C. Circuit Court of Appeals -- not the 9th Circuit. The case from the 9th Circuit is Gherebi v. Bush, and though it raises much the same issues as Al-Odah, it is not before the Supreme Court. Also, your story gets the issue wrong. The Supreme Court has only granted review on a narrow issue, namely, whether federal courts have jurisdiction to hear challenges from men detained at Guantanamo Bay. Padilla v. Rumsfeld, the case from the 2nd Circuit, raises some of the same issues but it's also a wholly separate case from these others. Hopefully Linda Greenhouse corrects this part of the story before it makes it into Saturday's paper. (Also, I'd hate to see some pundit predicting the outcome on the basis of the 9th Circuit angle, because that would be patently wrong.) Update: Linda Greenhouse did indeed correct this error in her story, which ran in Saturday's paper. This may only be an issue to news junkies like me, but I've noticed problems like this in a lot of the insta-stories that the NYT rushes to its website. I know that nytimes.com competes with cnn.com and the AP wire, but it seems like this rush to publish make actually dilute the NYT brand name (if that's possible after Jayson Blair).

As for the substantive analysis, I agree with the Post that this marks a reversal for the Bush Administration's strategy in the war on terrorism -- but not necessarily a big one. My read of these cases is that the Administration's all-or-nothing strategy is untenable, but that a lesser position may still be defensible. (See this 12/19/03 post for more analysis.) Right now, the Administration is arguing that it has the right to detain persons (citizens and non-citizens) as enemy combatants pursuant the law of armed conflict, and that the Art. III courts don't even have the jurisdiction to review such determinations or detentions. I think the first part of this argument will be upheld as part of the President's Art. II power as Commander-in-Chief. The second part probably won't be upheld. And thus, the Administration will win on the merits in these cases. But in the future, the executive branch may have to justify its designations and detentions to an independent Art. III court. That review may take a variety of forms, with any number of legal standards. But I think the Supreme Court will demand judicial review of these decisions in some way. It remains to be seen how.

Update: Eugene Volokh has the questions presented by Hamdi's lawyers in their petition certiorari, which the Supreme Court granted.

(1) Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold him essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an "enemy combatant"?

(2) Is the indefinite detention of an American citizen seized abroad but held in the United States solely on the assertion of Executive officials that he is an "enemy combatant" permissible under applicable congressional statutes and treaty provisions?

(3) In a habeas corpus proceeding challenging the indefinite detention of an American citizen seized abroad, detained in the United States, and declared by Executive officials to be an "enemy combatant," does the separation of powers doctrine preclude a federal court from following ordinary statutory procedures and conducting an inquiry into the factual basis for the Executive branch?s asserted justification for the detention?

As Eugene notes, these are posed by Hamdi's lawyers so they're obviously argumentative; there's also no guarantee the Court will opine on all of these questions. However, they at least bespeak the way that Hamdi's lawyers see the issue. And if the Court does opine on all 3 of these questions, then this case will have very far-reaching implications for the U.S. legal strategy in its war on terrorism.

More to follow...
posted by Phillip Carter at 12:33

 
The big move begins

The Washington Post reports this morning that the largest troop movement since WWII and the Korean War has begun in Southwest Asia. Some units are beginning the long march home, starting with a stop in Kuwait to return pre-positioned equipment, clean/repair equipment, and go through a military form of Customs in order to leave the country. Over the next 6 months, more than 100,000 troops will flow in to Iraq to replace those currently serving there.

The turnover of troops, intended to substitute fresh U.S. forces for the battle-tested ones that have spent up to a year at war, poses enormous logistical burdens. Scheduled to last between now and May, the operation is unusual not only for its large scope and compressed timetable but also for its need to transport sizable numbers of troops into and out of combat zones at the same time.

"It's the biggest one we've ever had in some respects," Lt. Gen. Franklin "Buster" Hagenbeck, chief of Army personnel, said in an interview. He predicted "hiccups along the way" but added: "It's going to work."

In addition to the sheer difficulty of coordinating transportation, housing and other needs for so many troops, the mass transition also heightens the security risks for U.S. service members in Iraq, who continue to face daily attacks from insurgents.

Plans call for ferrying many troops into and out of Iraq by plane to lessen the possibility of enemy assaults on long ground convoys. But the reported attack yesterday on a U.S. Air Force C-5 cargo jet, suspected of being hit by ground fire as it took off from Baghdad International Airport, underscored the danger of relying on air transport.

Top U.S. military authorities have confessed to being worried about the huge rotation. But they have also said the operation has received extensive high-level reviews and will be bolstered by extra security measures.

Disclosing one such measure in a briefing to a group of reporters yesterday, a senior Army officer said a military team has gone to Iraq to explore ways of coping better with the makeshift, roadway bombs that have become a prime cause of U.S. military casualties. Made up of explosives experts, the team plans to perform forensic studies of actual attacks and to help develop tactics and improved technical means of detecting and defeating the improvised devices.

"The enemy gets a vote," the officer said, referring to the prospect that attacks by insurgents could disrupt the rotation schedule. "We owe it to all these soldiers not to rush through this thing. We have to do this thing right because it's still a dangerous place."

Analysis: Security is the predominant risk in this rotation plan.
This is the kind of situation that every 4th Generation foe prays for at night. It sets up a situation where the soft targets (e.g. transportation hubs, shipping depots, ports, etc) are critical to our war effort, and where an attack on those soft targets can have disproportionately large disruptive and destructive effect. Second, this rotation brings in fresh units (although many have combat veterans in them who rotated back as individuals or small units), and those fresh units must now climb the Iraqi learning curve. In one sense, their guard will be up and they'll be less likely to make mistakes of fatigue. In another sense, they won't know the terrain as well and that may make them vulnerable. In either case, look for an increase in guerilla attacks directed at this rotation. It's just too good a target for the enemy to pass up.

There are other risks too. The move will swallow up a great portion of America's "strategic lift" capability, meaning things like C-5/C-17 airplanes and large container ships. It will also gobble up a lot of rail and trucking capacity in the U.S., as well as the full attention of logisticians around the world. This may impede some of the other logistical functions necessary to sustain the force, like the flow of spare parts and new end items. I am sure this system can maintain the current flow of those items. But if there's a need to surge any particular item, such as Bradley tracks or ammunition, that need may go unmet. It's a risk, but one that can probably be mitigated.

Unit rotation is the right thing to do for a variety of reasons -- unit cohesion being chief among them. (See Path to Victory by Don Vandergriff for more on why.) We saw the value of unit cohesion in units like the 3rd Infantry Division, which had a de facto unit-manning system by virtue of its early deployment to Kuwait which left it stabilized in the desert with the same personnel for nearly a year before the war. We also saw its virtue in the 101st Airborne Division (Air Assault), which brought many of its combat veterans from Afghanistan with it to Iraq. Ultimately, the wisdom of this rotation rests with the idea that this unit cohesion is more valuable than any risks posed by the rotation. I think that's right -- solid platoons and companies led by competent battalion and brigade staffs are exponentially more effective than any individually-replaced force (see, e.g., the U.S. Army in Vietnam).
posted by Phillip Carter at 06:37

 
White House asks high court to "fast track" Padilla case
Joint Hamdi-Padilla case could create the 'mother of all Supreme Court decisions in 2004'

Charles Lane reports in the Washington Post that the White House (via the Solicitor General at the Justice Department) will ask the Supreme Court to expedite its review of Padilla v. Rumsfeld. That was the decision handed down by the 2nd Circuit late last year which ordered the Pentagon to release Jose Padilla (alleged Al Qaeda "dirty bomber") within 30 days and charge him in civilian criminal court. Interestingly, this request comes at a time when lawyers for detained enemy combatant Yaser Hamdi are also requesting review from the court, and the SG's brief all but asks the Court to grant joint review of the two cases in order to resolve the "enemy combatant" issue once and for all.

In a brief filed with the court and simultaneously released to the media, Solicitor General Theodore B. Olson informed the justices that by Jan. 20 he will file his appeal of a New York-based federal appeals court's ruling last month ordering the government to either charge or free Jose Padilla, a U.S. citizen allegedly linked to al Qaeda who has been held incommunicado as an "enemy combatant" since shortly after his arrest in Chicago 19 months ago.

Olson added that he will contact Padilla's lawyers to reach agreement on a schedule that would let the Supreme Court hear the oral argument by the end of April and issue a ruling before its recess in early July.

The administration made its request, which skips a possible appeal to the full membership of the U.S. Court of Appeals for the 2nd Circuit, Olson wrote, because that court's "decision . . . incorrectly resolves issues of extraordinary public significance."

The request comes in the wake of lower courts' rulings rejecting the Bush administration's assertions of executive authority in the war on terrorism, on the grounds that they threaten civil liberties. The Supreme Court itself recently rebuffed the administration by agreeing to hear an appeal by foreign terrorism suspects detained on the U.S. naval base at Guantanamo Bay, Cuba.

* * *
Olson's request came just two days before the justices were scheduled to hold their first conference on whether to hear an appeal similar to Padilla's by Yaser Esam Hamdi, a U.S. citizen captured by U.S. forces in Afghanistan. Hamdi has also been detained for more than a year without access to a lawyer in the South Carolina naval brig where Padilla is being held.

Last year, the Richmond-based U.S. Court of Appeals for the 4th Circuit upheld President Bush's authority to declare Hamdi an enemy combatant, based largely on the fact that, unlike Padilla, he had been detained on a foreign battlefield. The Bush administration has strongly urged the Supreme Court not to accept his appeal.

The administration has maintained that the 2nd Circuit's ruling in Padilla's case does not undercut its position in Hamdi, but a brief filed Monday at the court by Hamdi's lawyers argued the opposite.

In his brief yesterday, Olson again argued that the 2nd Circuit's ruling did not weaken his case in Hamdi, but seemed to acknowledge that the price of getting expedited consideration of his Padilla appeal would be some form of joint review of the two cases.

He suggested that the court defer consideration of the Hamdi appeal until the government's Padilla brief comes in, then look at both cases at the same conference, adding that the government's brief will "address the interrelationship between the questions presented by the government's petition in Padilla and the Fourth Circuit's decision in Hamdi."

Analysis: We're about to see a cataclysmic event in the U.S. Supreme Court. The decision in a joint Hamdi/Padilla case on whether the President has the power to designate and detain enemy combatants could change the Constitutional landscape. It has the potential to affect the Constitutional separation of war powers, the Constitutional separation of law enforcement power, the 6th Amendment right to trial and counsel, the 5th Amendment right to due process, and more. It's possible that the Court will decide this case on some narrow ground, such as the jurisdictional right of U.S. courts to hear habeas corpus challenges from detained U.S. citizens. But I doubt that. There is clearly a circuit split between the 4th Circuit's decision in Hamdi and the 2nd Circuit's decision in Padilla, and there is a pressing need for the Court to resolve this issue.

Where could the Court go? My SWAG (super wild a**ed guess) on that subject is that the Court will uphold the President's right to designate and detain enemy combatants pursuant to his Art. II authority as Commander-in-Chief, essentially affirming Ex Parte Quirin and the 4th Circuit's decision in Hamdi v. Rumsfeld. The Court will also likely affirm its previous holding in Johnson v. Eisentrager which bars enemy aliens from bringing habeas corpus challenges in federal court. However, I think the Court will reverse the Bush Administration on some key issues in the Hamdi and Padilla cases. The Court will likely hold that U.S. citizens detained as enemy combatants have the right to challenge their detention in court via the writ of habeas corpus, and that they have some limited right to counsel to effectuate this right. My reasoning here is that the Court will use this to carve out some limited right of judicial review for these detentions, without stepping too strongly on the Administration's (legitimate) contention that it needs to detain such persons and interrogate them in order to pursue its compelling national security interests.

Political Analysis: This move is also significant for a couple of political reasons. This White House doesn't do anything without considering politics. Indeed, I think much of the legal strategy in the war on terrorism has been crafted with politics in mind. Here's what I think of the political calculus here:

(1) The Administration's hard-line stance in the war on terrorism has earned it a lot of criticism. The most extreme critics charge that the post-9/11 legal strategy has created a virtual police state in America where we have shredded the Constitution in the name of security. The more moderate criticism is that the Administration has leaned much farther forward on these issues that perhaps it needed to, arguing for instance that courts didn't even have the right to review designations of enemy combatants, let alone overrule them on them the merits. Some of the administration's top lawyers who have left the Justice Department have criticized these policies as "unsustainable" for legal and operational reasons.

I suspect they're also "unsustainable" for political reasons. John Ashcroft may be a good lightning rod for criticism, but in 2004, a lot more of this criticism is going to stick to the President. And you can bet that the Dean and Clark campaigns are figuring out ways they can exploit this issue for their own political advantage. (I would if I were them.) If you ask the average American whether they're willing to sacrifice some liberty in order to obtain security (I know, it's a false dichotomy), the polls say the average American will say yes. However, the same polls reveal that many Americans think this balance has gone too far, and that they're not willing to sacrifice basic freedoms like the right to be secure in their homes and to have their day in court.

The White House's hard-line language in these cases can and will be used against it in the court of public opinion. I can almost see the ads now, showing imprisoned Americans without access to courts or their families, quoting the DOJ legal briefs while flashing angry pictures of John Ashcroft and President Bush. These ads will make the 1988 Willie Horton ads look downright innocent by comparison. I suspect the White House wants to avoid this issue at all costs, because it has taken a hard line in the legal war on terrorism and it recognizes the political fallout of that decision. Arguably, it was necessary to push the envelope on these issues, because on 9/12/01 we didn't really have a handle on what the issues were. But as the 2004 election approaches, it's necessary to do some political damage control for those operational decisions.

(2) Asking for the Supreme Court's review is always a gamble, as the Administration has learned in a variety of cases. The so-called "conservative" Court does not always vote the way the GOP base wants it to. See, e.g., Lawrence v. Texas and Grutter v. Bollinger. However, the Administration is likely to prevail on a few key issues, like the overall ability to detain enemy combatants (subject to some judicial review). If the Administration can secure some judicial sanction for its war on terrorism, it will be able to bolster its legal strategy before the bar of public opinion. In theory, this decision could provide legal cover for the rest of the Administration's legal strategy. Of course, the Administration could lose bigtime. But if it does lose, then the GOP has another reason to rally against the courts -- a proven money-maker/vote-getter when it comes to the GOP's conservative base.
posted by Phillip Carter at 09:05

 
D.C. district judge allows military anthrax vaccinations to continue

After enjoining the Pentagon from conducting any vaccination of its personnel against anthrax last month, U.S. District Judge Emmet G. Sullivan issued a new order Wednesday allowing the Pentagon to resume its program -- except for the six named plaintiffs who sued for an injunction in his court against the shots. (See this note for discussion of the original decision) The change comes after an FDA policy change approving the military's vaccine for inhalation anthrax, and a Justice Department filing which blasted Judge Sullivan for extending his ruling to cover the entire military instead of the six named plaintiffs.

The judge, Emmet G. Sullivan of the United States District Court for the District of Columbia, ordered lawyers for the government and the plaintiffs to return in a week for a "status hearing" to discuss the next steps in what promises to be a protracted legal fight.

"We are disappointed, but not surprised that the injunction has been stayed for all but the six plaintiffs," said Mark S. Zaid, a lawyer for the six "John Doe" military or Pentagon personnel who brought the suit.

Mr. Zaid pledged further legal action to challenge the effectiveness of the vaccine, the way it is administered and the scientific basis cited by the Bush administration for its approval. "The government's victory today may only be fleeting," he said.

* * *
In issuing his preliminary injunction on Dec. 22, Judge Sullivan accepted the plaintiffs' arguments that the vaccine used in the Pentagon's mandatory program had been approved by the F.D.A. to protect against skin exposure to anthrax — but not against anthrax that is inhaled, the far greater battlefield threat. Thus, the judge said, the vaccine was an "investigational" drug being forced on the troops for an unapproved purpose.

The Pentagon halted the program the next day, pending clarification of the legal issues, and the day after that the Justice Department filed a motion asking the judge to withdraw the injunction — or at least limit his ruling solely to the six plaintiffs whose suit prompted it.

Analysis: Let's be clear about what did not happen here as a matter of law. Judge Sullivan did not change his decision on the merits of the case; indeed, there hasn't even been a trial on the merits of the case. (He did issue an injunction which assumed the probable success of the plaintiffs, but that's speculative.) This reversal was issued solely on procedural grounds, namely, that Judge Sullivan's order was too broad. It extended its holding to the entire class of military personnel in line to receive the vaccine, even though there was no formal plaintiff class certified.

Presumably, this case will now go forward. Recognizing his tactical error, Mr. Zaid has pledged to get a plaintiff class certified so that he can make this case applicable to the entire military. And I imagine that the DOJ will fight that tooth and nail -- and probably win. If this case ever makes it to trial on the merits, that will be really interesting. But I imagine the FDA decision last month to approve the vaccine post facto for use against inhalation anthrax will weigh pretty heavily on the finder of fact to decide for the Pentagon.

One last note: I think this case does a great deal of harm to those military personnel who have been vaccinated, or who are waiting to be vaccinated in anticipation of deployment. Granted, anthrax has not been used against U.S. military personnel, and it probably won't be. But the series of 6 anthrax shots is somewhat delicate, and this legal maneuvering has likely upset the vaccination protocol for thousands of soldiers in line to get the shots. When I got the vaccine in 1998, my unit's shot days were calibrated to the day in order to make sure we developed the right immunity. (We were in Korea, where the threat of chem/bio is probably higher than in Iraq.) Now that the injunction has been lifted, it will take some time for the order to filter down to subordinate units to restart the program; appointments will have to be rescheduled; security/duty rosters will have to be redrawn; etc. The secondary and tertiary effects of this litigation on the lowest levels of the military cannot be understated. For that reason, and because I think the vaccine is safe/effective, I think this litigation is a bad idea.
posted by Phillip Carter at 08:36

 
Book Recommendations

If you haven't read them already, I highly recommend the following couple of books, which I had the opportunity to read while I was on the East Coast for the winter holidays.

(1) The Best American Political Writing of 2003, edited by Royce Flippin. For a political news junkie like me, this was a great purchase. It pulled together some of the best writing on the most interesting topics of the last year or so. I was surprised how many of these I missed during the year, and now have some new authors to keep my eye on in 2004.

(2) Inside Al Qaeda: Global Network of Terror by Rohan Gunaratna. I've referred to Mr. Gunaratna's work before because I've used it as a reference, but until now, I've never read it cover-to-cover. There's a good reason why this guy is one of a few "go to" guys for CNN on the issue of terrorism: he knows his stuff. This ranks up there with Holy War, Inc. and Inside Terrorism as one of the best books around on the subject. Must read stuff.
posted by Phillip Carter at 09:04

 
Ralph Peters foams at the mouth
Another columnist uses the Nazi slur, this time against Howard Dean

Ralph Peters is a brilliant military analyst. A long time ago, I read his book War in 2020 and thought it was a brilliant piece of fiction and a brilliant piece of predictive analysis about what war would look like in the next generation. I have since read his essays and op-eds with interest, including those in his book Beyond Terror. But now I'm done reading his work. And here's why. (Thanks to Mark Lewis for the pointer)

In this op-ed for the New York Post, Peters doesn't just allude to a conceptual connection between Howard Dean and the Nazi party of pre-WWII Germany -- he expressly says it. And he does so in the most rabid way possible, with little reference to the law and the facts. Here's a sampling of his "argument":

One secular gospel of the left preaches that the Patriot Act has drastically curtailed American freedom. Free speech, the teacup Trotskys claim, is a thing of the past.

Whenever one of my forlorn leftie pals raises the issue, I ask him or her to cite a single example of how the Patriot Act has limited their personal liberty. They never can. Instead, they rail about what-ifs and slippery slopes.

But Howard Dean and his Deanie-weenies do all they can to restrict the free speech of others. I can predict with certainty that Dean's Internet Gestapo will pounce on this column, twisting the facts and vilifying the writer, just as they do when anyone challenges Howard the Coward.

Free speech, you see, is only for the left.

Dean wants to muzzle his Democratic competitors, too. He believes the Democratic National Committee should shut them up. His followers try to intimidate other presidential aspirants by surrounding the cars delivering them to their rallies and chanting to drown out their speech. Of course, Dean denies any foreknowledge or blame.

These are the techniques employed by Hitler's Brownshirts. Had Goebbels enjoyed access to the internet, he would have used the same swarm tactics as Dean's Flannelshirts.

* * *
Of course, I don't really see Howard Dean as a potential dictator - just another hollow man soiling the halls of power. And this is America. Our system is far stronger than any individual. Besides, even the vilest dictators have a vision of something greater than themselves. Howard Dean has nothing beyond ambition.

And a shameless disregard for the First Amendment.

Analysis: Oh really? Are you sure about that? As I learned First Amendment law, the exact opposite is true. As an initial matter, Howard Dean is not a state actor. Therefore, unless he sues someone for libel or invokes some other aspect of governmental power, he cannot create a First Amendment problem.

Second, Peters' invocation of the USA PATRIOT Act is off, and wrong as a legal matter too. Of course, the blame here lies with both the right and the left. Almost *no one* understands the USA PATRIOT Act, its details, its effects, or what it has done since its passage in Oct. 2001. The plain fact is that it's a very complicated piece of legislation, and that most
of its impacts have been very subtle. The Justice Department has also made this tougher by selectively releasing information about the Act, such as the number of times the "library-search" provision (Sec. 215) has been used. (0)

Ironically, most of the civil liberties abuses alleged by the government since 9/11 have not had anything to do with the USA PATRIOT Act. The detention of Muslims was conducted largely under the authority of 18 U.S.C. 3144, also known as "material witness" authority. Detentions and deportations were also carried out using immigration law authority that has been on the books for a while. The whole Gitmo/tribunal issue has nothing to do with the Patriot Act. And FISA searches have been on the books for a long time. (The Act did make a major change to the FISA rules, but it's not clearhow often that section has been used.) The Patriot Act is a convenient shorthand, though, for all of these issues. And that's why it's used in the debate on both sides.

Third, Peters has previously tried to claim the lineage of the classic American conservative, and has at times also tried to claim the lineage of a classic liberal (small-l liberal). Both of those groups embrace free speech as a central tenet of their political doctrine, believing that a "marketplace of ideas" is an important and vital part of democracy.

In the first half of the 20th Century, the "marketplace of ideas" concept emerged in the Supreme Court's free speech jurisprudence in a series of cases dealing with Communists who were arrested and charged with incitement. Dissenting powerfully in Abrams v. United States, Justices Holmes and Brandeis began a revolution in First Amendment law when they wrote that the best way to counter bad ideas was not to outlaw them, but to speak against them. "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." The marketplace of ideas would sort out the good from the bad ideas, and function much as the marketplace for goods and services. This has since become an accepted piece of American wisdom -- that free speech is good, that the marketplace of ideas is good, and that the best way to deal with bad speech is with good speech.

So, here's the point. If Peters is upset about Dean's "Internet Gestapo" coming to get him, he need not be. Dean's organization is simply acting in the great tradition of American free speech. When they see bad speech about there, they respond with good speech. They don't attempt to outlaw bad speech, or suppress it -- they only attempt to put
an alternate version of the facts/truth out there. I think that's the epitome of free speech.

Now, I'm no Howard Dean fan. He's taken his share of liberties with the facts, and I doubt I'll vote for him in California's open-primary. But I despise the kind of vitriol being thrown at him by Mr. Peters. I don't think it advances the ball, and I think it drags down our level of discourse to the lowest possible level. This 'blog post is a little far off the reservation for me; I usually stick to issues of law and military affairs that I know something about. But I thought it needed to be said. Maybe Mr. Peters should take the same advice, and stick to the national security issues he knows so well instead of using his op-ed voice in such a shameful way.
posted by Phillip Carter at 06:23

 
Dispatch from Afghanistan

David Adesnik at Oxblog relays a thoughtful letter from an American Army officer currently deployed to Afghanistan. I wasn't privy to the letter so I can't vouch for its authenticity, but it looks authentic. Among other things, the writer lets us know that we have unfinished business in Afghanistan, and that thousands of our sons and daughters remain committed there.

Soon after arriving at what one Army spokesman called “the most evil place in Afghanistan,” my platoon was involved in the largest firefight since Operation Anaconda in March 2002. During a battle that raged intermittently for almost 12 hours, we destroyed close to 40 “anti-coalition militants,” but suffered one very painful American casualty. PFC [name deleted], a 19-year-old soldier in my platoon, died from sniper fire while cresting a hill near Lozano Ridge. Coping with the loss of one of our own was the toughest mission my platoon faced during the last 5 months. Men cited for their bravery in the fight were torn by guilt and self-doubt and many still suffer from nightmares. Fortunately for the platoon, we immediately returned to the front lines after a brief period of mourning. After a few weeks of relative calm, we had another big fight south of Shkin on October 25th. We lost no men in our platoon, but had several friendly casualties in a sister unit. Again, my men impressed me with their courage under fire and professional competence. I feel fortunate to have had the opportunity to see my men change over 9 months- watching them train last spring and then execute the same drills with deadly efficacy in combat. Leading my men in combat has been the most satisfying and challenging experience in my career.

posted by Phillip Carter at 14:32

 
Semper nice?
A kindler, gentler Marine Corps emerges to win hearts and minds

The Wall Street Journal has a thoughtful piece today on the training by Marines at Twentynine Palms in the California desert for Iraq, and how such training differs from what most people would expect of this fighting force. The Marines are certainly training for war, and how to kill the enemy when necessary. But they're also training for something less than war -- how to secure and stabilize the nation of Iraq with their iron fist wrapped in a velvet glove.

TWENTYNINE PALMS, Calif. -- On a bright winter afternoon in California's high desert, Staff Sgt. Adam Walker gathered his platoon's newest Marines to give them their marching orders for when they get to Iraq: Be nice.

"That's hard for Marines," Staff Sgt. Walker told the young grunts, just four days out of infantry school. "What are you taught in boot camp? Kick ass and kill. That aggressiveness is not going to win in Iraq."

The First Marine Division fought its way from Kuwait to Baghdad last spring, and the first half of the force, some 8,000 Marines including Staff Sgt. Walker's platoon, is slated to return to Iraq in the coming months. They'll likely replace Army units occupying the hotspot city of Fallujah and the rest of Al Anbar province, a volatile Sunni Muslim-dominated area between Baghdad and the Syrian border.

For months, Marine commanders in the U.S. have watched from afar as American and Iraqi casualties have mounted, and they think they know where the Army has gone wrong. So before they ship out, the Marines are undertaking what amounts to a massive deprogramming campaign for their own troops. Put simply, they're teaching them to ask questions first and shoot later.

The plan is a risky one, based on the assumption that even in the areas most hostile to the U.S.-led occupation, local residents can still be won over if American troops treat them with more dignity, patience and understanding. And, the theory goes, as popular support for the U.S. grows, popular tolerance of the armed resistance will fade.

"The vast majority of people just want peace, security, jobs, electricity and the basic things that any people would want," says Lt. Col. David J. Furness, the Marine division's operations officer. "I think we can appeal to that."

Update: Tom Ricks has a good story on the same subject in Wednesday's edition of the Washington Post. There are a couple of great quotes in the story which sum up exactly what's going on here:

. . . speaking on the condition of anonymity, other Marine officers criticized the Army approach.

"I'm appalled at the current heavy-handed use of air [strikes] and artillery in Iraq," one said. "Success in a counterinsurgency environment is based on winning popular support, not blowing up people's houses."

* * *
Some Army officers in Iraq said the Marines' plan shows they are simply trying to capitalize on lessons learned in Iraq.

"I like the Marine approach, and I think it'll succeed," said Army Lt. Col. David J. Poirier, military police commander in Tikrit. "I love our Army, and I will not criticize it, but war is not free of mistakes, and I believe that some of the insurgency is due to families acting out against American forces for deaths occurring as a result of collateral damage."

For what it's worth, the Marine Corps has always been on the cutting edge of counter-insurgency doctrine. They invented the way America fights its "small wars", as Max Boot reports in his book Savage Wars of Peace. The Marine Corps led the way in transforming themselves into a "3rd Generation" force, and have also pioneered much of the thought on "4th Generation" warfare. It does not surprise me that the Marines are willing to put some of those ideas into action.
posted by Phillip Carter at 06:00

 
The latest mud to hit Wes Clark: he's anti-Semitic
Even the NY Times can't resist the temptation to print such drivel

Last week, Joel Mowbray launched a mud salvo against retired Gen. Anthony Zinni, whom he accused of being anti-Semitic. Gen. Zinni, a former commander of CENTCOM, has recently criticized the "neo-conservative" policy makers in the Bush Administration for their foreign policy decisions (which Zinni was a part of for a while as Secretary Powell's envoy to the Middle East peace process). Mowbray thinks "neo-con" is really just code for "Jewish", because of high-profile Jews in the administration like Paul Wolfowitz and Douglas Feith. Here's a short bit of his argument:

Technically, the former head of the Central Command in the Middle East didn’t say “Jews.” He instead used a term that has become a new favorite for anti-Semites: “neoconservatives.” As the name implies, “neoconservative” was originally meant to denote someone who is a newcomer to the right. In the 90’s, many people self-identified themselves as “neocons,” but today that term has become synonymous with “Jews.”

And if anybody should know better, it’s Gen. Zinni. It is well-known that those who are labeled “neocons” within the administration—whether the number-two official at the Pentagon, Paul Wolfowitz, or undersecretary of Defense Doug Feith—are almost always Jews.

Sadly typical is a Business Week article this May that identified Wolfowitz, Feith, Defense Policy Board member Richard Perle, former Reagan administration official Ken Adelman and Weekly Standard editor William Kristol—all Jews—as “neocons,” yet Cheney and Secretary of Defense Donald Rumsfeld—neither one Jewish—as simply “key allies.” Policy beliefs and worldviews were not different between these two groups; only religion distinguishes them.

Given that the “neocons” do not control the Departments of State or Defense nor the National Security Council—gentiles all head those agencies—and given that the White House is clearly run by non-Jews, how is it that Zinni claims that the “neocons” were responsible for the U.S. liberating Iraq? As he explains to the Post, “Somehow, the neocons captured the president. They captured the vice president.”

Comes now David Brooks, new center-right columnist for the New York Times, with a new salvo of mud directed at retired Gen. Wesley K. Clark. Brooks picks up the argument right where Mowbray leaves off, extending it to cover Gen. Clark and his criticisms of the neo-cons.

Theories about the tightly knit neocon cabal came in waves. One day you read that neocons were pushing plans to finish off Iraq and move into Syria. Web sites appeared detailing neocon conspiracies; my favorite described a neocon outing organized by Dick Cheney to hunt for humans. The Asian press had the most lurid stories; the European press the most thorough. Every day, it seemed, Le Monde or some deep-thinking German paper would have an exposé on the neocon cabal, complete with charts connecting all the conspirators.

The full-mooners fixated on a think tank called the Project for the New American Century, which has a staff of five and issues memos on foreign policy. To hear these people describe it, PNAC is sort of a Yiddish Trilateral Commission, the nexus of the sprawling neocon tentacles.

We'd sit around the magazine guffawing at the ludicrous stories that kept sprouting, but belief in shadowy neocon influence has now hardened into common knowledge. Wesley Clark, among others, cannot go a week without bringing it up.

In truth, the people labeled neocons (con is short for "conservative" and neo is short for "Jewish") travel in widely different circles and don't actually have much contact with one another. The ones outside government have almost no contact with President Bush. There have been hundreds of references, for example, to Richard Perle's insidious power over administration policy, but I've been told by senior administration officials that he has had no significant meetings with Bush or Cheney since they assumed office. If he's shaping their decisions, he must be microwaving his ideas into their fillings.

Analysis: I thought Mowbray's column was a slanderous form of manure when I read it, and I still feel that way. I even opined in a group discussion that "Next thing you know, they'll use this slur against Wes Clark." I didn't think that would actually come to pass, since there's nothing in the record to suggest that either Gen. Zinni or Gen. Clark is an anti-Semite. And for what it's worth, I think Josh Marshall's right that the neo-cons deserve some criticism for mismanaging our foreign policy. Indeed, in all of the reports I've read on both men, the exact opposite is true. Gen. Zinni did yeoman's work as commander of CENTCOM, as described in The Mission by Dana Priest. And he did great work as Secretary Powell's envoy to Israel and Palestine, at a time when neither side wanted to talk. Similarly, Gen. Clark has evidenced a particular sensitivity to Jews and other persecuted peoples (e.g. the Kosovar Albanians) while in uniform. (Arguably, the Kosovo War was about exorcising U.S. and European demons for their collective failure to act during the Holocaust.) Maybe that's because he's half Jewish? Gen. Clark's original last name was Kanne -- his father Benjamin Kanne was Jewish, and he subsequently was raised as a Protestant who converted to Catholicism in Vietnam. I don't think Clark is truly the self-loathing type, and I don't think he's an anti-Semite. But this is convenient mud for conservatives who want to tar two men before the Democratic party.

Anti-Semite is one of the slurs du jour in American politics. It's like "racist" or "sexist" or "former drug addict" -- it instantly tars a person and taints everything they've ever said. And it doesn't have to be proven, since the existence of anti-Semitism is presumed in so many bastions of American society. (Including, I might add, the American military.) Its use reminds me of the old political joke. One political operative says to the other: "Let's just say the guy sleeps with pigs." The other says "But that's not true." The first operative, who I'll name Karl, says "Who cares? The rumor will stick, and he'll spend the rest of the campaign trying to explain that he doesn't sleep with farm animals."

I'm not so naive as to think that such slander has no place or history in politics. It's a dirty business, and anyone with a thin skin should stay out of politics. But the irony here is that the neo-con's defenders are now committing the same bad act with with the neo-cons themselves are charged -- distortion of the facts in order to make an argument. Granted, all the neo-con defenders are doing is bending the record to make a baseless charge of anti-Semitism, while the neo-cons themselves distorted the facts in order to launch a war. But the parallel is still there. It's like one of my law professors says: "When the facts and the law aren't on your side... that's when you really get creative."

Update I: Mark Lewis puts it more directly on his site: "Clark = Anti-Semite??? Or perhaps David Brooks = Jackass." I'll go for the latter. Mark also points us to Josh Marshall's comments on the matter. Josh has written some great stuff on neo-cons and their influence on contemporary American foreign policy, so his commentary is worth reading.

Update II: Kevin Drum adds his voice to the fray, along with Mark Kleiman. I imagine this will be an issue discussed tomorrow night by Wes Clark during his "wireside" chat with several notable bloggers.
posted by Phillip Carter at 05:50

 
Accidents exact a heavy toll from America's military

The Los Angeles Times reported yesterday on one of the largest problems faced by America's military: the rate at which accidents kill or injure soldiers, and the reasons for these accidents. If you've been following the Iraq casualty announcements, you'll know that a staggering number have died as the result of non-combat wounds. The Times reports that this is nothing new, and that accidents have taken thousands of lives over the last two decades.

The recent increases occurred as the U.S. fought wars in Afghanistan and Iraq and troops found themselves in treacherous conditions and unfamiliar terrain. Nonetheless, most fatal accidents in the last three years occurred in the United States. In fact, half the fatalities happened in private motor vehicles — exacting a high price in lost soldiers and increased health-care costs.

For a generation, accidents have proved far more deadly than combat or terrorism. Since 1980, more than 20,000 military personnel have died in accidents while fewer than 1,000 have perished in battle, Defense Department figures show.

By its nature, military service is dangerous. Those who enlist do so with the expectation that they may be put in harm's way.

Nevertheless, the military had been steadily reducing its losses due to accidents, cutting its annual fatality figure by 56% between 1991 and 1998. But the reductions stopped the following year, even as private sector companies with high-risk activities, such as commercial airlines, continued to make impressive strides in reducing accidents. With the military rates climbing again, the magnitude of the losses has drawn concern at the highest levels. In May, Defense Secretary Donald H. Rumsfeld challenged the heads of the services to cut the number and rate of accidents by half within two years.

"World-class organizations do not tolerate preventable accidents," he said. "These goals are achievable…. We owe no less to the men and women who defend our nation."

Analysis: This is a really tough nut to crack. Training for combat must be somewhat dangerous in order to approximate the risks and circumstances faced in combat. Commanders learn to manage risks in their operations -- both safety risks and operational risks. But it's an inexact science at best, and it's very hard to find the balance between realistic training and safe training. Factors such as fatigue, maintenance, weather, and terrain often make this very tricky. It's even harder in combat, where soldiers are forced to go-go-go in order to get the mission done, at the cost of proper maintenance, rest plans, etc. It takes an extremely disciplined force to manage this kind of risk while simultaneously pursuing the mission in the most effective and efficient way possible.

The bottom line is this: deaths caused by accidents are generally preventable deaths (see this essay of the same name), and as such, they're a real tragedy when they occur because they didn't have to occur. Deaths in combat happen, and you're never quite sure you can prevent them because the enemy gets a vote too and combat is chaotic by nature. We may never be able to reduce this number to zero, just as we're not able to stop all fatal traffic accidents in the U.S. But it's a metric we ought to be concerned about for three reasons. First, America's sons and daughters in uniform are a precious resource, and we should worry about any threat that could take them from us. Second, accidental deaths/injuries take combat power (soldiers) out of the fight, and we can't afford those losses. Third, a high number of such accidents is an indicator of other problems in the force, such as deferred maintenance, poor rest plans during continuous operations, poor drivers' training, etc.
posted by Phillip Carter at 06:00

 
India and Pakistan take tentative steps to a lasting peace

One of the biggest news stories of this past week was buried inside the three major newspapers I read, but it deserves mention. The Los Angeles Times reports that Indian Prime Minister Atal Behari Vajpayee had a one-on-one meeting in Pakistan yesterday with Pakistani President Pervez Musharraf, as part of Vajpayee's visit to Pakistan for a regional meeting. The meeting comes as the latest in a series of peaceful overtures between the two nuclear adversaries.

There were no immediate details on the substance of the Vajpayee-Musharraf talks, which lasted about an hour.

Earlier, Indian Foreign Minister Yashwant Sinha had described the planned encounter as a "courtesy call." But Pakistani Information Minister Sheik Rashid Ahmed predicted in an interview that the two leaders would agree on a framework for future negotiations between India and Pakistan on a range of issues.

"I think the meeting will be successful, in a positive direction, and there will be something on a composite dialogue," Ahmed said, using a diplomatic phrase for direct talks on numerous issues, not only the disputed territory of Kashmir.

* * *
The last direct peace talks between India and Pakistan ended in July 2001, when Vajpayee and Musharraf came close but failed to agree on a timetable for negotiations at a summit in Agra, India.

Analysis: I'm not as smart on South Asian issues as I should be, considering its potential for war in the next decade. (See RAND analyst Chris Fair's article in the Atlantic Monthly predicting that India/Pakistan will be the source of 2 out of 10 major conflicts in the next decade.) But whenever I see some news like this, I think it's generally a good thing. For whatever it's worth, we do not want a war on the Indian sub-continent, and it's good news for the United States when two regional powers can manage their conflicts with diplomacy instead of force. It would be great to see some sort of strategic framework evolve from these high-level talks, or even some bilateral compact. But at least they're talking, and that's a good sign.

Update: CNN reports that "history has been made", and that India and Pakistan have agreed to a diplomatic framework which will guide future talks between the two nations over the disputed region of Kashmir.
posted by Phillip Carter at 05:57