Wednesday, May 26, 2004
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.
Friday, May 21, 2004
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.
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.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.
Wednesday, May 19, 2004
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.
Tuesday, May 18, 2004
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.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.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.
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.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.
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.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.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.
Sunday, May 16, 2004
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.
Saturday, May 15, 2004
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.
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.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.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.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."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.
Friday, May 14, 2004
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.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.
"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.
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.
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.
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.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.