INTEL DUMP

2004-05-26T10:31:00.000-07:00

INTEL DUMP has moved to http://www.intel-dump.com

I've finally moved Intel Dump to its new location, at http://www.intel-dump.com. Intel Dump 2.0 is available now, and it basically looks the same as the old Blogspot version. However, the Powerblogs software and server is much better than what Blogger provides. In the future (probably after I take the bar exam), look for Intel Dump 3.0, which is in the design process now. I plan to give the site a complete facelift, and add some functionality such as real-time news updates and possibly additional authors.

Please adjust your bookmarks to reflect my new site address. Thanks for your support.

2004-05-21T07:42:00.000-07:00

More from Abu Ghraib: The front-page image on the Washington Post's webpage is of an Iraqi detainee crouching in fear (hands bound behind his back) before a U.S. military working dog, being restrained by its handler with two hands. It's not a good image. The Post has an exclusive report on the new photos and statements to emerge from the investigation into Abu Ghraib.

Once again, I think we should be asking ourselves: why are we only prosecuting the 7 lowest ranking soldiers here? At the very least, the chain-of-command is culpable for its failure to stop these criminal acts. At most, if you believe Sy Hersh's latest report in the New Yorker, the culpability runs all the way up to the top Pentagon leadership -- and perhaps higher. So why is the highest-ranking guy to be charged so far a Staff Sergeant in the U.S. Army Reserve? That just doesn't seem right to me.

Update: There may be one high-ranking casualty so far from Abu Ghraib: current DoD General Counsel William Haynes II. President Bush had nominated Mr. Haynes to the 4th Circuit Court of Appeals, and the Senate Judiciary Committee had reported it out to the full Senate. But according to this report from Jess Bravin of the Wall Street Journal (subscription required), Mr. Haynes' nomination now looks to be in doubt. Senate Democrats (and a few Republicans) want him to answer questions about his role in crafting the legal framework for detainees held by the military at Guantanamo, in Iraq, and elsewhere. To date, Mr. Haynes' response has been:

"It would be inappropriate for me to respond," Mr. Haynes wrote, "because your question invites my views on a matter about which I may or may not have been called to provide advice as general counsel of the Department of Defense."

Normally, lawyers nominated to the bench are given some latitude for difficult or unpleasant work they've done on behalf of clients. After all, the job of a lawyer is to advocate for their client, and often times that might mean helping some unscrupulous causes. If this were the rule, then we'd rarely get a public defender or corporate litigation attorney on the bench, because they would be vicariously punished for the heinous acts of their clients. However, Mr. Haynes' case is different, because he may have taken a more active role in developing these policies than simple legal advice. At least, that's what those opposed to his confirmation want us to think. It's not clear yet whether he actually played a role in sanctioning the abuses at Abu Ghraib and elsewhere. However, Mr. Haynes is the most vulnerable to political retribution right now, because he needs Senate confirmation in order to take the bench. We'll see what happens.

2004-05-21T07:31:00.000-07:00

The quickest way to achieve real global deployment capability
When you absolutely, positively, have to deploy a brigade combat team overnight

The trade journal Inside the Air Force (subscription required) has a report today on some language in the 2005 National Defense Authorization Act that would support the future purchase of 42 additional C-17 "Globemaster" aircraft. These are the newest cargo aircraft in the fleet, and they're capable of moving 85 tons of cargo around the world. Suffice to say, the Air Force's strategic lift fleet has been stressed by the war on terrorism almost as much as the Army's land forces -- it needs these birds.

Both the House and Senate Armed Services committees included language in reports accompanying their fiscal year 2005 defense authorization bills supporting the position of TRANSCOM Commander Gen. John Handy, who says that the service needs, at a minimum, 222 C-17 airlifters. The current contract that delivers 15 aircraft per year will leave the Air Force with a fleet of 180 Globemasters by FY-08.

Handy testified in March before House and Senate subcommittees that the Mobility Requirements Study 2005, completed in January 2001, was inaccurate because it did not take into account increased operational demands tied to the war on terrorism and the creation of U.S. Northern Command and the Department of Homeland Security.

He delivered a report March 10 to the Senate Armed Services seapower subcommittee that found the moderate-risk airlift requirement for 54.5 million ton-miles in MRS-05 was understated. The requirement is at least 57.4 to 60 million ton-miles per day, according to Handy’s report. But even that number could be a low estimate, and the service will not know for sure what its requirements are until a Mobility Capabilities Study is completed at the earliest by spring 2005, Handy told the subcommittee.

* * *
While neither committee added funding into the FY-05 budget for C-17 procurement, the Senate committee “directs the Air Force to take full account of the position of the Commander, U.S. Transportation Command, in formulating its procurement plans for C-17 aircraft,” according to its report.

House lawmakers were more direct, stating: “The committee strongly urges the Department of the Air Force to budget for continued C-17 procurement through a multiyear program to procure at least 42 additional C-17 aircraft.”

Analysis: There are lots of things in the 2005 NDAA that can be cut. The Pentagon sent this budget over with a lot of fat, and Congress is sure to add some pork by the time the process is through. The force needs these strategic lift capabilities now, or as soon as Boeing et al. can build them. I'm encouraged by the sight of language in the NDAA which directs the Air Force to build these into its future procurement plans. However, I think Congress should be more direct here. There is a proven need for this capability, and a proven system that meets the requirement -- it doesn't get much simpler than that in the defense procurement world. Moreover, the services (especially the Army) continue to spend billions of dollars on deployment-related capabilities, when you could easily purchase deployment capability by simply buying more strat lift aircraft.

2004-05-19T16:47:00.000-07:00

What is a court martial? My new Explainer in Slate tackles that question, as well as related questions like "who sits on a military jury?". I also recommend this Pentagon press briefing on "Uniform Code of Military Justice and Court Martial Procedures". And if that doesn't quite quench your thirst for information about martial justice in the American military, see "The Seven Basic Myths About Military Justice" in Findlaw.Com's Writ and listen to "Courts Martial - A Primer" on NPR.

2004-05-18T13:22:00.000-07:00

Pentagon sets up tribunals to review Gitmo detentions

The Defense Department announced the creation of a new administrative system today which will periodically review the status of detainees being held at Guantanamo bay to see if they merit further detention in America's war on terrorism. The U.S. has come under fire from international law critics for some time, because it has no 'competent tribunal' established in accordance with Art. V of the 3rd Geneva Convention for the review of prisoner status at this facility. The DoD release doesn't explicitly say this process will fit that bill, but it seems obvious to me that it is intended to do so.

Under this order, each enemy combatant will have a formal opportunity to appear in person before a board of three military officers and explain why he believes that he should be released. He will be provided a military officer to assist him in his appearance. In addition, the review board will accept written information from the family and national government of the enemy combatant. Based on all of this information, as well as submissions by other U.S. government agencies, the board will assess the current threat posed by the detainee, then recommend to a high-level Defense of Department official whether the enemy combatant should remain in detention. The DoD official, who will be selected by the secretary of defense, then will decide whether the enemy combatant should remain in detention.

The release of enemy combatants prior to the end of a war is a significant departure from past U.S. wartime practices. Enemy combatants are detained for a very practical reason: to prevent them from returning to the fight. That’s why the law of war permits their detention until the end of an armed conflict. Although the global war on terror is real and ongoing, DoD has decided as a matter of policy to institute these review procedures. This process will assist DoD in fulfilling its commitment to ensure that no one is detained any longer than is warranted.

Query I: Why did DoD wait until now to announce this policy? Query II: Wouldn't it have been more prudent to make this policy change before briefs were submitted (and argument was conducted) in the Al-Odah and Rasul cases before the Supreme Court? The lawyers for the Gitmo detainees made the failure to follow Art. V a key part of their argument. Setting aside for the moment the problem that the 3rd Geneva Convention is not self-executing, they had a good point with this argument, and it seems like the administration could have preempted it by instituting this procedure earlier.

Update: In their briefing to reporters, Pentagon officials said this procedure was not designed to meet the Art. V requirement in the Geneva Convention, and indeed, that the prisoners' status had already been determined somehow.

It's important to put this in context. The review that's undertaken is not legally required. The status of these detainees has been determined: they are enemy combatants detained in the ongoing conflict. As a matter of policy, the department has adopted these procedures so as to not keep any detainee -- basically any detainee for whom the war is over, who is no longer a threat to the United States. We don't want to hold anyone longer than is necessary, and these procedures allow us -- the department an opportunity to review the case of each detainee individually annually to determine whether or not further detention is warranted.

* * *
These procedures are not -- you've referred to competent tribunal, which is -- I think it's a reference to Article 5 of the Geneva Conventions. These procedures are in many respects broader and more substantial than Article 5 proceedings. For example, we are allowing the home government of the detainee to present information on his behalf and his family, for example, to participate and make statements. So it's a different inquiry.

The Article 5, the competent tribunal, is really making a determination about whether a person seized on a battlefield is a prisoner of war or is another -- or it falls into some other type of activity. For these detainees at Guantanamo, that decision has already been made. This decision is about whether or not they still constitute a threat to the United States and can be released or transferred consistent with U.S. national security interests.

Had I written that italicized statement on a law school exam, my professors would have circled it and marked it for being "conclusory." The fact of the matter is that these prisoners have not had their status properly adjudicated under international law. The administration has made a determination that they qualify as enemy combatants, but we know nothing about how this determination was made. It may or may not be a "competent tribunal" in accordance with the Convention. Ironically, thousands of detainees have had their status adjudicated by Art. V tribunals in Iraq, yet we refuse to institute them at Gitmo. That just doesn't make sense to me. Given the spotlight on Gitmo, we ought to be more careful about the way we do things there, not less so.

2004-05-18T07:46:00.000-07:00

Remember the Phraselator?

I wrote about this new hand-held translation device, and other interesting military gizmos, in a Slate article covering DARPA's symposium in Anaheim California. Now, the Baltimore Sun has an interesting report on the way this gadget is being used in the field.

Near Iraq's border with Kuwait, Sean P. Collins, a Special Forces team sergeant, met a group of children and asked them if they had seen the enemy.

He spoke into a hand-held black box, called the Phraselator, which translated his English into Arabic and broadcast it clearly through a speaker.

The children pointed to a weapons cache, which included a mortar tube that was ready to be used and rocket-propelled grenades, which Collins destroyed.

"Finding the weapons cache with the kids ... never would have happened if I didn't pull out the unit," said Collins, who noted that several military teams had previously passed through the area without detecting the weapons. "It is an excellent device; there is nothing else like it."

VoxTec, the Annapolis maker of the Phraselator, is counting on testimonials like Collins' to make the high-tech translation device popular enough to be close at hand for U.S. troops around the world.

The Defense Department has already ordered about 2,000 units, which sell for about $2,300 each. That's on top of 1,000 test units sold in 2002 for use in Afghanistan, said Ace J. Sarich, VoxTec's founder and a former Navy SEAL.

He hopes to sell another 3,000 by the end of the year, most of them to the military. But he sees a growing market in law enforcement and hospitals where the unit could be used by police officers and physicians, nurses and emergency medical specialists to communicate with non-English speakers. He also plans to design a slimmer version for tourists that would sell for about $500.

"We are aggressively expanding," said Sarich, 60. "Now we are ready to pound our swords into plowshares and take a military technology and make it ready for the population as a whole."

Note: I criticize the military industrial complex a lot, and have written on the need to rein in government contractors overseas. But I don't want to distort the real picture. Most government contractors do an outstanding job for the U.S. taxpayer and U.S. military. They provide things to our troops that no other force in the world has, like the Phraselator, and they work hard to make the customer (i.e. the warfighter) happy. There is friction in the system, but I think that's necessary because of the need for oversight and transparency. Overall, however, I think companies like VoxTech do a great job, and I'm not averse to singling them out for praise.

2004-05-18T07:23:00.000-07:00

U.S. to pull forces from Korea to bolster Iraq force
One more sign of overstretch for America's land combat forces

The Los Angeles Times reports today on a move by the Pentagon (full briefing here) to pull the 2nd Brigade Combat Team out of the 2nd Infantry Division in Korea for duty in Iraq. Soldiers in Korea are already serving a 1-year hardship tour, and they would be sent to Iraq (as a unit) for another 1-year tour, and possibly, then back to Korea. The move is another sign that the Army is seriously stretching to make ends meet in Iraq.

The U.S. military planned to reduce the number of troops in Iraq to about 115,000 this spring, but the fierceness of the insurgency has forced it to change plans. Defense officials announced this month that the Pentagon planned to keep at least 135,000 troops in Iraq for the next year and a half. The military official said Monday that the number could be as high as 138,000 for the next year.

With tens of thousands of service men and women in Iraq already serving well past the time they thought they would be going home, replacements have to come from somewhere.

Pentagon plans call for sending the 2nd Brigade of the 2nd Infantry Division from South Korea to Iraq. The planned one-year tour in the war zone will mean that most of the soldiers will be deployed for the unusually long period of 18 to 24 months.

But unlike other Army units that could have been sent to the fight, the troops based in South Korea have not served in either Afghanistan or Iraq.

"This is the right unit at this time," the senior military official said.

The war in Iraq, the official added, "is placing a demand, clearly, on the force."

* * *
The 37,000 U.S. troops guarding South Korea had been considered untouchable by the Pentagon for deployment to other trouble spots because of the risk of attack from communist North Korea's 1.1-million-member military.

However, Defense Secretary Donald H. Rumsfeld has been pushing for more flexibility to deploy troops to such conflict zones as Iraq or Afghanistan from anywhere in the world. Pentagon officials said that in response they had moved sophisticated aircraft and the Army's latest infantry vehicles, called Strykers, to the Korean peninsula over the past year.

Analysis: This is a big development. The force in Korea has been considered untouchable by Army planners for a long time. Indeed, forces in the states that were dedicated to Korea on paper contingency plans were considered untouchable prior to the war in Iraq. The military takes the Korea mission very seriously, because of the austere force there and the vital role it plays in providing stability for the Korean peninsula and the East Asian region. The redeployment of this brigade means a lot less combat power (in terms of boots on the ground) for any crisis in Korea, whether it be a military conflict, regime collapse, humanitarian disaster, or all three.

This isn't the only sign of overstretch to surface recently. I've heard through the grapevine that the Army has drawn up plans to deploy the 11th Armored Cavalry Regiment, its vaunted National Training Center "OPFOR", from the California desert to the Iraqi desert. There simply isn't a great need for this unit at NTC right now, because so many units are in Iraq that the NTC doesn't have a regular rotation schedule these days. (Query: doesn't it make sense to maintain a first-rate desert training center to train/certify deploying units?) The Army is also considering plans to call up more reservists, including inactive reservists who don't drill or train regularly. And right now, the Army is having difficulty filling its professional schools, because so many officers and sergeants are deployed that it can't get them through the educational pipeline. This will have serious second/third order effects down the road because of the Army's inflexible promotion timelines.

Bottom line: the force is stretched, and it's starting to take very drastic steps to make ends meet in Iraq. Will it make the mission? Yes, no question. But the cost will be very high, and ultimately, I think we're going to end up doing a lot of long-term damage to our national military capability.

Update: Joe Galloway, the veteran war correspondent who co-wrote We Were Soldiers Once... and Young, confirms this story today with a report on Knight Ridder's newswire.

The Army on Tuesday confirmed that it pulled the files of some 17,000 people in the Individual Ready Reserve, the nation's pool of former soldiers. The Army has been screening them for critically needed specialists and has called about 100 of them since January.

Under the current authorization from Defense Secretary Donald H. Rumsfeld, the Army could call as many as 6,500 back on active duty involuntarily.

"Yes we are screening them and, yes, we are calling some of them up," an Army spokesman, Col. Joseph Curtin, told Knight Ridder. "We need certain specialties, including civil affairs, military police, some advanced medical specialists, such as orthopedic surgeons, psychological operations, military intelligence interrogators."

The Army has been forced to look to the Individual Ready Reserve pool and elsewhere for soldiers because it's been stretched so thin by a recent decision to maintain American troop levels in Iraq at 135,000 to 138,000 at least through 2005.

A certain amount of realism is in order here. We have military reserves -- active, inactive, standby, etc. -- for a reason. The reserves exist to back up America's military in case of a war, and we are at war right now. So while I think this is a bad sign, I also recognize that these reserves exist for the very thing they're now being called on to do. However, the reserves have not been stressed like this in a long time, and the individual ready reserve hasn't been tapped en masse since Korea. Remember -- Desert Storm and the Balkans deployments were, for reserve units, a one-shot deal. In contrast, Operation Iraqi Freedom is a sustained combat deployment that requires 135,000 troops for consecutive deployments, at the same time that deployments to Afghanistan and elsewhere must be accomplished.

I think it's time to start thinking realistically about what it will take to accomplish this mission. This plan should not be based on the optimistic assumptions tossed around the Pentagon's top policy shop, or by Deputy Defense Secretary Paul Wolfowitz. This plan, like any good plan, should account for best, middle and worst-case scenarios, projecting what the Army will do if it has to maintain a force in Iraq of its current size (or larger) for the next 5-10 years. Ideally, we should've had this plan worked out before the war, because it might have dictated a few things we should've done during and immediately after the war. But we didn't, as has been well documented. It's high time to create such a plan, and to ensure it's based on reality, even if that reality is ugly.

2004-05-16T16:10:00.000-07:00

Admin note: I'm traveling for the next two days and will have intermittent Internet access while I'm on the road and in the air. Please come back for more analysis and commentary on Tuesday. Thanks.

2004-05-15T18:50:00.000-07:00

A brilliant picture: On the front page of the New York Times for May 15, 2004, you will find one of the most artful photographs from Iraq that I have seen yet. It depicts a 1st Armored Division soldier kneeling before a doorway with light streaming through, underneath three sacred Islamic portraits. It's the kind of photograph that instantly catches your eye because of its composition, and the messages it carries. On the one hand, one can see the image of a Crusader from a millenium ago in the photograph; on the other, I see an American soldier kneeling in penitent respect before the symbols of Islam. There are other symbols in the picture as well. Anyway, take a look.

2004-05-15T18:00:00.000-07:00

Authorized at the highest levels?

The New Yorker has published Sy Hersh's latest piece on the abuses of prisoners at Abu Ghraib and elsewhere. I think his first piece was the biggest, because of the bombshell it literally dropped on the White House and the nation. But this article may contain the most damaging allegations of all for the Pentagon's senior leadership. According to Hersh, the use of "torture lite" and other coercive tactics was not only condoned at the highest levels -- it was explicitly ordered under a covert "special-access program" by the SecDef and his top lieutenants.

The Abu Ghraib story began, in a sense, just weeks after the September 11, 2001, attacks, with the American bombing of Afghanistan. Almost from the start, the Administration’s search for Al Qaeda members in the war zone, and its worldwide search for terrorists, came up against major command-and-control problems. For example, combat forces that had Al Qaeda targets in sight had to obtain legal clearance before firing on them. On October 7th, the night the bombing began, an unmanned Predator aircraft tracked an automobile convoy that, American intelligence believed, contained Mullah Muhammad Omar, the Taliban leader. A lawyer on duty at the United States Central Command headquarters, in Tampa, Florida, refused to authorize a strike. By the time an attack was approved, the target was out of reach. Rumsfeld was apoplectic over what he saw as a self-defeating hesitation to attack that was due to political correctness. One officer described him to me that fall as “kicking a lot of glass and breaking doors.” In November, the Washington Post reported that, as many as ten times since early October, Air Force pilots believed they’d had senior Al Qaeda and Taliban members in their sights but had been unable to act in time because of legalistic hurdles. There were similar problems throughout the world, as American Special Forces units seeking to move quickly against suspected terrorist cells were compelled to get prior approval from local American ambassadors and brief their superiors in the chain of command.

Rumsfeld reacted in his usual direct fashion: he authorized the establishment of a highly secret program that was given blanket advance approval to kill or capture and, if possible, interrogate “high value” targets in the Bush Administration’s war on terror. A special-access program, or sap—subject to the Defense Department’s most stringent level of security—was set up, with an office in a secure area of the Pentagon. The program would recruit operatives and acquire the necessary equipment, including aircraft, and would keep its activities under wraps. America’s most successful intelligence operations during the Cold War had been saps, including the Navy’s submarine penetration of underwater cables used by the Soviet high command and construction of the Air Force’s stealth bomber. All the so-called “black” programs had one element in common: the Secretary of Defense, or his deputy, had to conclude that the normal military classification restraints did not provide enough security.

“Rumsfeld’s goal was to get a capability in place to take on a high-value target—a standup group to hit quickly,” a former high-level intelligence official told me. “He got all the agencies together—the C.I.A. and the N.S.A.—to get pre-approval in place. Just say the code word and go.” The operation had across-the-board approval from Rumsfeld and from Condoleezza Rice, the national-security adviser. President Bush was informed of the existence of the program, the former intelligence official said.

This information is useful as background, and it certainly explains the existence of these tactics in the context of the larger war on terrorism. However, the most interesting stuff (to me) comes later in the story, and may explain some of why the 800th MP Brigade did so little to command & control their soldiers at Abu Ghraib. It also may explain why the prosecution has been so weak so far, charging just junior soldiers and no senior NCOs or officers.

The abuses at Abu Ghraib were exposed on January 13th, when Joseph Darby, a young military policeman assigned to Abu Ghraib, reported the wrongdoing to the Army’s Criminal Investigations Division. He also turned over a CD full of photographs. Within three days, a report made its way to Donald Rumsfeld, who informed President Bush.

The inquiry presented a dilemma for the Pentagon. The C.I.D. had to be allowed to continue, the former intelligence official said. “You can’t cover it up. You have to prosecute these guys for being off the reservation. But how do you prosecute them when they were covered by the special-access program? So you hope that maybe it’ll go away.” The Pentagon’s attitude last January, he said, was “Somebody got caught with some photos. What’s the big deal? Take care of it.” Rumsfeld’s explanation to the White House, the official added, was reassuring: “‘We’ve got a glitch in the program. We’ll prosecute it.’ The cover story was that some kids got out of control.”

* * *
Sometime before the Abu Ghraib abuses became public, the former intelligence official told me, Miller was “read in”—that is, briefed—on the special-access operation. In April, Miller returned to Baghdad to assume control of the Iraqi prisons; once the scandal hit, with its glaring headlines, General Sanchez presented him to the American and international media as the general who would clean up the Iraqi prison system and instill respect for the Geneva Conventions. “His job is to save what he can,” the former official said. “He’s there to protect the program while limiting any loss of core capability.” As for Antonio Taguba, the former intelligence official added, “He goes into it not knowing shit. And then: ‘Holy cow! What’s going on?’”

If this is all true, then the responsibility for Abu Ghraib belongs to the Secretary of Defense and his top assistants who directed and controlled this problem. Just as we would hold field commanders vicariously liable for their subordinates' criminal actions under the "command responsibility" doctrine, so too should hold the SecDef accountable if it turns out that he did direct these things to be done. Indeed, we send a very dangerous message by not holding these top officials accountable in the same way that these junior soldiers are by a court martial this week. That message is: senior leaders are not responsible for their actions, and soldiers will hang for the actions of their superiors. Suffice to say, that message does not support a good command climate for America's military.

Indeed, if the SAP was as tightly controlled as Mr. Hersh indicates, then commmand responsibility may skip a number of links in the chain of command. True culpability here may jump from the Pentagon down to the actual MI officers and MP soldiers who conducted abuses. That's because the MP leadership was almost certainly cut out of the loop for this clandestine program, and there were probably security measures in place which prevented them from learning about this stuff. This undermines what I've written so far on the culpability of the 800th MP Brigade leadership, but I think it's a reasonable point to deduce from this New Yorker story. If this report is true, then officers like BG Janis Karpinski and LTC Jerry Phillabaum may not have much legal culpability here, beyond the failure to establish effective command & control systems that would detect abuses like this within their units. But even that might not be true, if the spooks used measures to interdict the efforts of Karpinski and Phillabaum to learn what was going on.

There's another point here, which relates to unlawful orders and the ability of soldiers to identify them and disobey them. Imagine you're an Army Specialist in the field, and let's stipulate that you did get substantial amounts of training on the Geneva Conventions and the laws of armed conflict. Now imagine you've gotten brought into a black op that's been sanctioned by the top levels of the Pentagon, and explicitly blessed by the DoD Office of General Counsel. Who are you, SPC Joe Snuffy, to question the legal judgment of America's top national security lawyers? It would have been very hard to question orders to put a detainee in a stress position, or to use sleep deprivation, when such orders carried the imprimatur of the SecDef and his top legal advisor.

The question for me, therefore, is what exactly was authorized by this special program, and whether the MPs went a little further in their sexual abuse. I can easily believe that the Pentagon blessed such tactics as stress positions and sleep deprivation; after all, such things are taught in our own military's SERE schools. But I still find it difficult to believe that our military and its top political appointees would endorse the use of sexual humiliation and sexual assault. If they did, those were probably unlawful orders, and the soldiers should have disobeyed them notwithstanding the stamp of authority they carried. But we should also look at the individuals who gave those orders, whether they work in Baghdad or Washington.

Only one thing is certain -- the civilian and JAG lawyers assigned to the defense for this case are going to have a field day with this story.

Update I: The Pentagon just issued a press released titled "Statement from DoD Spokesperson Mr. Lawrence Di Rita" in direct respose to the Hersh piece:

"Assertions apparently being made in the latest New Yorker article on Abu Ghraib and the abuse of Iraqi detainees are outlandish, conspiratorial, and filled with error and anonymous conjecture.

"The abuse evidenced in the videos and photos, and any similar abuse that may come to light in any of the ongoing half dozen investigations into this matter, has no basis in any sanctioned program, training manual, instruction, or order in the Department of Defense.

"No responsible official of the Department of Defense approved any program that could conceivably have been intended to result in such abuses as witnessed in the recent photos and videos.

"To correct one of the many errors in fact, Undersecretary Cambone has no responsibility, nor has he had any responsibility in the past, for detainee or interrogation programs in Afghanistan, Iraq, or anywhere else in the world.

"This story seems to reflect the fevered insights of those with little, if any, connection to the activities in the Department of Defense."

Everytime I see damning reports like that in the New Yorker juxtaposed against categorical denials like this one, I'm tempted to think of the motto from the X-Files: The truth is out there.

Update II: Sunday's NY Times carries a report on the Sy Hersh story, as well as the Pentagon's response to it. Maybe I'm parsing words too closely; I hear that's an occupational hazard for lawyers. But check out what the DoD spokesman told the Times:

"It's pure, unadulterated fantasy," Mr. Di Rita said in a telephone interview. "We don't discuss covert programs, but nothing in any covert program would have led anyone to sanction activity like what was seen on those videos."

"No responsible official in this department, including Secretary Rumsfeld, would or could have been involved in sanctioning the physical coercion or sexual humiliation of Iraqi prisoners," Mr. Di Rita said.

This isn't exactly an unequivocal denial. For one thing, it leaves open the possibility that the Pentagon might have sanctioned what was depicted in the many photographs now in the public domain. Second, it makes you wonder just what is in the videos shown to Congress and senior members of the executive branch. This story is just growing its legs -- more to follow.

2004-05-14T17:05:00.000-07:00

Army changes its rules for interrogation

John Hendren reports in the L.A. Times that the Army has issued new orders to its spooks in the field telling them what they can and cannot do during interrogations -- mostly what they cannot do. These rules are presumably designed to end the kinds of abuses done at Abu Ghraib, by sending a clear message to everyone in the chain of command that no one shall "set the conditions" for interrogation through physical and mental abuse.

Under the changes, interrogators will no longer be able to ask for permission to expose prisoners to military dogs, to alter prisoners' diets or force them to stand or squat in uncomfortable positions -- techniques that have been criticized as beyond the limits of the Geneva Conventions.

However, many of the questionable techniques have not been used recently, and others very sparsely, said two senior military officials in briefing Pentagon reporters.

The only extreme techniques that will continue to be allowed are solitary confinement and isolation from other prisoners.

* * *
The changes detailed today apply only to the interrogation of prisoners in Iraq. Although Defense Secretary Donald H. Rumsfeld and other Pentagon strategists have said the detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, are being treated in accordance with the Geneva Conventions, the new rules represent a "scrubbed'" and shortened version of the rules for questioning being used at Guantanamo, officials said.

Analysis: This is just a baby step in the right direction. I know that change is often incremental and evolutionary (as opposed to revolutionary) in large bureaucracies like the Army. But unfortunately, merely telling the Army intelligence commmunity that it must adhere to the rules isn't enough. These new rules don't apply to the other services, to some special operations units, and to the Central Intelligence Agency. And as the article points out, these rules only apply to Iraq -- not Gitmo, Bahrain, Qatar, Diego Garcia, or anywhere else that the U.S. has prisoners detained right now. I know there's a balance to be struck between tough interrogations that produce actionable intel, and torture sessions that resemble the rack. But this just seems like window dressing, and I think a lot more needs to be done to comply with international law here.

2004-05-14T12:44:00.000-07:00

"Methods too close to the rack and the screw": Slate has just published my Jurisprudence article "Tainted by Torture" on the legal problems associated with the use of "intensive questioning" in certain cases. The crux of the argument is that evidence gotten through torture is inadmissible, thus, the use of torture on terrorists means that they (and possibly their confederates) cannot be effectively prosecuted in federal court.

2004-05-14T10:10:00.001-07:00

Tech help: If you run a blog hosting server or have any recommendations for new blog software, please let me know. Blogger has moved to a new software interface that is extremely unreliable. (Example: this short post took three takes to put online.) I intend to move this site to www.intel-dump.com and a new software suite as soon as possible, and would appreciate any input from tech-savvy readers as to the best way to do that.

2004-05-14T10:10:00.000-07:00

Gitmo translator released before trial: More to follow later. It appears that defense attorneys for Airman Ahmad Halabi have won a stunning victory before a military judge to allow their client to be released from the brig pending his trial. A team of military attorneys is working with civilian attorney Donald Rehkopf, an expert in military law with decades of experience, on this case. I am told there are additional surprises in store for the prosecution and court here... more to follow.

2004-05-14T08:50:00.000-07:00

Congress Takes a Second Helping of Grilled Wolfowitz

If there's one guy who can be relied on to provoke intense questioning from the Senate and House Armed Services Committee, it's Deputy Defense Secretary Paul Wolfowitz. Last year, the Senate Foreign Relations Committee grilled him in extremis for the failures to plan for post-war Iraq. Yesterday, according to Tom Ricks in the Washington Post, the Senate Armed Services Committee took its turn by excoriating the embattled appointee for the Abu Ghraib mess. As best I can tell, it does not look like Wolfowitz did or said much in response.

Senate Democrats lit into the Bush administration's Iraq policies yesterday, using an uncharacteristically contentious hearing on additional war spending to attack the Pentagon's number two official in personal and bitter terms.

After listening to Deputy Defense Secretary Paul D. Wolfowitz testify before the normally stately Armed Services Committee for several hours, Sen. Jack Reed (D-R.I.) said, "What I've heard from you is dissembling and avoidance of answers, lack of knowledge, pleading process -- legal process."

Sen. Hillary Rodham Clinton (D-N.Y.) then hit Wolfowitz, who is seen as a major architect of the Bush administration's approach to Iraq, with a virtual indictment. "You come before this committee . . . having seriously undermined your credibility over a number of years now," she said. "When it comes to making estimates or predictions about what will occur in Iraq, and what will be the costs in lives and money, . . . you have made numerous predictions, time and time again, that have turned out to be untrue and were based on faulty assumptions."

She quoted to him from his previous testimony from the run-up to the war, in which he asserted that the Iraqi people would see the United States as their liberator, that Iraq could finance its own reconstruction and that the estimate of Gen. Eric Shinseki, then the Army chief of staff, that it would take several hundred thousand troops to occupy Iraq was "outlandish."

Sen. Robert Byrd (D-W.Va.), usually the committee's fiercest critic of the Bush administration's stance on Iraq, seemed almost tame by comparison. He used his questioning time simply to criticize the administration's "arrogance" and remind colleagues to fulfill their constitutional duties.

Analysis: As Austin Powers might say: "Ouch, baby, that hurts." Personally, I think the Senate Democrats are spot-on with their criticism, and I'm amazed at the level of alacrity shown by top Pentagon officials like Mr. Wolfowitz. The fact that these guys weren't excused for their post-war planning failures and WMD detection failures is amazing, particularly when you consider the way that former-Army Sec. Tom White and former-Army Chief of Staff Gen. Eric Shinseki were summarily sacked. Ironically, those Army leaders didn't even screw up the way that the top OSD officials have; their crime was to clash with their bosses, and break from the Rumsfeldian ranks. So, I'm somewhat happy to see the Congressional oversight committee for the Pentagon taking this deputy cabinet secretary to task, and I hope they do more of it as the 2005 National Defense Authorization Act is considered over the next few months by Congress.

Of course, what this makes clear is that Secretary Rumsfeld is absolutely not going to step down, at least not unless Wolfowitz does too. As much as Congress may be upset at Secretary Rumsfeld, they don't have nearly the level of contempt for him that they do for his deputy. And, we haven't yet reached the "tipping point" where letting Rumsfeld go is more expedient than letting him stay, as Fred Kaplan explains in Slate. Plus, as Mr. Kaplan explains, the entire OSD inner circle (including Wolfowitz) has been tainted by the WMD failures and post-war planning failures, and you'd basically have to replace the whole tumerous brain in the Pentagon to achieve any substantive change. In an election year, with a war on, that's not going to happen. It may make sense politically to call for Rumsfeld's resignation in the wake of Abu Ghraib. But practically speaking, I just don't see it happening.

2004-05-13T18:14:00.000-07:00

First MP to face trial speaks up
Whose version of the truth is the truth?

Richard Serrano breaks an exclusive story in the LA Times this evening about what Army SPC Jeremy Sivits will confess to after the pleads guilty to a special court martial next week in Iraq. So far, military law pundits like me think that Sivits is being induced to plead guilty so that prosecutors will have at least one MP on the inside testifying for them, if for no other reason than to explain what's going on in all those awful photographs.

Sivits, who according to sources is expected to plead guilty at a court-martial proceeding next week in Baghdad, also gave fresh details about the other suspects in the beating of Iraqi prisoners - for the first time describing their moods as the prisoners were stripped and abused.

He also maintained, according to the documents, that all of this was done without the knowledge of their superiors in the Army chain of command.

"Our command would have slammed us," he said. "They believe in doing the right thing. If they saw what was going on, there would be hell to pay."

He said Graner warned him not to say anything, telling him: "You did not see (this)."

Graner's lawyers have said he and other soldiers were under pressure by military interrogators to "soften up" the detainees to get intelligence. All the other soldiers are expected to plead not guilty.

Sivits said he first became aware of the abuse, and began photographing much of it, on Oct. 3, nearly a month before the early November dates believed to have been the start of the harsh treatment against inmates in the overcrowded prison.

Analysis: I'm not yet ready to believe everything this guy says, or buy into this Specialist's testimony as the absolute truth. But if he's right, it still may not let the command off the hook. The fact that they didn't know about these events isn't enough. If they should have known about them, by doing proper nighttime inspections and spot-checks, and they didn't know, then they're still legally culpable. More to follow...

Update I -- Pointing Fingers: Chris Cooper reports in the Wall Street Journal (subscription required) on the story being advanced by Army SPC Charles Graner, which predictably, is at odds with that being advanced by SPC Sivits. What's the real truth? Who knows -- I'm sure it's out there somewhere. But in SPC Graner's case, he's got another strike against him: an adultery charge founded on his apparent affair with PFC Lynndie England (who is now pregnant with Graner's baby). This charge will probably have some effect on SPC Graner's credibility, and it'll probably be a slam dunk for the prosecution assuming they can medically prove paternity.

To me, this is starting to look like the final fatal scene in Quentin Tarantino's cult classic Resevoir Dogs, where all of the main characters engage in an armed standoff that ends in absolute bloodshed. Of course, the defendants here don't have pistols pointed at each other; just their future court testimony. But I still predict the same outcome -- total failure for all of these defendants when they try to point fingers in their courts martial. You see, military juries are really good at cutting through the smoke & mirrors typically thrown up by defense attorneys. The saying goes that if you're innocent, it's good to be before a military jury, but if you're guilty, it's bad to be before a military jury. I think these MPs are about to find out the reason for that maxim.

Update II: Noah Shachtman has an interesting article today in Wired News on lie detectors and whether the most advanced of these devices can accurately do its job. Polygraph evidence is generally inadmissable, even in military courts. But I wouldn't be surprised to see one of these MPs strapping on a polygraph to win some points in the court of public opinion.

Update III -- BG Karpinski speaks: The Washington Post hosted a live online discussion with BG Janis Karpinski, the commander of the 800th MP Brigade, which deserves a read from anyone interested in this story. She still hedges a bit on her command responsibility, but I think she actually acquitted herself quite well in this online discussion.

2004-05-13T17:58:00.000-07:00

The political book of 2004: Whether you love, hate, or feel indifferently towards him, if you care about American politics, you have to read Bill Clinton's new autobiography My Life, scheduled for release on June 30. Amazon.Com just sent me an e-mail letting me know I could pre-order a copy, which I will probably do, though I doubt I'll read it until after the California bar exam in late July.

2004-05-13T11:18:00.000-07:00

A change in leadership at Abu Ghraib
Shift from reserve to active MPs should make a big difference

The Washington Post has a good report today on Defense Secretary Donald Rumsfeld's trip to Iraq and the Abu Ghraib prison. Whether he can salvage his job and our nation's image from this morass remains an open question. But one thing jumped out at me from the text of this story:

Rumsfeld arrived in Baghdad about 1 p.m. (5 a.m. EDT). He met with several top generals, including Lt. Gen. Ricardo S. Sanchez, commander of U.S. forces in Iraq, and was briefed on the status of general activities in Iraq as well as specific issues related to the abuses at Abu Ghraib, before visiting the prison facility.

That tour was bleak. Under a hazy sky, detainees rushed to the edge of concertina wire fences, their raggedy clothes flapping in the wind, many giving thumbs-down gestures to the convoy. Some raised their arms, others shouted, some just stood and watched.

"What are you going to do about this scandal?" read one handwritten sign held by two detainees, who chased the buses as they turned a corner. Another detainee stood nearby and waved a bandaged stump of a leg. "Help," read another sign.

Col. David E. Quantock, commander of the 16th Military Police Brigade and now in charge of the embattled prison's detention operations, said he had to clean up a significant mess upon arrival earlier this year. He said "leadership challenges" before he arrived left some policies in a shambles and necessitated complete overhaul, but now morale is high and the soldiers are working to correct the problems of the past.

"The door was open for abuses," Quantock said. "We had soldiers we put trust in who didn't deserve that trust. The leadership oversight was not in place when I took over. Things have changed."

Analysis: I know Col. Quantock by reputation; a number my soldiers served under him in previous assignments. He is one of the best MP officers in the Army, as evidenced by his command of the 16th Military Police Brigade at Fort Bragg, one of a handful of active-duty MP brigades in the Army. He could not be a more different officer than BG Janis Karpinski, the commander of the 800th MP Brigade. Though she's a 1-star general, she is a reservist, with a fraction of the active-duty time that an equivalent active-duty general would have. I have also been less than impressed by her public statements thus far, which do everything but take responsibility for the things that happened in her unit. In moving to put an active-duty officer like COL Quantock in charge of Abu Ghraib, the Army has effectively replaced a slug with a stud. This is a smart move, and it's long overdue.

I spoke yesterday to a group of Army ROTC cadets on Abu Ghraib, and its leadership and legal issues. Afterwards, we spent a long time discussing the lessons to be learned from this incident. One clear lesson, especially to those who have served both on active duty and in the reserves like me, is that America may need to rethink its policy of relying on the reserves for so much of its military capacity -- especially in critical areas like MP work and Civil Affairs work. Reserve soldiers are great patriotic Americans, and their leaders are too. But quite simply, these reserve officers and NCOs don't have the professional experience, maturity or knowledge to do their jobs as leaders. BG Karpinski may have been a general officer, but in reality, she had only a fraction of the military experience and training that a general should have. Many reserve leaders have civilian jobs, like police work, that reinforce their military occupations. But many more don't. Reserve officers simply can't develop the skill sets necessary for effective command with just 39 days of training per year.

As this investigation goes forward, I think you're going to see a lot more pinned on the leadership failures of the officers in the 800th MP Brigade. Without a doubt, they will say that they weren't themselves trained, or that they weren't competent because they were just reservists. To some extent, they will be right, though I don't think that should excuse them from criminal culpability. What it should do, however, is make us think very hard about our expectations from reserve units. It may not be a good idea to stake so much of our national security on these units when they are underresourced, undertrained, and underequipped. Particularly in the age of the "strategic soldier", where one private's mistake can land on CNN and affect the entire outcome of the war.

Correction: Earlier today, I wrote that BG Karpinski had only a few years of active-duty time, based on my estimate of what a reservist would accrue over a 25-year career. I subsequently learned that I was mistaken, and that she did in fact have a 10-year active duty career before entering the Army Reserve. This note has been adjusted to reflect that fact.

2004-05-13T07:23:00.000-07:00

How far can you go in an interrogation?
CIA used coercive measures to question Al Qaeda leaders

That's the implicit question behind this New York Times article, which details some of the interrogation tactics used against top leaders like Khalid Sheikh Mohammed. These tactics, techniques and procedures (TTPs) are coming to light now because of the incidents at Abu Ghraib prison in Iraq. Many think that the overall environment of permissiveness towards coercive interrogations that has been endorsed by the White House and CIA somehow led to the abuses at Abu Ghraib. Perhaps. As the NYT story points out, the CIA will do a lot to squeeze information from those it has in custody.

In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to have helped plan the attacks of Sept. 11, 2001, C.I.A. interrogators used graduated levels of force, including a technique known as "water boarding," in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.

These techniques were authorized by a set of secret rules for the interrogation of high-level Qaeda prisoners, none known to be housed in Iraq, that were endorsed by the Justice Department and the C.I.A. The rules were among the first adopted by the Bush administration after the Sept. 11 attacks for handling detainees and may have helped establish a new understanding throughout the government that officials would have greater freedom to deal harshly with detainees.

Defenders of the operation said the methods stopped short of torture, did not violate American anti-torture statutes, and were necessary to fight a war against a nebulous enemy whose strength and intentions could only be gleaned by extracting information from often uncooperative detainees. Interrogators were trying to find out whether there might be another attack planned against the United States.

The methods employed by the C.I.A. are so severe that senior officials of the Federal Bureau of Investigation have directed its agents to stay out of many of the interviews of the high-level detainees, counterterrorism officials said. The F.B.I. officials have advised the bureau's director, Robert S. Mueller III, that the interrogation techniques, which would be prohibited in criminal cases, could compromise their agents in future criminal cases, the counterterrorism officials said.

After the attacks of Sept. 11, President Bush signed a series of directives authorizing the C.I.A. to conduct a covert war against Osama bin Laden's Qaeda network. The directives empowered the C.I.A. to kill or capture Qaeda leaders, but it is not clear whether the White House approved the specific rules for the interrogations.

The White House and the C.I.A. declined to comment on the matter.

* * *
The C.I.A. has been operating its Qaeda detention system under a series of secret legal opinions by the agency's and Justice Department lawyers. Those rules have provided a legal basis for the use of harsh interrogation techniques, including the water-boarding tactic used against Mr. Mohammed.

* * *
So far, the Bush administration has not said what it intends to do over the long term with any of the high-level detainees, leaving them subject to being imprisoned indefinitely without any access to lawyers, courts or any form of due process.

More analysis to follow on this subject... stay tuned.

2004-05-12T07:54:00.000-07:00

Explaining military justice: To learn more about the military justice system and the way that SPC Jeremy Sivits' special court martial will work in Iraq next week, see this background briefing given by a JAG officer at the Pentagon. It covers all of the important legal details, from jury selection to available punishment.

2004-05-11T22:10:00.000-07:00

"A Failure of Leadership" - Part II

James D. Villa, an attorney in Washington DC who used to command the now-infamous 372d MP Company, has an excellent op-ed in Wednesday's Washington Post. He makes a number of solid points in this column, and I imagine these abuses would have been caught much earlier had he been in command in late 2003. Here's the part of his argument resonated the most with me:

These actions were the result of huge command failures. The senior person charged thus far is Ivan L. Frederick, a staff sergeant. In an MP company, a person of his rank is normally placed in charge of a squad of 11 soldiers. I refuse to believe that no leader above Frederick was aware of or complicit in the abuses that were apparently widespread throughout the prison. While certain officers were relieved of their commands and other leaders were given letters of reprimand, the failure of unit leaders, from company to brigade, is stunning.

The 372nd has approximately 150 soldiers and is divided into five platoons, four of which consist of MPs. The company commander is directly responsible for all actions taken by his soldiers, or those that they fail to take. The 372nd's commander and the relevant platoon leader either knew or should have known of the actions of their subordinates, as should have their noncommissioned officers. All these leaders failed in their most basic responsibilities of supervising their soldiers in the performance of their duties.

Brig. Gen. Janis L. Karpinski, commander of the 800th MP Brigade, which ran the prison, has spent most of the past week on television telling the same story: that she never knew about this, that her MPs were working for military intelligence people, that she was not to blame. Had she spent as much time leading her troops as she apparently has preparing for appearances on MSNBC (with her lawyer in tow), the Army might have stemmed these incidents early on. I was taught in ROTC that a leader is responsible for what his or her unit does or fails to do. I was also taught that a leader takes responsibility for his or her soldiers. Either by commission or omission, Karpinski and her chain of command have failed those soldiers in her brigade and, ultimately, this country.

Right... but until we see charges preferred against these senior officers and NCOs, the message is that the Army condones and tolerates this derelict behavior by the commanders in the 800th MP Brigade. I'm not really sure what the Army is waiting for. It seems like there's plenty of material in MG Taguba's 6,000-page report upon which to substantiate criminal charges, especially where we're talking about such a clear leadership failure.

2004-05-11T18:20:00.000-07:00

"A Failure of Leadership"

The New York Times has the full transcript of today's Senate Armed Services Committee hearing online, and the L.A. Times has a good report on the hearing too. But all you really need to read is the following excerpt from the transcript, involving an exchange between Sen. John Warner and Army MG Antonio Taguba:

SEN. WARNER: I ask the same question to you. In simple laymen's language, so it can be understood, what do you think went wrong, in terms of the failure of discipline and the failure of this interrogation process to be consistent with known regulations, national and international? And also, to what extent do you have knowledge of any participation by other than U.S. military, namely Central Intelligence Agency and/or contractors, in the performance of the interrogations?

GEN. TAGUBA: Sir, as far as your last question, I'll answer that first. The comments about participation of other government agencies or contractors were related to us through interviews that we conducted. It was related to our examination of written statements and, of course, some other records. With regards to your first question, sir, there was a failure of leadership --

* * *
SEN. WARNER: Can you give us a quick synopsis of participation by other U.S. government agencies?

GEN. TAGUBA: Sir, they refer to them as OGAs or MIs. And when I asked for clarification it's because of the way they wore their uniforms. Some of them did not wear a uniform, and so how would I ask them to clarify further if they knew any of these people? And they gave us names, as stipulated on their statements. They also gave us names of those who are MI, uniformed MI in personnel in the U.S. Army, and that was substantiated by the comments made to us by other witnesses as we conducted our interviews.

SEN. WARNER: Right. In simple words, your own soldiers' language, how did this happen?

GEN. TAGUBA: Failure in leadership, sir, from the brigade commander on down; lack of discipline; no training whatsoever; and no supervision. Supervisory omission was rampant. Those are my comments.

Roger that. The brigade commander, BG Janis Karpinski, has become quite proficient at pointing fingers downwards, sideways, and anywhere else but her own chest. So has the battalion commander, LTC Jerry Phillabaum. I have yet to see a military officer in this chain of command fall on his or her sword by taking command responsibility. A military commander is responsible for all that his/her unit does or fails to do. Period. End of discussion. Admirably, Secretary of Defense Donald Rumsfeld took this to heart with his opening statement to SASC last week. Unfortunately, the key leaders in the 800th MP Brigade still don't get it. They still blame others, from the CIA to their own troops, for the things that happened in their units on their watch.

The burden of command is very heavy; it's not an easy job. Commanders must do more than set standards -- they must enforce them too. You can't just tell soldiers to conduct Preventive Maintenance Checks & Services ("PMCS" in Army-speak), you have to physically visit the motor pool to make sure they're doing it. You don't just tell your soldiers to fill their canteens with water; you check them before a patrol to make sure they did. Soldiers do what leaders check. Over time, you may develop trust in a unit that lets you back off some aspects of direct supervision. But even then, you still go down to the motor pool during PMCS, even if it's just to shoot the breeze with your troops. That's what leadership is all about. It's not enough to simply pass on policy guidance from higher HQ about the Geneva Conventions and prisoner treatment. Leaders must physically check their soldiers' performance to ensure the standards are being met. Higher level commanders must also physically inspect what's going on, to ensure that the right thing is being done.

Soldiers do what leaders check. It's a fundamental principle hammered into every lieutenant at the National Training Center, Joint Readiness Training Center, Ranger School, and countless other leadership-training courses. But it wasn't followed here. The leaders in this MP brigade slacked off. I'll give them the benefit of the doubt -- they probably did establish some standards of behavior for their MPs. But they failed to enforce them. They failed to get up and make midnight spot-checks on their troops. They failed to establish supervisory systems to ensure the standards were being met. And the result was that this behavior went on for far too long, undetected and unchecked.

Ultimately, these leaders must be held accountable for these failures. Administrative reprimands, like the ones given so far, are wholly insufficient in my opinion. The Army is prosecuting soldiers for criminal conduct at Abu Ghraib; it should prosecute their leaders as well. What sort of a messages does it send to the average soldier in the field when you hammer these junior troops but let their officers off with a slap on the wrist? Not a good one, in my opinion.

2004-05-11T15:50:00.000-07:00

Another sign of military overstretch
Bradleys near the DMZ go without parts because of war in Iraq

Seth Robson reports in Pacific Stars & Stripes that the Army's 2nd Infantry Division is having difficulty maintaining its fleet of M2 Bradley Fighting Vehicles because of spare parts shortages caused by the war in Iraq. Specifically, Bradleys are forced to drive on worn-out tracks because there is a global shortage of this part right now, driven by the use of Bradleys in Iraq.

All 58 Bradleys operated by 2nd Infantry Division’s 2nd Battalion are running on worn-out track, said Capt. Robert Richardson, maintenance officer for the 2nd Infantry Division’s 2nd Battalion, 9th Infantry Regiment.

Each Bradley has 166 blocks of track. The blocks, which cost $140 each to replace, are made of steel and rubber. Dozens of pins link them together to form the tracks. When the rubber on the blocks wears out, they need to be replaced, just like bald tires.

“Our track is getting worn out by all the driving we do on concrete and roads. I have got one over there with no rubber on the left side,” Richardson said, pointing to a disabled Bradley languishing in a corner of the maintenance bay at Rodriguez Range.

Normally, the mechanics would replace worn out blocks with new track. However, the need to supply track to vehicles in Iraq and Afghanistan means there is not enough for vehicles in South Korea, he said.

“It becomes a safety issue after a while,” Richardson said.

* * *
At least one of 2-9’s Bradleys is out of commission because mechanics have taken the good track from it to use on other vehicles, Richardson said.

“We’re not allowed to cannibalize. It is called controlled substitution,” Richardson explained. “It is something we are having to do because we are not getting replacements.”

If war with North Korea broke out tomorrow, some of 2-9’s Bradleys would not be able to move immediately because of worn out tracks, Richardson said.

Analysis: And that's the bottom line, folks. If we have to go to war tomorrow in Korea, or anywhere else, we will be less ready to fight as a direct consequence of the war in Iraq. This is a point that I wrote about in this American Prospect article "Be Unprepared", and a point I reiterated in this Slate article "Hollow Force." It is also a point hammered home by Nick Confessore in his March 2003 article "GI Woe", as well by James Fallows' article "Hollow Army" in the Atlantic Monthly. Ideally, our military should retain some amount of excess capacity at any given time with which to respond to immediate crises. This capacity shouldn't just mean tanks and planes and soldiers, but spare parts to fix the force and bombs to arm it. The military spent some of this capacity for Operation Desert Fox in 1998, and for Kosovo in 1999, but it rebuilt those shortages with funding in 2000 and 2001. Unfortunately, the military expended nearly all of its surplus capacity to fight the war in Iraq, with the result that we are now less ready to respond to threats abroad if/when they should arise.

2004-05-11T15:28:00.000-07:00

Marines decorated for valor in Iraq

Amidst the news of prison abuse by U.S. soldier and civilian interrogators in Iraq, I think it's important to recognize the fact that the overwhelming majority of American military personnel do an outstanding job, wherever they're stationed. It's also important to recognize that some American warriors go much, much further than what's expected of them, demonstrating courage and valor in ways that make Hollywood movies look tame by comparison.

Recently, the Marine Corps recognized several of its young warriors who clearly went above and beyond the call of duty in Iraq. Separately, the Marine Corps has also recognized 608 of its personnel in the 1st Marine Divisions with Purple Heart medals for wounds sustained in combat as the result of enemy action. Here are a few of the stories relating to Marines recognized for valor in action:

Captain Brian R. Chontosh - The Navy Cross

While leading his platoon north on Highway 1 toward Ad Diwaniyah, Chontosh's platoon moved into a coordinated ambush of mortars, rocket propelled grenades and automatic weapons fire. With coalitions tanks blocking the road ahead, he realized his platoon was caught in a kill zone.

He had his driver move the vehicle through a breach along his flank, where he was immediately taken under fire from an entrenched machine gun. Without hesitation, Chontosh ordered the driver to advanced directly at the enemy position enabling his .50 caliber machine gunner to silence the enemy.

He then directed his driver into the enemy trench, where he exited his vehicle and began to clear the trench with an M16A2 service rifle and 9 millimeter pistol. His ammunition depleted, Chontosh, with complete disregard for his safety, twice picked up discarded enemy rifles and continued his ferocious attack.

When a Marine following him found an enemy rocket propelled grenade launcher, Chontosh used it to destroy yet another group of enemy soldiers.

When his audacious attack ended, he had cleared over 200 meters of the enemy trench, killing more than 20 enemy soldiers and wounding several others.

Pfc. Joseph B. Perez - The Navy Cross

1st Platoon came under intense enemy fire while clearing near Route 6 during the advance into Baghdad. Perez, the point man for the lead squad, and therefore the most exposed member of the platoon, came under the majority of these fires.

Without hesitation, he continuously fired his M16A4 rifle to destroy the enemy while calmly directing accurate fires for his squad. He led the charge down a trench destroying the enemy and while closing and under tremendous enemy fire, threw a grenade into a trench that the enemy was occupying.

While under a heavy volume of fire, Perez fired an AT-4 rocket into a machine gun bunker, completely destroying it and killing four enemy personnel. His actions enabled the squad to maneuver safely to the enemy position and seize it.

In an effort to link up with 3rd Platoon on his platoon's left flank, Perez continued to destroy enemy combatants with precision rifle fire. As he worked his way to the left, he was hit by enemy fire, sustaining gunshot wounds to his torso and shoulder. Despite being seriously injured, Perez directed the squad to take cover and gave the squad accurate fire direction to the enemy that enabled the squad to reorganize and destroy the enemy.

Cpl. Armand E. McCormick - Silver Star

Under heavy fire McCormick, a lance corporal at the time, exhibited exceptional bravery when the lead elements of his battalion were ambushed with mortars, rocket propelled grenades, and squad automatic weapons fire. Fearlessly he drove his lightly armored vehicle directly at an enemy machine gun position and purposely crashed it into an occupied trench line.

With the initial breach of the enemy defense now gained for his unit, he sprang from the vehicle and began assaulting the berm and ambush line with two Marines. Taking direct fire, and outnumbered, he pressed forward, firing his M9 pistol at enemy forces. Moving through the trench, he repeatedly came under enemy fire, each time calmly taking well-aimed shots.

As the group ran low on ammunition, he collected enemy rifles and a rocket-
propelled grenade and continued to press the attack forward several hundred meters. As
a follow-on company began to make their entrance into the berm, he returned to his vehicle and backed it out of the trench. McCormick's boldly aggressive actions greatly reduced the enemy's ability to inflict casualties on the rest of his battalion.

Cpl. Robert P. Kerman - Silver Star

Kerman exhibited exceptional bravery when the lead elements of the battalion were ambushed with mortars, rocket propelled grenades and automatic weapons fire.

As the vehicle he was traveling in drove directly into machine gun fire and into a trench line, Kerman sprang from the vehicle and began assaulting down the enemy occupied trench with two other Marines. As the enemy soldiers fired at him, he fearlessly plunged towards them firing his M16 with lethal accuracy. Continuing to move through the trench he repeatedly came under enemy fire.

Each time he would calmly occupy a steady firing position and take well-aimed shots that had devastating effects in the enemy.

As the group ran out of ammunition, they pressed forward 200 to 300 meters utilizing captured enemy AK-47s.

He showed no regard for his own personal safety, and his actions directly contributed to the successful outcome of the engagement.

Cpl. Timothy C. Tardif - Silver Star

During the At Tarmiyah Battle, located 30 kilometers north of Baghdad, Tardif and his squad reinforced his platoon, which was pinned down in a violent enemy crossfire ambush.

Immediately assessing the situation, he directed Marines to return fire into enemy positions in a town. He identified the location of the enemy, and determined the precise point in which to assault the enemy.

Tardif then charged across a road under intense small arms and rocket-propelled grenade fire, inspiring his Marines to follow his example. Engaged in an intense close-quarters battle, he received shrapnel wounds from an enemy grenade. Tardif refused medical attention and continued leading his squad in an assault on an enemy-held compound.

After securing the compound, Tardif egressed on order and led his reinforced squad in a fighting withdrawal. Tardif collapsed after traveling 150 meters from wounds suffered during fighting.

Comment: The actions of these Marines speak for themselves, and require little analysis or commentary from me. However, I would like to point out the humility with which these Marines responded to their recognition. These guys, like Pat Tillman, ask for nothing in return save the brotherhood of their units, and the accomplishment of their mission.

"I was just doing my job, I did the same thing every other Marine would have done, it was just a passion and love for my Marines, the experience put a lot into perspective," said Chontosh.

"It's an honor of course, it is just another day in the Marine Corps," said McCormick. "To me I did what I was suppose to do, I did what was expected," he added.

"I was pretty scared at the time, but we knew what we had to do and we did it," said Kerman. "I did not expect (the award), maybe I just did the right thing."

"It is unreal, it is not what I expected, it is unbelievable," Perez said. "This is real weird for me, because, I am not big on special events," said Perez.

"This award means a lot to me, personally," said Tardif. "But it's not just about me. It's about my platoon and everyone else out there."

2004-05-11T13:42:00.000-07:00

The Dark World of American Interrogations

Dana Priest and Joe Stephens have a must-read article in today's Washington Post on the tactics being employed by U.S. military and civilian intelligence officers abroad in the war against terrorism. This article refers to some earlier reporting by The Post in December 2002, which indicated the U.S. was running secret interrogation centers abroad to conduct questioning sessions that might not be kosher under U.S. or international law.

For more on this subject, I highly recommend reading Mark Bowden's "Dark Art of Interrogation" article from the October 2003 issue of the Atlantic Monthly. Also, see Jess Bravin's article in the April 26, 2002 issue of the Wall Street Journal titled "Interrogation School Tells Army Recruits How Grilling Works." I used both articles in my Law & Terrorism seminar to discuss interrogation and how it might relate to the Supreme Court's 5th Amendment jurisprudence, and they both do a good job of describing exactly what goes on behind closed doors.

2004-05-11T13:22:00.000-07:00

First court-martial set in the Abu Ghraib mess

Adam Liptak, one of the New York Times' legal writers, has a sidebar in Tuesday's paper describing the special court-martial scheduled to begin in 9 days for Army SPC Jeremy Sivits. The article discusses some of the procedural issues that may arise during the trial, and speculates on the background for the reasons to prosecute this case so quickly.

Both the speed with which the policeman, Specialist Jeremy Sivits, has been brought to trial and the relatively minor sanctions he faces suggest that prosecutors are working their way up the chain of culpability from the bottom. These factors also suggest that Specialist Sivits has entered into a plea agreement in exchange for his testimony at later trials. Six other soldiers are also facing criminal charges in the abuse and humiliation of Iraqi prisoners at Abu Ghraib.

"They've probably got a domino theory of prosecutions," said John D. Hutson, the dean of the Franklin Pierce Law Center and a former judge advocate general of the Navy. "And there may be a race to the courthouse among the potential defendants to see who can get the best deal."

If there is a plea agreement, it is likely that only limited evidence, relevant to the appropriate punishment, will be presented.

"The facts are probably not going to be aired at the first trial," said Michael F. Noone Jr., a law professor at Catholic University and an expert in military justice. "Critics of the administration are going to say there is a cover-up here."

* * *
Mr. Hutson said the nature of the case might account for the pace.

"It's not really a terribly complicated case," he said. "You've got pictures, for God's sake."

Holding the trials in Iraq rather than in the United States is also unremarkable, legal experts said.

"It is not at all unusual to conduct courts-martial in the theater of operations," said Ronald W. Meister, a New York lawyer who served in the Judge Advocate General's Corps in the Navy. Mr. Meister said about 25,000 courts-martial were held in Vietnam.

Holding trials near the scene of the crime also makes it easier to secure evidence and testimony, he added.

Analysis: The first thing to note is that this is a special court martial, not a general court martial. There really isn't an analogous distinction in the civilian world, except perhaps the distinction between a trial in federal district court and a misdemeanor bench trial before a federal magistrate. Basically, special courts martial are limited to certain crimes (generally), and they carry certain maximum punishments that are less than a genearl court martial. The military jury is also smaller (or non-existent) in a special court martial, as opposed to a general one. Otherwise, the procedures are almost identical.

In this case, it appears that the first prosecution out the gate is not the most serious. The pundits quoted in Mr. Liptak's article think that the military prosecutors are using the old organized crime model of prosecution, where you go after the lower-ranking guys first in order to roll them and secure their testimony against the higher-ranking individuals. Perhaps. Although in the military context, you don't need to do this for quite the same reasons. In the military justice system, you have a doctrine known as "command responsibility", which holds superior officers in command positions vicariously liable for the actions of their subordinates in certain circumstances. Once you prove (through conviction) the acts of the subordinates, you establish a prima facie case for the superiors' responsibility. Thus, the testimony of the lower-ranking soldiers is less important than the testimony of a Mafia hitman against his big boss. But we'll see how this prosecutorial strategy unfolds. I think we may be in for a few surprises.

For more on the military justice system, see this primer that I wrote for Findlaw.Com's Writ legal magazine in December 2002. Also, check out the National Institute for Military Justice's website, which has links to everything you could ever want to know on this subject.

2004-05-11T13:04:00.000-07:00

President views more photos, videos from Abu Ghraib
Will they be released by the government? Will they be leaked?

The Los Angeles Times reports this morning on the viewing of new photos and videos from Abu Ghraib prison that was staged for President Bush yesterday at the Pentagon. These graphic depictions of U.S. soldiers' conduct are being kept close-hold by DoD officials, ostensibly because of their heinous nature.

Defense officials were weighing whether and how to release the remaining images to members of Congress and the public. Pentagon spokesman Lawrence Di Rita said the photographs, which a senior military official said number more than 1,200, included "inappropriate behavior of a sexual nature." Di Rita did not elaborate.

The president viewed about a dozen images, White House Press Secretary Scott McClellan said, including photographs and still images taken from video footage, most of which have not been made public.

"The president's reaction was one of deep disgust and disbelief that anyone who wears our uniform would engage in such shameful and appalling acts," McClellan said. "It does not represent our United States military, and it does not represent the United States of America."

* * *
A military official who has seen the photos said that one depicts soldiers sodomizing prisoners with chemical lights and another depicts sex between two U.S. soldiers. The official could not confirm a CNN report that said a video exists that shows guards fondling and kissing a female detainee.

"They apparently show some fooling around and some horseplay. There are some that show detainee abuse," the official said. He added that of the more than 1,200 images being reviewed by Pentagon investigators, fewer than 400 are "bad."

It appeared Monday that the Pentagon would make some, but not all, of the images available to some members of Congress, but details were still under discussion.

"We haven't ruled [release] in or out," Di Rita told reporters at the Pentagon.

The Pentagon's inching toward release of the images and the president's show of support for Rumsfeld did not quell congressional clamor over the abuse scandal. The Senate adopted a resolution, 92-0, Monday to condemn "in the strongest possible terms the despicable acts at Abu Ghraib prison," the detention center near Baghdad where the photos involving U.S. personnel that have come to light were taken.

"This body is shocked," Senate Majority Leader Bill Frist (R-Tenn.) said on the Senate floor. "We cannot undo the abuse those Iraqi prisoners suffered but we can, through our actions, show the Iraqi people that the transgressions of a few do not represent America."

Analysis: I can be naive when it comes to Washington power politics and power journalism. But one rule of Washington seems to be quite apt here. The news will come out. This rule applies with particular force to bad news, or news with the potential to do some political damage. It always comes out. And when it does, it always looks worse to have concealed the news than to have released it. Of course, there are legitimate reasons to be squeamish about these images' release. Indeed, they may even be considered obscene if/when published, according to the community standards of decency in some parts of America. (Probably not L.A. though) Nonetheless, I see it as inevitable that these photos and videos will come out somehow, at some point, in the future. Therefore, it behooves the administration to release them now, on its own terms, with appropriate warnings and blurring of faces and body parts. Will it be graphic? Yes. But unfortunately, it's also a big news story, and holding onto this information merely whets the hunger of the American public for it.

2004-05-11T12:47:00.000-07:00

Commentary on Blogs: NPR's "The Connection" devoted its show this morning to blogging and a recent article by George Packer in Mother Jones that was somewhat critical of this medium. David Adesnik and Kevin Drum appeared as featured guests on the show, and Kevin even plugged this blog as an example of a blog that gains notoriety because of events in the news. (Thanks Kevin!)

My thoughts? I agree with Kevin and David. I think weblogs are here to stay, and that their variety is what makes them valuable. The navel-gazing "diary" weblogs serve a purpose, and they're good for that. The online op-ed blogs, such as mine, serve a purpose too, and they will stay alive as long as they provide value to the reader. In many ways, the blogosphere is a large marketplace of ideas. In this case, the low barriers to entry may allow for a glut of blogs in relationship to the demand, but that's okay too. We have Google; we have blogrolls; we have other tools to sift through the chaff in order to find the wheat. Eventually, the blogosphere may have to organize itself better. But not yet... it seems to be thriving in a state of semi-organized chaos.

2004-05-11T09:50:00.000-07:00

Admin notes: I now have some extra time on my hands before the start of my bar exam study course, so I plan to move Intel Dump to its new server sometime this month. I'm planning to use the Powerblogs software/server that Eugene Volokh has switched to, but if you have a recommendation for something else, please let me know.

Also, I've switched my e-mail address to inteldump -at- yahoo.com. My UCLA e-mail inbox will soon convert to an alumni account with very little storage space, and it won't be able to accomodate the message traffic I get from this site. If you need to reach me, please use this new address. Thanks.

2004-05-10T18:15:00.000-07:00

Dissent in the ranks

Tom Ricks reported in Sunday's Washington Post on some extraordinary comments from senior military leaders about the war in Iraq. Most notably, the commanding general of the 82nd Airborne Division said that we were be losing the war on the strategic level. These comments come at a time when many Democratic and Republican politicians are asking whether we should craft an exit strategy for Iraq, and what that plan might look like.

Army Maj. Gen. Charles H. Swannack Jr., the commander of the 82nd Airborne Division, who spent much of the year in western Iraq, said he believes that at the tactical level at which fighting occurs, the U.S. military is still winning. But when asked whether he believes the United States is losing, he said, "I think strategically, we are."

Army Col. Paul Hughes, who last year was the first director of strategic planning for the U.S. occupation authority in Baghdad, said he agrees with that view and noted that a pattern of winning battles while losing a war characterized the U.S. failure in Vietnam. "Unless we ensure that we have coherency in our policy, we will lose strategically," he said in an interview Friday.

"I lost my brother in Vietnam," added Hughes, a veteran Army strategist who is involved in formulating Iraq policy. "I promised myself, when I came on active duty, that I would do everything in my power to prevent that [sort of strategic loss] from happening again. Here I am, 30 years later, thinking we will win every fight and lose the war, because we don't understand the war we're in."

The emergence of sharp differences over U.S. strategy has set off a debate, a year after the United States ostensibly won a war in Iraq, about how to preserve that victory. The core question is how to end a festering insurrection that has stymied some reconstruction efforts, made many Iraqis feel less safe and created uncertainty about who actually will run the country after the scheduled turnover of sovereignty June 30.

Inside and outside the armed forces, experts generally argue that the U.S. military should remain there but should change its approach. Some argue for more troops, others for less, but they generally agree on revising the stated U.S. goals to make them less ambitious. They are worried by evidence that the United States is losing ground with the Iraqi public.

Some officers say the place to begin restructuring U.S. policy is by ousting Defense Secretary Donald H. Rumsfeld, whom they see as responsible for a series of strategic and tactical blunders over the past year. Several of those interviewed said a profound anger is building within the Army at Rumsfeld and those around him.

A senior general at the Pentagon said he believes the United States is already on the road to defeat. "It is doubtful we can go on much longer like this," he said. "The American people may not stand for it -- and they should not."

* * *
The top U.S. commander in the war also said he strongly disagrees with the view that the United States is heading toward defeat in Iraq. "We are not losing, militarily," Army Gen. John Abizaid said in an interview Friday. He said that the U.S. military is winning tactically. But he stopped short of being as positive about the overall trend. Rather, he said, "strategically, I think there are opportunities."

The prisoner abuse scandal and the continuing car bombings and U.S. casualties "create the image of a military that's not being effective in the counterinsurgency," he said. But in reality, "the truth of the matter is . . . there are some good signals out there."

Analysis: First off, it's hard to overstate just how amazing these quotes are. Remember how LTG William Wallace said during the war that "The enemy we're fighting is different from the one we'd war-gamed against"? Remember what a stink that caused? That was only a field commander saying that the plan might need to be tweaked because of calculations about the enemy's strength and will. This is something altogether different. Here we have a field commander, just returned from Iraq, saying that we are losing the war on the strategic level. That's the level managed by the President and Secretary of Defense. Essentially, this two-star general is saying that "we won the war at our level, but the SecDef screwed the pooch." That's huge.

Second, these questions come at a very critical time. The casualty toll from April and the Abu Ghraib prison abuse scandal have made many Americans (and their political leaders) ask a simple question: is it worth it? If we're not winning, or we're not going to win in the long run, one might start wondering whether it's worth it to continue reinforcing failure. Until this prison scandal broke, I believed that we could win in Iraq by leaving a lasting, secure democracy (of sorts) built on the foundation of a market economy and civil society. Now, I'm not so sure. We may have reached the point of diminishing returns, or the point where strategic victory in Iraq is not possible without a deliberate U.S. withdrawal. I'm not ready to make a conclusion on this point yet, but it's something worth considering.

2004-05-08T11:25:00.000-07:00

In the line of fire

The Washington Post published my review this morning in Sunday's Book World of Thunder Run, a new book by Pulitzer Prize-winning journalist David Zucchino on the armored assaults which took Baghdad during the war with Iraq. I thought the book was quite excellent, and I recommend it as one of the better military history books I've read in recent years.

When asked to describe a battle as seen through the camera of an unmanned aerial vehicle, one Army brigade commander said it was like watching a football game through a straw.

The same metaphor could be used to describe the pictures and stories relayed by embedded reporters in Iraq. This innovative program took civilian reporters and attached them to combat units on the ground and at sea. The downside was that these journalists often saw little more than their unit's piece of the battlefield. Fortunately, this cannot be said of David Zucchino's Thunder Run, which chronicles the armored assaults on Baghdad by the 2nd Brigade of the 3rd Infantry Division. Zucchino paints a vivid picture of the battle by stitching together the narratives of soldiers, officers, generals and Iraqis whom he interviewed during and after the war. As a result, his book goes far beyond the "first draft of history" that he filed from Baghdad in April 2003.

Zucchino wasn't meant to cover the Spartan Brigade or its thunder runs. He was originally embedded with the 101st Airborne Division, a light infantry force that was supposed to get the mission to assault Baghdad. But in the fog of war, both things changed. Zucchino and his equipment were dumped into a canal by a vehicle accident, and he decided to hitch a ride with the 3rd Infantry Division instead of the 101st. As it turned out, his instincts paid off, and he accidentally found himself with a ringside seat for the war's pivotal battle.

Check out the book -- it's worth it.

2004-05-08T08:59:00.000-07:00

Saturday evening: I'm tentatively scheduled to appear on At Large with Geraldo Rivera tonight to discuss the events at Abu Ghraib and the issue of private contractors in Iraq. The show airs live at 10pm EST/7pm PST on Fox News Channel.

2004-05-07T20:05:00.000-07:00

Admin note: Intel Dump will slow down until Monday to accomodate my law school's graduation weekend, and all the family events associated with this day and Mother's Day. If some big story breaks, like additional photos or videos from Abu Ghraib, I'll try to post something. Otherwise, I'll be back Monday. Please come back then.

2004-05-07T14:47:00.000-07:00

The ICC and Abu Ghraib: Slate just posted my Jurisprudence essay on how the International Criminal Court may play a role in this developing incident. The ultimate point is that the U.S. should act decisively here because it's the right thing to do. But if the U.S. does not do so, the threat of an ICC prosecution should induce the U.S. to take its investigative and prosecutorial obligations seriously.

2004-05-07T10:53:00.000-07:00

Taguba reassigned from CENTCOM to Pentagon: In what has to be a poorly timed announcement, the Pentagon said today that it was moving Army Major General Antonio Taguba from Southwest Asia to a bureaucratic post in Washington. No effective date for the transfer was given.

Major General Antonio M. Taguba, Deputy Commanding General (Support), Third United States Army, Camp Doha, Kuwait to Deputy Assistant Secretary of Defense for Readiness, Training and Mobilization, Office of the Assistant Secretary of Defense for Reserve Affairs, Washington, DC.

Uh... doesn't this guy need to stay in the CENTCOM area of responsibility for some reason? Wouldn't he be a good resource to keep in theater for investigators to talk to? I don't understand the timing or wisdom of this move. I should be clear that I don't think there's anything improper here. This is almost surely a normal personnel move, to be conducted during the summer reassignment season. However, the timing couldn't be worse, could it?

2004-05-07T09:01:00.000-07:00

Testimony to the Senate Armed Services Committee

Here are some stream of consciousness thoughts on the testimony regarding Abu Ghraib by the Defense Secretary and other top DoD officials today before the Senate and House Armed Services Committees. Interestingly, Sen. Warner swore all of the witnesses in for their testimony today, something not always done for habitual witnesses like the SecDef.

"On my watch": Defense Secretary Donald Rumsfeld opened his testimony today to the Senate Armed Services Committee with a contrite expression of command responsibility for the actions at Abu Ghraib. We'll see how far he goes in apologizing for these actions and recommending a course of action for dealing with these abuses. My sense is that he'll go far enough to meet the standards of the military justice system, but not far enough for the average American citizen who's appalled by these acts. Still, I was impressed by his taking of responsibility. Now, I guess we wait to see if he really falls on his sword.

McCain grills Rumsfeld: Sen. John McCain's audition for a job in the U.S. Attorney's office went quite well, in my opinion. He asked simple, direct questions like "What is the chain of command from the guards to you, Sec. Rumsfeld?" and "What were the guards' orders?" These questions are critical. Anyone who's been through basic training can tell you that one of the first things you learn is your chain of command, from you to the President. Moreover, every recruit learns the general orders of a sentry, and learns that knowing one's orders is critical to mission success. Yet, Secretary Rumsfeld could not answer either simple question. He tapdanced around the question, but ultimately, never gave Sen. McCain an answer as to the line of command from PV2 Joe Snuffy up to the Secretary of Defense. PV2 Snuffy has to know that; shouldn't the SecDef? That's bad.

41,000 detainees in Iraq: On questioning from Sen. Ted Kennedy, Sec. Rumsfeld announces that we have detained more than 41,000 Iraqis during the course of combat and post-war operations, and that we have released more than 31,000 detainees pursuant to Art. V tribunals under the 3rd Geneva Convention. That's a huge number. But I'm curious to know the disposition of the remaining 10,000 detainees. (Post-script: Sec. Rumsfeld tells Sen. Lieberman that every detainee in Iraq is to be treated under the Geneva Conventions, unlike those detainees at Gitmo.)

The conscience of the Senate. With a raspy voice from laryngitis, Sen. Robert Byrd expressed disappointment that the Defense Department was not being run according to the principle found in a placard on President Harry Truman's desk: "The Buck Stops Here". Sen. Byrd has been a sharp critic of the Pentagon and the White House for its conduct of the war in Iraq, so I'm not surprised that he would focus on accountability issues here.

"I read the executive summary." In response to a question from Sen. Byrd about whether he had read the Taguba 15-6 report, Sec. Rumsfeld said that he not yet read it. Say again? That's right. Despite the importance of this issue, and the fact that this document was now public and available for those who might draft questions for the committees, Sec. Rumsfeld has still not read the full report. I find that quite startling. Now, the SecDef is a busy guy -- he has the largest federal agency to run, in addition to dealing with this scandal. But at some point, when you're decisively engaged, you have to shift fire to the things that actually matter the most at the moment. This scandal is what matters most right now for the Pentagon and Sec. Rumsfeld's future. I should think that he would take the time to read the report. Update: Several people have told me that the 50+ page report posted online is the executive summary, although it's not marked as such. If that's true, this statement by Secretary Rumsfeld isn't as bad as it sounds. However, I think he did sound flip in saying that he'd only read the ExecSum; he might have used a different phrase.

Two wrongs don't make a right, Joe: If there's one guy who can muster moral indignation in the Senate, it's Sen. Joe Lieberman. Unfortunately, I found his question to the SecDef to be quite disappointing. He basically said that America never got an apology from the insurgents who desecrated those four contractors' bodies in late March, and that we're better than that because we did apologize in this case. But the implication to me was that our enemies resort to bruatality, and that we should be excused for using some brutal means too. This almost sounds like the argument made by Rush Limbaugh on his radio show this week. Personally, I couldn't disagree more. Counterinsurgency is a messy business. But we can't allow ourselves to step onto the slippery slope of reprisals and reciprocity where atrocities are concerned. Once we do, we lose any moral credibility we have, something that matters very much to the successful prosecution of the war on terrorism.

One standard: One of the best responses of the day came from Army Gen. Pete Schoomaker, the Chief of Staff of the Army. At some point, a Senator implied there might have been different standards and leadership in the 800th MP Bde by virtue of its reserve status. Gen. Schoomaker jumped on that assertion, saying that all soldiers regardless of component were subject to the same standards. He's right, of course. There is only one standard for performance by any soldier -- regardless of MOS, component or unit type. No soldier should have committed these abuses.

However, I can't help but think that there were some salient differences between this MP unit and the active-duty MP units I served with. You see, in the Army, active-duty MP units are as anal-retentive as they come when it comes to discipline. I used to say that an MP soldier would get an Article 15 for something that a scout would get a beer for. And it's true -- MP commanders typically are very strict with their soldiers, in order to set the standard of "no slack" and establish a clear moral framework for their soldiers. Young MP soldiers have a staggering amount of responsibility for their age and training, and it takes strict discipline to keep everyone in line and make sure that little abuses of authority don't become big ones. In my personal experience, this attitude towards discipline does not exist in many reserve component MP units, though that varies widely based on the individual unit leadership of the unit. It's too early to tell whether this was part of the problem at Abu Ghraib, but the investigations will certainly focus on this aspect of the issue.

2004-05-07T08:14:00.000-07:00

Larger questions loom for America's policy in Iraq

Carla Anne Robbins, Jackie Calmes and Greg Jaffe have a masterful article in today's Wall Street Journal (subscription required) on the larger questions being asked about America's policy in Iraq -- principally, whether we should 'stay the course' or seek an 'exit strategy'. These questions have always lingered in the background, ever since we invaded Iraq in March 2003. But with the exceptional lethality of April 2004 for American troops, and the shocking photos from Abu Ghraib, many have begun asking these questions with increased interest and intensity.

On an extraordinary day of turmoil in Washington, Mr. Bush issued his first clear apology for the abuse and rejected growing demands for the ouster of Defense Secretary Donald Rumsfeld. But there were signs of exasperation with the military situation in Iraq even among some Republicans who fear the U.S. is losing not only blood but also honor in Iraq.

Among Mr. Bush's challenges: finding a way to get more help from the United Nations and other countries to restore peace in Iraq. Many on Capitol Hill are also calling for military changes in Iraq to soften the image of the U.S. as a heavy-handed occupier. The most extreme option would be to pull troops out of Iraq.

* * *
In Congress, there are signs of growing unease about the Bush administration's approach to Iraq even among some who backed Mr. Bush's campaign to depose Saddam Hussein. Republicans' exasperation with the administration and the president himself was evident in a private meeting of Republican Senate committee chairmen this week in Senate Majority Leader Bill Frist's office. Mr. Frist at one point said he'd like to sit down with Mr. Bush and ask which two or three people in the administration could tell him what's really going on with Iraq, according to one person in the room. "I don't think he knows who could do that," replied Senate Foreign Relations Chairman Richard Lugar.

The questioning of Mr. Bush's military strategy was illustrated yesterday by the public concerns of Mr. Murtha, one of the most hawkish Democrats on Capitol Hill and a Marine Corps veteran of Vietnam. "The direction's got to be changed or it's unwinnable, in my estimation," he said. He warned the administration that it must commit itself to a fuller mobilization of U.S. forces to restore calm and establish democracy in Iraq -- or pull out altogether. He said he had struggled "for six weeks, trying to figure out something else to do. And the only conclusion I can come to is either mobilization or get out," he said.

"So far, I'd prefer the mobilization side of it," he said, because leaving abruptly would be "a devastating international blow to us." But he also admitted that the window may have already closed politically at home. "I don't know if we have the will to mobilize now that the public has turned against" the war, he said. In the Wall Street Journal/NBC poll, one in four Americans say troops should leave Iraq as soon as possible and another 30% say they should come home within 18 months. Some of Mr. Bush's supporters fear that reaction to the prison abuses will so sway public opinion against U.S. involvement in Iraq that he won't be able to accept the losses needed to achieve military success and impose order there.

But sharply reducing American troop strength in Iraq, no matter how politically attractive in the U.S. right now, raises significant problems. A lower U.S. profile could invite a civil war and tempt Iraq's neighbors -- Turkey, Syria, Iran and perhaps even Saudi Arabia -- to intervene to protect their interests.

The Pentagon is showing no signs that it intends to reduce U.S. troops in Iraq. Mr. Rumsfeld announced earlier this week that he was shipping as many as 20,000 new soldiers to the country to keep troop levels, which were supposed to fall to 115,000 this spring, at about 135,000 through the summer.

* * *
"I think we are asking ourselves what is the art of the doable in the near term," said one Pentagon consultant who returned recently from Iraq. "We are not going to build a Jeffersonian democracy throughout Iraq. What we have to do is put an Iraqi face on security."

Ultimately, I think that's likely to be the U.S. exit strategy: build an Iraqi security apparatus as quickly as possible, and then withdraw U.S. forces as the Iraqis demonstrate the ability to secure their own country. Of course, this task is easier said than done, otherwise we'd have done it already.

2004-05-07T08:06:00.000-07:00

Developments in the Abu Ghraib case: I don't have time this morning to write fully on all of these developments, I but I would like to highlight them.

Justice Department claims jurisdiction for civilians at Abu Ghraib: The Washington Post reports that AG John Ashcroft has finally stepped up to the plate to push for federal prosecutions against the civilians involved at Abu Ghraib -- including CIA employees and private contractors. I have long argued that DOJ has jurisdiction under the Military Extraterritorial Jurisdiction Act of 2000, however, DOJ told the Wall Street Journal earlier this week that it was not "rushing in" to exercise its prerogatives in this case. Glad to see that DOJ is on board.

Red Cross says it knew about Abu Ghraib abuses for some time: The New York Times reports that officials at the International Committee of the Red Cross (ICRC) knew about these prison abuses, and other prison abuses, in Iraq because of their visits to those facilities. But in keeping with their traditions, the ICRC only told U.S. officials about those problems -- not the public. The story raises obvious questions about the way the ICRC does business, and the wisdom of its policy to keep abuse allegations secret. (The Wall Street Journal has excerpts from the report on its subscriber website.)

More examination of the role of private contractors at Abu Ghraib: The New York Times also offers this story on the role of private contractors at Abu Ghraib, where they were employed to support interrogations with translation support and other support. This is something I've written on too, and I imagine its an issue which will be debated as Congress deliberates over this year's National Defense Authorization Act. The use of contractors by the American military is at an all-time high, and it's not clear this is the best course of action for the U.S. or its interests abroad.

SecDef, President's comments may have created unlawful command influence problem: Gail Gibson writes in teh Baltimore Sun about whether the remarks by President Bush and Defense Secretary Donald Rumsfeld -- who sit atop the military command structure -- might be seen as "unlawful command influence" of the kind that could deny soldiers a fair trial in this case. The military justice system is particularly sensitive to this issue, because of its unique structure which places justice in the hands of commmanders (known as convening authorities), and the fact that military juries are composed of officers and NCOs who ultimately report to these commanders. Rule 104 of the UCMJ expressly prohibits unlawful command influence, and commanders can actually be disciplined themselves for breaking this rule. It remains to be seen how this issue will play out in the Abu Ghraib criminal cases, but I think it's safe to say that it will give the soldiers at least one basis for an appeal if they're found guilty.

2004-05-06T12:01:00.000-07:00

Anti-terrorism turf wars

For a break from all the Abu Ghraib news, check out this Los Angeles Times report on the after-action turf battles between the FBI, LAPD and L.A. airport police. The row concerns an incident on Monday where an airport police SWAT team stormed a Singapore Airlines jet whose hijacking transponder had gone off.

The decision to allow a SWAT team to storm a Singapore Airlines jet Monday after it had transmitted a computerized hijack alert sparked a debate Wednesday among law enforcement officials in Los Angeles on whether the action had violated protocol and jeopardized the safety of those on board.

Several law enforcement sources, including some from the Los Angeles Police Department, complained that Los Angles International Airport police had overstepped their authority by sending SWAT officers onto the plane after it landed at the airport Monday afternoon. The hijack alert turned out to be false.

But airport officials said it was necessary to board the plane right away because they weren't certain whether a hijacking was underway.

The quarrel underscores the jurisdictional complexities that involve protecting the airport, aircraft and passengers at what the state has ranked as California's No. 1 terrorist target. At least six agencies are charged with security at the airport. Among them are the FBI, Transportation Security Administration, LAPD and the independent airport Police Department.

"Every addition to the alphabet soup of agencies at the airport potentially adds to confusion in times of crisis," Councilman Jack Weiss said.

* * *
On Wednesday, Mayor James K. Hahn sent a two-page letter to Transportation Secretary Norman Mineta, calling on the FAA to work with the TSA and other agencies to determine why local officials had not been alerted about Flight 20.

"Given the events of Sept. 11, the close coordination between agencies and existence and use of a tight notification process is critical," Hahn wrote. "Monday's events were a very poor example of that."

* * *
Federal officials and the LAPD said airport police should have waited for more FBI personnel before storming the aircraft. Under federal law, the FBI is charged with taking control of aviation incidents on the ground that may involve terrorism.

FBI spokeswoman Laura Bosley said agents were told that the hijacking was a false alarm shortly after the FBI had been notified of the problem about 4:50 p.m. Still, Bosley and others said, FBI procedures required that the FBI's SWAT team verify that there was no threat.

When the FBI SWAT team arrived at LAX, according to one source who asked not to be named, its agents were "incensed" that airport police had stormed the plane.

Airport officials disagreed that they had violated procedures. "There's a whole protocol for how this should work and [airport police] went right down the checklist," said Paul Haney, an airport spokesman.

Analysis: First of all, you have to account for some amount of inter-agency squabbling here that always exists. These agencies are fighting for power, prestige, and money. After-action reviews of events like often degenerate into contests over scarce resources, with each side offering its own version of the truth. For what it's worth, the same thing often happens in the military, with different services (and branches within services) vying for resources based on their view of their own importance.

But beneath those internecine conflicts, I think you have a real problem here. The fact of the matter is that the chain of command at LAX sucks. It is disjointed, disorganized, confusing, and not responsive. In a real situation, such as the July 2002 shooting at the El Al counter (that I was personally about 100m from), these tangled lines of command will cause people to die. And that's the bottom line. Had this been a real hijacking, this plane could've flown into a high-value target because these agents couldn't get along. Or, had this been a real incident, all of the passengers might be dead now because the wrong team stormed the plane with the wrong tactics. Councilman Weiss and Mayor Hahn are right -- it's time to do a "soup to nuts" evaluation of security at L.A. International Airport.

2004-05-06T10:28:00.000-07:00

DOJ slowly starts to look into the abuses at Abu Ghraib
Plus: Army MP captain faces court-martial for photographic his own nude female soldiers at Abu Ghraib

According to the New York Times, the Justice Department has commenced an investigation into the conduct by CIA employees and private contractors at Abu Ghraib which could ultimately lead to criminal charges against those individuals. (My Slate Explainer and Jurisprudence articles discuss the legal minutiae on this point.) This marks a departure from the news earlier this week, when DOJ officials told the Wall Street Journal that they weren't "rushing in" to exercise criminal jurisdiction over the non-military personnel involved. Given the volume of investigative material already produced by the Army, I'm surprised that we haven't seen criminal indictments yet in this case -- there seems to be little actual legwork left to be done by DOJ. And as the saying goes, you can indict a ham sandwich.

Want more evidence of a rotten command climate at Abu Ghraib? Then check out this report in the Contra Costa Times about California Army National Guard CPT Leo V. Merck, former commander of the 870th MP Company. Apparently, he is sitting in Kuwait awaiting court-martial for snapping nude photos of his own female soldiers as they showered at the Abu Ghraib prison facility.

The former commander of Pittsburg's 870th Military Police Company faces disciplinary action for allegedly snapping nude pictures of female soldiers as they showered in Abu Ghraib prison, the same Baghdad-area facility where other Army soldiers were filmed abusing Iraqi inmates.

Capt. Leo V. Merck, 32, of Fremont was stripped of his command and sent to Army headquarters in Kuwait to await a court-martial after three female soldiers accused him in November, National Guard officials confirmed Tuesday.

Spc. Myrna Hernandez, 26, of Antioch told the Times that she and two other female soldiers were taking an afternoon shower on Nov. 12 when she saw Merck peering under the raised door.

"I saw a guy get on all fours with a digital camera in his hands. His head was going under the wall, and we made eye contact," she said. "I was in shock, like what do I do now?"

The next day, the three women went to a chaplain, leading to a Judge Advocate General (JAG) investigation, Hernandez said. She said an investigator later told her that some of the pictures, and other improper ones, were found on Merck's government-issued computer.

"We were able to confirm three of them as us," she said.

What a dirtbag. I saw similar misconduct by officers and NCOs when I was stationed in Korea as an MP platoon leader with the 2nd Infantry Division. You would be amazed at the things that people do when they're overseas and separated from their family members and social networks. Fortunately, the military justice system takes a dim view of such conduct, and I can't imagine that CPT Merck's acts will be viewed warmly by the jury of military officers he will face. There's a pretty good chance he's going to see the inside of a prison shower again... except this time, he'll be the one behind bars.

2004-05-06T10:00:00.000-07:00

More on private military contractors in Iraq

And in other news, Defense Secretary Donald Rumsfeld responded to a House Armed Services Committee query yesterday by saying that contractors in Iraq lacked clear regulatory and legal guidance for how to act in a combat zone. The response came in a written memo from the Secretary, in response to a written request for information from HASC ranking minority member Ike Skelton (D-MO). According to the Army Times (subscription required):

U.S. occupation authorities employ 20,000 hired-gun civilian security workers in Iraq to protect senior officials, contractor teams and non-military facilities and convoys, Defense Secretary Donald Rumsfeld disclosed in a May 4 letter to a leading lawmaker.

The armed security personnel “provide only defensive services,” and have been operating for more than a year without clear regulatory guidance, according to a “discussion paper” that Rumsfeld sent to Rep. Ike Skelton of Missouri.

Skelton, ranking Democrat on the House Armed Services Committee, wrote to Rumsfeld on April 2 asking for information on how private-security workers are being employed inside Iraq.

Rumsfeld’s reply noted that regulations governing the discipline or contractors are still being drafted by the U.S.-led Coalition Provisional Authority.

2004-05-06T09:01:00.000-07:00

More photos surface from Abu Ghraib
Query: Was there an official purpose for taking the photos?

As if the news contained in MG Taguba's 15-6 report, 60 Minutes II report, and New Yorker story weren't enough, we now have indications in a Washington Post story that hundreds (or even thousands) more photos exist of misconduct by the U.S. personnel assigned to Abu Ghraib prison in Iraq. The pictures appear to have been taken quite gratuitously, by soldiers who brought digital cameras with them to Iraq. These pictures were then burnt onto CDs and passed around quite freely, with apparent pride.

Mixed in with more than 1,000 digital pictures obtained by The Washington Post are photographs of naked men, apparently prisoners, sprawled on top of one another while soldiers stand around them. There is another photograph of a naked man with a dark hood over his head, handcuffed to a cell door. And another of a naked man handcuffed to a bunk bed, his arms splayed so wide that his back is arched. A pair of women's underwear covers his head and face.

The graphic images, passed around among military police who served at the Abu Ghraib prison in Baghdad, are a new batch of photographs similar to those broadcast a week ago on CBS's "60 Minutes II" and published by the New Yorker magazine. They appear to provide further visual evidence of the chaos and unprofessionalism at the prison detailed in a report by Army Maj. Gen. Antonio M. Taguba. His report, which relied in part on the photographs, found "numerous incidents of sadistic, blatant, and wanton criminal abuses" that were inflicted on detainees.

This group of photographs, taken from the summer of 2003 through the winter, ranges widely, from mundane images of everyday military life to pictures showing crude simulations of sex among soldiers. The new pictures appear to show American soldiers abusing prisoners, many of whom wear ID bands, but The Post could not eliminate the possibility that some of them were staged.

The photographs were taken by several digital cameras and loaded onto compact discs, which circulated among soldiers in the 372nd Military Police Company, an Army Reserve unit based in Cresaptown, Md. The pictures were among those seized by military investigators probing conditions at the prison, a source close to the unit said.

* * *
The pictures obtained by The Post include shots of soldiers simulating sexually explicit acts with one another and shots of a cow being skinned and gutted and soldiers posing with its severed head. There are also dozens of pictures of a cat's severed head.

Other photographs show wounded men and corpses. In one, a dead man is lying in the back of a truck, his shirt, face and left arm covered in blood. His right arm is missing. Another photograph shows a body, gray and decomposing. A young soldier is leaning over the corpse, smiling broadly and giving the "thumbs-up" sign.

And in another picture a young woman lifts her shirt, exposing her breasts. She is wearing a white band with numbers on her wrist, but it is unclear whether she is a prisoner.

This just keeps getting deeper. Of course, the underyling abuse allegations in the Taguba 15-6 report remain unchanged. All we have now is more documentation -- in photographic form -- of those abuses. However, we should recognize the import of these images and their impact on the world. In many ways, the fight for Iraq and the fight against terrorism is a war of ideas. We are advancing an idea of Western liberalism (small 'l') against an ideal of Islamic radicalism (discussed more fully in Paul Berman's brilliant book Terror and Liberalism). To win this war, we must be seen as the guys wearing the white hats. Suffice to say, these images utterly destroy that effort, and will make it very hard to convince foreign nations and nationals of our commitment to the rule of law, and to Western liberal ideals.

But wait -- it gets worse.

Lawyers for the Military Police soldiers involved are predictably doing everything they can to shift the blame from their clients onto their commanders, their intelligence-community supervisors, and even the detainees where possible. One of the lines of argument to surface is that the MPs were ordered to take these photos for intelligence purposes.

Lawyers representing two of the accused soldiers, and some soldiers' relatives, have said the pictures were ordered up by military intelligence officials who were trying to humiliate the detainees and coerce other prisoners into cooperating.

"It is clear that the intelligence community dictated that these photographs be taken," said Guy L. Womack, a Houston lawyer representing Spec. Charles A. Graner Jr., 35, one of the soldiers charged.

Is this right? I floated this argument on the national security list-serv that I subscribe to, and was met with a barrage of criticism for it. Most people agreed that this was a far-fetched argument, and that practically speaking, such a tactic just wouldn't work. But I'm not so sure. I'm not ready to believe that all of these MPs were that sociopathic as to document their abuses in such graphic and voluminous fashion. Or in other words, I'm inclined to think there might have been some official telling these MPs to take these photos for use in interrogation of prisoners that weren't abused, i.e. to show them "this could happen to you."

The literature suggests that a small portion of the population does harbor such psychopathic and sociopathic tendencies -- somewhere around 2% of the population. Indeed, the combat stress literature suggests that these are the soldiers who can persevere after most of their comrades suffer from psychological exhaustion. Yet, we see a lot more soldiers involved than this statistic would indicate, and I think there may have been a larger plan in place which rationalized, justified, and sanctioned the taking of these photos for official purposes.

I certainly agree with commentators like Kevin Drum who have compared the numbers of boots in these photos to the number (6) of soldiers facing criminal charges, and who have said that more soldiers ought to be prosecuted here. Excepting those whistle-blowing MPs who went to CID, there are a lot of people who appear to have known about these abuses and not done anything. We ought to be prosecuting them too. And most of all, we ought to be preferring criminal charges against the commanders and NCOs who let these abuses happen on their watch. Those leaders had a duty to supervise their troops, and they failed in that duty. Under the doctrine of command responsibility, that neglience translates into vicarious legal culpability for them. They should be prosecuted for the actions of their subordinates that they failed to prevent, detect or stop.

Furthermore, if this argument regarding the photos' purpose is true, then the culpability for these photos goes much, much higher than the leadership at Abu Ghraib, or even in Iraq. The culpability -- legal and moral -- could stretch all the way back to Washington, and the consumers of this intelligence in the CIA, Pentagon and White House.

More to follow...

2004-05-05T07:20:00.000-07:00

Initial thoughts on the Abu Ghraib report
Training defense falls short given availability of materials on this subject

MSNBC (and other media) has posted the full report by Army MG Antonio Taguba on its website. This report was conducted as an informal investigation pursuant to Army Regulation 15-6, which authorizes various kinds of internal investigations in the Army. (Query: why was this investigation not conducted by the Army IG or by another outside entity, rather than a 2-star in the area?) One of the themes that runs through the report is a lack of meaningful training for the MPs and MP units charged with guarding prisoners at Abu Ghraib. Here are some excerpts from the report:

4. (U) The 800th MP (I/R) units did not receive Internment/Resettlement (I/R) and corrections specific training during their mobilization period. Corrections training is only on the METL of two MP (I/R) Confinement Battalions throughout the Army, one currently serving in Afghanistan, and elements of the other are at Camp Arifjan, Kuwait. MP units supporting JTF-GTMO received ten days of training in detention facility operations, to include two days of unarmed self-defense, training in interpersonal communication skills, forced cell moves, and correctional officer safety.

12. (U) I find that prior to its deployment to Iraq for Operation Iraqi Freedom, the 320th MP Battalion and the 372nd MP Company had received no training in detention/internee operations. I also find that very little instruction or training was provided to MP personnel on the applicable rules of the Geneva Convention Relative to the Treatment of Prisoners of War, FM 27-10, AR 190-8, or FM 3-19.40. Moreover, I find that few, if any, copies of the Geneva Conventions were ever made available to MP personnel or detainees. (ANNEXES 21-24, 33, and multiple witness statements)

14. (U) Formal charges under the UCMJ were preferred against these Soldiers and an Article-32 Investigation conducted by LTC Gentry. He recommended a general court martial for the four accused, which BG Karpinski supported. Despite this documented abuse, there is no evidence that BG Karpinski ever attempted to remind 800th MP Soldiers of the requirements of the Geneva Conventions regarding detainee treatment or took any steps to ensure that such abuse was not repeated. Nor is there any evidence that LTC(P) Phillabaum, the commander of the Soldiers involved in the Camp Bucca abuse incident, took any initiative to ensure his Soldiers were properly trained regarding detainee treatment. (ANNEXES 35 and 62)

8. (U) There is a general lack of knowledge, implementation, and emphasis of basic legal, regulatory, doctrinal, and command requirements within the 800th MP Brigade and its subordinate units. (Multiple witness statements in ANNEXES 45-91).

32. (U) Several interviewees insisted that the MP and MI Soldiers at Abu Ghraib (BCCF) received regular training on the basics of detainee operations; however, they have been unable to produce any verifying documentation, sign-in rosters, or soldiers who can recall the content of this training. (Annexes 59, 80, and the Absence of any Training Records)

3. (U) There is abundant evidence in the statements of numerous witnesses that soldiers throughout the 800th MP Brigade were not proficient in their basic MOS skills, particularly regarding internment/resettlement operations. Moreover, there is no evidence that the command, although aware of these deficiencies, attempted to correct them in any systemic manner other than ad hoc training by individuals with civilian corrections experience. (Multiple Witness Statements and the Personal Observations of the Investigation Team)

4. (U) I find that the 800th MP Brigade was not adequately trained for a mission that included operating a prison or penal institution at Abu Ghraib Prison Complex. As the Ryder Assessment found, I also concur that units of the 800th MP Brigade did not receive corrections-specific training during their mobilization period. MP units did not receive pinpoint assignments prior to mobilization and during the post mobilization training, and thus could not train for specific missions. The training that was accomplished at the mobilization sites were developed and implemented at the company level with little or no direction or supervision at the Battalion and Brigade levels, and consisted primarily of common tasks and law enforcement training. However, I found no evidence that the Command, although aware of this deficiency, ever requested specific corrections training from the Commandant of the Military Police School, the US Army Confinement Facility at Mannheim, Germany, the Provost Marshal General of the Army, or the US Army Disciplinary Barracks at Fort Leavenworth, Kansas. (ANNEXES 19 and 76)

Analysis: Two things. First, I have to call BS at this line of investigation, and this line of defense. The actions depicted on the photographs now shown around the world are not the kinds of things you need training to abhor. In fact, any adult ought to know better, and certainly, any Army sergeant or officer ought to know better. This is a basic matter of common sense and human decency. You don't need to know the rules under the Geneva Convention, and you don't have to be a lawyer, to know that it's wrong to shove a chem light into a detainee's rectum and take a picture of it. I think this is a specious argument, and that it will fail spectacularly before a military jury of officers and NCOs.

Second, it's possible that these MPs didn't have proper individual or collective training on specific tasks related to Internment and Resettlement Operations (what the MP school calls this stuff). But hey -- this isn't rocket science. Anyone in this unit could've gone online to get FM 3-19.40, Military Police Internment/Resettlement Operations; anyone could've also gone online to get FM 27-10, The Law of Land Warfare. These soldiers, sergeants and officers were derelict in not taking the initiative to learn how to do their jobs once they were on the ground. So I don't buy this "we weren't trained defense" for a minute. If an NCO doesn't know the conditions and standards for a given task, the NCO should take the initiative to find them. A lieutenant or captain certainly should too. This MP unit may have been given a task it wasn't familiar with, but the burden falls on the unit leadership to adjust on-the-fly, and to teach the unit how to do these things. Guess what? Not everything goes according to plan; not every task can be anticipated or trained for. It falls on the unit to figure this out, and the failure to do so was derelict in my opinion.

More to follow...

2004-05-04T07:41:00.000-07:00

Abu Ghraib roundup: I'm traveling today so I don't have time to write as much as I'd like on the developing story of the abuses at Abu Ghraib prison in Iraq. However, I recommend the following articles from today's papers:

- Iraq Prison Supervisors Face Army Reprimand
Washington Post (Sewell Chan and Thomas E. Ricks) -- The top U.S. commander in Iraq has moved to issue the highest form of administrative rebuke against six commissioned and noncommissioned officers who supervised an Army-run prison where Iraqi prisoners allegedly suffered physical and sexual abuse, officials announced Monday.

- Poor Leadership Blamed For Abuse At U.S. Prison In Iraq
Los Angeles Times (Esther Schrader) -- Overcrowded cellblocks, sadistic guards abusing and humiliating prisoners, inmates shot dead trying to escape down dark alleys, and detainees being spirited around the prison compound to avoid Red Cross workers. All this happened as guards made up their own rules and superiors condoned their actions. What happened at Abu Ghraib was nothing short of a total failure by the chain of command.

- Legal Loophole Arises In Iraq
Wall Street Journal (subscription required) (Greg Jaffe, David S. Cloud and Gary Fields) The abuse of Iraqis at a U.S. military prison outside Baghdad raises questions about whether private military contractors involved in illegal activity are subject to criminal prosecution.

- Contract Workers Implicated In February Army Report On Prison Abuse Remain On The Job
New York Times (Joel Brinkley and James Glanz) -- More than two months after a classified Army report found that two contract workers were implicated in the abuse of Iraqis at a prison outside Baghdad, the companies that employ them say that they have heard nothing from the Pentagon, and that they have not removed any employees from Iraq.

Also, tune into today's "Day to Day" show on National Public Radio for more analysis and commentary on this subject. NPR has also uploaded the report by Army Maj. Gen. Antonio M. Taguba in PDF form; MSNBC has an online version as well.

And for analysis of what might happen to the private contractors involved in the abuses at Abu Ghraib, see this Slate explainer article on the subject.

More to follow...

2004-05-03T07:29:00.000-07:00

Choosing lesser evils to fight terrorism

Michael Ignatieff had a brilliant essay in Sunday's New York Times magazine on some of the philosophical and theoretical issues undergirding contemporary debates over security and civil liberties. Essentially, he thinks that we should frame the problem as a choice between "lesser evils" -- the title of his forthcoming book -- and that we should accept some excesses by our government agents in order to avoid the greater evil: the end of American constitutional democracy. It's a very compelling argument, and I recommend the entire thoughtful piece. Here's a brief excerpt:

When democracies fight terrorism, they are defending the proposition that their political life should be free of violence. But defeating terror requires violence. It may also require coercion, secrecy, deception, even violation of rights. How can democracies resort to these means without destroying the values for which they stand? How can they resort to the lesser evil without succumbing to the greater?

Putting the problem this way is not popular. Civil libertarians don't want to think about lesser evils. Security is as much a right as liberty, but civil libertarians haven't wanted to ask which freedoms we might have to trade in order to keep secure. Some conservative thinkers, like those at the libertarian Cato Institute, come down the same way but for different reasons: for them, the greater evil is big government, and they oppose measures that give the executive branch more power. Other conservatives, like Attorney General John Ashcroft, simply refuse to believe that any step taken to defend the United States can be called an evil at all.

But thinking about lesser evils is unavoidable. Sticking too firmly to the rule of law simply allows terrorists too much leeway to exploit our freedoms. Abandoning the rule of law altogether betrays our most valued institutions. To defeat evil, we may have to traffic in evils: indefinite detention of suspects, coercive interrogations, targeted assassinations, even pre-emptive war. These are evils because each strays from national and international law and because they kill people or deprive them of freedom without due process. They can be justified only because they prevent the greater evil. The question is not whether we should be trafficking in lesser evils but whether we can keep lesser evils under the control of free institutions. If we can't, any victories we gain in the war on terror will be Pyrrhic ones.

Post-Script: Mr. Ignatieff's book The Lesser Evil: Political Ethics in an Age of Terror has hit the shelves already, and I decided to purchase it to read on the plane back from New York this weekend. I had other work to do, so I only read about 40 pages into the book. So far, it reads quite well, and provokes a lot of thought.

2004-05-03T06:50:00.000-07:00

Telling the story of Guantanamo Bay: Scott Higham, Joe Stephens and Margot Williams of the Washington Post had an exceptional article on the American detentions taking place at Guantanamo Bay in Sunday's paper. Among other things, the reporters assembled the largest list so far of detainees there, notwithstanding Pentagon efforts to keep these names secret. And the reporters assembled a coherent narrative of how the policy decisions were made concerning Gitmo, and how various decisions were made on the ground such as to institute programs for cooperative prisoners. It's a fascinating read, and this story will likely be the starting point for any authors who seek to write a book on the subject in the future.

2004-05-01T05:51:00.000-07:00

Military misconduct at Abu Ghraib prison
Recommendation: throw the book hard at those responsible;
Also prosecute the intelligence officials who sought to 'set the conditions' for questioning

As a former Army MP officer, I am very interested in any news involving MPs deployed abroad, particularly in Iraq and Afghanistan. Unfortunately, the latest news involving MPs is bad -- so bad, in fact, that it leaves me disgusted. I watched this report on Wednesday night when it aired on 60 Minutes II, and my stomach turned at the pictures of U.S. soldiers posing with naked Iraqi prisoners performing sex acts on each other. Now that I'm done with finals, I have time to respond.

The Washington Post and Los Angeles Times carry detailed reports in Friday's paper on the scandal at Abu Ghraib prison, where MPs allegedly committed such acts as forcing an Iraqi to stand on an MRE box with inert wires connected to him, saying that he would be electrocuted if he stepped off the box. The MPs were even audaciously stupid enough to take pictures of their exploits. And to top it off, the chain of command was so derelict as not to notice these incidents or do anything about them. The result: 17 MPs now face criminal or administrative charges, including a 1-star general.

... the top U.S. commander in Iraq, Army Lt. Gen. Ricardo Sanchez, has ordered administrative penalties against seven unnamed officers who supervised the Army Reserve military police unit that was responsible for the Abu Ghraib detention facility in November, when Iraqi prisoners allegedly were subjected to beatings and sexually degrading acts by American soldiers.

Criminal charges were filed in March against six members of the unit, the 372nd Military Police Company, based in Cumberland, Md. The charges included conspiracy, dereliction of duty, cruelty and maltreatment, assault and indecent acts with another, the military's term for sexual abuse.

* * *
According to sealed charging papers that were provided to The Washington Post, soldiers forced prisoners to lie in "a pyramid of naked detainees" and jumped on their prone bodies, while other detainees were ordered to strip and perform or simulate sex acts. In one case, a hooded man allegedly was made to stand on a box of MREs, or meals ready to eat, and told that he would be electrocuted if he fell off. In another example, the papers allege, a soldier unzipped a body bag and took snapshots of a detainee's frozen corpse inside.

Several times, soldiers were photographed and videotaped posing in front of humiliated inmates, according to the charges. One gave a thumbs-up sign in front of the human pyramid.

The documents add to growing accusations of improper prisoner treatment at Abu Ghraib, which was Iraq's largest and most notorious prison during the rule of ousted president Saddam Hussein. In addition to the military's announcement in March that soldiers had been charged, details of the abuses and photographs from inside the prison were broadcast Wednesday night by CBS's "60 Minutes II."

On Thursday, U.S. officials confirmed that the images were authentic and said they had taken several steps to stop the mistreatment of prisoners.

Analysis: So let's be clear on what's going on here. We go into Iraq to stop, among other things, human rights abuses that were being directed by the Hussein regime. Many of those abuses took place at Abu Ghraib prison, the same building at the center of this report. Iraqi guards regularly beat, humiliated, and tortured their detainees, and they reveled in their cruelty. Now, we have American soldiers doing many of the same things, allegedly at the direction of American intelligence officers who wanted these MPs to set the conditions for productive interrogation sessions. I can't condemn this conduct enough, and yet, I feel that condemning this conduct isn't enough. This is truly reprehensible stuff.

What's worse is that other American soldiers may suffer for the brutal excesses of these MPs, interrogators, and OGA ("other government agency" = CIA) employees. Reciprocity is a very real thing where the laws of wars are concerned, and we should be very concerned about retaliation against any Americans captured by Iraqi insurgents in the future. Similarly, reprisals are very real problem in war; they're often fueled by anger over mistreatment of one side's own troops. When American troops learned of the German massacre at Malmedy during the Battle of the Bulge, historical accounts said they went on a killing spree -- double-tapping every German in their sights, and giving no quarter even the Germans sought it. Other historical accounts reflect this trend. I think we can expect this news to reach every quarter of the Arab world, from the hideouts of the Iraqi insurgency to the Arab street. And when it does, I think we can expect it to fire up our adversaries in a huge way. This event will do significant, lasting damage to American credibility in the eyes of the Arab world. If a lot of Arabs were on the fence about American foreign policy, they won't be after they see this report. (If you think for one minute I'm exaggerating, imagine the American response if we'd seen our POWs treated this way and had these pictures broadcast on Al-Jazeera.)

Fortunately, we do have American soldiers doing good things abroad, like the well project in Siyu and the scores or hundreds of nation-building projects in Iraq today. In large parts of the country, Americans do enjoy some amount of normalcy in their relations with Iraqis, even if the Iraqis resent our presence and want us to go home. But incidents like this have the potential to ruin everything. As the old aphorism goes, one "aww sh*t" can ruin a whole lot of "atta boys".

So what should be done?

The Army's military police corps is known for eating its own when they screw up, and I don't think this case will be any exception. The right answer here is to slam the book at the MP chain of command responsible for this action -- especially the colonels, captains and lieutenants who failed to properly train their soldiers on the laws of war, failed to supervise them in the running of this prison, and failed to set the proper climate for the dignified treatment of these prisoners. Administrative punishment for many of these officers is insufficient, in my opinion. They deserve a general court-martial for these actions. I think the American military command in Baghdad must take a hard line on this reprehensible conduct, and that it must prosecute these officers and NCOs to the fullest extent of the law. If they are innocent, a military jury will acquit them. But the military justice system exists primarily to support mission accomplishment through the promotion of "good order and discipline." This incident represents a staggering breach of discipline, and it must be dealt with appropriately.

Unfortunately, the problem extends to more than just military personnel. The misconduct at Abu Ghraib prison apparently involved employees of the CIA, as well as civilian contractors employed by Titan Corporation and CACI. Unfortunately, the legal solutions are murkier when it comes to misconduct by government contractors overseas, as I write in this Slate article titled "Hired Guns":

Private military contractors generally don't have to listen to these rules and orders, in any event, and they have historically not been prosecuted for disobeying military rules. The Uniform Code of Military Justice's jurisdictional article (10 U.S.C. Section 802) provides that "In time of war, persons serving with or accompanying an armed force in the field" may be tried by a military court, but there's little precedent for military trials of civilian contractors who behave badly in a war zone—even assuming Iraq can legally be called a "war."

Moreover, while the Justice Department has jurisdiction to prosecute military contractors for actions overseas under a 2000 law, it may decline to do so as a result of limited resources and the fact that there is no U.S. attorney's office (yet) established in Iraq to govern U.S. civilian activities there.

The legal murkiness helps shield the contractors from effective discipline. The Coalition Provisional Authority has decreed that contractors and other foreign personnel will not be subject to Iraqi criminal processes. Yet, there's also no clear mandate for American jurisdiction. And in the absence of any specific mandate telling military officials to clamp down on contractors, American prosecutors can simply decline to do so as a matter of discretion—precisely what has happened on U.S. military deployments in the Balkans, as pointed out by Peter W. Singer in a Salon article on contractor transgressions during that deployment.

* * *
... the president could direct his Defense Department or Justice Department lawyers to immediately exercise jurisdiction in cases where contractors behave badly. Thankfully, there has been a dearth of such incidents in Iraq, but the large number of contractors there makes it likely that some criminal conduct will occur in the future. A clear message from the administration that it's serious about exercising criminal jurisdiction might deter some of that criminal conduct—or at least ensure systems are in place to adjudicate any incidents that do occur.

I had no idea when I wrote this piece how prescient I was being, or that such criminal conduct had already occurred. Make no mistake about it -- this is criminal conduct. And it must be dealt with strictly, severely and certainly by the U.S. government. My reading of the Military Extraterritorial Jurisdiction Act of 2000 is that the Justice Department may exercise criminal jurisdiction over these persons as contractors and sub-contractors of the U.S. government overseas. And it must do exactly that. At a minimum, these contractors' conduct amounts to a violation of the laws of war with respect to torture during the course of interrogation. Any violation of the laws of war is a federal offense, under 18 U.S.C. 2441. The military should immediately apprehend these individuals and render them to Justice Department prosecution before a U.S. District Court in the United States. Nothing less -- not termination, not administrative sanction, not suspension or debarment for these contractors -- will be sufficient. These contractors broke the law in a heinous and brutal way, and they should be prosecuted to the fullest extent of the law.

Post-Script: The Sunday Washington Post and New York Times reports on Abu Ghraib paint a slightly different picture of culpability than first indicated, proving the old military maxim that first reports are always suspect. Both the Post and Times seem to point the finger at intelligence officials, both on the ground in Iraq and in Washington, who were pushing the MPs to "set the conditions" for favorable interrogations by softening up the prisoners at Abu Ghraib. According to The Post:

The Army Reserve commander who oversaw the prison said that military intelligence, rather than the military police, dictated the treatment of prisoners at Abu Ghraib. "The prison, and that particular cellblock where the events took place, were under the control of the MI command," Brig. Gen. Janis L. Karpinski said in a telephone interview Saturday night from her home in Hilton Head, S.C.

Karpinski, who commanded the 800th Military Police Brigade, also described a high-pressure atmosphere that prized successful interrogations. A month before the alleged abuses occurred, she said, a team of military intelligence officers from the detention facility at Guantanamo Bay, Cuba, came to Abu Ghraib last year. "Their main and specific mission was to get the interrogators -- give them new techniques to get more information from detainees," she said.

* * *
According to a source familiar with the March findings of an administrative review conducted by the Army, the 205th Military Intelligence Brigade, which helped oversee the questioning of prisoners at Abu Ghraib, pressed members of the military police unit, 372nd Military Police Company, to use rough tactics to prepare prisoners for questioning.

U.S. officials said the review, by Maj. Gen. Antonio M. Taguba, found that prisoners at Abu Ghraib were regularly subjected to cruel and harsh punishments. In an article posted on its Web site, the New Yorker magazine reported in its May 10 issue that Taguba found a pattern of "sadistic, blatant, and wanton criminal abuses" at the prison.

According to the New Yorker article, by Seymour M. Hersh, a report last November by Maj. Gen. Donald J. Ryder, the Army's top law enforcement officer, concluded that military intelligence did not order military police to put pressure on prisoners to prepare them for interrogations. Taguba, the article states, disagreed.

"Contrary to the findings of MG Ryder's report, I find that personnel assigned to the 372nd MP Company, 800th MP Brigade were directed to change facility procedures to 'set the conditions' for MI interrogations," Taguba wrote, according to the article. Army intelligence officers, CIA personnel and private contractors "actively requested that MP guards set physical and mental conditions for favorable interrogation of witnesses," according to the article's account of Taguba's report.

Analysis: It's hard to tell what's going on here, because there are so many generals pointing fingers at each other. Moreover, there is a lot of internal Army politics at work here, between the MP and the MI branches and between the intelligence and operations communities generally. So I'm not sure where to lay the blame. But, I can say one thing. If it's true that interrogators and intelligence officers pushed the MPs to "set the conditions" for these interrogations, then they must be prosecuted too. In acting this way, they gave unlawful orders and they should be subject to military discipline (if applicable) or criminal prosecution in federal court under 18 U.S.C. 2441. Ultimately, I think someone in this MP chain of command should've stepped up to exercise moral courage and tell the intelligence folks "no". But the failure to blow the whistle doesn't relieve the intelligence officers of culpability. I think it would be wrong to let these orders go unpunished simply because these intelligence officials were one or two steps removed from the conduct.

Post-Post Script: Also see this op-ed by Peter Singer in Sunday's L.A. Times describing the legal climate for these abuses, and the need to hold the right persons accountable. He makes some really good arguments regarding civilian intelligence officers and contractors acting on behalf of the U.S. government.

Post-Post-Post Script: And for a more conservative perspective, see this op-ed by military historian Victor Davis Hanson in Monday's Wall Street Journal (subscription required). Prof. Hanson doesn't defend the actions of the soldiers at Abu Ghraib, but says that we should put these in perspective. Specifically, he expresses dismay over the asymmetry of coverage and outrage that has met this incident, as compared to other abuses in recent conflicts:

If a small number of soldiers has transgressed, then let us punish them severely, as well as the officers who either ordered or ignored such reprehensible behavior. But let us also accept that the reaction to this incident is indicative of larger moral asymmetries that are the burdens of the West when it goes to war, a culture that so often equates the understandable absence of perfection, either moral, political, or military, with abject failure -- a fact not lost on our enemies.

We have seen terrible things since September 11 -- monotonous public executions, taped decapitations, videos of brutalized hostages, diplomats gunned down, aid workers riddled with bullets, children's bodies blown apart by improvised explosive devices, nuts, bolts and rat poison added to suicide bombs -- most under either the sponsorship of some autocratic Middle Eastern governments or of terrorist cabals that could not exist without at least the tacit support of thousands in the Arab street.

So as we in America address the moral inadequacies of a handful of our soldiers, let those in the Middle East take heart from our own necessary and stern democratic inquiries and audits, and thus at last now apply the same standards of accountability to tens of thousands, far more culpable, of their own.

2004-05-01T05:43:00.000-07:00

It takes a villege... to fight terrorism

Marc Lacey, one of the New York Times' intrepid foreign correspondents, has an interesting dispatch from Africa in Friday's paper discussing one of the Pentagon's many small nation-building projects. A team of Army civil affairs soldiers has been sent to Siyu, Kenya, in order to build a well for the villagers there. Why Siyu?

It is not because the people here have to walk long distances and brave harsh temperatures for the limited drinking water available on Pate Island, although they do. No, the United States Central Command is concerned more with the loyalties of the people of Siyu than their thirst.

From remote Siyu, investigators say, the bombing of a Mombasa hotel that catered to Israeli tourists, and the simultaneous failed attempt to shoot down an Israeli-chartered airliner, were planned in 2002. The well is one of many public works projects being undertaken by the American military throughout the Horn of Africa aimed at changing the locals' view of a country many of them had learned to hate.

"The war on terrorism is not necessarily a shooting war," said Maj. W. Brice Finney, commander of the Army's 412th Civil Affairs Battalion. Still, these are good deeds with a strategic edge. The main purpose is to monitor the vast coastline for terrorists fleeing Afghanistan and other spots across the Gulf of Aden. All of which explains why the military is paying close attention to Siyu.

This is the way to win hearts and minds, and this is the right way to preempt terrorism around the world. American military might can be used for lots of things other than toppling a despot and restoring order to his nation afterwards. The full spectrum capabilities of the U.S. military enable it to act in numerous capacities, from "soft" nation building missions like this to foreign internal defense missions in the Philippines which aid that nation in fighting terrorism. And typically, these missions are conducted by brilliant Civil Affairs soldiers who represent some of this superpower's best emissaries overseas:

soldiers in Major Finney's unit, reservists all, are older than most and specially schooled in community outreach. They include several police detectives, a casino pit boss, a nurse and a former state representative who ran unsuccessfully for a Michigan senate seat. Major Finney is a veterinarian. They do not wear uniforms or display weapons, but their short haircuts, white skin and bulky builds give them away.

These guys aren't going in with guns ablaze, or even with dirty HMMWVs and lots of body armor. They are adjusting their TTPs to the environment, and winning the population in the process. Some of the locals remain skeptical, like this guy:

"I don't like them here," said Sheik Mahmoud Ahmed Abdulkadir, the imam of Pwani Mosque in nearby Lamu, who has urged his followers to shun the Americans. "I feel that they are my enemy. I have no intention of harming them, but I cannot show them a smile on my face."

However, the overall mission appears to be succeeding. And we have to succeed in lots of little places like this in order to win the war on terrorism. The citizens of Siyu, Kenya, may not pose a direct threat to our national security. They don't have weapons of mass destruction, and they don't have a standing army that can land on our beaches. But third world nations like this can serve as the incubator for ideologies and insurgents that are very dangerous indeed, both to the U.S. and our interests abroad. We must actively take steps like the ones described in this article to preempt those ideologies and insurgents. Gen. George S. Patton used to bark at his troops that an ounce of sweat would save a gallon of blood, referring to the value of hard training in peacetime. Patton was an irascible old warrior who disdained diplomacy, and his record during his few months of occupation duty was less than stellar. But I think even he would recognize the value of preventive missions like this one in Kenya.

2004-05-01T05:42:00.000-07:00

Lawyer picked to advise Hussein prosecution

The staff behind the Nuremburg prosecutions included a hodgepodge of allied personnel, but the dominant force was Assoc. Supreme Court Justice Robert Jackson and his team of American lawyers. Why? One commentator remarked that there was something that made American lawyers uniquely well qualified to be prosecutors; something about the American legal style that just made them better at trying the worst of the worst.

In that spirit, a former Assistant U.S. Attorney in Tampa has been tapped to advise the Iraqi Governing Council team which is seeking to send Saddam Hussein to the gallows. The St. Petersburg Times reports that Greg Kehoe was appointed earlier this month by Attorney General John Ashcroft, and that he will soon report for duty in Iraq with the Coalition Provisional Authority there as an adviser to the Iraqis.

Kehoe, the son of a New York City police officer, is a big-shouldered former rugby player with a booming courtroom voice and a rapid patter seasoned by his childhood in the Bronx and Brooklyn.

Since Attorney General John Ashcroft appointed him to the post early this month, Kehoe has been immersing himself in books about the Middle East. At Borders and Barnes & Noble, he bought every book he could find on Iraq and Islam.

Every day, he says, he fields calls from 6 a.m. to 11 p.m., working to organize his Baghdad office, located in the palace where American officials are stationed. He is hiring staff and making sure the office is stocked with computers, fax machines, pencils and paper.

Kehoe, who made a brief trip to Iraq earlier this month, expects to go back in mid May and to work 16-hour days there for six to nine months.

Kehoe said he hopes the tribunals bring an example of the rule of law - and foster citizens' faith in the legal system - in a country bereft of it for decades.

"Our job is to assist the Iraqis, but at the end of the day, it's the Iraqis who have to try these cases," he said.

As a longtime assistant U.S. attorney, Kehoe prosecuted members of the Outlaws motorcycle gang and drug rings in South Florida. In Tampa, he handled high-profile cases involving courthouse corruption, a military spy ring and international money-laundering.

In the early 1990s, he served on a congressional committee investigating the "October Surprise," the purported arms-for-hostages deal with Iran preceding Ronald Reagan's election as president.

For his new post, Kehoe's most relevant experience was his stint at The Hague, Netherlands, where from 1995 to 1999 he served on the International Criminal Tribunal for the former Yugoslavia. The experience culminated in his successful prosecution - after a 25-month trial - of a Croatian general for war crimes.

The general, Tihomir Blaskic, was implicated in a 1993 massacre of Muslim noncombatants, including women and children. While there was no evidence to show Blaskic pulled the trigger himself, Kehoe prosecuted him on a theory of "command responsibility," contending he allowed soldiers to commit the slaughter.

In Iraq, Kehoe's investigators will search for documents that establish the chain of command in Hussein's regime, proving who gave the orders for particular massacres. "The paper is very, very important" in such cases, Kehoe said.

Analysis: This prosecution is going to be very important for the United States, for Iraq, and for the world. The substantive outcome of this trial is very important -- the U.S. must convict Hussein in order to preserve the image of legitimacy for its invasion. But the perception of this trial will probably be even more important than the outcome. Substantively and procedurally, this trial must be fair. It must give the defense a chance to challenge the evidence, and to put on its case if it chooses to. It must incorporate a meaningful presumption of innocence -- not just a pragmatic or realistic one. And the prosecution must play fair. It must disclose all information to the defense, as it would have to here under Brady. The prosecution must also play fair with the witnesses, on both sides, and put forward an accurate version of the facts -- not just one which argues for a guilty verdict. The prosecution will set the tone for this trial, much more so than the defense or even the judges, by choosing how to make its case-in-chief. I hope that Mr. Kehoe is able to advise the Iraqis on all these considerations, and to give them the benefit of his prosecutorial experience. Too much is riding on this prosecution to let it be the work of amateurs.

2004-05-01T05:41:00.000-07:00

California pulls its Guardsmen off the Golden Gate... finally

The San Francisco Chronicle reported on Friday that the Governor Arnold Schwarzenegger's staff has made the decision to pull an overstrength platoon of California Army National Guard troops off the Golden Gate bridge, despite pleas from bridge officials to keep them there. The article says the troops were put there after the 9/11 attacks, but that's not quite right. These troops were first put on the bridges by then-Gov. Gray Davis in 2001, in response to vague threats against bridges, against the advice of the FBI and other agencies. Now, thankfully, they're being pulled.

The California National Guard will pull its contingent of 50 men and women on Friday, after more than two years of helping to protect the famous span.

The decision was approved by Gov. Arnold Schwarzenegger despite repeated appeals by bridge district officials to keep the soldiers there.

"The Guard's mission when it started was never designed to be a permanent solution," said Gary Winuk, chief deputy director of the California Office of Homeland Security, which oversees security operations in the state. "We would never recommend, and the governor would never approve, any removal of the Guard unless the bridge was secure."

* * *
Winuk said the withdrawal has nothing to do with the United States' growing commitment overseas, where close to 3,000 of California's Guard troops are now serving. He added, however, that some of the soldiers could end up in Iraq.

"A substantial number of troops are going to be sent overseas in the next few years," Winuk said. "I don't know about any of these troops. I want to emphasize, though, that that wasn't the point of this decision."

The problem, he said, is that there isn't any money left in the budget to pay the $5 million annual cost of the operation. The Guard sent a letter to Schwarzenegger in November asking to halt the bridge duty.

Analysis: It's about time this deployment ended -- it has been one of the most worthless deployments of troops imaginable. Putting these troops on the bridges contributed very little -- almost zero -- to the bridges security. When you broke this 50-person contingent down, this mission really translated into having 4-6 men on the bridge at any given time, armed with nothing more than M-16 rifles (with little if any ammunition). These troops had lousy communications equipment; they could barely talk to each other, let alone other agencies and their higher command. They were also deployed poorly, either on foot or in static positions where they did little more than watch traffic go by. They had no effective body armor or armored equipment; if an attack did happen, they would likely be killed with everyone else. They received little special training for the mission.

Worst of all, this operation was not driven by intelligence -- it was driven by the political calculations of a political governor in Sacramento who wanted to make a statement by putting BDU-wearing soldiers on the state's most visible symbol. This was a waste of money and manpower; I regret the fact that so many Guardsmen had to spend so long on active duty for a mission that was so ill-advised. I'm glad someone had the sense to cancel this mission.

2004-05-01T05:40:00.000-07:00

Travel blogging: I'm on the East Coast this weekend for a wedding, so I won' t have constant access to e-mail. But I was able to draft several notes while flying from L.A. to New York. I should be back online on Monday.

2004-04-29T15:49:00.000-07:00

Stick a fork in me -- I'm done. With law school that is. Next stop: the dreaded BarBri study course, and the even more hideous California bar exam.

2004-04-28T11:46:00.000-07:00

The flap over medals and ribbons

I needed a break from studying, so I decided to write over the brewing brouhaha over Sen. John Kerry's medals -- and whether there's any salient difference between medals and ribbons for the purposes of understanding his actions in 1971. The answer -- I think this much ado about nothing. Here's why:

1. What is a ribbon? Quite literally, a "ribbon" is the piece of fabric which suspends a military medal from the fastening device. This depiction of the Silver Star shows what the complete set looks like. Every medal has a ribbon which accompanies it. For the most part, they all conform to the style of the Silver Star, with the notable exception of the Congressional Medal of Honor, which is worn around the neck. The Army's regulation on the subject has this to say:

The term "awards" is an all-inclusive term covering any decoration, medal, badge, ribbon, or appurtenance bestowed on an individual or unit. The term "awards" is used throughout this chapter. The term "ribbon" is an all-inclusive term covering that portion of the suspension ribbon of a service medal or decoration that is worn instead of the service medal or decoration. The ribbon is made in the form of a ribbon bar, 1 3/8 inches long by 3/8 inches wide. The term "ribbon" is used throughout this chapter, and it includes service and training ribbons.

The wearing of ribbons in lieu of medals evolved over time to facilitate the wearing of decorations into combat by soldiers who didn't want their medals to be clanking around on the battlefield. Today, American soldiers do not wear their decorations into battle -- they fight in battle dress uniforms with sewn-on patches for rank, unit, and other designations.

2. What's the difference between a medal and a ribbon? Generally, ribbons are worn in lieu of medals on the military uniform. Medals are usually worn in formal situations, such as black-tie events. On certain uniforms, such as the Army mess dress uniform, miniature medals are actually worn. However, on the standard dress uniform (roughly analogous to a business suit), you will see military personnel wearing their ribbons on a daily basis. Look at any picture of generals testifying before Congress -- they'll be wearing their ribbons. The ribbon itself is a rectangular version of the ribbon that is used to suspend the medal in full medal form (see this chart for a picture of what ribbons look like). Ribbons are worn together in rows, using a ribbon holding device that pins to the uniform. Ribbons are worn in order of precedence, i.e. Medal of Honor, Distinguished Service Cross, Silver Star, etc.

3. Do all medals have ribbons, and do all ribbons have medals? No. Some awards, like the Army's Overseas Service Ribbon, do not have a medal. These are typically less important awards or service awards. Generally, ribbons without medals are so designated in their title, e.g. the difference between National Defense Service Medal vs. Overseas Service Ribbon. All medals do have a ribbon which accompanies them, but all ribbons do not have medals.

4. Are medals unique? The medals that you have actually pinned on you have sentimental value, and some medals (like the Medal of Honor) cannot be purchased. But generally speaking, medals and ribbons are something you can get at the PX or from a military supply store. Ribbons fray over time, and they have to be replaced. Also, some soldiers opt for a "stay brite" version of medals that don't need polishing, and these can only be purchased at the PX. It is correct to say that store-bought medals are "my medals" even though they're not the ones originally given. Once you're awarded a medal, it's yours. Of course, a protest might have more symbolic meaning if it consists of throwing one's own original medals, but given the ease with which replacements are procured, I think this is an unimportant difference.

So, to sum up: Does it matter that John Kerry threw ribbons instead of medals? Not really -- they're functionally interchangeable. Both represent the decoration he received. Does it matter that he threw someone else's decorations, or store-bought decorations? Slightly, although this is mostly a sentimental issue. Original medals are sometimes engraved with the recipient's name, and they have personal value to some people. (I, for one, have little attachment to my original medals, but that's probably because they're peacetime awards.) Do military personnel use the terms "ribbons", "medals", and "awards" interchangeably? Yes -- each word has a specific definition, but I've heard them used interchangeably.

And if you want a humorous version of this -- see this mock PowerPoint briefing on John Kerry's military record over at Slate. Very funny.

2004-04-27T08:08:00.000-07:00

Finals week: Barring some unbelievably huge news story, Intel Dump will be silent until Thursday when I take my last law school exam. Please come back then.

However, I will be on NPR's Day to Day show today (Tuesday) with Alex Chadwick, discussing my Slate article "Hollow Force" and the effect of the Iraq mission on U.S. military readiness. The segment aired on NPR affiliates today, and also available on NPR's website.

2004-04-25T10:19:00.000-07:00

Enemy combatant? Deborah Sontag has a long biographical piece in Sunday's New York Times on Jose Padilla, the alleged "enemy combatant" whose case will reach the U.S. Supreme Court this week along with that of Yaser Hamdi. Also, for an interesting discussion of the Padilla case and the Constitution's treason clause, see the new weblog "Mere Dicta" by Boalt Hall law student Mike Anderson.

2004-04-24T14:03:00.000-07:00

Notes from the Los Angeles Times Festival of Books

I decided to take a break today from studying for finals to attend the L.A. Times Festival of Books, an annual event held in spring on the UCLA campus that brings together hundreds of authors with thousands of avid book readers like me. I specifically came today for a panel discussion titled "The Seduction of War", which included:

- Leo Braudy, author of From Chivalry to Terrorism : War and the Changing Nature of Masculinity
- Chris Hedges, author of War is a Force That Gives Us Meaning and What Every Person Should Know About War
- James Hillman, author of A Terrible Love of War
- Anthony Swofford, former Marine and author of Jarhead
- Samantha Power (moderator), author of A Problem From Hell (a 2003 Pulitzer Prize winner)

The panel discussed a variety of topics relating to the narratives of war, but focused on why this narrative is so important and interesting to us as readers. Leo Braudy, a humanities professor at USC, emphasized the role of masculinity and rites of passage in his discussing, arguing that we seek out war stories to learn more about this critical stage in life. Chris Hedges spoke quite eloquently on the awesome brutality of war, and its addiction for readers and journalists alike. Mr. Hedges also discussed the role that ideology and "civil religion" plays in the creation of war myths, and how the perpetuation of these myths is an important part of the war narrative. Mr. Hillman discussed the connection between religion and war. And Tony Swofford, the only member of the panel to see war in uniform, talked about the importance of this narrative in a society where few Americans see war personally. Samantha Power acted mostly as moderator, except for a brief introduction discussing the changes in warfare and the war narrative over time, but I imagine that if she could've talked, she would've discussed the human costs of war as felt by the civilians who often die in war.

All in all, I thought it was a brilliant discussion. Mr. Hedges' comments struck me as particularly insightful, if not tinged by the cynicism of witnessing so much brutality as a veteran war correspondent. The panel discussion was taped by CSPAN2, and I think (hope) transcripts and/or achieved video segments will be available of this event.

Post Script: Tony Swofford mentioned a new initiative by the National Endowment for the Arts which will help develop the war narratives of soldiers who saw the action first-hand, and the Washington Post had a report this week on it. The goal is to create a richer fabric of literature and history describing American men and women at war.

The National Endowment for the Arts will announce a program today to change that, to encourage troops returning from Iraq (and Afghanistan as well) to write about their experiences in wartime. "Operation Homecoming," which will be unveiled at a news conference at the Women in Military Service for America Memorial in Arlington, will make some of this country's most prominent authors available to servicemen and -women, for workshops and lectures intended to help them express and record what they have seen and felt in combat. The program is part oral history project, part literary talent search, and part a writing-as-therapy program for troops, particularly those in Iraq, who have been under extraordinary stress in America's first protracted and messy war since Vietnam.

The 16 writers who have agreed to participate by visiting military bases include Tobias Wolff, Tom Clancy, Victor Davis Hanson and McKay Jenkins. In addition, 10 other writers, including Shelby Foote and Richard Wilbur, have contributed reminiscences and readings to a compact disc and Web site the Endowment has produced.

* * *
"These are not voices we would easily hear, otherwise," says Dana Gioia, chairman of the NEA. They haven't been heard for a number of reasons, most important of which is that America's military men and women are preoccupied with fighting. Gioia also notes that one spur to the project is the realization that much of what is being said and recorded about the war is happening through e-mail, a medium that is more ephemeral than the letters and journals that captured the grit of military life in earlier conflicts.

"We want to connect with people when their stories are still fresh," says Jon Parrish Peede, one of the NEA's project directors for "Operation Homecoming." Peede compares the project to the artistic endeavors of the Depression-era Work Projects Administration. The NEA effort is a similar attempt to connect, artistically, with the broader American public during a time of national anxiety.

The goal of the project, beyond providing an emotional and expressive outlet for military personnel and their families, and getting the basic eyewitness facts of history down on paper, is to add to a long tradition of war literature. That tradition encompasses everything from the first great classic of Western literature, Homer's "Iliad," to the vast and ongoing production of new military memoirs, histories and novels that make up a healthy percentage of the American publishing industry.

Very interesting... I have a feeling that this project will produce some amazing writing. I hope that the literature this project produces contributes to the American war narrative, and enriches the minds of millions of Americans.

2004-04-24T08:23:00.000-07:00

Another Gitmo case hits a rough spot

Lawyers for Airman Ahmad Halabi have filed pre-trial motions with the military court hearing his case to compel the government to provide more coherent positions to support its case, according to the Washington Post. A team of military and civilian lawyers is representing Airman Halabi, who's charged with various espionage-related counts, including the mishandling of classified information. However, defense lawyers are challenging the basis for these charges.

The complaint came in 40 pages of legal papers filed last week in the court-martial of Airman Ahmad I. Halabi. His attorneys said investigators have repeatedly changed their reasoning about why the translations of letters from detainees to their families that Halabi possessed were considered classified.

"Halabi remains in jail and has been in pre-trial confinement for nine months, and still the government does not have a consolidated, consistent or intelligible position on the classification of information" in the case, Halabi's attorneys wrote. "Each time the defense points out the flaws in the classification logic, a different reason for classification of information is created or invented."

Analysis: This case is different than that of Captain James Yee, the Gitmo chaplain first accused of espionage and then released without any adverse action. But, we can see some common themes. The first is the sloppy designation of classified information at Guantanamo, which may reveal something larger about the information security systems there, or the penchant for oversecurity in connection with the Gitmo mission. Second, we can see a tendency on the part of the government to exaggerate its charges initially, at least in the press, in order to paint a picture of a really bad guy. That's ironic, because prosecutors typically try to downplay expectations so as not to set the bar too high. And third, we have zealous attorneys for the defense, led by civilian attorney Donald Rehkopf, an expert in military law. My gut feeling on this case is starting to change; I think the Air Force prosecution is in for a world of hurt unless it starts to tighten its shot group. No military judge is going to let this prosecutorial conduct stand for long. More to follow...

2004-04-24T08:08:00.000-07:00

Update on the Witmer sisters: A couple of weeks ago, we all shared in the grief of the Witmer family, who tragically lost their daughter Michelle to combat in Iraq. The question arose -- can the Witmer sister stay home under current Army policy as surviving siblings? The answer is yes, if they decide to. Yesterday, the New York Times reported that the sisters had requested (and received) 15 additional days to make their decision. I suspect they're torn between loyalty to their family and the intense bonds to the other soldiers in their unit, and that this is a really hard decision to make.

2004-04-24T08:01:00.000-07:00

Pledge break: I really appreciate the generosity of all those readers who have given to my site so far. With your help, I have been able to purchase a domain name (www.intel-dump.com), server space (I plan to move after finals), and a laptop to replace the dinosaur I was using that kept crashing at the least opportune times. However, I am also trying to raise money to support my writing and reporting through the summer, while I study for the California bar exam. If you have not donated thus far, and value Intel Dump as a news source, please consider making a small donation. If this site is worth what a daily newspaper is to you, please consider a $1 donation. If it's more like a magazine, then perhaps you can donate $5. If you value this site's analysis and commentary like that of a magazine subscription, please consider a $20 or $25 donation.

Thank you again for your support. I have plans to make this site even more valuable with news feeds, an archive of documents, and a better layout that allows me to include graphics and photos. Please stay tuned for those changes.

2004-04-23T19:11:00.000-07:00

Some thoughts on the photos of America's fallen warriors

I should say up front that I'm deeply conflicted over the issue of whether the U.S. government should allow media coverage of returning American caskets, or whether the news media should seek such coverage at all. As many of you know, this issue hit the front pages this week in a big way. First, the Seattle Times printed a front-page photo taken by a contract employee in Kuwait of 20 flag-draped caskets on a cargo aircraft. Then, the Air Force inadvertently released 350 photos from Dover Air Force Base to a private citizen who had made a FOIA request. Now, the Los Angeles Times, New York Times and Washington Post all have major stories on the incident. My hometown paper even chose to run a front-page photo of these flag-draped caskets today, along with this story:

Pictures of flag-draped coffins filling aircraft cargo bays and being unloaded by white-gloved soldiers were obtained by Russ Kick, a 1st Amendment activist in Tucson who won their release by filing a Freedom of Information Act request.

Air Force officials initially denied the request but relented last week and sent him more than 350 pictures of Iraq war dead arriving at the military's largest mortuary at Dover Air Force Base in Delaware.

The unexpected posting of the photos on the Internet caught the Pentagon by surprise and provoked a ripple of media attention to pictures the government had been trying to suppress. Several major newspapers planned to publish the newly released photos on their front pages today.

* * *
The Pentagon's insistence that the images should remain censored also came one day after two military contract employees in Kuwait were fired for taking pictures of flag-draped coffins there and sending one to the Seattle Times, which published it Sunday.

Maytag Aircraft Corp. said that it had fired Tami Silicio, 50, and her husband, David Landry, because they "violated Department of Defense and company policies by working together" to take and publish the photograph, company President William L. Silva said in a news release Thursday.

The picture shows several workers inside a cargo plane parked at Kuwait International Airport securing 20 flag-draped coffins for the trip to Dover. Silicio, who took the picture, told the newspaper that she hoped it would portray the care and devotion with which civilian and military crews treat the remains of fallen troops.

* * *
Government and military leaders acknowledge that such images carry power and can sway public opinion.

In 1999, the then-chairman of the Joint Chiefs of Staff, Army Gen. Henry H. Shelton, said a decision to use military force was based in part on whether it would pass "the Dover test," as the public witnessed the images of the war dead arriving home.

However, at a news briefing Thursday, Molino said the policy was not driven by concerns of public opinion.

"It's a policy that reflects what the families have told us they would like by way of the treatment of remains of the loved ones who have made that sacrifice," Molino said.

My thoughts echo those of Josh Marshall on this subject. Like me, he is conflicted over the publication of these photos, because of the ends to which partisans will use these images: "For many opponents of the war there is an unmistakable interest in getting these photographs before the public in order to weaken support for the war. There's no getting around that." I think this accurately sums up the motivation of many who would like to publish these images. Historically, images of casualties have been exploited by pro- and anti-war movements. While the casualty story is a legitimate part of the discourse over Iraq, I think these images may come to dominate and anesthetize the American public, and in the long run, that might defeat any meaningful discourse over the substantive issues at play. I also think that military families have a right to resent the use of these images, by anyone, because that seems like

However, there's also a part of me that says "Wait a minute -- who do these images really belong to?" Technically speaking, because the photos are taken on Air Force property of Air Force property, they belong to the military. But I learned as a new lieutenant that we (the military) hold the lives of our soldiers and our equipment in sacred trust, and that we are entrusted with these things by the people of the United States. That is especially true of soldiers, who after all, are America's sons and daughters. The images of flag-draped caskets belong to the American public just as their living comrades do. I believe the American public has a stake in seeing these images, because ultimately, it is the American public which produced these young men and women.

On balance, I lean towards letting the images be made public. Why? Because I think that these caskets, draped as they are with American flags and no individually-identifying markings, are important symbols of our national sacrifice in this war. The Pentagon already publishes releases about each servicemember's death, and the major newspapers often run "faces of the fallen" features listing these casualties by name -- often with a photo or short obituary. I don't think these images go much further than those disclosures, except that they show a powerful symbol of the cost of war. In a time when compulsory service does not exist, and many Americans don't feel the personal sacrifice of war, I think it's important to remind the public of the most basic cost of war. These images belong to the American people, just as these soldiers do -- in my opinion, the public deserves to see them.

2004-04-23T16:05:00.000-07:00

Has Iraq created a 'hollow force'?

Slate just published my article looking at this issue, and the challenges facing the U.S. military should it decide to reinforce its units currently fighting in Iraq. A variety of logistical and infrastructural obstacles in the path of any reinforcement effort, and they are compounded by budget problems now beginning to seriously affect the Army. The ultimate conclusion? That the war in Iraq has stretched America's military to its limit, and that we have sacrificed our ability to do other things in the world militarily for as long as this mission lasts.

There is some irony in this. Heading into the 2000 election, then-candidate George W. Bush blasted the Clinton administration's 1990s deployments to places like Bosnia and Kosovo, saying they depleted our military's readiness. "Our military is low on parts, pay and morale. If called on by the commander in chief today, two entire divisions of the Army would have to report, 'Not ready for duty, sir,' " said then-Gov. Bush, referring to the readiness of the 10th Mountain and 3rd Infantry divisions after their respective deployments to the Balkans. Today, the same criticism is being leveled at the Bush administration, except that Iraq is having a much worse effect on military readiness than the Balkans deployments ever did.

The administration responds to this criticism by saying that Sept. 11 changed everything and that military force was necessary in Afghanistan and Iraq to respond to the new threat from terrorism. This riposte has merit, but it misses the essence of the new global security environment. Dangerous and unknown threats do exist, therefore the U.S. military must be ready to act on a moment's notice in ways and places that can't fully be predicted. By tying the military down in Iraq to the point where it can barely manage to reinforce itself, the Bush administration has hurt America's ability to respond militarily in the post-Sept. 11 world.

It's too late to back out of Iraq. The real issue today is how to beat the insurgency without eviscerating the American military to do it. If winning the war will take more troops, then we must send them. Reconciling the need to win in Iraq with the need to sustain military readiness will be hard. It probably means we need to increase the size of the active military and adjust the mixture of active and reserve forces to put more "nation-building" troops like military police and civil affairs personnel on active duty. The Pentagon also needs to adjust its 2005 budget, shifting money from futuristic procurement programs to current operations such as reconstituting the pre-po fleets. And America needs to invest more in its reserves so they're ready to back up the active force when the military is stretched like it is today. Ultimately, we must win in Iraq. But we cannot afford to focus so single-mindedly on that mission that we neglect our ability to meet other military threats in the post-Sept. 11 world.

2004-04-23T10:10:00.000-07:00

Former NFL player killed in Afghanistan

"He proudly walked away from a career in football to a greater calling, which was to protect and defend our country. Pat represents those who have and will make the ultimate sacrifice for our freedom. I am overwhelmed with a sense of sorrow, but I also feel a tremendous feeling of pride for him and his service." - Arizona Cardinals coach Dave McGinnis

* * *
He had been playing under a three year, $3.6 million contract. The Army reportedly paid him about $19,000 plus benefits.

The Washington Post reports that Army SPC Patrick D. Tillman -- formerly a player with the Arizona Cardinals, now a member of the Army's 75th Ranger Regiment -- was killed in action while hunting down Al Qaeda leaders in Afghanistan. The Rangers were engaged in Operation Mountain Storm, which kicked off last month and has thus far involved thousands of American soldiers in the hunt for Osama Bin Laden and his top henchmen. Details are not being released yet about the circumstances of SPC Tillman's death. But we already know the larger circumstances of his service. He was a man who walked away from an amazing career in professional sports to pursue a higher calling of service to his nation. In volunteering for the Rangers, he chose to join one of the most elite military units in the world, and to push himself farther and harder in the service of his nation. The news of this death is tragic, as is the news of any soldier's death. But we should honor these choices, and hope that others follow in the altruistic footsteps of SPC Tillman.

Update: The Los Angeles Times has good coverage of this story in Saturday's paper, including an excellent essay from sports columnist Bill Plaschke titled "The True Meaning of Sacrifice". With the NFL draft looming over this weekend, Plaschke writes:

Today in New York, amid the smell of money and the tingle of fame, the NFL will hold its annual draft of young men who will use their extraordinary physical gifts to play a game.

One can hardly imagine any of them forsaking their futures and using those gifts on behalf of their country.

Yet that was Pat Tillman, former safety for the Arizona Cardinals, dead in Afghanistan at 27, alive forever in our vision of what is best about America.

For Tillman, the important interceptions weren't made on a football field, but the front lines.

For Tillman, the real tackles weren't the ones made to inspire your team, but to secure our neighborhoods.

For Tillman, the only guaranteed contract was one you sign with your flag.

This weekend, athletes everywhere will stand at attention, apparently listening, as the national anthem is played at sporting events.

Remember Pat Tillman as the one of the few in the last 50 years who actually listened.

Plaschke ends his column with a call to immediately induct Tillman into the NFL Pro Football Hall of Fame. I confess ignorance as to the rules of that institution, however, I can't think of a better tribute.

2004-04-23T09:47:00.000-07:00

Admin note: Intel Dump will slow down over the next week to allow me to study for my last law school finals. I'll try to post notes on big stories I'm tracking (the 4th Circuit decision in U.S. v. Moussaoui, the release of photos depicting the coffins of dead American soldiers; the death of Army Ranger and NFL player Pat Tillman in Afghanistan, and others). But finals will have my primary attention until next Thursday.

2004-04-22T18:45:00.000-07:00

Welcome home, Ironhorse: The 4th Infantry Division officially came home today to Fort Hood, Texas, with a formal ceremony honoring the division's soldiers. The division also honored the 79 4ID soldiers who gave their lives in Iraq. During its service in Iraq, 4ID had responsibility for a large swath of territory north of Baghdad, including the notorious "Sunni Triangle". Its soldiers conducted thousands of patrols, raids and convoys in support of the security and reconstruction efforts. The 1st "Raider" Brigade (my old unit) also earned notoriety for the raid which captured Saddam Hussein in December 2003.

The 4th Infantry Division's soldiers will now get some much-needed rest and time to reconstitute their units; many will rotate to other installations, and many will leave the Army altogether. The current state of affairs in Iraq makes it look like 4ID will be sent into the breach once again, but hopefully not too soon for the soldiers and their families.

2004-04-22T12:14:00.000-07:00

Good news for extended troops

Balancing the dual imperatives of mission accomplishment and soldier welfare is never easy. However, a report in Stars & Stripes today indicates that the Army's top general in Europe may have drawn a bead on exactly how to do this for the families of the soldiers whose tours have been extended by 3-4 months in Iraq.

“We will cut through the red tape, we will modify the regulations, we will change policies — all as necessary to support you during the upcoming months,” Gen. B.B. Bell said in a written statement.

Bell’s tour comes in the wake of the extension to 1st Armored Division’s hitch in Iraq, which had been slated to end next month.

“In the very near term, I will lead a team of our most experienced support personnel to many of your communities to hear from you personally,” Bell said in his statement, promising, “we will not let you down.”

Citing security concerns, USAREUR spokesman Michael Tolzmann refused to say which U.S. military installations in Germany Bell would visit or when the general would be making his appearances.

Asked for possible examples of the kind of red tape-cutting Bell is anticipating, Tolzmann said such rule-bending “would include ... implementing changes to operating hours at [Child Development Centers] or other post facilities as a result of soldiers being deployed and families showing a need for change.”

Whatever is needed, Bell said, he and his staff will make sure it gets done.

“I have directly committed the entire United States Army Europe team to your help and assistance during this period of extended service for your soldiers,” Bell said.

This is the kind of good news story that I like to see. Extending the guys in Iraq was a hard thing to do, but probably the right thing to do. I'm glad that some smart officers had a plan ready to help families cope with the extended separation. Hopefully this makes a difference for these people. And who knows? Doing right by these families may pay big dividends down the road in terms of reenlistment and soldier performance. If you take care of the family, the family will take care of the soldier. And as a storied general said many years ago, soldiers aren't in the Army -- soldiers are the Army.

2004-04-22T08:23:00.000-07:00

Comparing the junior officer evals of Bush and Kerry

At the risk of being labeled a partisan hack, I decided to compare the evaluation reports from the military records of President George Bush and Sen. John Kerry. Bottom line up front: I found significant differences between the character of the two sets of documents. I feel somewhat qualified to judge these reports, having been a junior military officer subject to similar evaluation schemes. While it's true that these senior officer observations are more than 30 years old, I believe they reveal important details of these men's character, at a time when these men were asked to lead by example and perform our nation's most sacred duty. Therefore, I think it's relevant to today's debate, and I am glad to see the Kerry campaign releasing these records for comparison to those of the president.

The New York Times reports this morning on the contents of Sen. Kerry's military records, which his campaign has put online. The general theme of these records is that young Sen. Kerry was an outstanding officer, even taking into account the glowing language that's typical of officer evaluation reports. Here is are a couple of illustrative excerpts from his fitness reports:

From his evaluation as an Ensign on the USS Gridley:

"A top notch officer in every measurable trait. Intelligent, mature and rich in educational background and experience, ENS KERRY is one of the finest young officers I have ever met and without question one of the most promising. ... He is an alert and active original thinker with great potential to the Navy. He eagerly accepts and actively seeks out tasks of greater responsibility. He is recommended for accelerated promotion."

Comment: There are a couple of things that leap out from this text. First, ENS Kerry was a good officer, and that's clear from this language which goes beyond the praise used in all such reports. Second, he chafed a little bit at the Navy bureaucracy and culture. The comment about his educational background indicates that he was different than his peers. The comment about being an "active original thinker" who "eagerly... seeks out tasks" indicates that he took a lot of initiative, and probably did some edgy things as a young officer. I think that's the mark of a good junior officer, because you're supposed to take risks on behalf of your troops at that age. And a final note about Ensign Kerry's pedigree. Officers in the military generally don't have his background, then or now. It says something that he wasn't ostracized or singled out as effete or aristocratic because of his upscale background. These reports show that for the most part, he was one of the guys.

From a second FITREP on the USS Gridley:

"His enthusiasm for the navy and his work is contagious, and his men are ardent supporters of him. His division's morale is one of the best on the ship due to his dynamic leadership. He is a polished diplomat at ease in distinguished company and shows great promise for future assignment as an aide or on a foreign diplomatic post."

Comment: Again, we see the indication that he's somehow different than his peers -- more educated, more refined, more diplomatic. The Navy has always been the most genteel service, and it has always had a mini-diplomatic corps within its ranks, so it's not surprising to see those lines on this FITREP. However, the first part of this comment is striking. There are lots of things you can praise about an officer -- technical competence, physical ability, tactical genius, intelligence, etc. To praise his leadership, and to cite his troops' morale in support of that praise, is one of the greatest compliments you can give an officer.

From two FITREPs for LTJG Kerry while assigned to Coastal Division Eleven:

"In a combat environment often requiring independent, decisive action LTJG Kerry was unsurpassed. ... LTJG Kerry emerges as the acknowledged leader in his peer group."

* * *
"LTJG KERRY was assigned to this division for only a short time but during that time exhibited all of the traits desired of an officer in a combat environment. He frequently exhibited a high sense of imagination and judgement (sic) in planning operations against the enemy in the Mekong Delta. ..."

Comment: There is more in here about his specific combat exploits, but these two quotes bookend those comments and make the most general observations about LTJG Kerry's character. Again, we see an indication of his leadership ability, which his commanders felt was far above average in comparison to his peers. We also see comment on his performance in combat, which is qualitatively different than performance in peacetime or on a ship that doesn't see direct-fire combat. And again, we get the sense that he chafed against his bosses, based on the comment about "imagination".

From a FITREP for services as an aide to an admiral:

"LTJG Kerry is one of the finest young officers with whom I have served in a long naval career. His combat record prior to becoming my personal aide speaks for itself and is testimony to his competence and courage at sea. As my personal aide he could not have been more effective. ... This young man is detached at his own request to run for high public office to whit the Congress of the United States. The detachment of this officer will be a definite loss to the service. He is the dedicated type that we should retain and it is hoped that he will be of further perhaps earlier greater service to his country, which is his aim in life at this time."

Comment: You an expect a certain amount of praise from an admiral for his aide, but again, such praise would normally be for things like his efficacy, efficiency, and so forth. This is high praise indeed for an officer on his way out the door, and it says a lot that a senior naval officer would be so effusive. Sen. Kerry appears to be the type of young officer the military desperately needed to retain after Vietnam.

In contrast, President Bush's released military record (see this site, and the Boston Globe's site too.) does not contain the detailed evaluation reports found on Sen. Kerry's website. (I looked on the president's campaign website but could not find a more complete repository of military records.) I think this is due to poor recordkeeping by the TX Air National Guard, as well as a desire to not release these documents. In addition, then-LT Bush was a pilot, not a leader of airmen, so his evaluation reports are likely to be more sparse anyway. Nonetheless, I think Pres. Bush's records deserve to be compared side-by-side to those of young Sen. Kerry. The Washington Post provides these excerpts from Pres. Bush's evaluations:

A 1971 evaluation described Bush as "an exceptionally fine young officer" with "sound judgment" who "is mature beyond his age and experience level." Bush "is a natural leader but he is also a good follower of military discipline," it said. A 1970 letter recommending him for a promotion from second to first lieutenant called him "a dynamic outstanding young officer" who "clearly stands out as a top notch fighter interceptor pilot." Bush, it said, "is a tenacious competitor and an aggressive pilot."

Comment: Like Sen. Kerry's evaluation reports, this one is actually pretty good. It's doesn't contain the same detail or concrete indicators of performance. But I think much of that owes to the difference in their types of service. Pres. Bush was only being evaluated for one weekend a month and two weeks in the summer -- there just wasn't that much to observe. Moreover, Pres. Bush's assignment was to fly and perform limited additional duties, not to lead sailors in a division or swift boat unit. Thus, there were no unit actions for him to be accountable for. (Military leaders are always evaluted on the accomplishments -- good or bad -- of the troops they lead.)

An article at FreeRepublic.Com also provides an excerpt from a press release touting Pres. Bush's flying ability:

The younger Bush fulfilled two years of active duty and completed pilot training in June 1970. During that time and in the two years that followed, Bush flew the F-102, an interceptor jet equipped with heat-seeking missiles that could shoot down enemy planes. His commanding officers and peers regarded Bush as a competent pilot and enthusiastic Guard member. In March 1970, the Texas Air National Guard issued a press release trumpeting his performance: "Lt. Bush recently became the first Houston pilot to be trained by the 147th [Fighter Group] and to solo in the F-102... Lt. Bush said his father was just as excited and enthusiastic about his solo flight as he was." In Bush's evaluation for the period May 1, 1971 through April 30, 1972, then-Colonel Bobby Hodges, his commanding officer, stated, "I have personally observed his participation, and without exception, his performance has been noteworthy."

Comment: This praise is a little fainter, although it's still there. Of course, press releases have little value as evaluative documents, but it does say something that the TX Air National Guard would choose to showcase this officer instead of his peers.

Analysis: In summary, the evaluations of John Kerry clearly stand over those of George Bush. However, I think much of the disparity owes to the difference between the two men's military service. Had Pres. Bush served more time on active duty, or in combat, we would have a more complete record on which to judge his service as a junior military officer. A lot of people don't think this service matters, but I do. It reveals important details of these individual's character at an important moment in their lives. And as I wrote in the Chicago Tribune, it matters for other reasons too:

President Bush's 30-year-old service record from the Air National Guard is relevant because it shows us something about his willingness to share the same hardships as the soldiers he now commands today from the White House. The issue has never been whether he was guilty of desertion or being AWOL--two slanderous charges leveled without regard for the facts. The real issue has always been the character of his service, and whether it was good enough to set the example for America's 1.4 million citizens in uniform.

* * *
... these issues boil down to the president's willingness and ability to set the example for the military he now leads as commander in chief. Cumulatively, questions about then-Lt. Bush's drill attendance, evaluation reports, flight status and early discharge add up to questions about the character of his service in the National Guard. Bush did receive an honorable discharge, but such a document is the lowest common denominator of military performance--it takes a lot of bad behavior to earn anything other than an honorable discharge. The American public deserves to know the full truth about the president's military record. It's relevant to his character, and it's relevant to whether he's fit to lead today's military by example.

The great thing about our system is that it lets you be the judge of these men when you vote in November. Every American will come to his or her own conclusion on this issue, and will decide which man is better fit to serve as America's commander-in-chief. For what it's worth, I still haven't made up my mind, and probably won't before November.

Update: Kevin Drum points us towards one key difference in the military records of each man, with respect to their desire for service overseas. (Nice job on the Photoshop and web design, too, by the way.)

For what it's worth, I think this reveals something quite striking about the sense of noblesse oblige within each man upon their graduation from Yale and entry into a life of privilege. Ironically, I see great parallels between the choice of young John Kerry and the choice of young George Herbert Walker Bush (aka Bush 41, the current president's father). Both men, with an eye on their future, made a choice to seek dangerous duty overseas in the service of their nation. I wish that more of America's elite graduating today would follow in these men's footsteps by serving their country in uniform, or in other ways such as the Foreign Service and Peace Corps. Service to country is a fundamental duty of citizenship, and it is one that I respect regardless of political affiliation.

2004-04-21T22:25:00.000-07:00

Who pays the cost of chaos in Iraq? - Part II

The New York Times brings us a report in tomorrow's paper that essentially corroborates reporting earlier this week by the Washington Post about the effect of violence in Iraq on reconstruction. In a nutshell, the deteriorating security situation is causing private contractors to stop their work -- whether it's drilling wells, running convoys, building schools, or delivering supplies. The latest casualties of war, according to the Times, are General Electric and Siemens.

The insurgency in Iraq has driven two major contractors, General Electric and Siemens, to suspend most of their operations there, raising new doubts about the American-led effort to rebuild the country as hostilities continue.

Spokesmen for the contractors declined to discuss their operations in Iraq, citing security concerns, but the shutdowns were confirmed by officials at the Iraqi Ministry of Electricity, the Coalition Provisional Authority and other companies working directly with G.E. and Siemens in Iraq.

"Between the G.E. lockdown and the inability to get materials moved up the major supply routes, about everything is being affected in one way or another," said Jim Hicks, a senior adviser for electricity at the provisional authority.

* * *
The Coalition Provisional Authority regards the rehabilitation of the Iraq's water, sewage, transportation, oil and electrical infrastructure as a linchpin in the effort to create a functioning democracy and convince Iraqis of America's good will.

A spokeswoman for the authority said discussions involving security issues with General Electric had led to an agreement that could result in a resumption of operations. The spokeswoman said Siemens and the authority were "working out their differences," but she said she had no information about whether the company would resume work.

* * *
Two companies with much larger contracts in Iraq, Bechtel and Halliburton, said they had curtailed travel by their employees but were not considering halting their work or pulling out of the country.

* * *
A major private security provider in Iraq with access to intelligence information said that Halliburton had "been slowed down in terms of the number of routes and convoys they can run" and said the firm was having a difficult time hiring truck drivers to work in Iraq. He estimated that the overall number of Halliburton convoys was down by 35 percent.

Analysis: Once again, the takeaway point is this: increased violence by the insurgents has a direct and inexorable effect on reconstruction, particularly when reconstruction is done mostly by unarmed (and lightly secured) contractors whose concern for their own welfare outweighs any altruistic desire to rebuild Iraq (and rightly so -- these aren't suicide contracts). The U.S. must set the conditions for reconstruction by securing the nation of Iraq. The only viable way to do that is with well-calibrated force -- sometimes a velvet glove; sometimes an iron fist. No meaningful reconstruction will take place until the security situation is fixed. And it should go without saying that the transfer of sovereignty on 30 June will be a very precarious thing indeed if security is not restored before then.

One note on contractors in Iraq. They really break down into three categories. The first and largest category are the reconstruction contractors -- the folks like Halliburton and GE and others who have been called in to do the heavy logistics work of rebuilding Iraq. These contractors are generally no different than logistics or engineering firms in the states, except that they're working overseas. Generally, these contractors are unarmed. The second main category includes the armed private military contractors like those from Blackwater Consulting, whose missions range from personal protective details to security for reconstruction sites to more clandestine activities. And the third category, which is really hard to measure, includes host-nation contractors. U.S. contracting officers on the ground in Iraq have contracted for a long list of services from basic labor to truck driving from Iraqi citizens; American contractors have also subcontracted a number of functions to Iraqis. The challenges and issues are different for each type of contractors.

This story applies most to the first category -- the large contingents of unarmed logistical and engineering professionals in Iraq to rebuild infrastructure and other areas. They are particularly vulnerable because they carry no organic security and no organic weapons, unlike soldiers. And I'm not surprised one bit to see their work affected so severely by the violence in Iraq.

2004-04-21T07:57:00.000-07:00

More military overstretch problems surface
Do looming reserve personnel problems mean we should bring back the draft?

A pair of articles in the Baltimore Sun and Dallas Morning News makes an old point with new evidence: that the war in Iraq has stretched the American military to a point it hasn't seen for at least a generation. The issue presented by both article is the extent to which America's military reserves have been tapped for Operation Iraqi Freedom, and the long-term effects of this operation on the reserves' retention of personnel. To date, the reserves (and active force) have done okay at retention, largely thanks to "stop loss" policies and generous reenlistment bonuses. However, that may be about to change, according to the Sun:

With the Reserves and the National Guard filling an ever-busier role in military forces already stretched to the limit, re-enlistment decisions have become a worrisome issue for the Pentagon, especially because the 90-day waiting period has begun expiring for many citizen soldiers who were part of the first lengthy deployments to Iraq.

"This is going to be a real crunch time," said Al Schilf, a spokesman for the Army Reserve. "This is the longest that Reserve soldiers have been deployed, and we have to be realistic. We have torn them away from their employers and their families for a year, so the next few months are going to be very telling."

Even before now, the Army Reserve was falling short of re-enlistment goals. For the past 18 months, ending March 31, re-enlistment ran about 7 percent behind the Army's stated goal - 1,507 soldiers fewer than the target of 21,243.

Recruiting efforts have helped compensate for some of the shortfall. In signing up new soldiers, the Army Reserve has exceeded its goal for every year since 2000, although the goals have been steadily decreasing - from a target of 41,961 recruits in 2000 to only 21,000 for the current year.

For the National Guard - the other force of "part-time soldiers" pressed into full-time deployments - the opposite trends are in play. Re-enlistment is up, but recruiting is slumping.

Analysis: If there is to be a personnel exodus from the reserves, it will not appear in one giant surge at one moment in time. That's because each soldier's enlistment ends at a different time, and the choices to leave the service will be made on an individual basis by these soldiers when their time is up. Many will likely stay, because they want the benefits or they have high morale from doing a good job in Iraq. But the trends point to a growing number of soldiers who decline reenlistment. We may now be able to finally see this indicator truthfully, because of the end of the 90-day "stop loss" waiting period. During deployment and for 90 days after their return, these soldiers were barred from getting out -- even if their enlistments were up. Now that this period has been lifted, we will see soldiers making their own decision on this subject, without the constraint of an Army-wide policy.

For what it's worth, I think the reserves can weather this crisis. Although 360,000 reservists have been called up since 9/11 for service at home and abroad, the numbers so far indicate that the majority of these reservists will stay in uniform. There are certainly crises in some units and some specialties. It probably wouldn't hurt to shift some units (e.g. Civil Affairs, MP, logistics) to the active force, and it wouldn't hurt to convert more old guard forces to those areas to create a reserve expeditionary nation-building capability. The reserves also stand to benefit a great deal from active-duty personnel problems, because many of the active soldiers who get out will join the reserves, bringing their expertise and experience with them.

However, the reserves will take some time to rebuild themselves after Iraq. One strategic cost of the war can be expressed in terms of an opportunity cost. By taking on this mission, we have sacrificed the readiness of our reserves to respond to a crisis at home or abroad for a period of time -- the deployment, plus the time necessary to rebuild and reconstitute. That may be three years, or five years, or even longer -- it's not clear. Of course, you have benefits too, like the amount of combat experience in today's active and reserve force. However, the reserves will not be ready for war for a while, and that creates a strategic risk for the United States over the next few years.

Some political leaders, including Sen. Chuck Hagel (R-NE) and Sen. Joe Biden (D-DE), are expressing doubts about the military's ability to weather this storm. And to fix the problem, they are saying that we should consider the option of a national draft, both to fill the force and to spread the burden of military service more equitably. I don't think the first reason is necessarily true; I think the military can fill its force structure with (re)enlistment incentives and other means. There are also tremendous startup costs associated with a conscription system, not to mention its quality or professionalism issues.

However, the second reason proferred by Sen. Hagel and Sen. Biden deserves some mention. Ours is a volunteer force, but not all Americans volunteer in equal numbers. It is certainly true, as military sociologist Charles Moskos has noted, that today's military reflects the nation's working class and middle class more than any other. I think America's elites ought to do more than they're doing -- paying a disproportionate share of income taxes does not relieve the upper class of its other duties to the nation. Despite the obvious appeal of a conscription system for this purpose, I still oppose it. Our experience in Vietnam showed us how the wealthy will manipulate a conscription system to avoid service with draft deferments and other means; there's no reason to think they won't do the same thing this time. The rich and powerful will always have means to avoid service.

I think it would be better to avoid the Draconian option of a draft, and instead to pursue other incentive systems that will encourage military service by elites. Towards this end, I would invest millions in ROTC scholarships, targeted at elite colleges and universities. (Today's ROTC scholarships often "cap out", making them less valuable for students enrolled at expensive private schools.) I would also develop enlistment and officer-service options that appeal to college students, such as reserve options to serve during the summers and short-term enlistments. Will these things bring in more elites? Probably, though not in massive numbers. But I think that's okay, because even a slightly higher level of elite participation in the military will have a big marginal effect on the discourse among elites about military service and American national security policy.

Update I: The AP reports on Friday that the Army has met its reenlistment target for the first half of FY2004. I think this is largely the result of strong reenlistment incentives, and initiatives at the unit level to get soldiers to re-up. But it counsels against the initiation of a draft.

2004-04-20T16:44:00.000-07:00

Oral argument in the Gitmo case: Slate's Dahlia Lithwick has a roundup of what happened today in the consolidated cases of Al-Odah v. United States and Rasul v. Bush -- collectively, the Guantanamo Bay jurisdiction cases. From her dispatch, available both in Slate and on NPR, it appears that the court fumbled around on the issue without either side scoring significant points. My guess is that we'll get a muddled decision based largely on jurisdictional grounds, and nothing earth shattering. The monumental decision will likely be handed down in next week's cases -- Hamdi and Padilla -- involving U.S. citizens designated as enemy combatants.

For more on oral argument, see Jess Bravin's report on the argument in the Wall Street Journal (subscription required), Linda Greenhouse's coverage in the New York Times, Charles Lane's story in the Washington Post, and David Savage's article in tomorrow's LA Times.

The consensus of these five reports is that the justices appear skeptical of the Bush Administration's all-or-nothing stance in the Guantanamo case. So far, the administration has maintained that there ought to be no right of habeas corpus -- and by extension, no role for the courts -- in the case of the Guantanamo detainees. There is good law to support this position, but it raises eyebrows among a lot of legal scholars and political leaders at home and abroad. We'll see where the Court goes with this one.

2004-04-20T14:39:00.000-07:00

Iraqis establish tribunal for Saddam: The AP reports that the Iraqi Governing Council has set up an entity to try former dictator Saddam Hussein and his top lieutenants according to Iraqi law and a statute passed late last year. So far, it looks like this tribunal will focus on the crimes committed by Hussein against his own people, rather than those against the Kuwaitis or Iranians, which is basically what I predicted last year. It will be very interesting to see how this tribunal unfolds. I also think there will be a very complex and interesting interaction between this trial and the security situation on the ground in Iraq. More to follow...

2004-04-20T11:10:00.000-07:00

Special Forces general to speak on counterinsurgency at UCLA: If you're in Los Angeles and have some time tomorrow, you may want to attend a lecture by U.S. Army Major General Geoffrey Lambert at UCLA's Anderson School at 3:30 p.m. MG Lambert commands the U.S. Army John F. Kennedy Special Warfare Center and School, and he will speak on "a new and fundamentally different approach to planning modern warfare--a paradigm shift that not only provides more options for the U.S. military, but also results in wars being designed backwards to forwards where humanitarian relief and compassion are critical to success." It sounds like it will be an amazing lecture from one of the Army's leading warrior-intellectuals.

2004-04-20T11:06:00.000-07:00

Oregon Guardsman combat story disputed

CPL Dana Beaudine, the Oregon National Guardsman who claimed he was mistreated by his employer after returning from combat in Iraq, apparently lied to the Seattle Times about the story. After running the story, The Times received a flurry of e-mails from officers and NCOs in the soldier's unit, effectively quashing his entire story. The Army even cancelled his Purple Heart recommendation, after finding that his wounds were not the result of hostile action. Suffice to say, I've got a bad taste in my mouth for staking some of my personal credibility on this guy's story. (Thanks to Mudville for passing this story along.)

In fact, no one from his unit contacted by The Times could corroborate Beaudine's story.

"You have been fooled," Command Sgt. Maj. Gerald Schleining Jr. wrote in an e-mail to The Times from Kuwait after the story was published. "Beaudine was never injured in armed conflict. He has never been to Basrah or Iraq for that matter."

Capt. John Robinson, who said he was Beaudine's commander in C Company of the 1st Battalion, 162nd Infantry Regiment, also disputed Beaudine's account.

"This is a disgrace to all those who have legitimately received injuries or died in the combat actions since the first day of the war," Robinson said.

Beaudine, who was honorably discharged in February, insists his story is true.

Analysis: I don't think this necessarily changes the legal analysis of what happened in this case. CPL Beaudine was mobilized and put on active duty. He came back under somewhat nefarious circumstances, and subsequently claimed mistreatment at the hands of his employer. He filed a complaint with the Labor Department, and that agency's investigators found misconduct by his employer. And he may have a legally cognizable claim in federal court if his employer decides not to settle. So, this is still a case of bad corporate behavior under the USERRA; the victim just isn't as honorable of a person as originally reported. Still, a correction to the record is in order, and I regret taking such a hard stand on this guy's behalf in light of his apparent fabrications.

2004-04-20T08:22:00.000-07:00

President Bush promotes the Patriot Act's renewal

President Bush has launched a public campaign to press the public -- and by extension, Congress -- to renew key provisions of the USA PATRIOT Act (P.L. 107-56) which are set to expire at the end of 2005. The AP reports that he spoke yesterday in Pennsylvania, and that he will speak today in Buffalo, New York, on the subject. The choice of Buffalo is no accident -- it was where the "Lackawanna Six" were prosecuted for providing material support to terrorism (all six pled guilty). Here's what the President's been saying on the road:

After September the 11th, we took another vital step to fight terror, and that's what I want to talk about today. I want to talk about the Patriot Act. It's a law that I signed into law. It's a law that was overwhelmingly passed in the House and the Senate. It's a law that is making America safer. It's an important piece of legislation.

First, before September the 11th, law enforcement, intelligence, and national security officials were prevented by legal and bureaucratic restrictions from sharing critical information with each other, and with state and local police departments.

We had -- one group of the FBI knows something, but they couldn't talk to the other group in the FBI -- because of law and bureaucratic interpretation. You cannot fight the war on terror unless all bodies of your government at the federal, state, and local level are capable of sharing intelligence on a real-time basis. We could not get a complete picture of terrorist threats, therefore. People had -- different people had a piece of the puzzle, but because of law, they couldn't get all the pieces in the same place. And so we removed those barriers, removed the walls. You hear the talk about the walls that separate certain aspects of government; they have been removed by the Patriot Act. And now, law enforcement and intelligence communities are working together to share information to better prevent an attack on America.

* * *
The reason I bring it up is because many of the Patriot Act's anti-terrorism tools are set to expire next year, including key provisions that allow our intelligence and law enforcement agencies to share information. In other words, Congress passed it and said, well, maybe the war on terror won't go on very long, and, therefore, these tools are set to expire. The problem is, the war on terror continues. And yet some senators and congressmen not only want to let the provisions expire, but they want to roll back some of the act's permanent features. And it doesn't make any sense. We can't return to the days of false hope. The terrorists declared war on the United States of America. And the Congress must give law enforcement all the tools necessary to protect the American people. (Applause.)

Analysis: There's actually a lot of interesting stuff in the President's speech that I recommend to anyone interested in understanding the policy debate over the Patriot Act. The President references roving wiretap power, administrative subpoena power, sentencing guidelines, and other technical areas usually reserved for lawyers and law review articles. His ultimate point is that these powers are vital for the Justice Department, and that without them, the American law enforcement community cannot effectively fight terrorism. Perhaps... although I think the the administration will have to sacrifice some of these powers if it wants to get the bulk of the Act renewed when its sunset provision kicks in.

My prediction is that the administration will sacrifice some of the Act's provisions, such as the notorious "library record" Sec. 215, in order to get the more important parts of the Act renewed. They'll do this in order to seize the moral high ground and show that they're willing to be reasonable on this stuff. The irony, of course, is that this most notorious provision has never been used, thanks to other procedures which allow DOJ to get the same records without going through the onerous FISA/Sec. 215 process.

Second, I think the Administration will play serious political hardball when it comes time to push this legislation through Congress. We got a taste of this when the Administration fought for the Homeland Security Act of 2002. In essence, "anyone who's not with us is against us" where these legislative items are concerned. The Administration will procure a long list of prosecutors, police officers, and others to testify about the need for such powers -- it's easy to find law enforcers on both sides of the aisle who support these measures. And they will paint anyone opposed to the Act's renewal as a tacit supporter of terrorism. That's going to be very ugly, but it's going to be what happens. And if it's timed to coincide with the 2004 election, as I think it will be, you're going to see a lot of negative campaigning (reminiscent of what was done to fmr-Sen. Max Cleland) on this subject. Anyone opposed to the Act's renewal will be targeted in their state or district by the GOP with intensely negative ads hinting their support for terrorism.

My guess is that a lot of Senators and Congressman will fear this attack machine and vote for the Act's renewal, regardless of any lingering concerns over civil liberties or the Act's efficacy. At best, you'll see the moderation of certain provisions, or the addition of reporting requirements about the use of certain provisions (like FISA warrants). But in the end, I am all but certain that the Patriot Act will be renewed -- this time, most likely, without a sunset provision at all.

2004-04-20T08:00:00.000-07:00

How Appealling moves to new site: Howard Bashman, the appellate litigator whose weblog has become the best source on the web for legal news, has officially moved to the website of Legal Affairs magazine. This is the latest in a series of moves by the best bloggers in the business, and by many magazines to acquire an online weblog presence. (See, e.g., Tapped and The Washington Monthly.) Clearly, there is great synergy between Howard's reporting and Legal Affairs, and I think this will be an excellent move for both entities.

Speaking of Legal Affairs... the magazine announced the winners of its 2004 legal writing contest for law students today. Congratulations to Kate Andrias of Yale Law School, who was selected as the first-place winner of this year's contest for her entry, "Locked Out," an essay about employers who are curtailing workers' rights by requiring them to sign arbitration agreements that bar pursuit of their interests in court.

2004-04-20T07:53:00.000-07:00

Bad news in the newsroom

The Wall Street Journal is one of my preferred news sources, because its news articles offer an excellent blend of reporting and analysis that far surpasses the average dispatch. I have come to know several WSJ reporters, including one who I actually knew when I was a reporter in college and he was a law student. Unfortunately, the Wall Street Journal does not appear to be taking care of its reporters with the same diligence that they are taking care of their beats. The AP reports that contractual negotiations between the newspaper and the reporters' union have broken down, and that labor relations at the paper are at an all-time low.

Nearly 100 staffers from The Wall Street Journal picketed the newspaper's headquarters in New York Wednesday as relations with the company's main union turned increasingly tense.

The protest lasted just under an hour and was aimed at pressuring the company ahead of the next bargaining session, which is scheduled for April 14. The newspaper's employees have been working without a contract for a year.

Besides the picketing, most of the newspaper's reporters at the New York headquarters showed up for work at about 1:30 p.m. as part of a work-to-rule job action. The union's contract calls for a 35-hour work week, but the reporters often put in far longer hours.

E.S. Browning, a stock market reporter with 25 years' experience at the paper, said that the normally collegial atmosphere at the Journal between reporters and management was breaking down, particularly since the company was seeking cutbacks in health care coverage at the same time that top managers were receiving large pay increases.

It goes without saying that if the Wall Street Journal can treat its byline reporters this way, then imagine how it (and other large newspapers) can treat their freelance writers and other staff. I have a personal interest in this, because I contribute occasionally to newspapers and magazines, and because several of my friends make a living writing for these big papers. Although I'm not a fan of unions and labor stoppages generally, I also recognize the benefits of collective bargaining. Indeed, I benefit from the work of the graduate student union here at UCLA, which negotiated the contract under which I work as a teaching fellow and research assistant. The facts in the WSJ situation seem to be pretty unfortunate, and I hope that the newspaper can see fit to do the right thing here and take care of its employees. They bust their humps for the paper, and they deserve better than what they're getting.

2004-04-20T07:31:00.000-07:00

Les armees privees proliferent en Irak: Guillemette Faure has an article in Le Figaro today which quotes me and others on the subject of private military contractors. I'm not fluent in French, so I'm not sure what the article says exactly. But it was fun to do the interview, and to see my quotes translated into another language.

And if you want to see more problems with the overuse of military contractors, see this article in today's Los Angeles Times. It describes, quite appallingly, what happens to American soldiers when certain services are contracted out and then the contractors fail to deliver because of deteriorating security or other reasons. As DaggerJag points out in his report from Iraq, "Unlike a soldier, you can't force a civilian trucker to drive if they don't want to." Unfortunately, soldiers (and Iraqi civilians) bear the hardship when contractors walk off their jobs or stay hunkered down.

... new troops arrived to Forward Operating Base Duke, an empty swath of desert outside the holy city of Najaf, to find a logistical nightmare.

Military buyers had signed contracts with local vendors to supply everything from water to portable tents. But the contractors were balking at delivering the goods.

"When the security situation gets bad, they don't want to deliver, and that's what's happening now,'" said Army Capt. Ron Talarico, who is helping coordinate supplies.

A temporary water shortage was remedied, but the camp still has only six portable toilets for the 2,500 troops because the company that provides them is reluctant to travel the highway.

There are no showers or laundry facilities. A shortage of tents forces soldiers to sleep in their vehicles in 100-degree weather and blistering sandstorms.

"It's a wasteland here," said 1st Lt. Matt Nethers, 24, of Los Alamitos. "The Army logistical system isn't what it could be."

2004-04-18T20:18:00.000-07:00

Who pays the cost of chaos in Iraq? The Iraqis

Sunday's Washington Post carries this article by Rajiv Chandrasekaran and Karl Vick on the front page which does a great job of detailing the effects of the last three weeks of violence in Iraq. A great deal of media attention has focused on the pitched battles between U.S. troops and Iraqi insurgents, but little has been written or reported on the effects this insurgency is having on the reconstruction of Iraq. This article hits the center-mass of that subject, and explains exactly what has happened to nation-building efforts since the start of this wave of violence:

The violence has brought the U.S.-funded reconstruction of Iraq to a near-halt, according to U.S. officials and private contractors.

Thousands of workers for private contractors have been confined to their quarters in the highly fortified Green Zone in Baghdad that also houses the headquarters of the U.S. occupation authority. Routine trips outside the compound to repair power plants, water-treatment facilities and other parts of Iraq's crumbling infrastructure have been deemed too dangerous, even with armed escorts.

Compounding the problem is a growing fear that insurgents will seek retribution against Iraqis working for private contractors and the occupation authority. Scores of Iraqis have stopped showing up for their jobs as translators, support staff and maintenance personnel in the Green Zone, even though there is a lack of lucrative employment elsewhere.

The security situation "has dramatically affected reconstruction," said another U.S. official in Baghdad. "How can you rebuild the country when you're confined to quarters, when only small portions of your Iraqi staff are showing up for work on any given day?"

Among the firms that have restricted the movements of their employees are the two of the largest private contractors in Iraq: Bechtel Corp. and Kellogg Brown & Root, a subsidiary of Halliburton Co. The Research Triangle Institute, a North Carolina-based firm that has been helping set up city councils across Iraq, has sent 80 staffers -- about 40 percent of its non-Iraqi workforce -- to Kuwait as a precautionary measure.

Security concerns also have hindered the implementation of a $6 billion, U.S.-funded wave of construction projects intended to help improve security by putting legions of unemployed young men to work.

"We want to offer people opportunities that compete with the financial incentives they get" from insurgent leaders, an American official said. "But it's a Catch-22. We can't start the work that's supposed to help improve security until security improves."

Analysis: This isn't rocket science. Smart people including Gen. Eric Shinseki, James Fallows, James Dobbins, and others have written on the relationship between security and nation-building. Bottom line -- you cannot effectively do nation-building without security. This principle is as fundamental as any to the conduct of nation-buildling missions. You cannot build roads, schools, factories and utility plants until the people feel secure in their homes and cities -- and until the contractors feel secure enough to do the work. This dispatch in the Washington Post indicates that we have a very long way to go before we set the conditions for effective nation-building: namely, a secure-enough situation that allows contractors and Iraqis to work. Until we tamp down this insurgency and restore order to the nation, everything else is on hold.

Update: The New York Times has a front-page article in Monday's paper on the subject of private military contractors, and some of the problems associated with their (over)use in Iraq. This is something I've written on too. But here's a report from an Army officer now deployed to Iraq with the 1st Infantry Division, which makes the point quite well:

... the recent "problems" we've been having over here have had some interesting side effects. Many of the civilian truck drivers who are working in this area have refused to drive on our convoys and that has slowed down delivery of everything from mail to food (I'm going to stock up on my favorite MREs for when they close the mess hall). I've heard that something close to 200 KBR drivers have quit and the Turkish drivers aren't going past Mosul. So much for Rumsfeld's notion that we can "outsource" all the non-essential jobs in the army to contractors. Unlike a soldier, you can't force a civilian trucker to drive if they don't want to.

2004-04-18T08:10:00.000-07:00

History of the 'state secrets' privilege: Sunday's Los Angeles Times has a very artfully written history/news piece on the history behind United States v. Reynolds, the case where the Supreme Court announced an evidentiary privilege for national security information. Today, this privilege comes up in terrorism cases, False Claims Act cases, and a variety of others where state secrets are at stake; it also has implications for other cases of national security deference, such as the three 'enemy combatant' cases now pending before the Supreme Court.

Part II appears in Monday's paper, and also makes for fascinating reading. Anyone interested in the intersection of law and national security should read this series.

2004-04-17T11:02:00.000-07:00

Iraqi insurgents and the law of war

I have written a bit on the law of war and its applicability to the conflict in Iraq. My inbox has been filled by readers calling my articles naive, because of the slim chance that this enemy will comply with the law of war. To rebut those criticisms, I offer this excerpt from a CNN article on the capture of PFC Keith Matthew Maupin, an Army reservist in Iraq. While his captors don't explicitly reference the 3rd Geneva Convention or other international covenants by name, they certainly incorporate these principles as they're found in Islamic law:

"We have taken one of the U.S. soldiers hostage," the narrator [of the video depicting Maupin] said.

"He is in good health and being treated based on the tenets of Islamic law for the treatment of soldiers taken hostage. We will keep him until we trade him for our prisoners in the custody of the U.S. enemy. We want them to know -- and the whole world to know -- that when we took him in, he came out of his tank holding a white flag and he lay face down on the ground, just like other soldiers."

Analysis: This is interesting for a few reasons. First, the conventional wisdom has been that the Iraqis would not follow the laws of war in their insurgency. That has been true in some situations, like the mutilation of the four contractors two weeks ago in Fallujah. However, both the Iraqi armed forces and the Iraqi insurgents appear to be following some codes of conduct with respect to the treatment of U.S. soldiers in captivity. Self-interest is probably animating this decision by the Iraqis. They probably want to encourage reciprocity, given the large numbers of Iraqi soldiers and insurgents in U.S. custody. The Iraqis may also be concerned about reprisals, both from U.S. forces and from the Iraqi justice system if they're ever captured.

Of course, the Iraqi insurgents continue to violate the law of war in many other situations. They employ perfidy as a standard tactic. They often hide in protected sites like mosques and schools and hospitals, putting Iraqi civilians in the crosshairs as a consequence. Iraqi insurgents use indiscriminate IEDs which are as likely to kill Iraqis or foreign civilians as U.S. soldiers. And the list goes on. But this story adds at least one counterexample of where the Iraqis are following the law of armed conflict. That makes it interesting... at least to academics like me.

Update: I'm not an expert on Islamic law, and some of my analysis above assumes that Islamic law thinks about prisoners of war in roughly the same terms as our Western theological traditions. (Contemporary secular laws of war evolved from chivalric traditions and Western theological doctrine.) However, I might have spoke too soon. The folks over at Jihadwatch.org (a site which makes no claim to objectivity) have a piece on this story as well, along with this citation to a relevant section of Islamic law:

When an adult male is taken captive, the caliph considers the interests (...of Islam and the Muslims) and decides between the prisoner's death, slavery, release without paying anything, or ransoming himself in exchange for money or for a Muslim captive held by the enemy. ('Umdat as-Salik, o9.14)

Assuming that's true, then there is a very loose connection between Islamic law and the 3rd Geneva Convention with respect to the proper treatment of prisoners of war. International law generally does not allow for the options of death, slavery or release upon ransom for a prisoner of war. In limited situations, the 3rd Geneva Convention does allow for repatriation exchanges. So, I should restate my analysis. The insurgents in Iraq are following some law of armed conflict -- just not the one that we subscribe to.

Suffice to say, there are very interesting theoretical issues that flow from the subscription of different sides to different laws of war and different conceptions of wartime morality. Which body of law controls? If one side commits a crime by the other's laws, does the other have any moral claim to try the crime? Is there any objective or universal law which governs each side? In a post-modern, 4th Generation conflict, is there any place for a law of war?

2004-04-16T17:17:00.000-07:00

A prescription for the prosecution

Dahlia Lithwick has a smartly written essay this afternoon in Slate on the Justice Department trend towards prosecuting so-called "little fish" in the war on terrorism, and the implications of this trend for justice writ large. Her ultimate conclusion: that DOJ's decision to lock up the real terrorists like Khalid Sheikh Mohammed without a trial, while putting the small fries like Sami Omar Al-Hussayen on trial, does little to further the interests of justice.

The real question at the core of the Al-Hussayen trial is the same question that plagues the other big terror trials that have occurred since 9/11: Is this really the best way to stop terror? It's clear that the Bush administration doesn't believe in open criminal trials for "real" terrorists. That's why accused American citizens like Yaser Esam Hamdi and Jose Padilla are languishing in Navy brigs right now and why a ranking al-Qaida member, accused of planning the 9/11 attacks, Ramzi Binalshibh is still being interrogated in some secret location. It's also clear that the administration is not really all that interested in a fair trial for its 9/11 scapegoat of choice, Zacarias Moussaoui. Long after it became apparent that he was never intended to be the 20th hijacker, Moussaoui's trial remains stalled over the government's insistence on imposing the death penalty. The administration is thus using the civilian courts to try only the low-level conspirators; the "passive supporters," the folks who don't quite rise to the level of terrorist—most of whom are just losers and misanthropes.

* * *
Because we haven't caught many real terrorists in the act of terrorism since 9/11, and since we won't trust those we have caught to the criminal justice system, we have been left to rely on this "material support" provision to convict numerous individuals, many of whom are Americans. So far, the folks convicted of terror-related offenses have been bit players, as is evidenced by the relatively short sentences they've received. No one would characterize them as perfect innocents—several tried to fight in Afghanistan; some look like members of sleeper cells. But no one can argue—although Attorney General John Ashcroft has certainly tried—that the courts have played a vital role in stopping terror attacks in this country. In exchange for this handful of relatively minor convictions, the Justice Department has condoned outrageous prosecutorial excesses, all to prove that these convictions matter more than they do. A sampling of the major terror convictions since 9/11 highlights the problem ...

Analysis: She goes onto cite the cases of the "Detroit Three", the "Lackawanna Six", and the "Portland Seven" (query - why does DOJ use such silly monikers for all these defendants?) to make her point. And I think it's a valid argument. DOJ has put a lot of resources into prosecuting these kinds of individuals for violations of 18 U.S.C. 2339a and 2339b, the "material support" statutes. The administration has justified this with the argument that it has been going after inchoate forms of terrorism -- that is, targeting terror cells in their infant stages before they can develop, mature, and conduct actual attacks. I think this focus on material support needs to be a part of the DOJ strategy, but I agree with Ms. Lithwick's question -- should it really be the main focus of the administration's legal war on terror?

The administration has advanced a number of arguments for why it should not put a real terrorist on trial, and it has pointed to the circus trial of Zacarias Moussaoui as its main evidence for what would happen if it did. The biggest (and most valid, in my opinion) reason is that a trial would interfere with ongoing intelligence collection efforts, both by impeding continued interrogation of the defendant (e.g. Khalid Sheikh Mohammed) and by exposing "sources and methods" used in connection with the defendant. This is a very real concern. But I have to wonder whether this concern is somewhat diminished 12, 18, 24 months after the capture of these terrorists. Moreover, there are strong procedural safeguards in place (collectively codified as the Classified Information Procedures Act) for dealing with classified material in federal court, and a number of bigtime espionage cases have been conducted without a compromise of "sources and methods". It seems to me that the administration could mitigate these problems if it wanted to. In actuality, it seems to me that the real issue is one of certainty -- the White House and Justice Department don't want to risk an acquittal or hung jury in any of these cases. I'm not sure that's a good enough justification for keeping these cases out of federal court.

Stay tuned -- oral argument is scheduled in Al-Odah v. United States for Tuesday, April 20th, before the Supreme Court. Oral argument in Hamdi v. Rumsfeld and Padilla v. Rumsfeld is scheduled for Wednesday, April 28th. Each of these cases has the potential to radically change the landscape of the law with respect to terrorism, national security and civil liberties.

For more background on the Al-Odah and Rasul cases (consolidated for argument), see this note by the lawyers at SCOTUSBlog, complete with links to the lower court decisions and briefs in the case. Also see this Slate essay by WP Supreme Court reporter Charles Lane on how the issues may be framed in the case.

More to follow...

2004-04-16T15:10:00.000-07:00

The next big political book
New Bob Woodward book on Iraq war policy about to hit the street;
White House goes to the mattresses to ready its p.r. counter-offensive

In case you've missed the p.r. blitz so far, Bob Woodward's new book "Plan of Attack" is about to be released, and it's full of startling revelations about who knew what in the Bush White House as the nation marched to war. Like other Woodward books, the truth is mostly a function of access -- those who gave Mr. Woodward access are likely to be rewarded; those who did not will either be punished or left out. Notwithstanding that fact, Mr. Woodward was able to pick up some extremely interesting facts during his stint as a fly on the wall of the White House, including this passage as reported by the Washington Post:

By early January, 2003, Bush had made up his mind to take military action against Iraq, according to the book. But Bush was so concerned that the government of his closest ally, British Prime Minister Tony Blair, might fall because of his support for Bush that he delayed the war's start until March 19 here--March 20 in Iraq--because Blair asked him to seek a second resolution from the United Nations. Bush later gave Blair the option of withholding British troops from combat, which Blair rejected.

Woodward describes a relationship between Cheney and Secretary of State Colin L. Powell -- never close despite years of working together -- that became so strained that Cheney and Powell are barely on speaking terms. Cheney engaged in a bitter and eventually winning struggle over Iraq with Powell, an opponent of war who believed Cheney was obsessed with trying to establish a connection between Iraq and the al Qaeda terrorist network and treated ambiguous intelligence as fact.

Powell felt Cheney and his allies -- his chief aide, Lewis "Scooter" Libby, deputy defense secretary Paul Wolfowitz and undersecretary of defense for policy Douglas Feith and what Powell called Feith's "Gestapo" office -- had established what amounted to a separate government. The vice president, for his part, believed Powell was mainly concerned with his own popularity and told friends at a private dinner he hosted a year ago to celebrate the outcome of the war that Powell was a problem and "always had major reservations about what we were trying to do."

Before the war with Iraq, Powell bluntly told Bush that if he sent U.S. troops there "you're going to be owning this place." Powell and his deputy and closest friend, Richard L. Armitage, used to refer to what they called "the Pottery Barn rule" on Iraq -- "you break it, you own it," according to Woodward.

But, when asked personally by the president, Powell agreed to present the U.S. case against Hussein at the United Nations in February, 2003 -- a presentation described by White House communications director Dan Bartlett as "the Powell buy-in." Bush wanted someone with Powell's credibility to present the evidence that Hussein possessed weapons of mass destruction -- a case the president had initially found less than convincing when presented to him by CIA deputy director John McLaughlin at a White House meeting on December 21, 2002.

McLaughlin's version used communications intercepts, satellite photos, diagrams and other intelligence. "Nice try," Bush said when he was finished, according to the book. "I don't think this quite -- it's not something that Joe Public would understand or would gain a lot of confidence from."

He then turned to Tenet, McLaughlin's boss and said, "I've been told all this intelligence about having WMD and this is the best we've got?"

"It's a slam dunk case," Tenet replied, throwing his arms in the air. Bush pressed him again. "George, how confident are you."

"Don't worry, it's a slam dunk," Tenet repeated.

I've already ordered my copy... I guess law school studying will have to wait.

2004-04-16T14:59:00.000-07:00

Stop the Bleating moves to new home: The latest blog to move from Blogspot is the one run by my libertarian friends in Virginia, Stop the Bleating. Nice new look.

2004-04-16T14:57:00.000-07:00

Two old warriors with a bone to pick: Comments from retired Gen. Anthony Zinni in the SD Union-Tribune and Sen. John McCain on Larry King Live indicate some amount of displeasure within America's defense establishment towards current White House policy in Iraq. Zinni's a moderate with ties to politicians on both sides of the aisle; McCain is an unabashed Republican. But both guys are calling it like they see it, and the calls aren't pretty. Sen McCain's comments sure make me wish the 2000 GOP primary had come out differently... at least I cast my vote for the right guy.

2004-04-16T14:47:00.000-07:00

Thoughts on Iraq: I'm honored to be featured in the new edition of the Boston Phoenix in a discussion feature with 8 other people on the question of "Where do we go from here?" in Iraq. The panel puts forward some interesting thoughts, and I invite you to take a look.

2004-04-16T08:22:00.000-07:00

Pentagon takes its lumps for 9/11

The LA Times reports this morning on criticism of the Pentagon for its part of the failure to prevent the 9/11 attacks. This is a storyline we've heard before, but it has taken on a new edge with Richard Clarke's book and its criticism of military officials for doing too little in the late 1990s to fight Al Qaeda and other emerging threats. Most of the public's attention has focused thus far on problems with (and between) the CIA and FBI in the intelligence and law enforcement communities, but Josh Meyer writes that the Pentagon getting a big chunk of blame from the 9/11 Commission:

sources familiar with the commission's inner workings said the panel increasingly believes the Pentagon failed to adequately respond to the growing military threat of Al Qaeda. They said Pentagon ineffectiveness in both the Clinton administration and the current Bush administration was as much to blame for permitting the Sept. 11 attacks as inept law enforcement and intelligence efforts, a conclusion shared by many current and former U.S. officials and counter-terrorism experts.

When the commission releases its findings in late July, it is expected to conclude that both administrations failed on a wide array of military fronts, not just in the use of conventional force but in the sharing of intelligence and creation of special operations and technology to respond to the new threat posed by stateless terrorism.

Outright military action against terrorists would have to be ordered by the president. But critics fault military leaders for discouraging such actions and failing to present alternatives.

In private, the commission also is raising questions about the Defense Department's apparent lack of readiness on Sept. 11 to protect Americans from a military-style attack on the homeland.

On that day, a hijacked commercial jetliner was able to crash into the Pentagon building, despite months of elevated indications of an Al Qaeda attack and long-standing criticism that the military lacked a domestic security plan, the sources said.

Since the Sept. 11 attacks, senior Pentagon officials in the Clinton and Bush administrations have defended their counter-terrorism efforts, saying they were hamstrung by a lack of "actionable" intelligence from the CIA, indecision by political leaders in the White House and Congress and reluctance by policymakers to spend money and take risks associated with a military response to Al Qaeda.

Commissioner Bob Kerrey, a former Democratic senator and decorated Navy veteran, said he could not comment on unpublicized commission findings. But he confirmed that the investigation to date has raised serious concerns about the Pentagon's pre-Sept. 11 counter-terrorism efforts, including its inability to carve out a substantial role for itself even after terrorists killed 36 military personnel in bombings of a military housing complex in Saudi Arabia in 1996 and a Navy warship, the Cole, in 2000.

"How come the Department of Defense didn't have a primary role?" Kerrey asked in an interview Thursday. "I'm guessing they didn't want it, that they said, 'We don't do terrorism.' "

Analysis: That's it, in a nutshell. It may call itself the Department of Defense, but the Pentagon really sees itself as the Department of Offense. It didn't used to be this way, of course. During the Cold War, the Pentagon poured resources into defensive programs like NORAD and the civil-defense system. But since the end of the Cold War, the Pentagon has adopted a near-exclusive focus on threats abroad, and devoted nearly nothing to domestic security efforts. Ask any senior military official or Pentagon official and they'll tell you that the Pentagon plays the away game, while the Justice Department and state/local agencies play the home game. The only time this changes is when Congress steps in to give the military specific direction to do something domestically, e.g. counter-drug exceptions to the Posse Comitatus Act or authority to run the National Guard WMD-Civil Support Teams.

On balance, I suppose it's probably a good thing to have the military so focused on the away game. As a civil liberties matter, we don't want our military getting too involved in the domestic intelligence or law enforcement area. (See Laird v. Tatum for an example of when they did this.) And as a strategic matter, we probably want to identify, interdict and fight threats overseas before they come to our shores, so it makes some sense to focus our military abroad. Nonetheless, as a conceptual matter, we have a Department of Defense to protect the national security of the United States, and it seems somewhat odd that this department would play such a minimal role in domestic security operations. Especially when you consider that (1) more than half of the intelligence community agencies fall under DoD; (2) the bulk of the U.S. capability for chemical, biological, nuclear and radiological events resides in DoD; and (3) DoD agencies are leading the hunt for terrorists abroad, as well as the interrogations of captured terrorists, so they may have a lot of valuable information for the domestic anti-terrorism fight.

What's the right balance?

2004-04-16T07:32:00.000-07:00

White House mulls intelligence community reorganization
A good idea to make America more secure -- or another worthless government reorg?

Friday's New York Times breaks the story that the Bush White House may be ready to put forward a proposal to radically restructure the American intelligence community. Among other things, the proposal would create a Director for National Intelligence with authority over the many disparate American intelligence agencies. Such a plan might preempt some of the eventual findings and recommendations of the 9/11 Commission, and rebut criticism that the White House has done too little to fix the intelligence community failures that occurred before 9/11.

Under the proposal, management of the government's 15 intelligence agencies, and control of their budgets, would be put under the direction of a single person. That authority is now scattered across a number of departments and agencies.

The plan, drafted more than a year ago by a presidential advisory panel headed by Brent Scowcroft, the former national security adviser, was given little White House attention until now. It is being reviewed, the officials said, as a possible answer to the Sept. 11 commission's preliminary conclusion that the current organization of the government's intelligence agencies has left no one truly in charge on intelligence matters.

* * *
Administration officials declined to discuss the proposal by Mr. Scowcroft's panel on the ground that it was still classified. But they suggested that discussion inside the White House included extensive consideration of that plan, designed to install a more powerful and centralized overseer to take charge of an ad hoc system created in haste after World War II.

Also being discussed within the White House, the officials said, were possible changes within the F.B.I., including the creation of a new directorate within the bureau responsible for domestic intelligence-gathering and analysis. The alternative of creating a new domestic intelligence agency was also being discussed but was seen as less likely to be embraced, the officials said.

It is not known whether F.B.I. intelligence gathering would be under the control of the proposed new director of intelligence.

Analysis: So... have a Director of Central Intelligence, who by statute is supposed to be the principal intelligence officer for the United States. Yet, because the structure isn't working, we're going to create a new Director of National Intelligence and attempt to reform bureaucratic morass with... more bureaucracy? I understand the impulse to do something in response to 9/11, and to fix the problems that impeded our intelligence community from connecting the dots about Al Qaeda. It may well be that we need to fix intelligence by creating a more responsive and efficient command and control structure for America's intelligence community. But I'm not convinced that this is the answer, because I see two major pitfalls in this proposal: (1) It threatens to create more bureaucracy, gumming up the system more; (2) It focuses too much at the top level rather than creating interconnectedness and collaborate relationships at the operator level, where the need is greatest.

Operationally speaking, I think the last thing we need to do is impose more bureaucracy on the intelligence community and the intelligence process generally. Conceptually, we can visualize our national security process and the decision processes of our enemies as giant O-O-D-A loops, which stands for "Observe-Orient-Decide-Act". Col. John Boyd's work showed that in a variety of competitive settings -- at the tactical, operational and strategic levels -- the actor with the most efficient OODA loop tended to win regardless of other variables such as equipment or size. Agility of the mind -- and by extrapolation, of the organization -- counts for more in battle than shear numbers or brute strength. Applied to this situation, one can see the problem with more bureaucracy. More bureaucracy means slower decisionmaking; more layers of review; more oversight; more red tape -- ultimately, a less efficient OODA loop. Operationally, it means more time from the acquisition of information to the decision by the President to the action in the field that uses that information. And in a world where hours can make the difference between catching Osama and hitting an empty cave, that makes a big difference.

Theorists at RAND and the Naval Postgraduate School have looked at this problem, and come up with some good ideas. Their basic premise is that "it takes a network to fight a network." Al Qaeda, more so in its current form than three years ago, exists as a global terror network. It is not organized hierarchically or like conventional organizations such as drug-supply chains or even the small terror cells of the last few decades. Today's global terror network organizes in virtual, non-contiguous, non-hierarchical ways which are highly survivable, very adaptive, and extremely difficult to break. A good analogy is to the Internet -- an interwoven network of nodes and hubs and sites and users who interact in a variety of ways; others have analogized Al Qaeda to a galaxy or constellation of ideologically similar terrorists. Regardless of which analogy you pick, the point is the same. You cannot fight this type of enemy effectively with a conventional hierarchical bureaucracy. You will forever find yourself out-witted and two steps behind the threat; a prisoner of your own OODA loop and your own inflexibility. Yet, that is precisely what this new White House plan envisions.

So what should be done to fix intelligence? A lot of things, to be sure. But not something so sweeping as this that promises little in the way of net gains. Here are a few ideas that have been kicked around in the security community that can be done today, with far less political and bureaucratic effort:

(1) Build a robust intelligence information architecture. Janet Reno, Louis Freeh, Robert Mueller and John Ashcroft all agree -- the DOJ/FBI information architecture is horrible. It goes without saying that there is no tie-in between this system and the intelligence systems of the CIA, NSA, or any of the other interested agencies. And there's certainly no vertical links between federal and state/local intelligence efforts. Remember that local cops are as likely to find indicators of terrorism activity as national-level investigators -- perhaps more so -- so it's critical to have that tie-in. A seamless, efficient, compartmentalized, secure information architecture for America's security community would be invaluable to the anti-terrorism effort, and it would probably do more than any other measure to make our OODA loop more efficient. It would also provide the linkages to transform the disparate, disconnected, dysfunctional American law enforcement landscape into something approaching a network, which would be exactly what we need to fight Al Qaeda.

(2) Establish real priorities for the intelligence community. This point goes to what Amy Zegart wrote a while back for Mark Kleiman's weblog. If you fail to establish priorities for intelligence work, you will collect a lot of stuff but nothing in enough depth to do meaningful analysis. Since the end of the Cold War, the American intelligence community has lacked a sense of priorities, and indeed has been given too many to be effective.

(3) Develop new interagency network models to fight terrorism. There may need to be some reorganization of government to make our agencies more effective in the fight against terror. However, such a reorganization ought to incorporate our operational understanding of this enemy, and it ought to look very different from the reorg being floated in this NYT story. There are models in existence at the local level around the country of interagency cooperation, and we would do well to scale those up to the federal level. The Terrorism Early Warning Group model and the Joint Terrorism Task Force model both serve as excellent examples of how many different agencies can come together to do indications and warning, net assessment, operational planning and consequences management planning. Innovative standing organizations like these can often work better than formal agencies, because they're not saddled with a lot of the bureaucracy attendant in formal agencies. We should consider a model like this for the federal level, because as the RAND experts write, "it takes a network to fight a network."

What's the right answer here? Probably some combination of all of this stuff. Some amount of coordination at the top level is necessary to ensure that intelligence community budgets, collection efforts, and analysis programs are all playing off the same sheet of music. A lot of investment is also necessary in the lower levels of this community, particularly on the domstic side where intelligence capabilities in the FBI and INS and USCG and other domestically oriented agencies have been neglected for far too long. The thing is, we have an active, adaptive, dangerous enemy out there who's just waiting for us to drop our defenses. We can't afford the learning curve associated with a typical government reorganization, but that will cause a net decrease in America's security for the near term -- an operational window that Al Qaeda might use to strike. If we do this, we absolutely positively have to get it right the first time.

2004-04-15T11:14:00.000-07:00

President takes a jog with wounded soldier: For a staff sergeant in the U.S. Army, a chance to jog around the White House with any President would be an amazing experience. After all, he is the Commander-in-Chief of the armed forces, and that means something to soldiers regardless of political affiliation. It must have been even more special for Army National Guard SSG Michael McNaughton, who lost a leg to a landmine in Afghanistan last year. Pres. Bush visited SSG McNaughton at Walter Reed Army Medical Center in Jan. 2003, where the sergeant challenged the president to a run when he healed from his wounds. Yesterday, the president kept his word to the sergeant, and the two enjoyed a short jog on the White House grounds together.

It's a small gesture, and depending on your political outlook, it may mean very little at all. But it still struck me as a very classy thing to do. The president's promise motivated this soldier to get better, to the point where he is now able to run with a prosthetic leg. I don't think you can measure how much that mean to this sergeant and his family, or to veterans who appreciate what little gestures like this mean.

2004-04-15T11:08:00.000-07:00

Digital dog tags: Check out Noah Shachtman's interesting article in today's New York Times on the new technologies being fielded to soldiers which will aid battlefield identification and hopefully reduce fratricide.

2004-04-15T11:06:00.000-07:00

Gitmo chaplain case goes away

The LA Times and CNN report that Chaplain (CPT) James Yee has successfully gotten his non-judicial punishment overturned for various minor charges that arose out of his investigation for espionage committed at Guantanamo Bay. The charges included adultery, mishandling classified information, and downloading porn to a government computer. The prosecution began to fall apart after CPT Yee's lawyer contested the classification of the information at issue, and the case quickly became a comedy of errors. CPT Yee's 2-star commander at Gitmo gave him an Art. 15 for his actions, but CPT Yee appealed that reprimand to his 4-star commander -- and won.

Army Gen. James T. Hill, head of the Miami-based U.S. Southern Command, overturned on appeal the nonjudicial conviction and written reprimand handed down March 22 to Capt. James Joseph Yee. The decision marked the apparent end to a high-profile case in which critics accused the military of overzealousness and anti-Muslim fervor in its pursuit of the Bush administration's war on terrorism.

* * *
Fidell contended that Army Maj. Gen. Geoffrey D. Miller, then the commander of Joint Task Force Guantanamo, "erred gravely in putting Chaplain Yee in confinement, but he continued the error for an unconscionable period of time…. It's disturbing and there's a sense in which I'm afraid the Army, or at least this part of the Army, still doesn't get it."

Fidell has compared the case to the prosecution of Wen Ho Lee, who was indicted in 1999 for allegedly mishandling classified information at the Los Alamos National Laboratory.

Fidell said he hoped another commander, perhaps higher up the chain of command, would apologize for what he described as a zealous and unnecessarily embarrassing prosecution. Yee and his wife were compelled to watch in court as a woman, described as Yee's mistress, gave intimate details of her alleged affair with the chaplain.

No reprimand will appear on Yee's record, but Fidell said his client's future in the military was unclear.

Analysis: Clearly, CPT Yee has Mr. Fidell's expert advocacy to thank for this outcome, as well as a bunch of bad publicity for the Army that came out of this case. Mr. Fidell is the Mark Geragos of the military law community, and he was able to convince the powers that be that it was in the best interest of the Army to dismiss this case altogether. It may look like a no-brainer to the outside world, but to me, this is actually a surprising outcome. For a commissioned officer like CPT Yee, adultery and mishandling classified information are serious charges. I'm surprised that the Army dismissed those, notwithstanding any larger p.r. issues involved, because of the way such a dismissal will look to enlisted soldiers and other officers. It will look to the average soldier like CPT Yee purchased justice, and that if you make a big enough stink in the media, you can get your way. I'm not so sure that's conducive to good order and discipline.

Where does CPT Yee go from here? He will likely request release from active duty, since he's unlikely to have a good career in the military after this case. Regardless of his acquittal, he will be known as the chaplain who committed adultery and bungled classified information at Guantanamo Bay. That's bad enough for any commissioned officer -- it's really bad for a military chaplain, who's supposed to be beyond moral reproach. The Army will likely grant his request, and then he will be honorably discharged.

2004-04-15T07:53:00.000-07:00

One hell of a fight
Battles rage in Fallujah and on the highways of Iraq

Pamela Constable, who's embedded with the Marines in Fallujah, has a gripping report in the Washington Post cobbled together from after-action interviews with Marines who fought their way into the city to recover their buddies who had been ambushed and surrounded by Iraqi insurgents. The scenario sounds remarkably similar to what Mark Bowden described in his history of the Battle of Bakara Market, where Somali insurgents surrounded a company of Rangers and accompanying Delta operators. However, the outcome this time was quite different.

FALLUJAH, Iraq, April 14 -- It began as a routine supply mission to the front lines, in a volatile but largely becalmed city.

It ended as a fiery and chaotic rescue mission, with a small force of Marine tanks, Humvees and ground troops surrounded and attacked as they fought their way through a hostile neighborhood to save the crew of a burning armored personnel carrier.

Marine officials said the three-hour battle that erupted at dusk Tuesday on the streets of Fallujah, and was recounted Wednesday by several of the key officers involved, exemplified the bravery and resourcefulness that Marines are known for, even when surprised and surrounded by a host of enemy fighters on alien urban turf. By the end of the tumultuous encounter, the charred personnel carrier had been towed to safety by a tank and most of its 17 crew members -- several of them wounded -- had been rescued from a house where they had taken shelter.

But the incident also revealed some startling facts about the insurgency that the Marines are facing here, officers said. More dramatically than any armed confrontation since U.S. forces surrounded Fallujah nine days ago, it showed the tenacity, coordination, firepower and surprisingly large numbers of anti-American guerrillas who still dominate much of the city.

"We definitely stumbled into a wasps' nest. They were definitely a lot more organized than we thought," said Capt. Jason Smith, 30, commander of the company whose armored supply vehicle made a wrong turn into insurgent territory and was immediately inundated by gunfire and rocket-propelled grenades from all sides.

Read the rest...

And speaking of fights: My read of this story by Tom Ricks, the Post's veteran Pentagon reporter, is that he was actually in this convoy when it was ambushed. (Also see this Ricks article from yesterday on the increasing sophistication of Iraqi attacks.) It too makes for gripping reading, and it illustrates some of the problems the Army is having with the security of highways in Iraq. Ricks' article makes it clear just how difficult it is to get convoys through this route without being attacked -- even with armed HMMWVs and Bradleys for escorts.

In the biggest Army operation in central Iraq since last spring's invasion, dozens of convoys made up of hundreds of tanks and trucks moved into an area where Shiite Muslim militias had battled with occupation troops several times this month. Along the way, nearly every convoy was fired on, weary soldiers said afterward. Iraqi insurgents blew up bridges on the convoy routes, doubling or tripling the duration of trips scheduled to take six to 12 hours. And the U.S. military operation in Iraq began to feel less like a troubled occupation and more like a small war.

For one convoy, the journey began just before midnight Sunday at the U.S. base outside Baqubah, northeast of Baghdad. Amyett, 23, a 1st Infantry Division scout in charge of a two-Humvee section that would make up the rear of the 44-vehicle convoy, assembled his men for a quick and intense briefing.

"There's a 99 percent chance we're going to get hit," said Amyett, from Searcy, Ark., sitting on the hood of a Humvee and facing a cluster of soldiers who stood around him in the dark. "If they shoot, kill them. Shoot them in the face."

* * *
At 2:19 a.m. on Monday, the convoy rolled out the front gate of the base near Baqubah. The parade comprised not just tanks, Humvees and Bradley Fighting Vehicles, but many of the more exotic parts of the U.S. Army inventory, such as the new Stryker armored vehicle, huge portable bridges and special trucks for carrying M1 Abrams tanks.

You cannot overstate the importance of roads to the security and rebuilding mission in Iraq. Simply put, the roads are the arteries of Iraq, and the nation will die without them. They allow food, water, commerce, labor, and security forces to flow around the country. They also provide insurgents with a chokepoint to use to target and prevent the flow of these things. Thus, the fight over Iraq's roads is a fight for whether the U.S. can deliver food, water, medical care, security and reconstruction to the people of Iraq. The roads of Iraq have been the insurgents' battleground of choice for the past year, because this terrain supports their tactics of choice: hit-and-run ambushes and command-detonated improvised explosive devices ("IEDs"). For the foreseeable future, it's certain that these roads will continue to serve as key terrain for the battle in Iraq.

What can the U.S. do to retake these roads? As an operational planner in 4ID, we wargamed these kinds of scenarios in planning and command exercises quite a bit. The conventional answer is to allocate forces to route security -- MPs or infantry or scouts -- who can patrol routes constantly to detect and interdict insurgent ambushes before they're set. Another option is to conduct counter-reconnaissance patrols of key terrain which observes and controls the roads -- high ground on either side of the road, for example. However, as simple as these measures are, they require forces to be pulled from some other mission, and that was always the difficult inherent in these solutions.

It's true that there are 125,000+ U.S. troops on the ground in Iraq. It's also true that if you add up all of the mission requirements, force-protection requirements, support requirements and other requirements, you quickly find these troops depleted. Especially when you consider that only a fraction of these are actual "trigger pullers" who can effectively do a mission like route security. If memory serves right, our planning factor was that it takes one MP company to patrol 90km of road in a semi-permissive corps rear area. Given the threat in Iraq, I might reduce that territory slightly or boost the force slightly. Gen. Abizaid has requested two additional brigade combat teams with which to secure his routes and conduct other counter-insurgency missions. The 1st Armored Division and 2nd Armored Cavalry Regiment have been held in-country for another few months. 2ACR is the ideal force for this kind of mission; its light cav MTOE and training are extremely well-suited to route reconnaissance and security. Before Iraq, that was probably a METL task for this unit. I think it's likely that we will use this unit and others to conduct running patrols of key routes in Iraq in order to get them all up to "amber" or "green" status.

2004-04-13T15:02:00.000-07:00

Can the Witmer sisters stay home? That's the question I pose in this Slate "Explainer" column which was just published. The short answer is that these two sisters can ask the Army to reassign them after the death of their sister in combat, but that this hard choice is theirs alone to make.

Coda: I've gotten some e-mail on this subject that I thought I should respond to online. Most of the e-mail has said that it would be horrible to send these sisters back into combat. I agree -- it's horrible to send anyone into combat. But that's a decision that sometimes has to be made. And I would argue that it would feel horrible to these women, who by all accounts are excellent soldiers, for them to leave their comrades behind in Iraq. Stephen Ambrose didn't call his book "Band of Brothers" for nothing. The bonds between soldiers are as strong as the bonds between brothers -- and in today's Army, between sisters too. I think these sisters will have a really hard time exercising their option to be reassigned from combat. And in fact, I think this option is harder because of the fact that the Witmer sisters are in the National Guard, and will thus have to see their comrades in daily life after this deployment is over. My prediction: the daughters go back to Iraq.

2004-04-13T08:55:00.000-07:00

Congratulations to appellate litigator Howard Bashman, whose weblog How Appealing will soon migrate to the webpage of Legal Affairs magazine. I had the chance to work with Howard during our filing of an amicus brief with the 3rd Circuit Court of Appeals, and I have been a big fan of his 'blog for a long time. It really is better than the AP wire for legal news. It only makes sense for him to join with Legal Affairs, a magazine that I also respect a great deal. This promises to be a mutually beneficial relationship, and we the readers stand to benefit the most.

2004-04-13T08:52:00.000-07:00

The future of the Army's future combat systems: Noah Shachtman has a few good reports here, here and here on the latest developments with the Army's programs to buy the next generation of military hardware. In a nutshell, the multi-billion dollar FCS program is experiencing significant growing pains, with many Army leaders questioning its wisdom in light of the need to fund current operations. Read Noah's articles at DefenseTech and in Wired for more.

2004-04-13T07:12:00.000-07:00

New rules proposed for private military contractors in Iraq

Last Friday, I wrote an essay for Slate arguing that it was in our interest to rethink the rules governing the conduct of American contractors in Iraq -- especially those providing "private military contracting" services such as security and convoy escort. Today, Mary Pat Flaherty and Dana Priest report in the Washington Post that the Coalition Provisional Authority is also becoming concerned about these issues, and that they're seeking to implement a number of control mechanisms on contractors in Iraq.

Many operational details are spelled out only in the contracts between security firms and the companies and government agencies that hire them, according to several private security firms.

The CPA now restricts the weapons private security teams may use to small arms with ammunition as large as 7.62mm and to some other defensive weapons. A Dec. 31 coalition rule spells out circumstances under which security firms can use deadly force, including self-defense, the defense of people or property specified in their contracts, and the defense of civilians.

Coalition contractors and their employees currently are subject to the legal jurisdiction of their parent countries because there is no Iraqi legal system, a CPA order states.

But with the June 30 handover, that condition "becomes a major issue," and "there is not a lot of clarity yet" on what laws will govern security firms, said Mike Baker, chief executive of D.C.-based Diligence LLC, which provides security for both government and private operations in Iraq.

Attempts to coordinate operations between private security firms and the military -- and operations among the companies themselves -- have been underway for months. But that pace has quickened.

* * *
The brutal killings of four American security contractors in Fallujah two weeks ago prompted 13 Democratic senators led by Jack Reed (R.I.), to ask the Defense Department to provide a tally of how many private armed non-Iraqi security personnel are in Iraq. In their letter, the senators said that "security in a hostile fire area is a classic military mission. Delegating this mission to private contractors raises serious questions."

"Policy is way overdue in this area," Reed said.

More to follow...

2004-04-13T07:01:00.000-07:00

Are soldiers heroes? Andy Rooney answers "not really" with a sharply written op-ed for the Tribune media service. BlackFive, a former Army paratrooper, shoots back with a more convincing response. From where I sit, it looks like Mr. Rooney took an extra dose of cynicism this morning which has skewed his sense of proportion and reality.

2004-04-13T06:55:00.000-07:00

Gen. Abizaid requests more troops for Iraq
Two brigades may -- or may not -- be enough to secure the country

The Los Angeles Times reports this morning that Gen. John Abizaid has sent a formal request up to the SecDef for two more brigade combat teams -- roughly 7,000-10,000 troops -- to give him the resources he needs to do the job in Iraq. The request comes at the same time that the Army is tweaking its rotation of troops through Iraq to keep the maximum amount of combat power on the ground for the longest period possible.

An expected deployment of thousands more troops for duty in Iraq answers congressional calls for backup and comes as administration officials work to prevent allies from following Spain's planned withdrawal of its forces.

But the request Monday also revealed the Pentagon's lack of options for finding reinforcements. Army Gen. John Abizaid, head of the Central Command, called Iraqi security forces a "great disappointment." As a result, most of the new troops are almost certain to come from the thinly stretched U.S. Army.

* * *
Abizaid has a reputation within the Pentagon as a straight shooter, but some observers were betting on further increases.

"If Abizaid says he needs two brigades, one can be certain that that's the very minimum he needs, given the reluctance by him and other commanders to acknowledge that they need any more troops at all," said former ambassador James Dobbins, who supervised peacekeeping operations in Kosovo, Bosnia, Haiti and Somalia and now works for the Rand Corp.

* * *
The U.S. force in Iraq peaked at roughly 155,000 during the invasion last year. Despite the addition of 200,000 Iraqi police, army and other security forces since then, U.S. troop strength has dropped by only 25,000.

Current and former Army officials have noted that when then-Army Chief of Staff Gen. Eric K. Shinseki warned Congress before the war that 225,000 U.S. troops then poised for attack around the Persian Gulf would be needed for years, Pentagon officials called his estimate wildly inaccurate.

"This is what Shinseki was talking about. This is what everybody's been talking about," retired Maj. Gen. William Nash said. "The failure to do it right at the beginning means that we're going to have to do it at the end with a lot of deaths and a lot of trouble and it's going to be much harder now. The insurgents are building momentum."

Analysis: Precisely -- MG Nash is right. I'm going to beat the proverbial dead horse again by saying that our failure to plan effectively for Phase IV (post-war stability) and our failure to resource Phase IV allowed the Iraqi insurgency to take root last spring in a chaotic operational environment. The result today is that we face a mature, dug-in, well-supported insurgency with lots of weapons and recruits. It's hard to overstate the importance of these initial failures. By not planning for our rapid success, and by letting chaos reign in those first few weeks, we lost control over Iraq and ceded the initiative to the insurgents. It has been a very long struggle since April 2003 to retake the initiative. We have prevailed in a number of cities, from Basra to Mosul, and our nation-buildling efforts have done a lot for the Iraqi people. But to be successful, we have yet to establish the basic security necessary for a free society and market economy to flourish.

Insurgent ambushes of Iraqi-driven supply trucks on the highway from Baghdad yesterday -- and subsequent refusal of Iraqis to move commercial goods along that road anymore -- threaten this stability. American contractors, such as Halliburton subsidiary Kellogg Brown & Root, have suspended convoys along these roads until they're made safe -- delaying nation-building efforts dependent on KBR shipments. This isn't just a military "line of communication" -- this road is also a civilian artery of commerce. Without the freedom to move people and goods around the country, and Iraqi economy will sputter and die. If we don't fix the security situation, we will not be able to rebuild Iraq. It's that simple. Security comes first, because without it, people are afraid to do their jobs and leave their homes.

So what can be done now? I hate to say it, but we have to get more combat power into Iraq. That probably means disturbing the Army's carefully drawn unit rotations for OIF 3 and OIF 4; it may also mean the mobilization of additional National Guard enhanced brigades. Absent some major political change in Europe or Washington, I don't see our NATO and UN allies jumping into this one to save our bacon. So we have to plan for this one on our own, and we have to give Gen. Abizaid the resources he needs to succeed.

Update I: Greg Jaffe and Chris Cooper have a good report on this subject in today's Wall Street Journal (subscription required) as well, wherein they describe the changes in the threat which are driving this need for more forces.

Senior military officials in and around Fallujah said that the enemy now appears far more determined than the former Baathists and Saddam Hussein loyalists who initiated the insurgency. "The enemy has become more fanatical, and some Iraqis here are clearly taking up the call to arms," said one senior Army official based in western Iraq. "These people are being spun up by religious leaders who are being backed by terrorists."

One increasingly worrisome scenario for military officials is that determined, fanatical fighters continue to mount successful attacks on civilian contractors and aid workers throughout the country. Such attacks might force commanders to divert troops now focused on battling radicals to play a greater role providing security for convoys along Iraq's highways.

Since the war began, 30 employees of Halliburton and its subcontractors have been killed. At any given time, Halliburton subsidiary Kellogg, Brown & Root has 700 trucks on Iraqi and Kuwaiti roads, the company said. Securing those supply lines against insurgent attacks is a massive undertaking, according to military officials.

2004-04-12T10:51:00.000-07:00

Justice Department presses the legal fight against terrorism
Case could test the outer limits of a federal law designed to attack support to terrorism

Paul Barrett reports in the Wall Street Journal (subscription required) today on a case going to trial in Idaho which illustrates a key aspect of the Justice Department's war on terrorism: the use of 18 U.S.C. 2339b to go after people who provide "material support" to foreign terrorist organizations. The law has provoked sharp criticism because of its use against so-called "little fish" -- people whose only crime was to contribute small amounts of money or other support to organizations on the State Department's FTO list. However, DOJ officials respond that these are the vulnerable points of global networked terrorism, thus the need to prosecute them.

The weapon is a law aimed not at masterminds or bombers but at secondary players who provide terrorists with "material support and resources." The phrase provides a flexible net, and prosecutors have used it to charge 57 people in Detroit; Lackawanna, N.Y.; Portland, Ore.; Seattle; Tampa and other cities since Sept. 11, 2001. But some federal judges, uneasy about the provision's vagueness and its potential to squelch free speech, have begun to poke holes in it.

Now, the case of Saudi graduate student Sami Omar al-Hussayen could help determine how aggressively the government will be able to pursue alleged promoters of terrorism: people who raise money, offer advice or amplify calls to violence.

No one disputes that Mr. Hussayen, a 34-year-old Ph.D. candidate in computer science, is a loving husband, a gentle father of three young boys and an esteemed leader of the Muslim community in this small town. But in its indictment, the government accuses the University of Idaho student of setting up a series of Web sites and an e-mail group that recruited fighters and collected funds "for violent jihad in Israel, Chechnya and other places."

The most incendiary message that has come to light in government court filings is an "urgent appeal" posted in February 2003 by another individual in the e-mail group that Mr. Hussayen allegedly helped to moderate. It called on Muslim-American soldiers to "provide information on potential targets for attacks," such as U.S. military bases in the Middle East and the bases' drinking-water supplies.

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In the Hussayen case, the government seeks for the first time to apply the material-support statute to someone whose primary alleged crime is promoting militant Islam online. Mr. Hussayen, whose partially completed Ph.D. thesis addresses computer-network security, is accused of offering expert advice, among other forms of aid, to the Islamic Assembly of North America by helping set up and edit Web sites such as www.alasr.ws, an online Arabic magazine. In court papers, the FBI says that in June 2001, the site carried an article by a Saudi-trained Kuwaiti cleric titled, "Provision of Suicide Operations." An excerpt in English translation says in part, "This can be accomplished with the modern means of bombing or bringing down an airplane on an important location that will cause the enemy great losses."

Analysis: This case raises huge First Amendment issues which will may eventually be decided by the Supreme Court. Past prosecutions for material support under 18 U.S.C. 2339a and 2339b have focused on the giving of tangible things -- money, for example. The use of this statute to prosecute speech which provides material support to terrorism is a very novel use of the law, and one that is sure to result in a challenge on First Amendment grounds.

In the past year, federal courts have ruled parts of this law unconstitutional on vagueness grounds, but they have not yet applied the Supreme Court's test for speech that incites crime. The 9th Circuit ruled in Humanitarian Law Project v. Ashcroft that two terms in 18 U.S.C. 2339a's definition of "material support" were void for vagueness -- "personnel" and "training." U.S. District Judge Audrey B. Collins ruled earlier this year that another term in 18 U.S.C. 2339a's definition -- "expert advice and assistance" -- was void for vagueness. These decisions gutted the material support laws, but it's not clear that these decisions have had an effect beyond the 9th Circuit where they are binding authority.

However, the challenges so far have been successful on technical grounds -- the vagueness doctrine. This case seems almost tailor-made for a challenge on First Amendment grounds -- does 18 U.S.C. 2339b comport with the test from Brandenburg v. Ohio for speech that incites violence? In Brandenburg, the Court held that “advocacy of the use of force or of law violation” is unprotected when it is:
1) "directed to inciting or producing" ... (usually requires specific intent)
2) “imminent lawless action” (time horizon must be short)
3) “and is likely to incite or produce such action.”

The takeaway points from this test are that the first prong requires specific intent; the second prong requires a very short time horizon for the speech, and the third prong is extremely hard to prove in court. (Thanks to Eugene Volokh, my First Amendment law professor, for teaching me about this stuff last year.) I actually taught Brandenburg to the students in my Law & Terrorism class, and we applied this test to 18 U.S.C. 2339b in class. It was not clear whether the statute would survive, and in the instant case, I'm really unsure whether the courts will be willing to uphold its use to prosecute the speech of Mr. al-Hussayen.

More to follow...

Update I: Eugene Volokh has a very provocative (and lengthy) law review article in draft form on crime-facilitating speech and whether there should be an exception to the First Amendment which allows for the prosecution of this speech. I highly recommend reading it if you're interested in this subject, because he covers the entire legal terrain on this issue in the piece.

2004-04-12T10:30:00.000-07:00

Iraq dangers lead to restrictions on reporter movement

The Wall Street Journal (subscription required) has an interesting story this morning on the orders from several media organizations to their reporters in the field telling them to stay safe in Iraq. In the past two weeks, one Japanese reporter has been taken hostage and two NYT reporters have been detained at gunpoint. The risk of death, injury or capture has many editors telling their troops in the field to play it safe.

So far, there are no reports of major U.S. news organizations completely pulling out of Iraq. But the street violence has become so intense and unpredictable that many reporters are staying indoors, taking only short trips or traveling with the military rather than risk being kidnapped or killed.

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In the wake of two attempted kidnappings of its reporters, the New York Times also has asked its reporters to stay within city limits, for now. Still, the newspaper plans to rotate a few more reporters to its Baghdad bureau in the next two weeks. "I think you have to ask yourself periodically, 'Is it safe to be there at all?' But so far, the answer has been quick and unanimous, 'Yes,' " said Executive Editor Bill Keller.

Other reporters are staying inside, in part because this weekend's anniversary of the toppling of the Saddam Hussein statue was expected to prompt a new wave of violence in Baghdad. "We've told them to stay in their resident hotels and not to venture out for even midlevel stories," said John Stack, vice president of news gathering at News Corp.'s Fox News Channel.

Analysis: The interesting thing here is that so few reporters have not been hurt or killed recently. You might recall that reporters and photographers got images and stories from within the crowd of Iraqis that killed the contractors in Fallujah, or that we've seen images from other gory events in the past two weeks. For the most part, the Iraqis are protecting the media, because they want their mayhem to be broadcast around the world. As RAND terrorism expert Brian Jenkins said so many years ago, "terrorism is theater." If the Iraqis can't get their actions seen, and their message heard, then they will fail.

I don't mean to suggest that U.S. media are aiding the enemy by their coverage; they're not. They're just covering the news, for the most part, and doing their jobs. But I want to point out that there is a very complex interaction of factors on the ground in Iraq that allows reporters to operate in places where soldiers could not, and that given the dangers in Iraq, I'm surprised that so few reporters have been killed thus far. I think it's prudent for these major media organizations to protect their reporters in the field, even at the expense of getting the story. But I would not be surprised if a few enterprising reporters are still able to go out and get the story, given the Iraqi interests in having their side heard. We'll see.

2004-04-11T09:15:00.000-07:00

Iraqi battalion refuses to fight Iraqis

In what may be the worst possible development for U.S. officials hoping to hand sovereignty to the Iraqis on June 30, 2004, Tom Ricks reports in the Washington Post that a newly-minted Iraqi Armed Forces battalion has refused to go fight in Fallujah against Sunni Muslims fighting U.S. forces there. Mutiny in wartime is always a bad thing; it's a worse thing when the overall security strategy hinges on the ability of the Iraqi armed forces to pacify their own population.

BAGHDAD, April 10 -- A battalion of the new Iraqi army refused to go to Fallujah earlier this week to support U.S. Marines battling for control of the city, senior U.S. Army officers here said, disclosing an incident that is casting new doubt on U.S. plans to transfer security matters to Iraqi forces.

It was the first time U.S. commanders had sought to involve the postwar Iraqi army in major combat operations, and the battalion's refusal came as large parts of Iraqi security forces have stopped carrying out their duties.

The 620-man 2nd Battalion of the Iraqi Armed Forces refused to fight Monday after members of the unit were shot at in a Shiite Muslim neighborhood in Baghdad while en route to Fallujah, a Sunni Muslim stronghold, said U.S. Army Maj. Gen. Paul Eaton, who is overseeing the development of Iraqi security forces. The convoy then turned around and returned to the battalion's post on a former Republican Guard base in Taji, a town north of the capital.

Eaton said members of the battalion insisted during the ensuing discussions: "We did not sign up to fight Iraqis."

He declined to characterize the incident as a mutiny, but rather called it "a command failure."

The refusal of the battalion to perform as U.S. officials had hoped poses a significant problem for the occupation. The cornerstone of the U.S. strategy in Iraq is to draw down its military presence and turn over security functions to Iraqis.

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Eaton added: "The lines are blurring for a lot of Iraqis right now, and we're having problems with a lot of security functions right now."

A soldier with the 1st Armored Division, who has recently been engaged in combat in Baghdad, said many of the Iraqi security troops with whom he has worked are no longer reporting for duty. "I think what we are seeing is not some mass quitting and mutiny by ICDC [Iraqi Civil Defense Corps], but rather just plain fear," the soldier said. "And all it takes is one Iraqi to take the lead in leaving, and they all do out of fear."

Analysis: Why won't the Iraqis fight, when U.S. soldiers with arguably less at stake will? What are the reasons for this refusal? Fear is clearly part of the decision calculus for these Iraqis. They know they're not as well-trained or -equipped as their U.S. brethren, and they're probably multiplyin U.S. casualties in their head as the likely outcome for their lesser force. Sympathy for their fellow Iraqis is probably a good reason. Imagine the most vile group of Americans -- neo-Nazis who have recently blown up a church or synagogue, killing scores of innocent Americans -- and then imagine the difficulties that our FBI or local SWAT teams would have if they were told their orders were to clear this separatist stronghold. ("Clear", as a tactical task, roughly means to painstakingly eliminate every enemy soldier from a piece of terrain, as opposed to "defeat" or "destroy", which doctrinally mean killing/capturing enough enemy troops that they stop fighting.) I think that it would be very hard to convince our security forces of the justness of this task, and thus I can imagine the difficulty in getting the Iraqis to go fight.

So why do U.S. units fight? It's a combination of unit cohesion, solid leadership, belief in their training and equipment, and a certain historical fatalism that the best way to go home is to win. Dr. Leonard Wong led a study by the Army War College last year of this question -- which looked at morale in both the U.S. and Iraqi armies. Here's what it found:

As a means of comparison, they began by interviewing Iraqi Regular Army prisoners of war to examine their combat motivation and unit dynamics. The researchers then interviewed U.S. combat troops fresh from the fields of battle to examine their views. What they found was that today's U.S. soldiers, much like soldiers of the past, fight for each other. Unit cohesion is alive and well in today's Army. Yet, Dr. Wong and his fellow researchers also found that soldiers cited ideological reasons such as liberation, freedom, and democracy as important factors in combat motivation. Today's soldiers trust each other, they trust their leaders, they trust the Army, and they also understand the moral dimensions of war.

But what about U.S. agencies whose job it is to apply force to U.S. civilians? How do local agencies like the LAPD do it, or national agencies like the FBI? A National Guard unit tasked to do riot controL? It's not easy. The short answer is that is that they have built an organizational culture over time which motivates individual soldiers to do these tasks despite the moral difficulty with using force against fellow citizens. In law enforcement, the moral deprecation of the enemy (criminal population) is important, because law enforcers have to believe that they're doing good by using force. Similarly, police commanders engaged in riot control operations have to find some way to justify their actions, and it's generally accomplished with public safety imperatives. And of course, there are sanctions that are applied to anyone who falls out of ranks. U.S. cops or soldiers who don't play ball will be ostracized by their peers, and will likely also face administrative and/or criminal penalties as well.

All of these U.S. systems -- unit cohesion, leadership, administrative incentives/penalties -- take time to develop, along with the organizational culture which allows a unit to do these things. Even the Iraqi Army, as studied by Wong et al., lacked the organizational culture necessary to stand in fight. We should not be surprised that the infant Iraqi armed forces lack the will to fight, and especially that they lack the will to fight their own countrymen. I think this is a pretty strong indicator that (1) we cannot turn over sovereignty until we have crushed the most dangerous parts of the Iraqi insurgency and (2) that we must leave some force in Iraq to continue the fight until the Iraqis can build a viable force.

2004-04-11T09:10:00.000-07:00

What went wrong in Iraq last week: Rajiv Chandrasekaran and Anthony Shadid, two of the Washington Post's veterans in Iraq, have a lengthy report on the mistakes and successes which helped foment the current uprising underway in Iraq. It's an excellent piece of reporting and analysis, and I highly recommend it.